Fundamental Misunderstandings of Law and Islam in Iraq
Back in 1979, when the Ayatollah Khomeini seized control of Iran through a populist revolution and then began to consolidate Islamic control, I remember some sense of anger and betrayal by people not so enamored of Islamic Revolution. They felt that the overthrow of the Shah had been to create some other kind of state, you can even see some of this in the animated film Persepolis, where the hope of post revolution Iran among many anti Shah types, communists, liberals, secular nationalists, gives way to disappointment and anger. Some of this might have been in reaction to levels of repression that were unexpected, but much of it was resentment that the Ayatollah wanted women to be veiled, for example, or adultery punished under law. This was all about Islamic rules as a form of state law.
Islamists, however, more or less shook their head in confusion at the reactions. There was no secret agenda to bring about Islamic rule, the Ayatollah had been writing about it for years. The most formative years of this theory of Islamic political rule, among Sadr and Khomeini, were in the 1970's, before the revolution. Muhsin Hakim, Najaf's chief cleric of the era, didn't embrace Khomeini in Najaf in the 1960's because he thought him too political, too eager to put the jurists in harm's way through threatening Baghdad's interests. To think that Khomeini wanted a liberal state, or democratic socialism, was simply wishful thinking on the part of those elements of society who wanted those things, and almost a willful turn away from what the man was saying in his writings. It would almost be like a group of Jews supporting Hitler during his rise and then turning out to be shocked, shocked to learn that Hitler was in fact an anti-Semite.
Well we are having a bit of the repeat of the same I think. If you go around our legal academy, you find eminent scholars (Noah Feldman, Intisar Rabb, Kristen Stilt, for example) publishing prestigious law review pieces or books in prestigious academic presses, about Islam and the Iraq constitution. The thought is pressed throughout that what Iraq really wants, or at least a plausible model for Iraq to consider, in its constitutional provision forbidding laws that violate the "certain rulings" of Islam, is to have judges selected by an elected legislature make these determinations. This seems to be the Great Muslim Hope of so many scholars in our times, the way forward to liberal Islamism, state judges selected through democratic mechanisms pushing the shari'a in positive directions.
Stilt compares to Egypt, with its now decades long jurisprudence on this, Rabb points to a repeal of the resolution of the Governing Council as a demonstration of the rejection of excessive juristic involvement, and Feldman, the most dissatisfying of all, just sort of says that's what Iraqi Islamists want without really even trying to demonstrate where he got it from, and elsewhere describes the provision in question as a "subtle" change enhancing Islamic control from the earlier version contained in the TAL.
That's my reductive summary of these works in this single context. Stilt doesn't suggest that the Iraqis will get it from Egypt, just says this might be a good model to follow, Rabb's theory on the role of jurist and judge is more elaborate than I have allowed (and actually quite enlightening, it sparkles inasmuch as it is a proposed theory of constitutionalism generally and not a description of Iraq), so it's fair to say that I have not at all, NOT AT ALL, encapsulated the thinking of the pieces in a paragraph or two. My point is not to claim this, there is wisdom and substantial and sophisticated thought behind all of these works that I don't pretend to do justice to, but I focus on one element--they all emphasize the role of state judge, chosen by elected officials, over jurist in the interpretation of shari'a in the context of the state.
Unfortunately, what our eminent scholarship lacks is some sort of connection to the Iraqis who wrote the Constitution, particularly I mean the Shi'i Islamists who pushed the Article 2 provision. Not a single one of these three scholars is known to the Islamists on the ground in Iraq who pushed for this clause. When the thought is raised, to them, that judges on a court will decide what is or is not shari'a, they look really confused trying to figure out how it is that people they have never heard of would come to such an odd, and deeply anti-Shi'i, conclusion. You tell them some say the Constitution works a subtle change on the TAL through the removal of a provision saying the legislation must conflict with Islamic CONSENSUS to be invalid and silence pervades the room. Who would think that is subtle, a legal adviser finally asked.
This became painfully clear this past weekend, when I went to New York to advise the Iraqi government on some number of legal issues, and spoke to a number of high legal professionals, in the Foreign Affairs office, in the Vice President's Office, on the Constitutional Drafting Committee and other senior legal advisers.
The Shi'i Islamists show me their drafts and tell me their notions of what Article 2 means, and it's pretty clear that judges determing shari'a to these parties is sort of like the Republican party going pro-choice. Yes there are no jurists doing this now, but the whole court hasn't been changed since the pre-Constitution era, the structure of the post-Constitution courts hasn't been put into existence yet. So the question is, when they get around to it, what kind of Constitutional Court do they want to see in Iraq and how will it deal with shari'a? And on this they are very clear, to anyone who wants to head down and talk to the Islamic parties, Da'wa, SICI, Fadhila, whoever.
