Iraq elections and more
I finally decided to take the opportunity to read Noah Feldman's response to my own review of his work. My own review was quite harsh, and I maintain deservedly so. The response was only two pages, but quite honestly I never took the time until now to bother with it, mainly because nobody sent me a copy until yesterday and I was busy with other matters. Anyway, most of it was equally harsh (can't complain, it can be fairly said I picked the fight), even if not worth anyone's time in my view, though I am perfectly happy to have readers judge for themselves, volume 2 number 1 of Middle East Law and Governance, right after my book review. Last paragraph is quite striking however and verges into ad hominem innuendo. So as not to be accused of misrepresentation, it reads in its entirety as follows:
Why does this review devote so many pages to misreading, and that through a lens that does not fit at all? One suspects the identitarian fallacy--that what I write cannot be other than Orientalist because I am not myself a Muslim. That is as absurd as it would be to think that an Iraqi Muslim could not write about the constitutional tradition of a Christian or Jewish state. We should well be shot of it.
I wonder, is "shot of it" a phrase with which I, as an "Iraqi Muslim", am unaware? What the hell is that supposed to mean? Would "non Iraqi non Muslims" please let me know. As for the rest of it, hardly worth anyone's time to engage what "one" might "suspect" concerning alleged exclusivist pro-Muslim bigotry in a "review" that draws heavily on the thought of one Christian (Edward Said) and which explicitly praises the work of a second non-Muslim as concerns Iraq in particular (Ashley Deeks, though frankly as I don't play identity politics I have no idea what her religion is), from a "reviewer" (somehow my name isn't ever mentioned. okay.) who made his name writing of Baqir al Sadr influenced explicitly in all such work on the magnificent book of another Christian, Chibli Mallat, on the same subject. Three non Muslims thus influence the review of this Muslim "reviewer" but still he must really have a problem with non Muslims writing about Islam. I do find it rather amusing in the end, the 'reviewer' (that's me again) doesn't agree with Feldman, therefore "one" must "suspect" the 'reviewer' must have some problem with non-Muslims. What other reason could there be for disagreeing with Noah Feldman after all? Anyway, brushing the "reviewer's" shoulder of that nonsense and moving on . . . .
Iraqi elections seem to me to date to have confirmed that which I have suggested all along. That is, that identitarian distinctions are sufficiently strong that Allawi runs strong in Sunni areas, Maliki and the INA are competing for the Shi'i areas and it's still hard to tell what the hell is going on in the Kurdish areas, other than that the insurgent Gorran party seems to be doing decently enough against the list entrenched Kurdish parties. As I have always noted, Maliki is not threatened by the Allawi list, he can no more encroach on their territory than he can on theirs, and so matters lie where they are. I am rather perplexed by popular media accounts, who now say that there are so many parties and so many interests, it will make it very hard for a government to form. What confuses me is that back when the various identities had their own party lists, the criticism was that everyone voted for a list based on whether or not it represented their group and there was no real choice as a result, you just vote your group. Now there are more choices within groups, and the criticism is it's too chaotic. It's Iraq, either each group has a single party representing them, or different factions vie for votes within an ethnic or sectarian constituency. There aren't other choices. If you expected broad based lists composed of multiple sects and ethnicities, or maybe two parties that weren't based on indentitarian distinctions, then quite frankly all I can say is it isn't America. Personally, I consider this progress, as no list can demand loyalty on the basis of identitarianism because of competition from other groups within the identity. Now you actually have to deliver good governance.
Not that there isn't a problem, but rather that it's being misunderstood. Anyone who would bother to look beyond America would find four major parties (which will be the case in Iraq) with a number of smaller parties with some percentages not entirely out of the ordinary in parliamentary democracies, admittedly leaving aside the rather boring United Kingdom. India is supposed to be some sort of brilliant democratic success, even the Soviet Union however couldn't understand why there were so many competing communist parties there. Many parties are normal in reality. The problem, rather, is that Iraq post Saddam has never been governed by one group and had another play the role of loyal opposition. There's no sense of majority rules and the minority participates Rather, the modus operandi in the previous several years has been to give everyone a piece and to more or less by custom demand something of a consensus on everything, for good reason. You shut the Kurds out and make them the opposition, you risk civil war in Kirkuk. You shut the Sunnis out and we've seen what happens in terms of blood letting. Shutting the Shi'a out is just stupid for anyone with the slightest understanding of Iraq's demographic realities. The recognition of the interests of the other if they aren't in the government, and to what extent, remains elusive. So instead everyone agrees and everyone takes a piece.
