Islam and the Alliance for the Nation of Law
By all accounts, Prime Minister al-Maliki's list seems poised to do quite well in the upcoming provincial elections. What I find most interesting about the list is its name--The Alliance for the Country of Law. (ائتلاف دولة القانون)
The term "law" is to my mind very significant, it isn't "Right", or "Justice" or, as my mentor and friend George Fletcher would say, "Law with a capital L", in other words not the ethereal omnipresent kind, but "law" as in qanun, of the very statutory and state issued variety. I'll leave the history minded to explain the etymological origins of the term in Ottoman times I think, but in this day and age, to an Arab audience, qanun means state law. It absolutely does not mean "Islamic law" and in fact is to be read in contradistinction to it. Hence the Constitutional provisions in various states that say that the legislature may not enact any qanun that violates the core tenets of (or something similar) the shari'a. The term qanun refers just to the state's law, bearing no necessary relationship to the shari'a absent some constitutional text to require such a relationship.
I think one can fairly read into this choice of term by Maliki a healthy repudiation of the Sadrists and the Qaeda types, who didn't think very much of state law, or qanun, when they controlled particular areas. They certainly did have means of promulgating their rules (graffiti on walls and the like) and enforcing them through their own version of tribunals, law of a different sort I suppose. There was a New York Times piece today about something similar in Taliban controlled areas of Pakistan (radio announcements, but certainly it didn't resemble a state in any real sense of the term. Like in Pakistan, if the article is to believed, these things are generally not held in high favor among the local population, in fact they abhor them, and Maliki is trying to take advantage of that distaste and use his credentials as the man who brought the state, and law and order, back to Iraq in various regions.
This is the broader point really, operative well beyond Iraq and Maliki's own political future, that the term qanun has a remarkably positive connotation, akin to "law and order". When you say I am bringing back the qanun it's a play for votes. Yes of course other parties will continue to make Islamic references, the Iraqi Islamic Party, and, a really great one, the Party of the Martyr of the Prayer Niche, referring to Ayatollah Baqir Al Hakim, killed right in front of the Grand Mosque in Najaf. I don't mean to suggest that Islamic references do not resonate in Iraq, of course they do. The point, however, is that people like "law" and in fact want "law", as in state law, to play a larger, not smaller, role in establishing public order.
"Law" is then not some ancillary instrument through which the shari'a is spread, because when the shari'a is spread through other means in derogation of law nobody seems to want it. The established and intelligent religious authorities in Iraq, Najaf in particular, don't actually even seek to do that, only the hotheads do. The established authorities like the idea of law. Rather than instrument then, law is indepedent symbol and substance, legitimate because enacted by the state (that's what makes it a qanun after all), the bringer of order and organization, in some cases against forces not associated with the state which purport to apply shari'a in a nonstate fashion.
Religion may still be relevant in various ways to public order, including in some cases to some extent to help shape the form of the law, or limit it, but so are the enactments of the state, and their enforcement (surely this is part of what is meant by a "Country of Law") by professional officials trained in various parts of that task, and not necessarily in the area of religion.
What does all of this mean? Well I think it might well be, in the context of Iraq, a rather grand repudiation of the to my mind increasingly silly idea that Muslims are ambivalent about the idea of the modern nation state, or that somehow the idea that the state, and its law, can only be justified through reference to shari'a, that state and law can only be vehicles to the implementation of that shari'a and have no independent legitimacy. Because when given religion without state law, Iraqis recoil and yet when promised a country law, without explicit reference to religion (though general conformance may fairly be implied), they seem rather eager to jump on board.
HAH
The term "law" is to my mind very significant, it isn't "Right", or "Justice" or, as my mentor and friend George Fletcher would say, "Law with a capital L", in other words not the ethereal omnipresent kind, but "law" as in qanun, of the very statutory and state issued variety. I'll leave the history minded to explain the etymological origins of the term in Ottoman times I think, but in this day and age, to an Arab audience, qanun means state law. It absolutely does not mean "Islamic law" and in fact is to be read in contradistinction to it. Hence the Constitutional provisions in various states that say that the legislature may not enact any qanun that violates the core tenets of (or something similar) the shari'a. The term qanun refers just to the state's law, bearing no necessary relationship to the shari'a absent some constitutional text to require such a relationship.
