Optical Enactment and the Shari'a
One of the ruses that as a Realist I tend to find quite amusing in the development of law in the Muslim world is what I would term the optical enactment of legislation. That is, the enactment of legislation by a state meant only to signal to the world a particular position demanded by the global community. At the same time, the enacting state, or at least its legal elite, does not remotely recognize whatever it is enacting as legitimate and will promptly ignore it soon after its enactment. It always struck me that this sort of developing world twist on law was insufficiently taken into account by the Hartian model of postivism. What is the "rule of recognition" in such a system? there are state enactments which are absolutely law and binding as such, and there are others, similarly enacted, that are not regarded as legitimate, will not be enforced, will not be heeded as authoritative by the general population and will be ignored by the judiciary, or rendered inapplicable one way or the other. Most lie somewhere in between. The process of enactment is but the first step in the determination of the authority or legitimacy of law it seems to me.
This optical enactment scenario arises in any number of contexts. Foreign investors, for example, want a state to enact the New York Convention for the Enforcement of Arbitral Awards, and are not satisfied with any domestic legislation, no matter how friendly to the notion of arbitration, as a substitute. So states then enact the New York Convention, the market signal is achieved, investors and foreign legal advisors check it off their list of assignments, and all is well. On to the next country. Until, that is, a local judge gives the equivalent of the middle finger to the New York Convention, paying it almost no heed or interpreting it in a bewildering and often poorly reasoned fashion to set aside arbitration and rule in favor of his own government, often threatening the other side with contempt if they proceed with arbitration. Indonesia is the example par excellence, or was for a time. The flouting of human rights treaties by any number of states is another example.
Of course, everyone knows this can happen by now, or almost everyone, and they don't rely exclusively on enactment. Yet the emphasis placed on enactment as signal, as if it somehow means something and might not be simply optics, is quite remarkable. I suppose it is understandable enough--far easier to enact a law than ensure it permeates the legal and judicial culture, and so we opt for the lower hanging fruit. And yet, you'd still think there would be more skepticism respecting optical enactments than there are. Why for example would rather one invest in Indonesia knowing this than a nation that refuses to enact the New York Convention at all, but has similar if narrower legislation it takes seriously? The power of the signal strikes me as profoundly irrational at times.
The most conspicuous example to me respecting the emphasis of formal enactment over substantive retrenchment insofar as shari'a is concerned is in the case of the repugnancy clauses of the various Muslim constitutions, which void all law repugnant to shari'a, expressed in various formulations. There has been a great deal of work on these clauses--what they are supposed to mean, how they will work to Islamisize the state, are they examples of constitutional theocracy or theocratic constitutionalism or the Rise of the Islamic State, or heaven knows what else. Often overlooked is the fact that these clauses are, to date, for the most part, optical enactments. Secularist groups ceded to them, and a secular legal elite ceded to them, in the expectation that they would be nothing but optical, counting on the legal establishment to render them meaningless. And so far, it's worked out pretty well for them. Article 2 of the Iraq Constitution has never been invoked by the Federal Supreme Court so far as I can tell (and I've read quite a few FSC cases) and we're working on almost four years now. As for Egypt, its Supreme Constitutional Court has managed to exempt from judicial examination any laws in force prior to the repugnancy clause, and usually uses its repugnancy clause to deem void legislation it doesn't like that more or less has nothing to do with shari'a as most people understand it (ie rent control laws) using reasoning that can, at the very least, be seriously questioned.
This is part of a long line of legislation designed to appease Islamist forces demanding shari'afication, from the institution of Islamic criminal law in Pakistan to the reform of family law in Malaysia. Often, when you're left with elites controlling the same law, much does not change. It can change, when the elites in question actually like the law (blasphemy laws against the Ahmadiyya are enforced with regularity, more conservative provinces in Malaysia have no problem wiht polygamy even as others have thrown up so many roadblocks that it's impossible). But if they are hostile enough, it won't matter. While the criminalization of law in Pakistan has had some effect, there haven't been any stonings or amputations according to Ruud Peters in his 2005 book since those statutes were enacted in 1983. There isn't much interest. These enactments aren't entirely optical, as repugnancy largely is, but are generally marginal in application.
So what can you do when you are demanding change and are faced with an optical enactment? Well, you change the judges. If it's a foreign investor or a chamber of commerce advising a developing world country, it's a push to get more business savvy people onto the tribunals. This has been the push in Saudi, put the commercial tribunals in the hands of the Ministry of Trade, and let them pick the commercial judges. For Islamists in Iraq, it's the jurists. Islamists know perfectly well that the secular judges on the FSC aren't going to give them anything useful by way of shari'afication, they aren't interested in having secular judges play around with it. I'm not convinced Egyptian Islamists are much enthused about the dances the SCC does with its Article 2. What the Iraqi Islamists want, what they know they need if the optical enactment is ever to become something real, is judges who are more sympathetic to their ideological positions, because it isn't the law that determines the result, it's the decisionmaker. And so the real fight isn't over repugnancy, but over who gets to decide what it means. That's where the real money is going to be.
HAH
This optical enactment scenario arises in any number of contexts. Foreign investors, for example, want a state to enact the New York Convention for the Enforcement of Arbitral Awards, and are not satisfied with any domestic legislation, no matter how friendly to the notion of arbitration, as a substitute. So states then enact the New York Convention, the market signal is achieved, investors and foreign legal advisors check it off their list of assignments, and all is well. On to the next country. Until, that is, a local judge gives the equivalent of the middle finger to the New York Convention, paying it almost no heed or interpreting it in a bewildering and often poorly reasoned fashion to set aside arbitration and rule in favor of his own government, often threatening the other side with contempt if they proceed with arbitration. Indonesia is the example par excellence, or was for a time. The flouting of human rights treaties by any number of states is another example.
