Case Study on Why Najaf Clerics Shouldn't Do Law: Yaqubi and the Matter of Iraqi Citizenship Through Women
Special thanks to brother MAC for sending this one my way. Anyone who thinks I won't touch a Najaf cleric, read on, read on. I can't promise it's sexy (like the tomato cucumber fornication post)
but for those interested in Iraqi law intellectually vacuous in its own rollicking way.
The matter relates to a position purported to be that of Ayatollah (NOT one of Najaf's Four Grand but traditionally Sadr's man) Muhammad Yaqubi objecting to a recent Iraqi Federal Supreme Court determination respecting a woman's right to pass citizenship to her child as unconstitutional. I had seen that opinion, very recent one, and thought about blogging on it, but decided not to. It was sort of like if the U.S. Supreme Court heard an objection to someone running for Senator for New Jersey because they were only 31, and the Court ruling that this was okay, as anyone can be Senator from age 30. It's just the Constitution's text, it really doesn't take a legal genius to see that, any more than it takes a genius to see that the Court's decision here was exactly right. I'm generally a fan of the Iraqi Federal Supreme Court, I share the view of Charlie Trumbull and Julie Martin in a recent excellent article in the Vanderbilt Journal of Transnational Law (read it if you care about the Iraqi judiciary) that the Court has done well overall, but this decision while right wasn't exactly hard and so I figured I'd let it pass. Yaqubi though not a legal man apparently disagrees. Let's take a look.
First, the irony of it all. As I have stated on this blog and elsewhere many times before, when Shi'a clerics seek to justify their right to determine rules of Islam to the derogation of what you might happen to think, it is on the basis of decades of training and a fortiori superior knowledge and technical interpretive skills necessary to reach the proper result. Hence as I indicated in an earlier post Bashir An-Najafi, one of Najaf's four most senior Ayatollahs, likens the obedience of the lay person to the mujtahid, the senior cleric, it is as the Grand Ayatollah to his own doctor. I take these pills, Najafi says, I have no idea what they do, they hurt my stomach, but the doctor says they are better for me and so I take them. Now of course this assumes some sort of absolute scientific determinism in the understanding and intepretation of text that I spend most of my academic career rejecting, but it is the analogy.
What I like about Najafi's analogy, and the reason I've brought it up again here, is its self-effacing nature. He is demanding unquestioning obedience, but he's also demanding it of himself, from his doctor. Najafi isn't claiming some sort of superhuman capability, just a degree of professional training that entitles his opinion to go unquestioned. It's always been my view that someone who asserts something as self evident and cannot explain the basis of their opinions at least in lay terms is usually the very person whose opinion needs to be looked at more carefully, but that's what makes me an American law professor, and Bashir Najafi a Grand Ayatollah. We'd both agree that training counts, and it counts as to reaching substantive results he would take it much further than I would in terms of how much it counts. He would think it helps you get to the right answer, I'd say it helps get you to a series of plausible answers from which ideological choice then takes over. In some cases (age of Senator), there's only one plausible answer. In this case of citizenship too, one plausible answer. But that's rare, the cases I wouldn't even talk about if this was not happening.
In any event, the danger to the cleric as opposed to the law professor, however, is that with all of the deference and respect directed toward the religious leaders in Najaf, much as a judge in the U.S. encounters from senior law partners in their chambers day in and day out, it's not easy to retain that perspective of humility, and an arrogance develops where one begins to think their knowledge extends far further than it does. Then it's professional training be damned I know more than you about everything, and when it impinges in areas where other professional tread, it starts to look silly. Hence the old joke what is the difference between God and a federal judge---God doesn't think he is a federal judge. These people become isolated, disconnected to all but those who will not question them, at least to their face, very often, and the temptation of the cleric to step beyond his area of expertise is therefore over the span of years of increasing seniority fraught with danger, particularly ironic when the entire basis for obedience to him is based on his professional expertise.
