Lilly Ledbetter and the Difficulties of Shi'i Taqlid
Though we teach our schoolchildren that legislatures make law, executives enforce law, and judges interpret law, those of us who have been even slightly affected by Legal Realism (ie most of the law school's professoriate), find this touching but silly, normatively appealing but descriptively preposterous. It is the failure to understand that the interpretation of law IS the very political exercise of making law that can create difficulties, in Islamic as well as Western jurisprudence.
So let's start with the West, a form of Realism 101, apologies to the thorough jurisprudes for the reductiveness and oversimplicity. Justice Roberts in his confirmation hearing provided a type of formal analogy that Congressmen love to hear and the American public long to believe, that Congress is like a baseball pitcher. It throws balls across the plate. The court has the umpire's job, not to throw the ball itself, but call it ball or strike. How easy, how elegant, how pretty to think so.
To see the problem with this, one need go no further than the Lilly Ledbetter v. Goodyear saga whose latest moment was one of delight for progressives. The story, as related incorrectly on one of the networks, maybe CNN, maybe MSNBC, I don't remember, was that Congress had passed the Civil Rights Act banning pay discrimination on account of gender, that the Bush administration had then thought it better to require that the suit had to be within 180 days, that this had then been upheld by the Court, but that the Bush change had been repealed by Obama yesterday.
Formally, this is not what happened. Lilly Ledbetter had been suffering from pay discrimination that she didn't know about for decades. When she found out about it, she sued. The antidiscrimination laws (Title VII of the Civil Rights Act in particular) require the filing of a complaint of "unlawful employment action" within 180 days of the date that it "occurred". Bush may have done much in office, but he didn't do anything with this. It never changed, it was always there. The real issue that came before the Court is when does an "unlawful employment action" "occur" in these circumstances. The Court (5 justices) said, when the decision was made to pay the person less. The dissent (4 justices) said when the pay is received, which obviously trickled out over time, unlike, say a firing, whch happens at once.
So the reporter, whoever it was (talking heads--so many of them I've lost track of who says what), was technically wrong, Congress had never changed the law before yesterday. But looking at it from a Realist perspective, ie from the view of the effect of the law, they may as well have. For the next litigant, who in the heck much cares whether it's a Court or a Congress that prevents me from suing, the point is, the law does. The decision is precedent, it's binding on future courts.
Moreover, of course the justices knew that. So they know that if they rule in favor of Goodyear, they block suits of this sort and they rule in favor of Ledbetter, they open the doors to them. Those concerned with burdening the courts and employers with too many discrimination claims are pretty likely to want to bar the decisions, those more concerned about employees who suffer from discrimination are more likely to want to open them. And so the Court's liberal side thought "occurrence" had a broader meaning than the majority did, and they lost 5-4. It's not ball and strike, there's no right answer as to whether or not "occurrence" means when the lower pay is given or the decision to pay less is given, ask me, I think the former because I think it's outrageous to suggest an employer can escape discrimination by hiding it for 180 days. Ask some pretty smart people on the other side they'll disagree. They control the Court.
But Obama is on my side, the Democratic majority is on my side, my side won eventually through a law signed by Obama yesterday changing the law to the dissent's proposal. So Congress made a law, and then the Court made a law. Or in effect they made a law. Both were politically motivated it seems to me. Then Congress made another law because it didn't like the consequences of the Court's law and they did like the dissent's law and that's where we are now.
The lesson (apologies if it's basic to some) is that rules aren't self executing. For them to mean anything, the interpreter has to take them and apply them, and the application of them is in fact the making of new law. If the original rulemaker doesn't like the way they are applied, he has to change the law, meaning that the separation from rule making to rule application isn't very clear at all.
This point is fundamental in understanding some consequences in the manner in which taqlid, or imitation, is purported to work in Shi'ism. Basically, the idea is that the high scholars of Najaf, the mujtahidun, make the rules,and each Shi'i lay follower reads those rules and applies them. The lay person has to pick a mujtahd to imitate, the one he considers most learned, but the lay person then really isn't supposed to be doing anything but following the rule as it's laid out.
But that assumes the same sort of mechanical ball/strike division that is more myth than reality. Sherman Jackson makes this point in his absorbing and thorough account of the jurisprudence of a medieval Sunni thinker, Shihab ad-Din al-Qarafi--namely, that taqlid, or imitation, is itself a creative process, but at least according to modern Shi'i thought, it's not supposed to be, but it must be.
Let's take an easy example. Let's say I choose Sistani as my mujtahid. THen I read his rules, there are quite a few, and I notice, as an American lawyer, that these rules aren't exactly the same as American law. And so I think to myself, I wonder, is it okay to practice American law when it isn't based on Sistani's Islamic rules?
First point is, I had to have come up with the question in the first place. It's legitimate, but someone who was a lawyer and comfortable with it, it might not even occur to them in the slightest that they are doing anything wrong. They'd never ask whether it was okay.
Second, even if I ask Sistani, what I get is something along the lines of "if it doesn't require you to forfeit the truth, or to lie, or to do other prohibited acts, there is no problem with it" (see in Arabic here)
Now it's easy to scoff at this, jeer or make fun at its broad ambiguity, but I don't. Yes it's vague but what can the man say? He doesn't know the details of the work of the person asking, what he's getting at it seems is "title searches okay, defending brothels not okay."