The problem should be obvious, namely it makes the U.S. Congress seem like some sort of well oiled machine. Nothing passes the legislature, and the Prime Minister can hardly control his own government, because many of the Ministers are from parties that despise him, and he cannot demand their replacement under the constitution without approval from the Council of Representatives. More parties may make that even harder, but in the end, it really doesn't matter if it's six parties or three, the problem remains--you demand consensus politics, you doom effective government.
Yet again, the preferred alternative is not entirely clear. Do we go by majority rule and shut out the losers? That might lead to civil conflict. Should we have, as the rip roaring and highly entertaining Green Zone movie suggests, just let some Ba'athists restore order back in 2003? Well if you had a problem with the Sunni insurgency oh mother you should see a joint Shi'a-Kurdish one which is more or less what that would have done. Is there something else? In the end, I don't think anything is going wrong here, the reality is that this society deeply riven by identitarian divides is making its way slowly and with some difficulties in a democratic system that must demand consensus, and that as a result government is slower and more ineffective than people would like. but it is democratic, and it is stable, all factions adhere to ground rules sert forth in the constitution (not discussed enough, everyone is living by and largely accepting the constitution as legitimate and authoritative) and the government has increasingly asserted more control in a slow and fitful fashion.
If that's not enough, this "Iraqi Muslim" thinks you shouldn't have invaded the country.
HAH
Why does this review devote so many pages to misreading, and that through a lens that does not fit at all? One suspects the identitarian fallacy--that what I write cannot be other than Orientalist because I am not myself a Muslim. That is as absurd as it would be to think that an Iraqi Muslim could not write about the constitutional tradition of a Christian or Jewish state. We should well be shot of it.
I wonder, is "shot of it" a phrase with which I, as an "Iraqi Muslim", am unaware? What the hell is that supposed to mean? Would "non Iraqi non Muslims" please let me know. As for the rest of it, hardly worth anyone's time to engage what "one" might "suspect" concerning alleged exclusivist pro-Muslim bigotry in a "review" that draws heavily on the thought of one Christian (Edward Said) and which explicitly praises the work of a second non-Muslim as concerns Iraq in particular (Ashley Deeks, though frankly as I don't play identity politics I have no idea what her religion is), from a "reviewer" (somehow my name isn't ever mentioned. okay.) who made his name writing of Baqir al Sadr influenced explicitly in all such work on the magnificent book of another Christian, Chibli Mallat, on the same subject. Three non Muslims thus influence the review of this Muslim "reviewer" but still he must really have a problem with non Muslims writing about Islam. I do find it rather amusing in the end, the 'reviewer' (that's me again) doesn't agree with Feldman, therefore "one" must "suspect" the 'reviewer' must have some problem with non-Muslims. What other reason could there be for disagreeing with Noah Feldman after all? Anyway, brushing the "reviewer's" shoulder of that nonsense and moving on . . . .
Iraqi elections seem to me to date to have confirmed that which I have suggested all along. That is, that identitarian distinctions are sufficiently strong that Allawi runs strong in Sunni areas, Maliki and the INA are competing for the Shi'i areas and it's still hard to tell what the hell is going on in the Kurdish areas, other than that the insurgent Gorran party seems to be doing decently enough against the list entrenched Kurdish parties. As I have always noted, Maliki is not threatened by the Allawi list, he can no more encroach on their territory than he can on theirs, and so matters lie where they are. I am rather perplexed by popular media accounts, who now say that there are so many parties and so many interests, it will make it very hard for a government to form. What confuses me is that back when the various identities had their own party lists, the criticism was that everyone voted for a list based on whether or not it represented their group and there was no real choice as a result, you just vote your group. Now there are more choices within groups, and the criticism is it's too chaotic. It's Iraq, either each group has a single party representing them, or different factions vie for votes within an ethnic or sectarian constituency. There aren't other choices. If you expected broad based lists composed of multiple sects and ethnicities, or maybe two parties that weren't based on indentitarian distinctions, then quite frankly all I can say is it isn't America. Personally, I consider this progress, as no list can demand loyalty on the basis of identitarianism because of competition from other groups within the identity. Now you actually have to deliver good governance.
Not that there isn't a problem, but rather that it's being misunderstood. Anyone who would bother to look beyond America would find four major parties (which will be the case in Iraq) with a number of smaller parties with some percentages not entirely out of the ordinary in parliamentary democracies, admittedly leaving aside the rather boring United Kingdom. India is supposed to be some sort of brilliant democratic success, even the Soviet Union however couldn't understand why there were so many competing communist parties there. Many parties are normal in reality. The problem, rather, is that Iraq post Saddam has never been governed by one group and had another play the role of loyal opposition. There's no sense of majority rules and the minority participates Rather, the modus operandi in the previous several years has been to give everyone a piece and to more or less by custom demand something of a consensus on everything, for good reason. You shut the Kurds out and make them the opposition, you risk civil war in Kirkuk. You shut the Sunnis out and we've seen what happens in terms of blood letting. Shutting the Shi'a out is just stupid for anyone with the slightest understanding of Iraq's demographic realities. The recognition of the interests of the other if they aren't in the government, and to what extent, remains elusive. So instead everyone agrees and everyone takes a piece.