I think one can fairly read into this choice of term by Maliki a healthy repudiation of the Sadrists and the Qaeda types, who didn't think very much of state law, or qanun, when they controlled particular areas. They certainly did have means of promulgating their rules (graffiti on walls and the like) and enforcing them through their own version of tribunals, law of a different sort I suppose. There was a New York Times piece today about something similar in Taliban controlled areas of Pakistan (radio announcements, but certainly it didn't resemble a state in any real sense of the term. Like in Pakistan, if the article is to believed, these things are generally not held in high favor among the local population, in fact they abhor them, and Maliki is trying to take advantage of that distaste and use his credentials as the man who brought the state, and law and order, back to Iraq in various regions.
This is the broader point really, operative well beyond Iraq and Maliki's own political future, that the term qanun has a remarkably positive connotation, akin to "law and order". When you say I am bringing back the qanun it's a play for votes. Yes of course other parties will continue to make Islamic references, the Iraqi Islamic Party, and, a really great one, the Party of the Martyr of the Prayer Niche, referring to Ayatollah Baqir Al Hakim, killed right in front of the Grand Mosque in Najaf. I don't mean to suggest that Islamic references do not resonate in Iraq, of course they do. The point, however, is that people like "law" and in fact want "law", as in state law, to play a larger, not smaller, role in establishing public order.
"Law" is then not some ancillary instrument through which the shari'a is spread, because when the shari'a is spread through other means in derogation of law nobody seems to want it. The established and intelligent religious authorities in Iraq, Najaf in particular, don't actually even seek to do that, only the hotheads do. The established authorities like the idea of law. Rather than instrument then, law is indepedent symbol and substance, legitimate because enacted by the state (that's what makes it a qanun after all), the bringer of order and organization, in some cases against forces not associated with the state which purport to apply shari'a in a nonstate fashion.
Religion may still be relevant in various ways to public order, including in some cases to some extent to help shape the form of the law, or limit it, but so are the enactments of the state, and their enforcement (surely this is part of what is meant by a "Country of Law") by professional officials trained in various parts of that task, and not necessarily in the area of religion.
What does all of this mean? Well I think it might well be, in the context of Iraq, a rather grand repudiation of the to my mind increasingly silly idea that Muslims are ambivalent about the idea of the modern nation state, or that somehow the idea that the state, and its law, can only be justified through reference to shari'a, that state and law can only be vehicles to the implementation of that shari'a and have no independent legitimacy. Because when given religion without state law, Iraqis recoil and yet when promised a country law, without explicit reference to religion (though general conformance may fairly be implied), they seem rather eager to jump on board.
HAH
Interesting. Don't you think that this is closer to what Feldman is arguing? I.e., he is not arguing that Muslims only see shari'a as legit, or that they only see "law" when they see shari'a, but that what they mean when they demand the shari'a-state is something like the rule of law as you describe it above?
Could Maliki have used "nizam" to the same effect? Or would that have had authoritarian implications that (a) he was not trying to convey and (b) he therefore assumes that the people are not yearning for? They want order but only through law and not through shawka/sulta?
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Yes and no I guess on the first part. Yes that Muslims want the state to preserve order, no that it is as tied to Islamicity, legitimized as defined by it and through it as Feldman seems to suggest. I read Feldman as suggesting that the state has to be legitimized through the shari'a, that when Muslims think "rule of law", they think the Islamic state of the old days, but with appropriate modernizing modifications. Leaving aside my Realist choking at the latter qualification (I realize it's my phrasing, so I'm choking on my own words), I don't think Iraqis are thinking Maliki is bringing back a state that defines itself by medieval authority, or religious authority. I think they want a strong state again, and shari'a has almost nothing to do with it. Yes that does assume that the law doesn't go off and open up a red light district or something, in that sense broad conformity to shari'a is assumed but really, it's not about shari'a or defined by it or through it so much as carefully respectful of it, kind of like the Sanhuri code.