Here now let us enter one of the most asinine declarations yet purportedly made by a Najaf cleric in the most Saddam era, Muhammad Al Yaqubi, as I said not one of Najaf's Four Grand, but a favorite of Muqtada's bunch. So the qualification I'll make is that I've seen this in one source, usually a good one (in Arabic here) and then it exploded from that source elsewhere. Oddly the original source is on the basis of an interview of a supposed lieutenant of Yaqubi's who won't give his name. It's not unusual for a cleric to issue a position through a trusted underling, Sistani does it all the time, in fact when he says/writes it directly that's when you know it's really important, but an unnamed one is odd. So we can question the provenance, though we'll know soon, because it's all over the Iraqi blogs and websites and if it stays undenied, then as the Romans say qui tacet consentit. In any event, the declaration is illustrative of the more general danger, so let's take a look at it.
The purported Yaqubi position is an objection to a recent Iraq Federal Supreme Court decision indicating that citizenship passes through either the mother or the father. The position attributed to Yaqubi is that this is unconstitutional, a violation of shari'a, and a grave threat to Iraqi identity. So you'd figure, religious scholar, the explanation will start by exploring precisely what the shari'a violation is, right?
Wrong. None is offered. Nor could it be, as it is hard to see precisely how national citizenship could be rationally considered related to shari'a. I realize Bashir Najafi's point talking to me was that you don't question the scholar's professional training if he says it is a violation, but another proposition of Shi'i Islam is that if you no longer think you are following the most knowledgeable scholar, you should switch your blind allegiance to the most knowledgable. To extend Najafi's analogy, I don't think the guy would stab himself in the heart if the doctor told him to and refused to explain why, I think he'd look at him and figure maybe it's a good time to find another doctor. Those two propositions (blind obedience, switch to the most knowledgeable) lie at some tension to one another obviously, but that's far too complex to explore here. The point is when a cleric says something that's just flat out stupid, and if he said it this idea of shari'a violation as to rules of citizenship is flat out stupid, it's pretty easy to determine this dude isn't the most knowledgeable fellow out there in fact if he said, I feel comfortable describing him as talking out of his ass on the shari'a without a problem. If not, then explain it. Don't tell me to follow like a sheep, tell me, where, how, under what circumstance a determination on national citizenship can be attributed to shari'a.
So now we've left Yaqubi's area of expertise, and we're into the legal (unconstitutional) and the sociological I guess? (dilution of Iraqi identity). Let's start with the latter.
Dilution of Iraqi identity the interviewee claiming to represent Yaqubi's position does not explain, and that makes the explanation cowardly. Because he COULD of course mean that Iraqi identity should be reserved for a child of dual Iraqi parentage, that's the implication, but he can't mean that. If each nation did that, it would be chaotic, as we'd have no sense of what to do with all of the people who are of mixed nationality. In addition, citizenship in Iraq has passed through the father alone for generations, the source of the grave threat couldn't be that part of it given the history. No, what he means is that passing citizenship along the FEMALE line is a dilution of identity. The interviewee purporting to represent Yaqubi's position (we'll know soon if he is) won't say that, it sounds in gender discrimination, but honestly the Realist in me rises again and says enough of this scholarly clerical obfuscation. Man up and say what you mean, if you think women should not be able to pass citizenship to their children, citizenship being like sperm and emerging properly from the penis alone, just say it so we can talk about it. Don't advance a sexist position without claiming sexism, announce it defend it and we'll have it out for Allah and the Prophet's sake .
So once we understand that passing citizenship through the woman's line is the problem, then logically the position becomes circular, and impossible to sustain as a pure matter of logic. That is, you have to presume the non-Iraqiness that the provision denies in order to demonstrate dilution, and you haven't proved the presumption obviously. Stated more fully, once you concede that an Iraqi of Iraqi father born is 100% Iraqi and entitled to the full citizenship rights of any other Iraqi, then the only reason you wouldn't just say the same thing as to the mother would be if you didn't really think the child of the Iraqi mother was really Iraqi, hence the dilution. But of course the presumption that this person isn't "really" Iraqi, or is less Iraqi than the child born to Iraqi father, is precisely the one I challenge (my wife and I, who fought pretty hard on this legal point in the constitution, as per below) and reject. If you maintain that each is just as Iraqi as the other, as I do,, if you reject the premise, as I do, then there's no logical basis to find dilution So it's only dilution if you start with the premise that nobody who defends these types of provisions would ever accept. He's hiding the conclusion in the unexamined premise.
