I have often spoken of the need for Realism in our approach to Islamic law in a way that parallels the manner in which US law is taught, which has led to a criticism by some of my academic colleagues; namely, that realism isn't quite as deeply esconced in the teaching of US law as I suggest.  It is fair, though it kind of reminds me of when I hear European human rights advocates chastise US human rights advocates for making the European Court of Human Rights into some amazing transnational panacea that solves all of the world's ills.  It's true the US people probably see it in a rosier fashion, mainly because the idea that there is an international court that can actually and effectively control human rights abuses in countries, and they actually comply with it as a matter of course is rather incredible to us Americans.   The same is the case here, I look at the total lack of Realism in the shari'a context and see my teaching of US law as a corrective to that.

But as noted the criticism is valid, and I thought I'd point out in this post how that was true, and provide a useful shari'a analogue to the American processes described.

I was in San Francisco a few weeks back for a conference and popped into a sports bar to grab a burger and watch the Steelers play football.  At some break I went outside to call my wife, and there was this overpowering smell of marijuana all around me.  It turns out everyone had left the sports bar to smoke joints outside.  I had to walk half a block just to be able to make my call.  Anyway, on my way back I asked one of the fellows why everyone was smoking their joints outside, where I supposed it was easier to get caught.  "Didn't you hear, tourist?" he said.  "We have a law in California, you can't smoke in bars anymore."

Of course I knew this, but what I found so amusing was that in fact California has two laws on this point.  One prohibits possession of marijuana (there is a fine for that, and don't tell me these people were really using it medicinally), and one prohibits smoking in bars.  One law was being dutifully followed, for it was the law, and the other was being entirely ignored as some prudish relic from Cro-Magnon blue noses up in Sacramento.  Two laws, same legislature, same processes of enactment.  One good, the other bad. 

Similarly, while in California, my brother warned me that if I do ride my bicycle, to be sure to stop at the stop signs in particular places he specified.  Meaning come to a full stop, put one leg on the ground, look both ways, and then proceed.   I ride my bike to work every day (except now, it's too cold in Pittsburgh), I've never done that.  If a cop is behind me, I'll slow down a lot at the stop sign, but put my foot down, at a four way stop sign where there is no other traffic around?  Are you serious?  But it is the law, even here.  Sign says no turn on red, it means bikes too. I do that in front of cops here, they don't care. 

None of this will you get from coming to law school in the United States.  It will not appear in the primary material we give to students--statutes and appellate cases.  Statutes don't tell you when they may be safely ignored, and when they must be followed, for they are the law.  Appellate opinions likewise aren't going to say anything about how we have to release people who violate statutes because they aren't important statutes, and so there is a formalism that is part of the educational system that is unfortunate. 

And it IS unfortunate because only a fool would navigate the law without knowing these things.  Only a terrible lawyer wouldn't know what traffic laws are important in a particular city or state (in Pittsburgh, first car makes a left at the light when it turns green before oncoming traffic moves), only an idiot of a person lights up the cigarette in the SF bar and chooses to follow the wrong one of the two laws.  These examples are fun, but there are countless others in business, tax, you name it, where some provisions are far more important than others, and every practitioner worth his weight in salt is aware of this.  He knows the formal law, he tells it to his client (he has to, the formal law means something, a cop having a bad day could have fined the weed smokers I guess), but he also knows what is going to really be trouble and what is less likely to be an issue, and he tells that too. 

So what does this have to do with shari'a?  Well the same processes occur in shari'a, and homosexuality is the best example.  If you talk to a deeply secular Iraqi, whiskey in one hand, mistress on the other, and raise the subject of gay marriage in America, or whatever, he will explain to you, as he sees it, that this problem is Western, and that we in the Muslim world do not have it because our religion prohibits it. 

A couple of points here, and the first, side point is that this is where our Western media really lost any sense of the broader world beyond America when it covered Ahmedinijad's claim that there are no gays in Iran.  While I share the media's deep skepticism of the claim, the fact is what the guy was saying is absolutely commonly believed among the intelligentsia in many many parts of the Muslim world.  Ahmedinijad is commonly dismissed as a righteous idiot among many Muslims I know (imagine how Bush is viewed in NYC, that is how the faculty at Baghdad Law School see Ahmedinijad), but this statemetn which caught the eye of the New York crowd he addressed was uncontroversial in the Muslim world in large part.  Read my book for a story of the extremely flamboyant homosexual leading a Shi'a chant in the Kerbala mosque, Shi'a Islam's holiest site.  I almost broke down laughing.  But nobody else did, they didn't think he was gay.  Gayest guy I ever saw, but to them, there are no gays in Iran or Iraq, so he was just sort of funny acting for whatever reason. 

But more germane to the point here is the fact that like the Pittsburgh guy in SF, not acculturated to the ways of the other, someone from the West doesn't know what to make of this fellow talking about our religion and gay people.  The Westerner looks at him and thinks You've got a Johnny Walker black in your hand, you're engaged in adultery, what are you talking about, shari'a?  It's not that his interpretation of shari'a is wrong, yes the classical books all make homosexuality a capital offense, it's that this isn't law in Iraq, the secular fights to the end to keep it that way, he doesn't want the shari'a as law, he'd already be violating it in any number of ways, but on this point, tradition absolutely rules. 

Another example would be drinking in Iraq.  Talk to the mullah, or to the religious generally, and Muslims don't drink.  But lots of Iraqis drink.  Way way too much in fact.  Whiskey is easier to come by in Kurdestan Iraq than Pennsylvania (I know I've said it before, but it remains true).  But women?  No drinking for them, it's unseemly.  God doesn't like that.  Maybe at New Year's but that's really it.  But you can't go to the mullah to complain, as people I know actually have, and complain because Islam is sexist on the drinking point.  (Funny that people choose this of all places on shari'a to make their stand on women's rights, but it does happen).  The mullah will tell you there is no sexism on the point, nobody should drink.  And the religious would agree.  And the secular would agree, except only as it applies to women.

What Realism is about, what it's trying to figure out, is precisely how these rules work in society, why some are recognized and others are not, why some are enforced and others not, to dig beneath the theoretical foundation ofmedieval jurists, or sometimes even of simply court opinions, to understand how law functions as a tool of social order in society. And I agree with my colleagues, more of it in the American and Islamic contexts would be a good thing.

HAH