The answer is they want, as per the Constitution, the Constitutional Court to have judges and jurists. (They called the latter "experts" (khubara') rather than "jurists" (mujtahidun), I asked why, they said the Americans freaked at jurists and they asked Najaf, and Najaf didn't give a damn about the word, so experts it was.) The experts would decide the Islamic law compatibility questions, and the judges would decide the other legal questions. So inasmuch as law conformng to shari'a, it would be the Islamic expert who decided, the judges would have no say, or an advisory role at best.
And how do the experts get selected? On this, again, in voice and writing it was unanimous on the part of the Islamists, Najaf chooses. It's a conscious repudiation of our academic theories, it's an open call for juristic control of one aspect of governance. And I know what will happen if it goes through, I was there, a kid, but there, in 1979. Everyone in the world will scream about betrayal and unfair surprise and how devious this whole thing was, and how they fooled all of us. The Islamists will scratch their heads and say "what did they think we wanted?"
Now of course there is a hangup in that Sunnis aren't going to sign on to a provision where all Islamic experts are Shi'is chosen from Najaf, and the Shi'i Islamists recognize this but nobody has figured out a way to get Sunni representation selected. They do necessarily turn to state organs to help develop a solution (the waqfs were one proposal) and that sort of explains why Sunnis elsewhere are willing to let judges decide shari'a questions, it's not an embrace of democracy, it's the lack of any other authority to do it.
As a result, the matter remains stalled and it does not seem to be a priority for Najaf. It is a priority in our Orientalist literature and policymaking circles to talk about this, for us it seems the Iraqi constitution can be boiled down to a single provision--Article 2's repugnancy provision--but in Iraq, matters are more complex. This is a side issue right now.
Moreover, there's a great deal of secular law at work, there is a strong secular rule of law tradition (judges are fighting the Islamists hard on this point,they don't want Najaf in their courts) and the Islamists hardly need to worry, as it seems rather unimaginable at this stage that a law passes the Parliament that Najaf objects to, it has too much political clout. So the old court stands, and could for a while, who knows, as Islamist desires are focussed elsewhere (federalism, which divides them, family law, which does not). It's really a back burner legal issue in Iraq, you have to ask to get them to talk about it--they volunteer about the American Status of Forces or property reconciliation or Kirkuk or provincial elections, they don't think much about Article 2, and like I said for now each side is okay with the impasse.
And you never know, the Islamists could lose an election one day, and then heaven knows what gets passed in terms of a court and its composition. One thing secularists might well do if they could, meaning if they had the power to force their will on legislation is not bothering repealing Article 2 (too hard), but passing through a law that makes the Constitutional Court all liberal judges, and let them render Article 2 more or less meaningless as concerns Islam. We aren't there yet, but things can happen.
So I don't want to make it sound like this is imminent, in fact my more recent scholarship is on the OVERemphasis on shari'a in understanding law in the Muslim states, but if we are going to talk about shari'a, which is important, and law and Islam, which is important, then we should talk about it as it exists among those who take it seriously, not as we might surmise or hope. Right now, the disconnect between us, and them, on their law, is terribly disconcerting.
I think the problem arises from the lack of information that might come to us from Iraqi Islamic groups. American policymakers are very eager to downplay Islamist tendencies, and so while they know the Iraqis who run the show, they aren't eager to raise these concerns, or ask the Iraqis about them. Our scholars as noted are often far removed from these people (not all, the eminent Chibli Mallat is a great example of someone who is known to Iraq policymakers) and neither side seems to have spoken to the other. There is a language barrier, which also impedes information and a cultural one (religious law as law?), and so it all adds up to a great potential for misunderstanding. And so we extrapolate from the places we understand better, Egypt, to reach conclusions that are so contrary to Iraqi conventional wisdom, they are akin to "the Republican party is actually pro-choice" or "the Democratic party believes in Christian principles limiting the state" without sounding as far removed from reality as they are because there is no check.
But whatever the cause, I find it dispiriting, and, following this weekend, enormously frustrating. It's not so much that I think one must always take a person at their word, we are scholars, not journalists. We are not here simply to convey what is reported by the actors themselves. More most concern us than this.
