Islamic Law AND Constitutional Liberty: A Conference at St. Thomas School of Law
I participated in a wonderful symposium at St. Thomas University School of Law in Minnesota yesterday, brilliantly organized and conducted by a dedicated group of law students, with a distinguished set of speakers and a very interesting audience. I wanted to take this space, however, to highlight a running theme in the conference that sort of concretizes one of the ideas I've been discussing to some extent in the abstract.
When the conference opened, Congressman Keith Ellison (I had the pleasure of a chat with him at breakfast, and found him a thoroughly impressive figure--good for us Muslims that someone like this is our first congressional representative) indicated that he hoped the participants in the panel would keep in mind that the title of the conference was "Islamic Law AND Constitutional Liberties, not "Islamic Law VERSUS Constitutional Liberties". There was some skepticism in the crowd it seemed, but the point I thought was a good one, or I did after I made my remarks and saw some of the reactions thereto.
My talk essentially was on the notion that Article 2 of the Iraq constitution, requiring law to be in conformity with the settled rulings of shari'a, was more rhetoric and the assertion of identitarianism than a matter of practical legal effect. I had a very pleasant conversation with Noah Feldman after the talk (he approached me, credit where it's due, he was the bigger man) and he seemed to agree with the premises, which were (i) the jurists of Najaf don't seem interested in taking a role on the Federal Supreme Court, they would prefer to act either in the political sphere or control social outcomes through nonlegal means, (ii) any court ruling on shari'a would annoy them intensely as they believe they are the only ones who get to interpret shari'a, in contradistinction to the situation in Sunni countries like Egypt where court interpretations are largely acceptable, and (iii) they have considerable though not unlimited political power. To me, the natural consequence, in fact the only logical conclusion, is that the court will avoid Article 2 and it will be largely ignored, and is more a rhetorical device akin to Mashhadani's demagogic standing before the Iraq Parliament and threatening to hurl his shoe at any law brought to him as Speaker that violated shari'a--it doesn't mean anything because you can't throw shoes at laws. I said more than this in the talk, but that will appear in a later article.
The moderator, Professor Dellahunty (yes THAT Dellahunty) asked wisely if I thought there was any way that the Court could then call upon Islam to realize particularly salutary principles, among them human rights, using Islamic discourse. I said it was possible, in fact given that Sistani already had, they could just quote him, for example on the virtues of democracy, but that they might not want to. While they could repeat Najaf fatwas it's all the easier to use the material they know better--other constitutional provisions, which include a prohibition against laws that violate "the principles of democracy", or freedom of speech, or assembly, than bother riling Najaf and using material they didn't understand as well. Indeed the Federal Supreme Court has on a few occasions called particular provisions of earlier election laws unconstitutional and undemocratic, but relied on other provisions of the constitution to get there rather than refer to a fatwa or the shari'a.
Asked and answered, but then interestingly a couple of people came to me later and suggested that this was all too bad, as if only the court could justify free speech or women's rights or freedom of religion in Islamic terms, this would really make a difference in the Middle East.
And to reach the point of a broad theme in my career project, I couldn't help but ask
WHY?????
This to me is the essence of the problem, the assumption that somehow in the Muslim world the only commitments that count relate to shari'a. I don't mean shari'a doesn't count, or that its compatibility with law is irrelevant, but that our citizens are broader than this, and respond to more than the one set of commitments that happen to be religious in nature. In the United States, when the Supreme Court rules that equal protection requires desegregation of the schools, I think most of us think of this as an important step in the realization of our shared aspiration to be a nation dedicated to the proposition that all people are created equal. I think we view the decision, and the document underlying it, as creating a set of normative commitments to which we adhere proudly, and which we view as secular. Our nation has had quite a few people willing to die for this, some religious, some not.
I don't think it means one cannot be a Christian at the same time, of course she can, and Martin Luther King was. I don't think it means we shouldn't consider whether there are implications as concerns traditional Christian doctrine, of course we can, and should. I think you'd have to be an idiot not to think it would be awfully helpful to achieve these national aspirations if the religious clerics in the various denominations of Christianity determined it compatible of, or even required by, Christian doctrine so that it is a secular commitment and a religious one then. And surely we'd all also agree that if a Court decision rubbed straight against contemporary understandings of Christianity, as with abortion, there might be a clash of commitments.
