The Maqasid and Family Law
There is a startling dichotomy within Islamist parties as concerns their view of secular, transplanted law in any number of Muslim societies, a matter I discuss at some length in my latest paper to some extent, but in essence it is the difference between their views of transplants as concerns the family law as against just about everything else, and no sensible political theory that I have seen has come close to describing it.
To see the dichotomy, we can turn first to Article 2 of the Iraqi Constitution, which reads in relevant part:
Islam is the religion of the state and a fundamental source of legislation. No law may be passed that contradicts the certain rulings of Islam. No law may be based that contradicts the principles of democracy. No law may be passed that contradicts the basic rights and freedoms contained in this Constitution.
That's my translation and rough, but it gets the idea across. Now I still strongly believe that the American legal academy greatly greatly overestimate the importance of this article. The notion that this is what makes an Islamic state seems rather silly, seeing as how not once has it been interpreted, among hundreds of opinions on other constitutional provisions,and this damn thing just sits there. I tend to think of it as more symbolic than real, delivering to the people the rhetorical Islamic state but not actually changing anything from the basic structure of the state as it has existed for decades where shari'a isn't actually very important in law. If that's the Islamic state, then Iraq was never secular and the Islamic movement has delivered nothing by way of law but a clause that has yet to be used ever.
But even if one does want to take the clause seriously, and somehow believe it's enough, the theory of the state would effectively be one in which all law is okay if it doesn't rub up against some core values, whatever those are. I think those "core values" or "certain rulings" to quote from the text tend to be contingent and motivated more by modern ideological fervor than classical doctrine, but let's leave that aside and acknowledge that the body of believing Muslims who want an Islamic state would consider certain laws as violating shari'a's "core", among them the ban on a headscarf in public school, for example. You ask Iraq's Islamists, they say Article 2 is meant to prevent such a ban, if imposed by the legislature. So many times was this example used (citing Turkey) I finally asked what the hell the point was. Could you find one single parliamentarian who would support such a thing in public? Why do people seem to think that the legislature is going to pass something so ridiculously at odds with national mores? And if anything points out the pointlessness of Article 2, it's that. We need a constitutional provision to prevent Iraq's legislature from banning a headscarf. Somehow that's what makes an Islamic state, that if the Council of Representative members collectively lose their minds and decide to ban the headscarf altogether, the court will stop them.
You could of course imagine a stricter view of what it is to violate "central rulings" of Islam. Indeed, the Shi'a Islamists fought hard to ensure "certain rulings" was not modified with "on which there is consensus" because they wanted to make sure that something clearly displeasing to the clerics of Najaf would never make it into law (which it won't again because of electoral realities, it won't pass the CoR if Najaf objects). But even then, whatever the view, it surely does not involve rewriting the laws to conform to shari'a in all respects. The areas of dispute are going to be few. Money interest, perhaps. Criminalization of blasphemy I suppose is possible. Foreign investment in certain sectors maybe? I don't know. but as noted, really to the entirety of the Civil Code, the Penal Code, the Commercial Code and the Procedure Codes, I can't imagine the strictest Islamist politician recommending more than a dozen substantive changes. As noted, marginal, Article 2 doesn't bring about the Islamic state, it just calls the one we already have, and have had for half a century, "Islamic".
Then you get to family law. Now there is simply no way you can reconcile the notion above, that all law is okay if it does not violate a "certain ruling" with what the Islamists want to do on family law. There the goal, set forth in Article 41of the Constitution and phrased ingeniously as a "freedom", suggests that Iraqis are free to be governed in matters of personal status according to, among other things, the religious rules of their sect. This is NOT repugnancy. This is NOT trying to figure out if some core value has been violated or not. This is fiqh, reenactment of classical rules, and a right of rejection of anything remotely transplanted. In fact it does not even require continuation of the current code, though it doesn't make that impossible as a separate choice available, either.
Indeed, under the strictest standard of repugnancy, it is hard to see what the Islamist objection to the current Personal Status Code is. It permits polygamy. It contemplates the inheritance rules that distribute in a manner that favors males over females of the same status, there isn't anything there that you can say is violative of a "certain ruling" at all. Ah, it is said, but it requires the man to pay upon divorce maintenance (alimony) to his wife for years, the fiqh says three months. If that's contradicting a "certain ruling", then I'll show you a thousand things in the civil code that don't meet that standard. To show them, I'd just go straight to the authoritative Civil Code commentary in Iraq, that of Abdul Majeed Al Hakim, and point out where in dozens of dozens of places he points out provisions that clearly are not taken from shari'a but rather the West and in fact reject shari'a derived rules. Not a one of those is challenged by any Islamist today.
In fact, it's sort of pointless to argue whether or not this rule or that rule violates a "certain ruling" in the area of family law. This is because the effort in family law under Article 41 is demonstrably NOT ABOUT central rulings. If you wanted that, you'd just say in Article 2, no law may be passed that contradicts the certain rulings of shari'a, and this includes any certain rulings in the area of personal status. That might ban gay marriage or something using the approach above which you won't be surprised to learn islamists reject rather vigorously. That's not what they want, that's not what Article 41 says. Article 41 says that Iraqis are free to reject the transplanted law and live by the law of the sect. They can't do that for criminal law, they can't do it for the company law (just create fiqh based companies with no recognition in Iraqi law and expect that to work), only family law. And Islamist movements everywhere fight long, and fight hard, about this one area of law very very extensively.
I just don't think this notion that secular law is okay so long as it doesn't violate a "core" is comprehensively accurate, any more than the earlier notion that all law must be based on classical rules is comprehensively accurate. I think they just pick and choose an approach depending on the area, just like we all pick and choose, based on ideological preferences, economic necessities, social realities and the like. To paraphrase Gertrude Stein, to explain the Islamist view of shari'a and law, there is no theory, there was no theory, there will never be a theory. That's the theory.