Second sociological point, get over yourself dude. Nobody is clamoring to get Iraqi passports and sneak into Iraq because those passports are so valuable, the opposite is the problem. I have US and Iraqi citizenship, wanna know where I live? Wanna know where most dual citizens live? Stop worrying about dilution, start worrying about brain drain, and then progress might follow.
Now the legal. The interviewee purporting to adopt Yaqubi's position is now so far out of field that he drifts into an area of true stupidity, legal reasoning so poor, so ill considered, so slow, so vacuous that it is difficult to call it reasoning at all. The Court's determination on the point, says Yaqubi, is unconstitutional because the constitution contemplates a law on citizenship and such a law has not been passed.
Well, here's what the constitution says, a provision, again, my wife and I spent weeks and months before the Constititonal Review Committee in Iraq defending (info on that here).
Deemed Iraqi are those born to an Iraqi father or an Iraqi mother, and this shall be organized in law.
So many problems, so little time. First, as I understand it, the theory is, the first part of the clause means nothing until the law is passed. That effectively hands to the legislature the right to decide when the right operates and until it does, the constitutional right is meaningless.
Think right away about how stupid that sounds. You will have a constitutional right to abortion, as soon as we the legislature decide to give it to you. Until then, you don't. What's the point of the constitution in that event? Let's apply it elsewhere. Here's Article 23(2) of the Iraq Constitution
Prohibited is the confiscation of ownership except for the purposes of public benefit, with just compensation, and this shall be organized in law.
The theory attributed in the interview to Yaqubi would if applied here mean that until such a law were passed, we could safely ignore the prohibition and take people's land whenever we wanted. Like I said. Idiotic.
So that's the first impossible thing. Let's believe it for fun. We still have problems. Even if you had to wait for a law, the law plainly would have to do precisely what Yaqubi supposedly objects to in order to be itself constitutional. It cannot "organize" in law through a statute that denies the Iraqiness of a person born to an Egyptian father and an Iraqi mother, that would make a mockery of the principle of constitutional supremacy. Extended elsewhere again, surely the Article 23(2) implementing law cannot read "and property may be taken at the whim of any member of the Council of Representatives without explanation or compensation." So in the end, the objection would have to be a temporal and procedural one, meaning you cannot implement quite yet, but it's not, it's substantive, we're told it's a threat to Iraqi nationality. In order for that to be, you'd have to think that an implementing law for a constitutional right could obliterate that right for some people.
Two impossible things. First, the constituional provision means nothing absent the law being passed, second, the implementing law may ignore the constitutional directive. Let's believe them both, for more kicks. Let's pretend now the constitution is gone, the implementing law may ignore it anyway. Still, we have to do something until we get the law that this fellow wants right? we have to operate by a current citizenship law, don't we? The constitutional provisions we've impossibly removed, so what is that law? Ah, it's Law No. 26 of 2006. Wonder what that says. Here's Article 3(1) of that law
Considered Iraqi are those born to an Iraqi father or an Iraqi mother.
Other than a changed verb of near exact meaning "deemed" يعد to considered يعتبر it is the Constitution's very text. Ignoring the constitution gets us to the very same result. Three impossible things. To come to the conclusion that Iraqi citizenship under Iraqi law passes through Iraqi fathers alone, we have to believe three impossible things.
1. The Constitution's rights do not mean anything until the legislature decides they do.
2. In implementing the constitutional rights, the legislature may ignore them and deny them entirely as it sees fit.
3. An Iraqi law passed in 2006 does not exist.
Time to play the Bashir Najafi card. Interviewee dude perhaps saying things attributable to Yaqubi, stick to shari'a. When it comes to law, you're out of your depth.
HAH
but for those interested in Iraqi law intellectually vacuous in its own rollicking way.