I was not sure where you wanted Nizam so I guess I'm confused. Instead of Dawla I think it's okay, though then the use of the word Nizam al-Qanun sounds like a repudiation of Saddam more than the Sadrists/Al Qaeda folks. We aren't the former regime, we are the regime of law kind of thing. Still the emphasis on law would be important. Dawlat al-Nizam sounds strange to me, in that Nizam is so associated with "regime" as well as "order" that it comes off sounding like the government of the regime more than the country of order.
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I meant something like "I'tilaf al-nizam" or just "nizam" as a slogan.
I actually haven't read all of Noah's book. The section I read, and his talks make it seem more like his claim is that "Muslims hear 'shari'a' and think 'rule of law'" rather than hear "legitimacy" and think "shari'a." If that is accurate, than what you and he are saying is pretty close: what most really want is rule of law with sufficient "authenticity" - and the latter may be achieved by anything to the Islamic side of the Sanhuri code.
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Maybe I am overemphasizing the broad conformity point, as I see myself on the opposite pole of Feldman. Let me try again. Iraqis want their law enforced. Do they think their law is consistent with their Islamic norms? Of course, just as we think the UCC is consistent with our own norms. So yes if someone said drop this waqf nonsense I hate shari'a, they'd lose. But they aren't around, or they are Iraqi Americans nobody on the ground pays attention to, and so it's not really part of the conversation.
So then the question is "why vote Maliki" versus say, Hakim (I'll assume a Shi'i person here) given this reality. Or if you want the Pakistan version, why march with the Islamists against Chinese masseuses or why march with the lawyers against the arrest of the Chief Justice (they happened basically the same time). Again, yes if the Chief Justice decided to frequent Chinese masseuses then again it's different, but he's not, so while I will admit you need some level of law and shari'a to be authentic and real, the question is, within those very broad constraints (sanhuri Code over, as you say), which is where just about any political party worth its weight in salt is today, why choose the Islamist over the Maliki, or the Islamist over the Chief Justice defenders?
So in answering this question, in understanding why the Islamist is popular or not depending on time and place, I think "shari'a" is totally divorced from the question of "rule of law". Those who think "shari'a" is important, they mean what they want is someone to do something about Chinese masseuses, they are less concerned about the Chief Justice. If they come to power through coup as in Pakistan or the Sudan, it's all good, as the goal is God's rule on earth ultimately. Or maybe I'm being too critical, maybe some are bothered, but not as much as they are by the masseuses. The point is, they don't hear shari'a and think "rule of law", they think "getting rid of the vice.".
If they hear "a nation of law" they think "rule of law". So they want Maliki because he will bring order. If he used drugs, then he'd lose, or if he drank whiskey in Ramadan, same. But so long as he is within the broad constraints and says basically nothing about shari'a and is assumed just to keep it, but enforce it as it exists, that's signalled by "nation of law." Those who vote for a party that says "shari'a", it's not because of rule of law, that's what Maliki is promising, but because they want fewer women in the streets unveiled. Or they want less beer on Abi Nuwas street. Or they want clerics responsible for rulemaking authority over family law. The rule of law might be of some concern to some of them, but that's not what makes shari'a the draw for the groups that want it.
HAH
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Thanks for all the info, we need this at this time. Great work and may Allah give you more strength to educate the society.
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Well, yes, this was my basic objection to NF's thesis. I also agree that the demand for shari'a on the part of many has a lot to do with identity-assertion which then takes the form of moral rigorism.
But I do think that there could be a certain kind of constituency which feels some of the identity-assertion (possibly for more genuinely religious reasons) but is less instrumental, less politicized than the Islamist activists. They want rule of law, want stability and order and are probably flexible about the letter of shari'a. So maybe these folks are an overlap (venn-diagram style) or the proverbial swing voters.
Of course, the problem for anyone whose primary concern is rule of law is that if they think about it for 2 minutes they will be confronted with the dilemma of voting for a party-movement as their path to more responsive govt.
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