Of course, everyone knows this can happen by now, or almost everyone, and they don't rely exclusively on enactment. Yet the emphasis placed on enactment as signal, as if it somehow means something and might not be simply optics, is quite remarkable. I suppose it is understandable enough--far easier to enact a law than ensure it permeates the legal and judicial culture, and so we opt for the lower hanging fruit. And yet, you'd still think there would be more skepticism respecting optical enactments than there are. Why for example would rather one invest in Indonesia knowing this than a nation that refuses to enact the New York Convention at all, but has similar if narrower legislation it takes seriously? The power of the signal strikes me as profoundly irrational at times.
The most conspicuous example to me respecting the emphasis of formal enactment over substantive retrenchment insofar as shari'a is concerned is in the case of the repugnancy clauses of the various Muslim constitutions, which void all law repugnant to shari'a, expressed in various formulations. There has been a great deal of work on these clauses--what they are supposed to mean, how they will work to Islamisize the state, are they examples of constitutional theocracy or theocratic constitutionalism or the Rise of the Islamic State, or heaven knows what else. Often overlooked is the fact that these clauses are, to date, for the most part, optical enactments. Secularist groups ceded to them, and a secular legal elite ceded to them, in the expectation that they would be nothing but optical, counting on the legal establishment to render them meaningless. And so far, it's worked out pretty well for them. Article 2 of the Iraq Constitution has never been invoked by the Federal Supreme Court so far as I can tell (and I've read quite a few FSC cases) and we're working on almost four years now. As for Egypt, its Supreme Constitutional Court has managed to exempt from judicial examination any laws in force prior to the repugnancy clause, and usually uses its repugnancy clause to deem void legislation it doesn't like that more or less has nothing to do with shari'a as most people understand it (ie rent control laws) using reasoning that can, at the very least, be seriously questioned.
This is part of a long line of legislation designed to appease Islamist forces demanding shari'afication, from the institution of Islamic criminal law in Pakistan to the reform of family law in Malaysia. Often, when you're left with elites controlling the same law, much does not change. It can change, when the elites in question actually like the law (blasphemy laws against the Ahmadiyya are enforced with regularity, more conservative provinces in Malaysia have no problem wiht polygamy even as others have thrown up so many roadblocks that it's impossible). But if they are hostile enough, it won't matter. While the criminalization of law in Pakistan has had some effect, there haven't been any stonings or amputations according to Ruud Peters in his 2005 book since those statutes were enacted in 1983. There isn't much interest. These enactments aren't entirely optical, as repugnancy largely is, but are generally marginal in application.
So what can you do when you are demanding change and are faced with an optical enactment? Well, you change the judges. If it's a foreign investor or a chamber of commerce advising a developing world country, it's a push to get more business savvy people onto the tribunals. This has been the push in Saudi, put the commercial tribunals in the hands of the Ministry of Trade, and let them pick the commercial judges. For Islamists in Iraq, it's the jurists. Islamists know perfectly well that the secular judges on the FSC aren't going to give them anything useful by way of shari'afication, they aren't interested in having secular judges play around with it. I'm not convinced Egyptian Islamists are much enthused about the dances the SCC does with its Article 2. What the Iraqi Islamists want, what they know they need if the optical enactment is ever to become something real, is judges who are more sympathetic to their ideological positions, because it isn't the law that determines the result, it's the decisionmaker. And so the real fight isn't over repugnancy, but over who gets to decide what it means. That's where the real money is going to be.
HAH
Symbolic enactments of this sort are a well-known phenomenon in many societies. In the US, for example, law against working on Sunday, or against homosexual activities, were on the books but almost never enforced. But they can make a difference. Taking your judge who rejects the New York Convention, usually this sort of problem can be dealt with by an appellate process. Judges on appeals courts, no matter how legal realist their views might be, have a strong interest in the maintenance of a system of rules or precedents, because otherwise to effectuate their own positions they would have to review every single lower court decision individually. But when you have something like a Blue Law or a blasphemy statute, it is more difficult for elites to restrain prosecutors or judges who choose to enforce them. It's not easy to operate a system on the principle that lower-ranking officials should on all issues determine the preferences of their superiors and enforce them. Often they don't know, or misread, those preferences, and other times they want to follow their own preferences instead. Elites cannot, I think, dispense with the use of general enactments, and that gives significance even to the optical ones.
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I guess I would agree that statutes that pass some minimal rule of recognition test are likely to be given at least rhetorical attention by the higher courts, even if the lower ones and the Ministries responsible for regulations might pretty much declare them unenforceable. That does require some domestic constituency supporting those laws however to be possible. If you look at something like human rights treaties enacted by states, quite often they are supremely ignored, and there isn't a strong enough power base to make the challenging of these laws in a judiciary all the way through appeal very likely. The judges are hostile, the prosecutors are hostile, the lawyers don't want to do it, you might get beaten up, and all the rest of it. And so the law just sort of sits there and means nothing even as other laws are enforced.
With a domestic constituency, then yes the symbolic enactment can come to mean something, either through prosecutors, or through lower level judges, or whatever. But that often is just rhetorical. I don't agree they can't thwart blasphemy cases, the Egyptian SCC has done remarkably well at making the repugnancy clause mean almost nothing the Islamists want it to for example, and the Pakistani courts have done a pretty thorough job reading their own statutes pretty narrowly. Appeals in Indonesia avowedly did not work to make the NY convention mean anything, exceptions can always be found or invented no matter what the law says, and were. I suppose at some point the pressure for real change becomes strong enough that something substantive has to be done, and is. That might help demonstrate that the line between symbolic, near symbolic and substantive is largely built on shades of gray.
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