The matter relates to a position purported to be that of Ayatollah (NOT one of Najaf's Four Grand but traditionally Sadr's man) Muhammad Yaqubi objecting to a recent Iraqi Federal Supreme Court determination respecting a woman's right to pass citizenship to her child as unconstitutional. I had seen that opinion, very recent one, and thought about blogging on it, but decided not to. It was sort of like if the U.S. Supreme Court heard an objection to someone running for Senator for New Jersey because they were only 31, and the Court ruling that this was okay, as anyone can be Senator from age 30. It's just the Constitution's text, it really doesn't take a legal genius to see that, any more than it takes a genius to see that the Court's decision here was exactly right. I'm generally a fan of the Iraqi Federal Supreme Court, I share the view of Charlie Trumbull and Julie Martin in a recent excellent article in the Vanderbilt Journal of Transnational Law (read it if you care about the Iraqi judiciary) that the Court has done well overall, but this decision while right wasn't exactly hard and so I figured I'd let it pass. Yaqubi though not a legal man apparently disagrees. Let's take a look.
First, the irony of it all. As I have stated on this blog and elsewhere many times before, when Shi'a clerics seek to justify their right to determine rules of Islam to the derogation of what you might happen to think, it is on the basis of decades of training and a fortiori superior knowledge and technical interpretive skills necessary to reach the proper result. Hence as I indicated in an earlier post Bashir An-Najafi, one of Najaf's four most senior Ayatollahs, likens the obedience of the lay person to the mujtahid, the senior cleric, it is as the Grand Ayatollah to his own doctor. I take these pills, Najafi says, I have no idea what they do, they hurt my stomach, but the doctor says they are better for me and so I take them. Now of course this assumes some sort of absolute scientific determinism in the understanding and intepretation of text that I spend most of my academic career rejecting, but it is the analogy.
What I like about Najafi's analogy, and the reason I've brought it up again here, is its self-effacing nature. He is demanding unquestioning obedience, but he's also demanding it of himself, from his doctor. Najafi isn't claiming some sort of superhuman capability, just a degree of professional training that entitles his opinion to go unquestioned. It's always been my view that someone who asserts something as self evident and cannot explain the basis of their opinions at least in lay terms is usually the very person whose opinion needs to be looked at more carefully, but that's what makes me an American law professor, and Bashir Najafi a Grand Ayatollah. We'd both agree that training counts, and it counts as to reaching substantive results he would take it much further than I would in terms of how much it counts. He would think it helps you get to the right answer, I'd say it helps get you to a series of plausible answers from which ideological choice then takes over. In some cases (age of Senator), there's only one plausible answer. In this case of citizenship too, one plausible answer. But that's rare, the cases I wouldn't even talk about if this was not happening.
In any event, the danger to the cleric as opposed to the law professor, however, is that with all of the deference and respect directed toward the religious leaders in Najaf, much as a judge in the U.S. encounters from senior law partners in their chambers day in and day out, it's not easy to retain that perspective of humility, and an arrogance develops where one begins to think their knowledge extends far further than it does. Then it's professional training be damned I know more than you about everything, and when it impinges in areas where other professional tread, it starts to look silly. Hence the old joke what is the difference between God and a federal judge---God doesn't think he is a federal judge. These people become isolated, disconnected to all but those who will not question them, at least to their face, very often, and the temptation of the cleric to step beyond his area of expertise is therefore over the span of years of increasing seniority fraught with danger, particularly ironic when the entire basis for obedience to him is based on his professional expertise.
Here now let us enter one of the most asinine declarations yet purportedly made by a Najaf cleric in the most Saddam era, Muhammad Al Yaqubi, as I said not one of Najaf's Four Grand, but a favorite of Muqtada's bunch. So the qualification I'll make is that I've seen this in one source, usually a good one (in Arabic here) and then it exploded from that source elsewhere. Oddly the original source is on the basis of an interview of a supposed lieutenant of Yaqubi's who won't give his name. It's not unusual for a cleric to issue a position through a trusted underling, Sistani does it all the time, in fact when he says/writes it directly that's when you know it's really important, but an unnamed one is odd. So we can question the provenance, though we'll know soon, because it's all over the Iraqi blogs and websites and if it stays undenied, then as the Romans say qui tacet consentit. In any event, the declaration is illustrative of the more general danger, so let's take a look at it.
The purported Yaqubi position is an objection to a recent Iraq Federal Supreme Court decision indicating that citizenship passes through either the mother or the father. The position attributed to Yaqubi is that this is unconstitutional, a violation of shari'a, and a grave threat to Iraqi identity. So you'd figure, religious scholar, the explanation will start by exploring precisely what the shari'a violation is, right?