All of this is obvious. Yet it is equally obvious that the decision carries secular weight on its own as well. That is, without the religious imprimatur, it expresses a set of values, values we recognize, commitments to which we bind ourselves, it means something irrespective of what it might or might not have to do with Christianity. The commitments are cumulative (Christianity AND constitutional liberty) not for the most part disjunctive (Christianity VERSUS constitutional liberty)
Why couldn't Iraq be the same? When the Federal Supreme Court expresses democratic norms in the form of constitutional interpretation, why in the world wouldn't we accept that to be the expression of a national commitment, a salutary one, one that stands on its own. Why does the Court have to express things in terms of shari'a in order to "make a difference"? Why is the normative commitment of Iraqis to democracy as a matter of secular nationhood less important than the commitment of Americans to the same?
Obviously it doesn't mean that the clerics don't count, or that their support of democracy doesn't help, or that their implacable opposition to something (the VERSUS in Congressman Ellison's phrasing) won't affect things in some cases, only that not everything has to be essentialized into the shari'a, the commitments can be religious, and they can be national. The same person who wishes he could have perished with Hussein on the fields of Kerbala might be just as willing to lay down his life to preserve the right to vote in his nation, Islamically derived or not. It might be, to that person, about Islamic law AND it might be about constitutional liberties as well, with the importance of the one or the other depending on the context. Our commitments, that is, are cumulative and they are certainly not always derived from the same source. It seems rather obvious. We would do well to recognize it.
HAH
When the conference opened, Congressman Keith Ellison (I had the pleasure of a chat with him at breakfast, and found him a thoroughly impressive figure--good for us Muslims that someone like this is our first congressional representative) indicated that he hoped the participants in the panel would keep in mind that the title of the conference was "Islamic Law AND Constitutional Liberties, not "Islamic Law VERSUS Constitutional Liberties". There was some skepticism in the crowd it seemed, but the point I thought was a good one, or I did after I made my remarks and saw some of the reactions thereto.
My talk essentially was on the notion that Article 2 of the Iraq constitution, requiring law to be in conformity with the settled rulings of shari'a, was more rhetoric and the assertion of identitarianism than a matter of practical legal effect. I had a very pleasant conversation with Noah Feldman after the talk (he approached me, credit where it's due, he was the bigger man) and he seemed to agree with the premises, which were (i) the jurists of Najaf don't seem interested in taking a role on the Federal Supreme Court, they would prefer to act either in the political sphere or control social outcomes through nonlegal means, (ii) any court ruling on shari'a would annoy them intensely as they believe they are the only ones who get to interpret shari'a, in contradistinction to the situation in Sunni countries like Egypt where court interpretations are largely acceptable, and (iii) they have considerable though not unlimited political power. To me, the natural consequence, in fact the only logical conclusion, is that the court will avoid Article 2 and it will be largely ignored, and is more a rhetorical device akin to Mashhadani's demagogic standing before the Iraq Parliament and threatening to hurl his shoe at any law brought to him as Speaker that violated shari'a--it doesn't mean anything because you can't throw shoes at laws. I said more than this in the talk, but that will appear in a later article.
The moderator, Professor Dellahunty (yes THAT Dellahunty) asked wisely if I thought there was any way that the Court could then call upon Islam to realize particularly salutary principles, among them human rights, using Islamic discourse. I said it was possible, in fact given that Sistani already had, they could just quote him, for example on the virtues of democracy, but that they might not want to. While they could repeat Najaf fatwas it's all the easier to use the material they know better--other constitutional provisions, which include a prohibition against laws that violate "the principles of democracy", or freedom of speech, or assembly, than bother riling Najaf and using material they didn't understand as well. Indeed the Federal Supreme Court has on a few occasions called particular provisions of earlier election laws unconstitutional and undemocratic, but relied on other provisions of the constitution to get there rather than refer to a fatwa or the shari'a.
Asked and answered, but then interestingly a couple of people came to me later and suggested that this was all too bad, as if only the court could justify free speech or women's rights or freedom of religion in Islamic terms, this would really make a difference in the Middle East.
And to reach the point of a broad theme in my career project, I couldn't help but ask
WHY?????
This to me is the essence of the problem, the assumption that somehow in the Muslim world the only commitments that count relate to shari'a. I don't mean shari'a doesn't count, or that its compatibility with law is irrelevant, but that our citizens are broader than this, and respond to more than the one set of commitments that happen to be religious in nature. In the United States, when the Supreme Court rules that equal protection requires desegregation of the schools, I think most of us think of this as an important step in the realization of our shared aspiration to be a nation dedicated to the proposition that all people are created equal. I think we view the decision, and the document underlying it, as creating a set of normative commitments to which we adhere proudly, and which we view as secular. Our nation has had quite a few people willing to die for this, some religious, some not.