Still, I think it might be nice, every once in a while, in describing what group Y wants to see in their constitution, to pick up the phone and talk to someone from group Y about it. The answer might surprise, and certainly it would enlighten some of the work we do.
Forgive the stridency, I can't help it when I'm this frustrated.
HAH
Islamists, however, more or less shook their head in confusion at the reactions. There was no secret agenda to bring about Islamic rule, the Ayatollah had been writing about it for years. The most formative years of this theory of Islamic political rule, among Sadr and Khomeini, were in the 1970's, before the revolution. Muhsin Hakim, Najaf's chief cleric of the era, didn't embrace Khomeini in Najaf in the 1960's because he thought him too political, too eager to put the jurists in harm's way through threatening Baghdad's interests. To think that Khomeini wanted a liberal state, or democratic socialism, was simply wishful thinking on the part of those elements of society who wanted those things, and almost a willful turn away from what the man was saying in his writings. It would almost be like a group of Jews supporting Hitler during his rise and then turning out to be shocked, shocked to learn that Hitler was in fact an anti-Semite.
Well we are having a bit of the repeat of the same I think. If you go around our legal academy, you find eminent scholars (Noah Feldman, Intisar Rabb, Kristen Stilt, for example) publishing prestigious law review pieces or books in prestigious academic presses, about Islam and the Iraq constitution. The thought is pressed throughout that what Iraq really wants, or at least a plausible model for Iraq to consider, in its constitutional provision forbidding laws that violate the "certain rulings" of Islam, is to have judges selected by an elected legislature make these determinations. This seems to be the Great Muslim Hope of so many scholars in our times, the way forward to liberal Islamism, state judges selected through democratic mechanisms pushing the shari'a in positive directions.
Stilt compares to Egypt, with its now decades long jurisprudence on this, Rabb points to a repeal of the resolution of the Governing Council as a demonstration of the rejection of excessive juristic involvement, and Feldman, the most dissatisfying of all, just sort of says that's what Iraqi Islamists want without really even trying to demonstrate where he got it from, and elsewhere describes the provision in question as a "subtle" change enhancing Islamic control from the earlier version contained in the TAL.
That's my reductive summary of these works in this single context. Stilt doesn't suggest that the Iraqis will get it from Egypt, just says this might be a good model to follow, Rabb's theory on the role of jurist and judge is more elaborate than I have allowed (and actually quite enlightening, it sparkles inasmuch as it is a proposed theory of constitutionalism generally and not a description of Iraq), so it's fair to say that I have not at all, NOT AT ALL, encapsulated the thinking of the pieces in a paragraph or two. My point is not to claim this, there is wisdom and substantial and sophisticated thought behind all of these works that I don't pretend to do justice to, but I focus on one element--they all emphasize the role of state judge, chosen by elected officials, over jurist in the interpretation of shari'a in the context of the state.
Unfortunately, what our eminent scholarship lacks is some sort of connection to the Iraqis who wrote the Constitution, particularly I mean the Shi'i Islamists who pushed the Article 2 provision. Not a single one of these three scholars is known to the Islamists on the ground in Iraq who pushed for this clause. When the thought is raised, to them, that judges on a court will decide what is or is not shari'a, they look really confused trying to figure out how it is that people they have never heard of would come to such an odd, and deeply anti-Shi'i, conclusion. You tell them some say the Constitution works a subtle change on the TAL through the removal of a provision saying the legislation must conflict with Islamic CONSENSUS to be invalid and silence pervades the room. Who would think that is subtle, a legal adviser finally asked.
This became painfully clear this past weekend, when I went to New York to advise the Iraqi government on some number of legal issues, and spoke to a number of high legal professionals, in the Foreign Affairs office, in the Vice President's Office, on the Constitutional Drafting Committee and other senior legal advisers.
The Shi'i Islamists show me their drafts and tell me their notions of what Article 2 means, and it's pretty clear that judges determing shari'a to these parties is sort of like the Republican party going pro-choice. Yes there are no jurists doing this now, but the whole court hasn't been changed since the pre-Constitution era, the structure of the post-Constitution courts hasn't been put into existence yet. So the question is, when they get around to it, what kind of Constitutional Court do they want to see in Iraq and how will it deal with shari'a? And on this they are very clear, to anyone who wants to head down and talk to the Islamic parties, Da'wa, SICI, Fadhila, whoever.
