The American judicial power, like any government institution, can be quite jealous of its territory. It insists, for example, on being the final say of what the law is. From the time of Chief Justice Marshall, the Supreme Court has staked out this principle, understood it to grant the judiciary the considerable power of constitutional review, and has in a variety of cases made it clear that Congress does not have coequal power over interpretation, even in areas where the Constitution could be understood to suggest it might (section 5 of the 14th Amendment, for example.)
Yet a tension exists between wanting to guard and protect this power zealously, and wanting to ensure continued legitimacy. Courts are reluctant to insert themselves into the
middle of hotly contested political disputes for fear of losing some
level of legitimacy (see Bush v. Gore for an example of that, Dred
Scott was another from another era). And so while the judges will insist they have the power to address some hot button issue (no judge would say that the court had no authority to decide at all Dred Scott or Bush v, Gore), they ironically might not exercise it despite this insistence. And this can often be done–judges have a variety of techniques they can use to avoid making any ruling. The Supreme Court, for example, can deny what is known as a writ of certiorari and avoid hearing a case altogether. For lower courts, who don’t have the luxury of cert, a variety of procedural objections might be made–a case is not ripe, or it is moot, or a party does not have standing, for example. Venue can be transferred. The case can be decided on alternative grounds.
Shi’i mujtahids operate in a very similar fashion in a simultaneous insistence of authority combined with frequent reluctance to exercise it, though not actually being judges, they have a far easier time of it. They can just avoid answering the question through indirect pronouncement that either side can use to its advantage. A salient example always comes up around this time of year (actually, a few weeks ago, but I was off then) in the Ashura commemorations.
To those unschooled in this particularly Shi’i practice, every year around the beginning of the Islamic New Year, Shi’is commemorate the death of Muhammad’s grandson Imam Husayn bin Ali at the hands of the caliph at the time, Yazid bin Mu’awiyah. I’ve written about this before, it’s not important for these purposes, except to note that the commemoration is extremely important, and extremely emotional. Shi’is wear black, beat their chests, weep uncontrollably, purportedly for the Imam, though personally I see the wailing and indignation at the injustice of the murder of the Imam being in such harmony with the Shi’i legends of the Shi’a as perpetual victims for upholding the true Islam that it’s hard to understand it purely with reference to a single historical event. Rather, the event is metaphor for a much broader narrative–we always get screwed, which narrative helps show how even now Shi’is in Iraq are insecure in their position despite clear demographic advantage that does not seem likely to change any time soon.
In any event, the more extreme commemorators go beyond this, and start taking razors and cutting their foreheads, or making long chains from which knives hang and throwing them over their back, and it starts to get pretty bloody. The most distasteful are those who cut their children’s foreheads, and the kid, often no more than 5 years old, starts screaming uncontrollably as blood pours down his face. Strange way to commemorate a victim.
But in any event, while these more extreme forms generate a great deal of (justifiable, in my view) negative publicity, they are controversial even within the Shi’i community. And so every year somebody objects to some of this, and every year others respond in force, and every year the high scholars of Najaf do the same thing, which is pronounce something broad and general that effectively says almost nothing (refer to my previous post on a very different example of the same phenomenon).
This year’s objector was Sayyid Hussain Baraka, an adviser to Prime Minister Nuri Al Maliki. It’s not a surprise that the objection came from within the Maliki camp, Maliki has been doing a great deal to advance his credibility among Sunnis, with some effect, including clamping down on the Mahdi Army and addressing concerns on de-Baathification. Coming down against more extreme forms of commemoration isn’t precisely something the Sunnis care about, most think these commemorations when taken this far are insane, but it won’t much affect their interests in the state. Still, much like Bill Clinton’s Sister Souljah moment, there is some sense in Maliki seeking to distance himself from more extreme Shi’a events while making sure to attend the less extreme forms of commemoration to build his broader middle coalition of moderately religious Shi’a, and Arab nationalists of all sorts. So Sayyid Hussain said you really shouldn’t do more than thump your chest lightly perhaps, weep, visit the tomb and the like, but anything beyond that was, and the word chosen was significant, bid’a or innovation, a favored Sunni term much more than Shi’i, taken from the Persians and the Turks (note the Arab nationalist hint in that). Again, while the particular context here involved politics (the provincial elections are near), it’s not an unusual criticism in principle.
