American and Muslim Perspectives on Law, Constitution and Religion
I am currently in Baghdad, working on a project entitled Global Justice Project Iraq and specifically heading up a constitutional review side of the project where we provide technical assistance and support to the Constitutional Review Commission, which is supposed to be working, and is working, on a series of constitutional amendments hopefully to be voted on this year. They write, we just offer ideas. No drafting, no lobbying, just ideas. I know that won't placate the paranoid and conspiracy minded who will assume I'm presentiing the amendments using the Constitution of Israel as the template, but what can you do.
But I can't really talk much about the project, other than to say I'm doing it, and that all will I promise be revealed to the broader world in the form of scholarship, indeed a book on the Iraq constitutional process, at a later date. (I'll keep you apprised as the time nears,, AFTER this is over.) But I can certainly talk about some insights I'm developing in a manner that doesn't reflect on the work we're doing in its specifics, and those I will try to share in the coming months. This week alone we've met the major players on the Constitutional Review Committee, as well as legal committee advisers to different institutions and groups and I've gotten a sense of things from this, and from my previous extensive exposure to Iraq, that I think bears mentioning.
The first idea that came to my mind, and that I wanted to blog about, related to the relationship of law and religion as formulated in the US and in Iraq, and how the more formalist understandings of law in Iraq lead Iraqis to massively different conclusions as to what does and does not belong in a constitution than, for example, Americans. A quick foray into the subject into both jurisdictions makes this clear.
Iraqis, like perhaps ordinary Americans who aren't lawyers, tend to think in forms and structures when it comes to constitutions and laws. So if you want something to be prescribed by the state, you make a law. But if you want it to be really important, you put it in a constitution, which is more important than a law. And so what ends up in the constitution are, in addition to obvious structural provisions (three branches, how law is made, etc.), fundamental values of the state. Free speech, freedom of expression, freedom of religion. And of course, in the Muslim world, the world famous "repugnancy" provision dictating that no law that violates shari'a (or something like it's fundamental tenets) may be enacted. This constrains law, the theory goes, and so is necessary in a true Islamic state. Talk to the Islamists here on the constitution, and I've seen quite a few in my life, and this week, and that's immediately obvious.
Now to a Realist, that's just the wrong way to be looking at this. The Constitution doesn't whomp law upside its head when there is a violation, it means nothing to say "law" is constrained by a "constitution" therefore. If you want to talk about this seriously, in the world of people, drop the abstractions and describe what's really happening. It is not 'law' that is constrained and not a 'constitution' constraining it, rather it is a legislature constrained by a judiciary. The people in black robes constrain the politicians in the suits.
This is clear from US scholarly analysis of law and religion in the US, if I might provide the following example. In our framework, the Supreme Court decided that any neutral law of general application satisfies the Free Exercise clause, meaning so long as the law wasn't intended openly or secretly to discrminate on the basis of religion, it could stand. SO, for example, pass a law that says no religious symbols on the person in school as is done in France, and that's clearly in the US unconstitutional. Doesn't take three seconds for a first year law student to explain why--it singles out religious garb and discriminates against it. "Hats okay, headscarves for religious reasons not" is bad law here. But "no head gear of any kind" is okay if it's sincerely neutral and has a neutral justification. Or "no drugs" in a manner that prevents Native Americans from using peyote in religious ceremonies. That in fact was the factual context of the case that decided this issue.
So the Native Americans can't use peyote under the constitution, it's not covered so long as there is a law out there that is neutral that bans all drugs. but of course the law can exempt anything it wants. It doesn't have to ban all drugs, it can say "peyote okay in religious ceremonies" as an exception. In fact, it was changed to say just that after the Court ruled there was no constitutional right.
The way that we American legal scholars tend to analyze this then is not "is the right to peyote at religious ceremonies important enough to put in a constitution". Rather, it's "which institution, legislature or judiciary, is better handled to protect this right?"
Fans of current US Supreme Court rules think it's better to let the legislature handle the exemptions. Look, they argue, the legislature created the peyote exemption, they make these sorts of exemptions all the time, they can handle it fine, Americans love religions, the legislature can do it. Others think that will privilege known religions over weird ones (this this group called the Santeria who sacrifice animals somewhere in Miami keep showing up in these cases) and therefore let the judges do it. I leave the debate to others.
But the point is, THAT's the debate. it's not in the Constitution because it's more important, it's in the Constitution because you want to privilege the judiciary over the legislature in deciding the issue, for whatever reason. (Legislature will not look favorably upon certain groups, decides according to political power, etc.) When you want to privilege the legislature (they are the elected ones after all), it stays out.
Turn now to Iraq. If Iraqis thought that way, or Egyptians thought that way, no Islamist party worth its weight in salt would actually be calling for constitutionalization of shari'a in their wildest dreams. There is no doubt that the legislative power is far more enamored of shari'a here than the Federal Supreme Court. Mashahadani the last speaker threatened to throw his shoe (literally, pre the Bush incident) at any law brought to him that violated shari'a. Islamists on the Sunni and Shi'i side are prevalent in the legislature. By contrast, I know a few of the judges on the FSC, I have respect for them, and no sane person would think them more eager than the legislature to ensure shari'a conformity. If you want to ensure Islamization, you don't worry about the courts, the courts are the elite, and the elite are almost never with the Islamists, but the masses often are.
So when I hear the Islamic parties talk about how important the repugnancy clause is to them, I am hearing "Midhat Mahmoud (chief judge of the FSC) is better at protecting Islam in the state than Humam Hamoudi, Jalal uldin Al- Saghir, Mahmoud Mashhadani, Bahaa Araji (Islamists all)," and I think they're nuts. And I say "well isn't the legislature more in your interests and therefore the decision left with it on Islam", they look at me as if I've suggested Islam isn't important. In the end, it's all just about how you happen to see the law, and the legal world.