The answer is they want, as per the Constitution, the Constitutional Court to have judges and jurists. (They called the latter "experts" (khubara') rather than "jurists" (mujtahidun), I asked why, they said the Americans freaked at jurists and they asked Najaf, and Najaf didn't give a damn about the word, so experts it was.) The experts would decide the Islamic law compatibility questions, and the judges would decide the other legal questions. So inasmuch as law conformng to shari'a, it would be the Islamic expert who decided, the judges would have no say, or an advisory role at best.
And how do the experts get selected? On this, again, in voice and writing it was unanimous on the part of the Islamists, Najaf chooses. It's a conscious repudiation of our academic theories, it's an open call for juristic control of one aspect of governance. And I know what will happen if it goes through, I was there, a kid, but there, in 1979. Everyone in the world will scream about betrayal and unfair surprise and how devious this whole thing was, and how they fooled all of us. The Islamists will scratch their heads and say "what did they think we wanted?"
Now of course there is a hangup in that Sunnis aren't going to sign on to a provision where all Islamic experts are Shi'is chosen from Najaf, and the Shi'i Islamists recognize this but nobody has figured out a way to get Sunni representation selected. They do necessarily turn to state organs to help develop a solution (the waqfs were one proposal) and that sort of explains why Sunnis elsewhere are willing to let judges decide shari'a questions, it's not an embrace of democracy, it's the lack of any other authority to do it.
As a result, the matter remains stalled and it does not seem to be a priority for Najaf. It is a priority in our Orientalist literature and policymaking circles to talk about this, for us it seems the Iraqi constitution can be boiled down to a single provision--Article 2's repugnancy provision--but in Iraq, matters are more complex. This is a side issue right now.
Moreover, there's a great deal of secular law at work, there is a strong secular rule of law tradition (judges are fighting the Islamists hard on this point,they don't want Najaf in their courts) and the Islamists hardly need to worry, as it seems rather unimaginable at this stage that a law passes the Parliament that Najaf objects to, it has too much political clout. So the old court stands, and could for a while, who knows, as Islamist desires are focussed elsewhere (federalism, which divides them, family law, which does not). It's really a back burner legal issue in Iraq, you have to ask to get them to talk about it--they volunteer about the American Status of Forces or property reconciliation or Kirkuk or provincial elections, they don't think much about Article 2, and like I said for now each side is okay with the impasse.
And you never know, the Islamists could lose an election one day, and then heaven knows what gets passed in terms of a court and its composition. One thing secularists might well do if they could, meaning if they had the power to force their will on legislation is not bothering repealing Article 2 (too hard), but passing through a law that makes the Constitutional Court all liberal judges, and let them render Article 2 more or less meaningless as concerns Islam. We aren't there yet, but things can happen.
So I don't want to make it sound like this is imminent, in fact my more recent scholarship is on the OVERemphasis on shari'a in understanding law in the Muslim states, but if we are going to talk about shari'a, which is important, and law and Islam, which is important, then we should talk about it as it exists among those who take it seriously, not as we might surmise or hope. Right now, the disconnect between us, and them, on their law, is terribly disconcerting.
I think the problem arises from the lack of information that might come to us from Iraqi Islamic groups. American policymakers are very eager to downplay Islamist tendencies, and so while they know the Iraqis who run the show, they aren't eager to raise these concerns, or ask the Iraqis about them. Our scholars as noted are often far removed from these people (not all, the eminent Chibli Mallat is a great example of someone who is known to Iraq policymakers) and neither side seems to have spoken to the other. There is a language barrier, which also impedes information and a cultural one (religious law as law?), and so it all adds up to a great potential for misunderstanding. And so we extrapolate from the places we understand better, Egypt, to reach conclusions that are so contrary to Iraqi conventional wisdom, they are akin to "the Republican party is actually pro-choice" or "the Democratic party believes in Christian principles limiting the state" without sounding as far removed from reality as they are because there is no check.
But whatever the cause, I find it dispiriting, and, following this weekend, enormously frustrating. It's not so much that I think one must always take a person at their word, we are scholars, not journalists. We are not here simply to convey what is reported by the actors themselves. More most concern us than this.
Still, I think it might be nice, every once in a while, in describing what group Y wants to see in their constitution, to pick up the phone and talk to someone from group Y about it. The answer might surprise, and certainly it would enlighten some of the work we do.
Forgive the stridency, I can't help it when I'm this frustrated.
HAH
Great post, but I can't resist the cheap shot: "Daniel Pipes or Bernard Lewis couldn't have said it better!"
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Ouch, that hurts. Is there no middle ground? Either the Islamists are the rule of law salvation for the Muslim world, bringing forth the new Islamic liberalism, or they are the embodiment of evil set out to destroy all that is good in it?