The problem should be obvious, namely it makes the U.S. Congress seem like some sort of well oiled machine. Nothing passes the legislature, and the Prime Minister can hardly control his own government, because many of the Ministers are from parties that despise him, and he cannot demand their replacement under the constitution without approval from the Council of Representatives. More parties may make that even harder, but in the end, it really doesn't matter if it's six parties or three, the problem remains--you demand consensus politics, you doom effective government.
Yet again, the preferred alternative is not entirely clear. Do we go by majority rule and shut out the losers? That might lead to civil conflict. Should we have, as the rip roaring and highly entertaining Green Zone movie suggests, just let some Ba'athists restore order back in 2003? Well if you had a problem with the Sunni insurgency oh mother you should see a joint Shi'a-Kurdish one which is more or less what that would have done. Is there something else? In the end, I don't think anything is going wrong here, the reality is that this society deeply riven by identitarian divides is making its way slowly and with some difficulties in a democratic system that must demand consensus, and that as a result government is slower and more ineffective than people would like. but it is democratic, and it is stable, all factions adhere to ground rules sert forth in the constitution (not discussed enough, everyone is living by and largely accepting the constitution as legitimate and authoritative) and the government has increasingly asserted more control in a slow and fitful fashion.
If that's not enough, this "Iraqi Muslim" thinks you shouldn't have invaded the country.
HAH
I'd really love to read your review and Feldman's response, but as usual, the print publications are neither accessible freely online, nor available in our library. Has either of you posted any of this online? I don't see it on either of your SSRN pages, and Hein doesn't carry this publication. If this exchange is available online somewhere, I'd really like to read it, as I have the rest of your really fine work.
By the way, "to be shot of" something is British slang meaning to be rid of something, to put it behind you. I'm not sure why Feldman uses this phrase here, other than the obvious hoity-toity "I'm more cosmopolitain than you" posture that we've all seen elitists use when challenged by mere mortals.
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Thanks on that phrase, it makes sense to me now. We should be rid of such notions, too bad I don't hold them-- "one" only "suspects" I do. as long as it doesn't involve bullets it's all good.
My own review is actually on SSRN in pretty late draft form. I added as acknowledgments pretty much the whole Iraqi Constitutional Committee who I ran it by late in the day office by office person by person just to see if a single person thought what he was saying re the Iraqi constitution made any sense (they didn't, nor did they know who this guy making these odd claims was). I made a couple of mentions to the professional nonpartisan legal drafter on the committee too who helped me understand how the language got changed into the final form that appeared. I don't think I've changed much else but not sure. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1266386
I wish I knew how to get the response to the review out to interested readers like you but I don't control that content of course. If you can find it online I'll link to it right away just let me know.
HAH
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Ah, yes, of course. I had read your review from SSRN. I found the issue of Middle East Law and Governance online, but each article costs $35 to download.
Like your other work, this review really engaged my interest and sparked a fundemental question that I don't think anyone can honestly answer: Are efforts to implement (some interpretation of) shari'a in the modern world really acts of muquawama against Western colonialism, or would the locales who are applying (at least what they regard as) shari'a have made those same choices if Israel didn't exist and Europe/U.S. had never intervened in the region? We can't know this, it seems to me, because from 1258 forward, the entire region has been either in political darkness or under the yoke of Ottoman and then British colonialism. And as for motivation, do you NOT think Wahhab and his followers would have made the same choices, and the alliance between Wahhab and Saud would NOT have led to the terrifyingly repressive salafi regime of shari'a imposed in Saudi today, regardless of Western colonialism and interference in the region. I haven't gotten the sense from anywhere that Wahhab was engaged in political muquawama in support of social justice; indeed, quite the opposite. He really DOES seem to be dedicated to the medieval version of shari'a that you dismiss in your review as "strain[ing] credulity." And maybe it's an overstatement, but it seems to me that the Saudi-sponsored export of Wahhabism is responsible for most if not all of the most shocking applications of (what the Wahhabis have made of) shari'a in today's world, including the guiding principles of the taliban and al-qua'ida. It seems to me just as likely that what we see today in Saudi, Sudan, etc., is the inevitable result of Islam viewed through the lense of a few particularly repressive men who have influentially interpreted shari'a, no? How can one say with certainty that this is necessarily related to Western influence and not classicism?