And so then the follower is left to apply the rule within this very broad ambit, and applying the rule is basically making the rule. That then leaves the follower to do a great deal that he likes, that is within his interest, and that serves him well. I won't say he can do anything he likes, but I will say he can do quite a bit. And in many cases (such as the limitations on the ability to be a US lawyer), the main thing the mujtahid gave him was an authority to rely on when pursuing predetermined interests.
HAH
So let's start with the West, a form of Realism 101, apologies to the thorough jurisprudes for the reductiveness and oversimplicity. Justice Roberts in his confirmation hearing provided a type of formal analogy that Congressmen love to hear and the American public long to believe, that Congress is like a baseball pitcher. It throws balls across the plate. The court has the umpire's job, not to throw the ball itself, but call it ball or strike. How easy, how elegant, how pretty to think so.
To see the problem with this, one need go no further than the Lilly Ledbetter v. Goodyear saga whose latest moment was one of delight for progressives. The story, as related incorrectly on one of the networks, maybe CNN, maybe MSNBC, I don't remember, was that Congress had passed the Civil Rights Act banning pay discrimination on account of gender, that the Bush administration had then thought it better to require that the suit had to be within 180 days, that this had then been upheld by the Court, but that the Bush change had been repealed by Obama yesterday.
Formally, this is not what happened. Lilly Ledbetter had been suffering from pay discrimination that she didn't know about for decades. When she found out about it, she sued. The antidiscrimination laws (Title VII of the Civil Rights Act in particular) require the filing of a complaint of "unlawful employment action" within 180 days of the date that it "occurred". Bush may have done much in office, but he didn't do anything with this. It never changed, it was always there. The real issue that came before the Court is when does an "unlawful employment action" "occur" in these circumstances. The Court (5 justices) said, when the decision was made to pay the person less. The dissent (4 justices) said when the pay is received, which obviously trickled out over time, unlike, say a firing, whch happens at once.
So the reporter, whoever it was (talking heads--so many of them I've lost track of who says what), was technically wrong, Congress had never changed the law before yesterday. But looking at it from a Realist perspective, ie from the view of the effect of the law, they may as well have. For the next litigant, who in the heck much cares whether it's a Court or a Congress that prevents me from suing, the point is, the law does. The decision is precedent, it's binding on future courts.
Moreover, of course the justices knew that. So they know that if they rule in favor of Goodyear, they block suits of this sort and they rule in favor of Ledbetter, they open the doors to them. Those concerned with burdening the courts and employers with too many discrimination claims are pretty likely to want to bar the decisions, those more concerned about employees who suffer from discrimination are more likely to want to open them. And so the Court's liberal side thought "occurrence" had a broader meaning than the majority did, and they lost 5-4. It's not ball and strike, there's no right answer as to whether or not "occurrence" means when the lower pay is given or the decision to pay less is given, ask me, I think the former because I think it's outrageous to suggest an employer can escape discrimination by hiding it for 180 days. Ask some pretty smart people on the other side they'll disagree. They control the Court.
But Obama is on my side, the Democratic majority is on my side, my side won eventually through a law signed by Obama yesterday changing the law to the dissent's proposal. So Congress made a law, and then the Court made a law. Or in effect they made a law. Both were politically motivated it seems to me. Then Congress made another law because it didn't like the consequences of the Court's law and they did like the dissent's law and that's where we are now.
The lesson (apologies if it's basic to some) is that rules aren't self executing. For them to mean anything, the interpreter has to take them and apply them, and the application of them is in fact the making of new law. If the original rulemaker doesn't like the way they are applied, he has to change the law, meaning that the separation from rule making to rule application isn't very clear at all.
This point is fundamental in understanding some consequences in the manner in which taqlid, or imitation, is purported to work in Shi'ism. Basically, the idea is that the high scholars of Najaf, the mujtahidun, make the rules,and each Shi'i lay follower reads those rules and applies them. The lay person has to pick a mujtahd to imitate, the one he considers most learned, but the lay person then really isn't supposed to be doing anything but following the rule as it's laid out.
But that assumes the same sort of mechanical ball/strike division that is more myth than reality. Sherman Jackson makes this point in his absorbing and thorough account of the jurisprudence of a medieval Sunni thinker, Shihab ad-Din al-Qarafi--namely, that taqlid, or imitation, is itself a creative process, but at least according to modern Shi'i thought, it's not supposed to be, but it must be.
Let's take an easy example. Let's say I choose Sistani as my mujtahid. THen I read his rules, there are quite a few, and I notice, as an American lawyer, that these rules aren't exactly the same as American law. And so I think to myself, I wonder, is it okay to practice American law when it isn't based on Sistani's Islamic rules?
First point is, I had to have come up with the question in the first place. It's legitimate, but someone who was a lawyer and comfortable with it, it might not even occur to them in the slightest that they are doing anything wrong. They'd never ask whether it was okay.
Second, even if I ask Sistani, what I get is something along the lines of "if it doesn't require you to forfeit the truth, or to lie, or to do other prohibited acts, there is no problem with it" (see in Arabic here)
Now it's easy to scoff at this, jeer or make fun at its broad ambiguity, but I don't. Yes it's vague but what can the man say? He doesn't know the details of the work of the person asking, what he's getting at it seems is "title searches okay, defending brothels not okay."
And so then the follower is left to apply the rule within this very broad ambit, and applying the rule is basically making the rule. That then leaves the follower to do a great deal that he likes, that is within his interest, and that serves him well. I won't say he can do anything he likes, but I will say he can do quite a bit. And in many cases (such as the limitations on the ability to be a US lawyer), the main thing the mujtahid gave him was an authority to rely on when pursuing predetermined interests.
HAH
Comments