Reaction was swift and immediate from a news outlet known as Buratha News, which is close to the Supreme Islamic Council of Iraq, though it’s become a bit of a rag with all its rants recently and it’s hard to know how well it’s controlled by the central leadership of the entire party. I have a hard time they sign off on all of it. This article in particular was silly– written by what it called an “collection”, لفيف for the Arabic speakers, though without a single name attached to it I can’t believe anyone of significance had anything to do with it. It accused Sayyid Hussain of suggesting that donating blood and distributing food, as some do during the commemorations, was forbidden as innovation (I guess technically in accordance with what he said in his interview, that everything except specific things was innovation, but clearly he had meant to refer to bloodletting, it was a bit of an unfair twist to read this into it), and suggested that the believers had been insulted by this man spouting off about something he knew nothing about and had no basis in Islamic teachings.
So the same old conflict arises–some Shi’a want to see some of this stuff just go away (I’m particularly embarrassed to see it in the US in some places, though i emphasize not in all or even most Shi’i mosques), some insist it must be preserved, and who do we normally turn to in order to answer such questions? Of course the high scholars of Najaf, who insist on having final say on all matters religious. To know if something is permitted or not by shari’a, under Shi’ism, you have to go to the scholars, just like if you want to know if something is permitted in Catholicism, the Pope is your man. Hence Najaf wants a say over legislation passed by the National Assembly to ensure its conformity with shari’a as required by Article 2 of the Constitution.
But of course this is even easier, while any secular is shocked at the notion that a clergy has something to do with the enactment of law, nobody except the most extreme Marxist would suggest they don’t have something to say about how religious commemorations are to be performed. This is their field, since they are supposed to rule, we may all, secular and religious alike, see what they have to say.
Yet despite their insistence that they are the final and only say on what the shari’a is, on this point what the high scholars more or less have to say is nothing. If you ask, the response you get from Sistani is that any practices not sanctioned by the followers of Imam Husayn after his death (for a few generations, during the lives of the Infallbles basically) are forbidden. Well, yeah, except that solves nothing. Maliki’s adviser himself said these bloodletting things were taken from the Turks and Persians, and the unnamed “collection” said God had sanctioned this and that Maliki’s man was forbidding what God had permitted. So each side can claim victory with a pronouncement like that.
Go to Sayyid Sistani’s website, and you get something equally Delphic to the same question. I quote (from the English version, don’t blame me if it isn’t artful)
The main purpose of mourning during ‘Ashura, is to respect and revive
the symbols of religion and remember the suffering of Imam Hussain
(a.s.), his companions, and his uprising to defend Islam and prevent
the destruction of the religion by Bani Umayyad dynasty. These rites
must be done in such a way that in addition to serving that purpose, it
draws the attention of others to these lofty goals. This of course, can also be used by both sides.
Now that’s not a criticism of the high scholars. They’ve got annoying liberals like me, and Maliki’s adviser, to deal with, and don’t want to alienate them, they’ve got a broad swath of Shi’i educated uncomfortable with the bloodletting, and they’ve got masses and masses of Shi’a underclass who have done this from time immemorial to their minds and aren’t about to change. These strands have to be negotiated, and just as our Supreme Court often doesn’t involve itself in particularly controversial matters (and usually regrets it when it does), Najaf finds it safer to stay on the sidelines. All sensible enough for the institution.
Still, there is some irony, is there not? The same institution that insists that only it may determine the shari’a is, despite urgent pleas all around, choosing to stay silent on a matter that is unquestionably an interpretation of shari’a.