And going to the point of your review, isn't it entirely possible that, indeed, the majority of grass-roots Muslims (set aside the Shi'a if you like) in the Middle East view a re-implementation of classical shari'a as the very thing their societies need to restore order and fairness and escape the tyranny they've suffered for hundreds of years? I often think we lawyers lose sight of how non-lawyers think about law and its role. Many of my friends are far more sanguine than I about the disinterested fairness of judges and the roleof law in constraining behavior, for example.
Feldman is clearly wrong on some points, but I wonder if you've too quickly brushed off whatever broader value his views might have offered for helping the West to understand the Middle East, and indeed for helping the Middle East to understand itself. While I admire Said, I think he far too quickly discounts the value of learning about one's self and one's culture through admiring and critical foreign eyes.
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Professor Kilborn your thoughtful comments go to the heart of my work and challenge fundamental positions I have taken, and I couldn't possibly do justice to them in a paragraph or two. Perhaps we might meet at some point in AALS meeting or elsewhere, I would welcome further engagement. But let me say a few things for now.
First, I don't think Abdel Wahhab was enamored of medieval shari'a, in fact he was rather dismissive of most of it, the whole point of Salafism and its obsessions with innovations it seems to me predicated on this notion that at some point, the classical juristic doctors had strayed, and we needed to get back to the salaf, the ancestors, the generations following Muhammad, to find the real Islam. I see his work precisely as a reaction to perceived Muslim weakness in the face of a rising West. I can't claim to know what would have happened under alternative histories as you properly note both because epistemologically it's ridiculous (which I think is your point, and I agree with it) and because I'd have to know what the political, social, economic and other influences on the polity would be to even speculate, however irreliably, as to how doctrine might have evolved. Taking out the West, that is, doesn't create a vacuum, it merely changes the influences which ultimately control the evolution of the legal doctrine.
Second, if I were to concede notwithstanding the above that Salafism and Wahhabism both when originally developed in modernity were not influenced much by the West but rather classical versions of fiqh, then certainly their evolution in the process of global expansion were so influenced. Al Qaeda's version of jihad, for example, bears almost no relationship to fiqh, in fact in its willingness to privatize violence to such an astonishing degree it is almost the converse of the classical doctrine.
Third, and I don't think you disagree with this part, but I do have to say it. If we take out the Shi'a as part of some broad phenomenon of a romanticization of classical Islam that finds its way into contemporary Muslim legal structures, as I think you seem prepared to do, and I think we have to take them out (Harun Al-Rashid a storied ruler to the Shi'a? Really?), then we have to take out the Iraq constitution as being some sort of manifestation of this process because the Sunni Arabs didn't want to have anything to do with it, and the real thing the Kurds cared about was autonomy for their region. So my point respecting creating monoliths were they don't belong remains even then.
Finally, I haven't ever denied, in fact I have conceded, that there is SOME romanticism of the classical world that is out there in parts of the Sunni world, particularly among Islamists. The question remains however romanticization of what. What I think the Pakistan protests and the reformasi and the Kifaya movements in Pakistan, Indonesia, and Egypt demonstrate is that rule of law is not the central Islamist appeal. I don't mean by that that Islamists cannot be dedicated to the rule of law, or won't participate in rule of law movements, in fact in two of the three above they did. But they were but a part and in any number of other instances (Sudan? Iran? Algeria? Hamas?), the dedication of the Islamist movement to rule of law can certainly be questioned, such that to describe the push for Islamism as being one related to the rule of law seems specious to me. Why for example do Iranian basijis beat up protestors concerning the legitimacy of an election? Why does Hamas send suicide bombers onto public busses? Why did the Sudan threaten to jail a woman for calling a teddy bear Muhammad? And sure why do Muslim Brotherhood folk protest another damn term for Hosni Mubarak? Rule of law may be part of the latter, but not the others, and all are led by Islamist movements invoking Islam to take the positions they did. All of the above, however, I submit, relate to the muqawama.
Thank you again for the comment. I welcome the views.
HAH
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Well said. Your points about Wahhab are particularly enlightening, and your point about the Iraqi constitution was clearly among Feldman's most glaring weaknesses. Thanks for the guidance. I would be honored and delighted to meet with you at AALS (it's in San Francisco this year, my favorite place on Earth) or elsewhere. I confuse myself with all the questions I have about all the moving parts in this puzzle, but I'm learning, with the help of great writers like you. The study is exhilarating, and your guidance is much appreciated. I will anxiously await your next piece (by the way, your latest, Death of Islamic Law, was great--thanks for sharing).
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And of course the Iraq constitution, the subject of my next work, is near and dear to my heart, which explains my passion for it, and my annoyance when it's so terribly mischaracterized.
Thanks for the kind words. You don't seem confused to me. Look forward to meeting in SF.
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