HAH
To see the dichotomy, we can turn first to Article 2 of the Iraqi Constitution, which reads in relevant part:
Islam is the religion of the state and a fundamental source of legislation. No law may be passed that contradicts the certain rulings of Islam. No law may be based that contradicts the principles of democracy. No law may be passed that contradicts the basic rights and freedoms contained in this Constitution.
That's my translation and rough, but it gets the idea across. Now I still strongly believe that the American legal academy greatly greatly overestimate the importance of this article. The notion that this is what makes an Islamic state seems rather silly, seeing as how not once has it been interpreted, among hundreds of opinions on other constitutional provisions,and this damn thing just sits there. I tend to think of it as more symbolic than real, delivering to the people the rhetorical Islamic state but not actually changing anything from the basic structure of the state as it has existed for decades where shari'a isn't actually very important in law. If that's the Islamic state, then Iraq was never secular and the Islamic movement has delivered nothing by way of law but a clause that has yet to be used ever.
But even if one does want to take the clause seriously, and somehow believe it's enough, the theory of the state would effectively be one in which all law is okay if it doesn't rub up against some core values, whatever those are. I think those "core values" or "certain rulings" to quote from the text tend to be contingent and motivated more by modern ideological fervor than classical doctrine, but let's leave that aside and acknowledge that the body of believing Muslims who want an Islamic state would consider certain laws as violating shari'a's "core", among them the ban on a headscarf in public school, for example. You ask Iraq's Islamists, they say Article 2 is meant to prevent such a ban, if imposed by the legislature. So many times was this example used (citing Turkey) I finally asked what the hell the point was. Could you find one single parliamentarian who would support such a thing in public? Why do people seem to think that the legislature is going to pass something so ridiculously at odds with national mores? And if anything points out the pointlessness of Article 2, it's that. We need a constitutional provision to prevent Iraq's legislature from banning a headscarf. Somehow that's what makes an Islamic state, that if the Council of Representative members collectively lose their minds and decide to ban the headscarf altogether, the court will stop them.
You could of course imagine a stricter view of what it is to violate "central rulings" of Islam. Indeed, the Shi'a Islamists fought hard to ensure "certain rulings" was not modified with "on which there is consensus" because they wanted to make sure that something clearly displeasing to the clerics of Najaf would never make it into law (which it won't again because of electoral realities, it won't pass the CoR if Najaf objects). But even then, whatever the view, it surely does not involve rewriting the laws to conform to shari'a in all respects. The areas of dispute are going to be few. Money interest, perhaps. Criminalization of blasphemy I suppose is possible. Foreign investment in certain sectors maybe? I don't know. but as noted, really to the entirety of the Civil Code, the Penal Code, the Commercial Code and the Procedure Codes, I can't imagine the strictest Islamist politician recommending more than a dozen substantive changes. As noted, marginal, Article 2 doesn't bring about the Islamic state, it just calls the one we already have, and have had for half a century, "Islamic".
Then you get to family law. Now there is simply no way you can reconcile the notion above, that all law is okay if it does not violate a "certain ruling" with what the Islamists want to do on family law. There the goal, set forth in Article 41of the Constitution and phrased ingeniously as a "freedom", suggests that Iraqis are free to be governed in matters of personal status according to, among other things, the religious rules of their sect. This is NOT repugnancy. This is NOT trying to figure out if some core value has been violated or not. This is fiqh, reenactment of classical rules, and a right of rejection of anything remotely transplanted. In fact it does not even require continuation of the current code, though it doesn't make that impossible as a separate choice available, either.
Indeed, under the strictest standard of repugnancy, it is hard to see what the Islamist objection to the current Personal Status Code is. It permits polygamy. It contemplates the inheritance rules that distribute in a manner that favors males over females of the same status, there isn't anything there that you can say is violative of a "certain ruling" at all. Ah, it is said, but it requires the man to pay upon divorce maintenance (alimony) to his wife for years, the fiqh says three months. If that's contradicting a "certain ruling", then I'll show you a thousand things in the civil code that don't meet that standard. To show them, I'd just go straight to the authoritative Civil Code commentary in Iraq, that of Abdul Majeed Al Hakim, and point out where in dozens of dozens of places he points out provisions that clearly are not taken from shari'a but rather the West and in fact reject shari'a derived rules. Not a one of those is challenged by any Islamist today.
In fact, it's sort of pointless to argue whether or not this rule or that rule violates a "certain ruling" in the area of family law. This is because the effort in family law under Article 41 is demonstrably NOT ABOUT central rulings. If you wanted that, you'd just say in Article 2, no law may be passed that contradicts the certain rulings of shari'a, and this includes any certain rulings in the area of personal status. That might ban gay marriage or something using the approach above which you won't be surprised to learn islamists reject rather vigorously. That's not what they want, that's not what Article 41 says. Article 41 says that Iraqis are free to reject the transplanted law and live by the law of the sect. They can't do that for criminal law, they can't do it for the company law (just create fiqh based companies with no recognition in Iraqi law and expect that to work), only family law. And Islamist movements everywhere fight long, and fight hard, about this one area of law very very extensively.
I just don't think this notion that secular law is okay so long as it doesn't violate a "core" is comprehensively accurate, any more than the earlier notion that all law must be based on classical rules is comprehensively accurate. I think they just pick and choose an approach depending on the area, just like we all pick and choose, based on ideological preferences, economic necessities, social realities and the like. To paraphrase Gertrude Stein, to explain the Islamist view of shari'a and law, there is no theory, there was no theory, there will never be a theory. That's the theory.
HAH
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