I don't think it means one cannot be a Christian at the same time, of course she can, and Martin Luther King was. I don't think it means we shouldn't consider whether there are implications as concerns traditional Christian doctrine, of course we can, and should. I think you'd have to be an idiot not to think it would be awfully helpful to achieve these national aspirations if the religious clerics in the various denominations of Christianity determined it compatible of, or even required by, Christian doctrine so that it is a secular commitment and a religious one then. And surely we'd all also agree that if a Court decision rubbed straight against contemporary understandings of Christianity, as with abortion, there might be a clash of commitments.
All of this is obvious. Yet it is equally obvious that the decision carries secular weight on its own as well. That is, without the religious imprimatur, it expresses a set of values, values we recognize, commitments to which we bind ourselves, it means something irrespective of what it might or might not have to do with Christianity. The commitments are cumulative (Christianity AND constitutional liberty) not for the most part disjunctive (Christianity VERSUS constitutional liberty)
Why couldn't Iraq be the same? When the Federal Supreme Court expresses democratic norms in the form of constitutional interpretation, why in the world wouldn't we accept that to be the expression of a national commitment, a salutary one, one that stands on its own. Why does the Court have to express things in terms of shari'a in order to "make a difference"? Why is the normative commitment of Iraqis to democracy as a matter of secular nationhood less important than the commitment of Americans to the same?
Obviously it doesn't mean that the clerics don't count, or that their support of democracy doesn't help, or that their implacable opposition to something (the VERSUS in Congressman Ellison's phrasing) won't affect things in some cases, only that not everything has to be essentialized into the shari'a, the commitments can be religious, and they can be national. The same person who wishes he could have perished with Hussein on the fields of Kerbala might be just as willing to lay down his life to preserve the right to vote in his nation, Islamically derived or not. It might be, to that person, about Islamic law AND it might be about constitutional liberties as well, with the importance of the one or the other depending on the context. Our commitments, that is, are cumulative and they are certainly not always derived from the same source. It seems rather obvious. We would do well to recognize it.
HAH
"Why couldn't Iraq be the same?" ... Well is it? That is the question. Is it the case that non-secular authorities both agree that the secular courts are autonomous and authoritative and are unwilling to teach that another moral code exists and possibly outweighs the secular law?
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Well hold on let's unpack this. What I take you to be asking, which is I suppose a fair inquiry into my categorical objections, is whether or not non-secular authorities don't so much view the epiphenomenon of the state and the law it produces as existing, but whether or not they normatively endorse it. So the Najaf clerics say repeatedly they are not political actors and have no political role, but I read from your question that could suggest a few normative statements about obedience to law. They might think law is out there and you should obey it so you don't go to jail and you could be a good Muslim. They also might think it's really up to you whether or not you obey law, we don't care, we don't interfere in politics. Or they could mean, law is a separate realm, it is autonomous and it is authoritative and it is legitimate, we don't control the law but you morally have an obligation to obey the law.
So there is something here worth exploring in more depth. It's a fair point. What I would say for the purposes of this comment (ie dramatically reduced), is that the Najaf authorities don't just say they aren't state actors, they also sat they that their role is to guide political leaders and hold them to public account, not to constrain them, Now that's simplistic and undertheorized, something I've indicated elsewhere, but if we assume they are serious people, as I know you and I do, and if we assume they aren't dissembling, as I know you and I do, then at a minimum they must mean (i) there is an arena in which there is something called "politics" which creates "law" which governs public order (ii) they have no direct role in it (i.e. it is autonomous) and (iii) it must be obeyed as a normative matter. If not (iii), there's no point in guiding the public officials or holding them to account. That is, Sistani's forays into the public arena, to demand for example elections of a constitutional assembly, has some consequence of legitimating the assembly that results, and the product it comes up with. Similar when he says it is a religious duty to vote--the legislature that emerges must have legitimacy and authority. What it produces must be considered "good". It cannot be that the election is a duty, but then whatever that legislature does is irrelevant. So I do think there is some process of authorizing going on.
An incomplete answer, for now, but one worth pursuing in more depth certainly.
HAH
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Your observations and underlying questions are worthy to be thought and rethought. "Why" is always very easy to invoke but very difficult to respond. To respond such issues we need to develop a self reflectionary approach along with a courage to get ourselves relieved from a trap of us and others.
You have very appropriately made the point that the Muslim countries should not be viewed as if they are trapped in an unending war of sharia and socalled secular liberties. There are many other things which are always part of the wider discourse which are normally not being pronounced properly and if they are expressed then not appreciated as such. The problem is with our own vision that we are only accustomed to view only one kind of liberal glory and one kind of path to that glory without leaving space for any other alternative.
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