Law and law: Negotiating the tension between God's Will and Human Reality
Just the other day, a major Arab paper posted a story about how Mithal al-Alusi, an Iraqi parliamentarian has been offered from Iran bribes and other inducements to vote against whatever status of forces agreement emerges. It got me thinking into the sheer difficulty of trying to make some sort of notion of God's Law into political reality.
Looking at just the notion of whether or not the US should have forces in Iraq, it's hard to see how the outcome of this international legal matter, the rights and obligations of troops on foreign state soil, could be divorced from influences and interests that permeate the order. America with its power and its relationships on one side, and Iran with its juristic and religious influence, another form of power, on the other. What comes out will have to be mediated through them, through Najaf, through Sadr, through any one of these figures, and an international treaty, a form of law, established.
And for now let's assume Najaf has some pristine notion of how Islam is really supposed to be, faithfully derived through some sort of neutral methodology, or so we will assume and I'll try not to choke as I say it, and seeks nothing more or less than its enactment. STILL, clearly, the result of all the negotiations is going to be the result of power struggles, with Najaf but one actor among many. Realpolitik rules either way.
At one level, the Islamist might argue that she did the best she could with implementing Islam in this profane world and move on. It's not entirely convincing (if God is the true source of law and not the state, what, other than force compels obedience to the compromise?) but we've pointed that out before, so this time let's just accept that.
There's a deeper problem. A precedent has been established. Doctrine has started to develop. Would it be argued that the next time the US negotiates a forces agreement, Iraq's example won't be relevant? Of course it will. Why reinvent the wheel, what the forces acting on the order wanted last time was X, we'll just start with that, the thinking will go. And as it permeates, the doctrine develops, and changes, and twists and turns, and its origins in God's Law might appear ever more faint and obscure.
To your postivist, this isn't a problem. Law recognizes power distributions and in fact merely sets rules for the way things already are, and rules for how they might evolve in the future. There's no moral reason the five permanent members of the Security Council have veto power, it's just because they are powerful, or were at some point (doctrine has staying power and can be quite conservative in effect). International rules are then set through custom and the treaties states enact, and we all know these change.
But God's Law can't be the same as this. I don't mean it can't change, clearly it does all the time, radically, often without claiming to. But if it overtly changes merely to reflect what people do and what influences demand as the above approach does, then at some point it loses credibility as an independent value system. A positivist has no problem saying, for example, that to secure a loan against an item (like a house), at one time long ago the creditor had to take possession of the item but no more. The positivist doesn't need to justify it or explain it, it's just not done any more and the law should account for real business practices.
The guy wanting God's Law, it's not so easy. You have to change the rule. And when you do that, people will wonder, did you change it because you really think the first interpretation is wrong or are you just doing what business demands these days? And if the latter, why do we need you to interpret? What value can you really provide? I have heard various people say we need an Islamic UCC to govern Muslim commercial law. Excuse me? How? The UCC was developed precisely on the Realist premise that we go into the world, see how commercial actors behave, and make rules accordingly to help formalize that. How, precisely, would an Islamic UCC go about finding its rules? If it copies the UCC too closely, or the CISG more likely, it might be dismissed as not an authentic interpretation of God's Law.
The other approach is to insist on different rules, developed from Sacred Text (either historically or often in the modern world on the rhetoric of historicity but in fact completely different from it), and demand that the world conform to them. Law not to recognize reality and social forces, but change it. That often leads to irrelevance. In the best case, you might find some positive social change. In the worst case, it's sort of like Mao's Great Leap Forward, it turns out pretty badly because you can't just remake a whole society (see: Bush, George W. (Iraq)) and eventually after much devastation, it all goes back to the way it was before in large part.
And so ultimately a tension develops, and Muslim forces negotiate those poles, between calling for a total societal overhaul to return to somebody's notion of God's Law, or adapting God's Law to make it more or less amenable to the times while still remaining credible. Never an easy task, but a continual one among and within Islamist forces.
HAH
Looking at just the notion of whether or not the US should have forces in Iraq, it's hard to see how the outcome of this international legal matter, the rights and obligations of troops on foreign state soil, could be divorced from influences and interests that permeate the order. America with its power and its relationships on one side, and Iran with its juristic and religious influence, another form of power, on the other. What comes out will have to be mediated through them, through Najaf, through Sadr, through any one of these figures, and an international treaty, a form of law, established.
And for now let's assume Najaf has some pristine notion of how Islam is really supposed to be, faithfully derived through some sort of neutral methodology, or so we will assume and I'll try not to choke as I say it, and seeks nothing more or less than its enactment. STILL, clearly, the result of all the negotiations is going to be the result of power struggles, with Najaf but one actor among many. Realpolitik rules either way.
At one level, the Islamist might argue that she did the best she could with implementing Islam in this profane world and move on. It's not entirely convincing (if God is the true source of law and not the state, what, other than force compels obedience to the compromise?) but we've pointed that out before, so this time let's just accept that.
There's a deeper problem. A precedent has been established. Doctrine has started to develop. Would it be argued that the next time the US negotiates a forces agreement, Iraq's example won't be relevant? Of course it will. Why reinvent the wheel, what the forces acting on the order wanted last time was X, we'll just start with that, the thinking will go. And as it permeates, the doctrine develops, and changes, and twists and turns, and its origins in God's Law might appear ever more faint and obscure.
To your postivist, this isn't a problem. Law recognizes power distributions and in fact merely sets rules for the way things already are, and rules for how they might evolve in the future. There's no moral reason the five permanent members of the Security Council have veto power, it's just because they are powerful, or were at some point (doctrine has staying power and can be quite conservative in effect). International rules are then set through custom and the treaties states enact, and we all know these change.
But God's Law can't be the same as this. I don't mean it can't change, clearly it does all the time, radically, often without claiming to. But if it overtly changes merely to reflect what people do and what influences demand as the above approach does, then at some point it loses credibility as an independent value system. A positivist has no problem saying, for example, that to secure a loan against an item (like a house), at one time long ago the creditor had to take possession of the item but no more. The positivist doesn't need to justify it or explain it, it's just not done any more and the law should account for real business practices.
The guy wanting God's Law, it's not so easy. You have to change the rule. And when you do that, people will wonder, did you change it because you really think the first interpretation is wrong or are you just doing what business demands these days? And if the latter, why do we need you to interpret? What value can you really provide? I have heard various people say we need an Islamic UCC to govern Muslim commercial law. Excuse me? How? The UCC was developed precisely on the Realist premise that we go into the world, see how commercial actors behave, and make rules accordingly to help formalize that. How, precisely, would an Islamic UCC go about finding its rules? If it copies the UCC too closely, or the CISG more likely, it might be dismissed as not an authentic interpretation of God's Law.
The other approach is to insist on different rules, developed from Sacred Text (either historically or often in the modern world on the rhetoric of historicity but in fact completely different from it), and demand that the world conform to them. Law not to recognize reality and social forces, but change it. That often leads to irrelevance. In the best case, you might find some positive social change. In the worst case, it's sort of like Mao's Great Leap Forward, it turns out pretty badly because you can't just remake a whole society (see: Bush, George W. (Iraq)) and eventually after much devastation, it all goes back to the way it was before in large part.
And so ultimately a tension develops, and Muslim forces negotiate those poles, between calling for a total societal overhaul to return to somebody's notion of God's Law, or adapting God's Law to make it more or less amenable to the times while still remaining credible. Never an easy task, but a continual one among and within Islamist forces.
HAH
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