In an attempt to occupy that ground, and get smashed by cars moving on both sides of the street while I sit in that middle (as Pat Morita told the Karate Kid), I think Sistani and Najaf have generally played a positive role in trying to manage sectarian conflict, that their views of social justice are progressive and advanced and that they are a source of spiritual inspiration to millions of decent and honest and God fearing people and deserve considerable respect for this reason alone.
But it is wrong to suggest that their views of the state are liberal, because they are not or that they want shari'a to be reasonably responsive to public will through state structural principles, because they do not. They very much believe that it is the role of the jurist to correct the state, to oversee its elected bodies and to limit their legislation when it violates clear rulings of the shari'a. Islamists see this as a compromise, by the way, neither the Iranian style mullah control, nor even the "all legislation must derive from the shari'a" that they would have preferred in Iraq, but rather simple repugnancy. It can be Western law, that's okay, just has to not violate the shari'a. Whether that's really compromise or more facing reality (Islamic law doesn't deal with so many issues of importance to modern states), others can judge, and I'll pipe in on that at a later date too.
HAH
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I was just amusing myself. Of course, there are many middle grounds. But I would love to see the reaction to a white guy saying: "You fools! Those shifty Islamic mullahs are pulling one over on you and you silly liberals think they are one of you. Just wait and see when they get what they really want how illiberal it is. You refuse to believe what they say clearly and literally in Arabic!" Not to mention using the analogy with Jews and Hitler! (I would have added: Maggie Thatcher's 1979 campaign manifesto. Like Mein Kampf and Hukumet-i-Islami, no one took it seriously at the time but every word of it came true!)
I was more making a point about the public politics of speaking about Islam today. Someone not named "Haider Hamoudi" would be tarred with all sorts of brushes (did somebody say "Orientalism"?) for saying the very reasonable (even obvious) things you did in this post.
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The analogy to Hitler wasn't to equate the Islamic Revolution with the evil of Nazism at all, but rather the fact that Hitler, like Khomeini, or John Brown for that matter (to compare to a good guy, at least in my book) had clear, radical agendas long before they did anything, and all sorts of people grew surprised when they actually went about doing no more and no less than they said they believed in. But I guess it was more incendiary than that, he is the best example though, of a person who said consistently he believed something, and they handed him power and were surprised when he did what he said. Thatcher might be another, except I'd never even heard of the manifesto.
As a result, I take all of your points, save the adjective shifty and suggesting the Islamists are pulling one over on the liberals. The reason that I object to that is that this would be, for example, if I had said AK was actually secretly planning an Islamist takeover of Turkey when they say they are not, or that Khaled Abou El Fadl was secretly planning to spread poisonous murderous thoughts of Christians out at UCLA and is deceiving us as to what he truly believes in so our guard is down. or (my favorite) that the Shi'a have a secret plan to spread false Qur'ans around the world and so beware when they say they believe the same book because they don't. That, to me, IS paranoid, from the Islamophobic (my AK example) to the Islamic scholar (Qaradawi as per the Shi'a example) and perhaps deserves some sort of reaction. When a person tells you he believes X and then you ascribe to him soemthing else just because you don't believe him and with no other real evidence, that's pretty shady.
My point is that there is nothing shifty or deceptive about it in this case, in fact I think AK says what it does and does what it says. And the Supreme Council for the Islamic Revolution in Iraq says what it does, and does what it says, which isn't what AK says. We just have to listen. They aren't confiding in me in Arabic, they're just telling me the plan and the negotiations, they'd tell it to anybody. They know I'm writing a book on the Constitution, they wouldn't spend 3 hours with me otherwise, it's intended for dissemination, in English.
But yes, I can get away with it, and a white guy can't, I agree with that, there are politics at work. But then again, I can never be president (can you imagine, poor Obama is having a religion problem, and he's not even a Muslim, what would they do to me, an actual Muslim), so the public politics works both directions. Or actually the same direction, with different results. Basically, as with race, it's generally bad in educated circles to draw open conclusions of people on the basis of their religion, so the solution is to draw the conclusions in private or in code, and then deny it to self and others by hammering down on the white people who say anything in the open so as to prove the good intentions of all others. The white person is cowed into not being able to say things I can, I have to win some sort of award for all the times I am "randomly selected" for special screening (I've even been "randomly selected" standing at the gate, by the ticket guy looking at my boarding pass), but if anyone dared to say about me screen that camel humper they'd lose their job, it has to be a "random selection," and on we turn.
HAH
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