HAH
But I can't really talk much about the project, other than to say I'm doing it, and that all will I promise be revealed to the broader world in the form of scholarship, indeed a book on the Iraq constitutional process, at a later date. (I'll keep you apprised as the time nears,, AFTER this is over.) But I can certainly talk about some insights I'm developing in a manner that doesn't reflect on the work we're doing in its specifics, and those I will try to share in the coming months. This week alone we've met the major players on the Constitutional Review Committee, as well as legal committee advisers to different institutions and groups and I've gotten a sense of things from this, and from my previous extensive exposure to Iraq, that I think bears mentioning.
The first idea that came to my mind, and that I wanted to blog about, related to the relationship of law and religion as formulated in the US and in Iraq, and how the more formalist understandings of law in Iraq lead Iraqis to massively different conclusions as to what does and does not belong in a constitution than, for example, Americans. A quick foray into the subject into both jurisdictions makes this clear.
Iraqis, like perhaps ordinary Americans who aren't lawyers, tend to think in forms and structures when it comes to constitutions and laws. So if you want something to be prescribed by the state, you make a law. But if you want it to be really important, you put it in a constitution, which is more important than a law. And so what ends up in the constitution are, in addition to obvious structural provisions (three branches, how law is made, etc.), fundamental values of the state. Free speech, freedom of expression, freedom of religion. And of course, in the Muslim world, the world famous "repugnancy" provision dictating that no law that violates shari'a (or something like it's fundamental tenets) may be enacted. This constrains law, the theory goes, and so is necessary in a true Islamic state. Talk to the Islamists here on the constitution, and I've seen quite a few in my life, and this week, and that's immediately obvious.
Now to a Realist, that's just the wrong way to be looking at this. The Constitution doesn't whomp law upside its head when there is a violation, it means nothing to say "law" is constrained by a "constitution" therefore. If you want to talk about this seriously, in the world of people, drop the abstractions and describe what's really happening. It is not 'law' that is constrained and not a 'constitution' constraining it, rather it is a legislature constrained by a judiciary. The people in black robes constrain the politicians in the suits.
This is clear from US scholarly analysis of law and religion in the US, if I might provide the following example. In our framework, the Supreme Court decided that any neutral law of general application satisfies the Free Exercise clause, meaning so long as the law wasn't intended openly or secretly to discrminate on the basis of religion, it could stand. SO, for example, pass a law that says no religious symbols on the person in school as is done in France, and that's clearly in the US unconstitutional. Doesn't take three seconds for a first year law student to explain why--it singles out religious garb and discriminates against it. "Hats okay, headscarves for religious reasons not" is bad law here. But "no head gear of any kind" is okay if it's sincerely neutral and has a neutral justification. Or "no drugs" in a manner that prevents Native Americans from using peyote in religious ceremonies. That in fact was the factual context of the case that decided this issue.
So the Native Americans can't use peyote under the constitution, it's not covered so long as there is a law out there that is neutral that bans all drugs. but of course the law can exempt anything it wants. It doesn't have to ban all drugs, it can say "peyote okay in religious ceremonies" as an exception. In fact, it was changed to say just that after the Court ruled there was no constitutional right.
The way that we American legal scholars tend to analyze this then is not "is the right to peyote at religious ceremonies important enough to put in a constitution". Rather, it's "which institution, legislature or judiciary, is better handled to protect this right?"
Fans of current US Supreme Court rules think it's better to let the legislature handle the exemptions. Look, they argue, the legislature created the peyote exemption, they make these sorts of exemptions all the time, they can handle it fine, Americans love religions, the legislature can do it. Others think that will privilege known religions over weird ones (this this group called the Santeria who sacrifice animals somewhere in Miami keep showing up in these cases) and therefore let the judges do it. I leave the debate to others.
But the point is, THAT's the debate. it's not in the Constitution because it's more important, it's in the Constitution because you want to privilege the judiciary over the legislature in deciding the issue, for whatever reason. (Legislature will not look favorably upon certain groups, decides according to political power, etc.) When you want to privilege the legislature (they are the elected ones after all), it stays out.
Turn now to Iraq. If Iraqis thought that way, or Egyptians thought that way, no Islamist party worth its weight in salt would actually be calling for constitutionalization of shari'a in their wildest dreams. There is no doubt that the legislative power is far more enamored of shari'a here than the Federal Supreme Court. Mashahadani the last speaker threatened to throw his shoe (literally, pre the Bush incident) at any law brought to him that violated shari'a. Islamists on the Sunni and Shi'i side are prevalent in the legislature. By contrast, I know a few of the judges on the FSC, I have respect for them, and no sane person would think them more eager than the legislature to ensure shari'a conformity. If you want to ensure Islamization, you don't worry about the courts, the courts are the elite, and the elite are almost never with the Islamists, but the masses often are.
So when I hear the Islamic parties talk about how important the repugnancy clause is to them, I am hearing "Midhat Mahmoud (chief judge of the FSC) is better at protecting Islam in the state than Humam Hamoudi, Jalal uldin Al- Saghir, Mahmoud Mashhadani, Bahaa Araji (Islamists all)," and I think they're nuts. And I say "well isn't the legislature more in your interests and therefore the decision left with it on Islam", they look at me as if I've suggested Islam isn't important. In the end, it's all just about how you happen to see the law, and the legal world.
HAH
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