Yesterday during my one day off this week my friend Muayyad and I had a conversation that inspired this post. 

There are times when judicial and juristic institutions demand specific changes in historical approach, and are markedly successful in gathering some level of already existing social momentum in favor of those changes.  Those historical moments are always well documented.  We all know the role of Brown v. Board of Education in the civil rights movement, those aware of Islamic movements know of Sadr's work, and Khomeini's, inspiring a massive change in the Shi'i Muslim establishment to make the clergy more relevant to civil society.

But there are other times when these same institutions take ginger steps at some forms of social change that end up falling flat on their face, and then are quickly forgotten.  We would do well to remember those times too, so that we can understand that the power of the people in black robes, or wearing black turbans, as the case may be, is, like all earthly power, limited in its scope. 

The great American case demonstrating this phenomenon is Furman v. Georgia.  I polled my law students, or some number of them, and was surprised to see how few of them knew about the case.  But in it, the Court had declared unconstitutional all death penalty laws on the books, and instituted rather stringent requirements to reinstate the death penalty to lessen its arbitrariness.  It seemed that what the Court, far more liberal then than now, was hoping was that this was the end of the death penalty.  But it was not to be, as a slew of states with remarkable speed reenacted the death penalty and the Court, realizing it had gone a bit too far, began to look at this new set of statutes with a bit more leniency than previously.  there is far more evidence now than in 1972 on the arbitrary nature of the death penalty regardless of the changes in the statutes, yet the laws stand. 

The Shi'a Muslim example relates to a different form of death--smoking.  It seems that just about the same time as the Supreme Court was on its death penalty ban, the Shi'a clergy, or some of them, were moving aggressively against smoking.  The two great scholars of the Najaf Hawza, Muhsin Hakim and Muhammad Baqir al-Sadr, issued rulings making it a sin to start smoking.  Like all Realists (and Sadr was nothing if not a Realist, or so my scholarship contends), Sadr was aware of the sociological consequences of his rulings, no doubt knew an absolute ban would be near impossible given the number of tobacco addicts, was convinced that this horrible practice was deleterious to the community and to those in it, and hence the ruling.  Smoking destroys the body and is therefore a sin, but some dispensation is given to current addicts on the grounds as I recall of hardship, but I don't have the text before me at the moment.  It was quite a buzz at the time, however, and much was written about the near demise of smoking among the Shi'a faithful.

But the only people that seem to know this are fuddy duddy pointy headed annoying scholars who keep reminding everyone in blog posts (that's me) and old people (that's my friend Muayyad, and my father too).  All this talk disappeared.  It just didn't work.  The layfolk didn't take to it.  They adored Sadr, and Hakim, seemed to listen when Hakim banned the Communist Party, but this they didn't bother with.  It probably seemed less important, not quite as fundamental, and really, the structure of the ban made it hard to absorb.  How terrible of a sin can smoking be, the young man might think, if my parents can do it and it's not a sin for them.  About as effective as the Americans who drink, and then are shocked at the behavior of their children at frat parties.  Obviously the motivations, the reasons, the basis for the rulings of Sadr and Hakim are different entirely, but the point is, it's hard to implement a rule that doesn't apply to some and applies to others who don't seem all that different from one another.

This could re-emerge at some point, even as the death penalty begins to lose favor in America, so smoking might lose favor in Iraq, though to be honest right now I haven't seen it, clearly Iraq hasn't caught on that Western trend.  The fact that the smoking ban for Iraq's young is now associated with Al Qaeda, and for all I know they beheaded you for a cigarette, doesn't help.  But one never knows. Still, it was an idea, and a good one, but well before its time.    Not the first or last time that will happen, neither in the US Supreme Court nor in the Najaf Hawza

HAH