First, to my Shi'i friends, on the occasion of the Arba'een 
عظم الله اجوركم بمصيبة ابا عبد الله الحسين


Second, thanks for all the concerns expressed about me, but my not writing for two weeks has much more to do with the publication cycle of law schools than anything else.  No the well has not dried up and no I certainly have no health problems thank God, just really busy in February.   I'll try to be a bit better the next couple of weeks and then revert to normal posting thereafter.

Anyway, since I last wrote, as I expected Maliki pulled off a huge victory, winning just about every Shi'i district, including most of the conservative ones.  He broke even with the more heavily Islamist  SICI in Najaf, and elsewhere pounded them pretty badly, though they are clearly the #2 outside Baghdad, where my goodness were they trounced.  The party with "law" in the name wins, and the party with the Islamic references loses.  I'll let the Islamicists in our world, where everything legal must be based on sharia or be irrelevant, explain how those results fit with the theory.  I don't think they do, I think Iraqis pretty much decided what they want the government to do is law, and what they want the clerics to do is religion.  It doesn't make them nonreligious, Iraqis can be quite devout, certainly in the south.  They take sharia seriously.  But the enforcement of law is really what they are demanding from the government.  Stop the bombs sort of thing.  It reminds me of some mayoral debate where Giuliani and his rival Messinger I think her name was got into some sort of who loves Israel more contest.  And I'm thinking "you're running for mayor.  Who cares what you think of Israel.  What are you going to do about dog crap is the question."  Doesn't mean the Middle East means nothing to me, it means there's a time and place to say everything,as Ali b Abi Talib says, and this was neither the time nor the place.

I've already written about the Iraq election phenomenon, to those interested here is an interesting Arabic editorial on the subject.  I haven't seen as much in English, surely it would have been headlines if Al Qaeda had won the Sunni areas, but Iraqis liking law doesn't generate the same enthusiasm.  Oh well.

But all this talk of desire for effective legal systems got me thinking about something friend of the blog Andrew March brought to my attention.  The story linked below is of some fellow in danger of getting killed or at least flogged for distributing the Qur'an in mosques in Afghanistan, but not having the Book in Arabic, or at least Arabic side by side with translation, rahter than no Arabic and just translation.  THis isn't per se a penal code violation, except that as per penal code and constitution judges may enforce shari'a even if there is no code on the subject.  This would be on that theory some sort of shari'a crime.  That's troubling.

To be clear, in classical times, this notion of making up crimes as you go along was perfectly acceptable.  You didn't have a "code" then (and I don't care what fans of siyasa shar'iyya say, siyasa is not a code (that's my next Article to which I've devoted so much time, I'll post on it and what it means to the novices later)), the crimes specified in the Qur'an are only seven, and you need more to have any level of social order.  If you testify against a woman for fornicating and the evidentiary standard isn't met, you are flogged for slander under the Qur'an, or so is the dominant interpretation.  Lie in court on some other issue though, and the Qur'an has no prohibition.  So the jurists made some crimes up, caliphs used their regulatory powers to make some up, and it all worked.  I might be too dismissive with my description, maybe it's not as capricious as this suggests, my point is however the mere fact that the rule hadn't been written down in some legally binding document was not something that concerned many people in the era. 

But this to most of us today isn't a good example of an effective legal system irrespective of whatever it was when it was.  Leaving aside for a moment whether or not we should be killing people for giving out free Qur'ans on some theory that they are offending Islam, which seems ridiculous to anyone reasonably modern, but let's set it aside, you can't just punish people for that which is not in a code.   

Now I do understand a qualification that my colleague Ken Gallant has written in an excellent book published I think by Cambridge University Press on Legality in different legal systems.  (Legality is shorthand for no crime and no punishment without a law--a touchstone of what I regard as an effective legal system.)  Professor Gallant points out that legality doesn't require the law to set out in detail every single crime, only suggest where they might be coming from.  That is, a law that says "the crimes set forth in the common law remain in force" or even "nothing herein repeals any crime set forth in common law" doesn't specify the crime, but it does satisfy legality, he says.  I'm not a criminologist I don't know if this is controversial, but in any event I think if it is to work there has to be some level of coherence around the common law crimes, as I think there are.  And so with sharia you might be able to do the same thing, at least for the scriptural crimes, the hudud. 

So Iran didn't have an apostasy law for some time (I don't know the fate of the draft that went around last fall), but it did criminalize all that was criminalized in the shari'a. Everyone knows that it is one of the seven scriptural crimes and so if you are dealing with serious people in the Muslim world wearing beards telling you all crimes under shari'a will be enforced, you know damn well not to change your religion from Islam.  People did, and got death sentences for it, according to Ruud Peters. 

That's awful, of course, but the point is it's more the substance of the crime than the procedure and the issue of legality that is the issue.  But it seems to me once one leaves the scriptural crimes and heads into the land of the discretionary crimes, problems emerge.  Okay, so perjury has to be a shari'a crime one argues, you really should know not to lie in court.  Or perhaps even easier insulting the Prophet.   The problem is, at what point can we start to say that an individual cannot be held to know every single thing that was a discretionary crime according to classical jurists in particular (and that's the touchstone of these laws) with any level of certainty?  Particularly because opinions differed in time and place on what they are? 

This is not the common law after all, as Lama Abu Odeh points out there has been a massive disruption in the Muslim world arising out of the colonial period, we haven't been doing Islamic law for a while.  So where a common law system one can argue the laws have been enforced by the judges throughout and so people are presumed to know them on that basis, that's not the case here.

And this is probably the best example of precisely the problem of legality and the shari'a, or perhaps more aptly stated the lack of legality and the shari'a as applied in all too many modern societies.  I look at shari'a for a living and I honestly couldn't say whether or not classicists cared about translated Qur'ans.  I've never heard this, I've seen plenty of translated ones, nobody has ever suggested to me it's sacrilege. That doesn't mean authority doesn't exist, but it's so attenuated, so distant, so beyond the general consciousness that to prosecute for something like this effectively destroys the most basic notions of legality, and conviction according to law.  It is arbitrary detention and random decisionmaking, determination by whim rather than by process, caprice over order.  It is, in other words, the precise opposite of what would expect if an Afghan Alliance for the Nation of Law ever arose.

HAH