Wrong. None is offered. Nor could it be, as it is hard to see precisely how national citizenship could be rationally considered related to shari'a. I realize Bashir Najafi's point talking to me was that you don't question the scholar's professional training if he says it is a violation, but another proposition of Shi'i Islam is that if you no longer think you are following the most knowledgeable scholar, you should switch your blind allegiance to the most knowledgable. To extend Najafi's analogy, I don't think the guy would stab himself in the heart if the doctor told him to and refused to explain why, I think he'd look at him and figure maybe it's a good time to find another doctor. Those two propositions (blind obedience, switch to the most knowledgeable) lie at some tension to one another obviously, but that's far too complex to explore here. The point is when a cleric says something that's just flat out stupid, and if he said it this idea of shari'a violation as to rules of citizenship is flat out stupid, it's pretty easy to determine this dude isn't the most knowledgeable fellow out there in fact if he said, I feel comfortable describing him as talking out of his ass on the shari'a without a problem. If not, then explain it. Don't tell me to follow like a sheep, tell me, where, how, under what circumstance a determination on national citizenship can be attributed to shari'a.
So now we've left Yaqubi's area of expertise, and we're into the legal (unconstitutional) and the sociological I guess? (dilution of Iraqi identity). Let's start with the latter.
Dilution of Iraqi identity the interviewee claiming to represent Yaqubi's position does not explain, and that makes the explanation cowardly. Because he COULD of course mean that Iraqi identity should be reserved for a child of dual Iraqi parentage, that's the implication, but he can't mean that. If each nation did that, it would be chaotic, as we'd have no sense of what to do with all of the people who are of mixed nationality. In addition, citizenship in Iraq has passed through the father alone for generations, the source of the grave threat couldn't be that part of it given the history. No, what he means is that passing citizenship along the FEMALE line is a dilution of identity. The interviewee purporting to represent Yaqubi's position (we'll know soon if he is) won't say that, it sounds in gender discrimination, but honestly the Realist in me rises again and says enough of this scholarly clerical obfuscation. Man up and say what you mean, if you think women should not be able to pass citizenship to their children, citizenship being like sperm and emerging properly from the penis alone, just say it so we can talk about it. Don't advance a sexist position without claiming sexism, announce it defend it and we'll have it out for Allah and the Prophet's sake .
So once we understand that passing citizenship through the woman's line is the problem, then logically the position becomes circular, and impossible to sustain as a pure matter of logic. That is, you have to presume the non-Iraqiness that the provision denies in order to demonstrate dilution, and you haven't proved the presumption obviously. Stated more fully, once you concede that an Iraqi of Iraqi father born is 100% Iraqi and entitled to the full citizenship rights of any other Iraqi, then the only reason you wouldn't just say the same thing as to the mother would be if you didn't really think the child of the Iraqi mother was really Iraqi, hence the dilution. But of course the presumption that this person isn't "really" Iraqi, or is less Iraqi than the child born to Iraqi father, is precisely the one I challenge (my wife and I, who fought pretty hard on this legal point in the constitution, as per below) and reject. If you maintain that each is just as Iraqi as the other, as I do,, if you reject the premise, as I do, then there's no logical basis to find dilution So it's only dilution if you start with the premise that nobody who defends these types of provisions would ever accept. He's hiding the conclusion in the unexamined premise.
Second sociological point, get over yourself dude. Nobody is clamoring to get Iraqi passports and sneak into Iraq because those passports are so valuable, the opposite is the problem. I have US and Iraqi citizenship, wanna know where I live? Wanna know where most dual citizens live? Stop worrying about dilution, start worrying about brain drain, and then progress might follow.
Now the legal. The interviewee purporting to adopt Yaqubi's position is now so far out of field that he drifts into an area of true stupidity, legal reasoning so poor, so ill considered, so slow, so vacuous that it is difficult to call it reasoning at all. The Court's determination on the point, says Yaqubi, is unconstitutional because the constitution contemplates a law on citizenship and such a law has not been passed.
Well, here's what the constitution says, a provision, again, my wife and I spent weeks and months before the Constititonal Review Committee in Iraq defending (info on that here).
Deemed Iraqi are those born to an Iraqi father or an Iraqi mother, and this shall be organized in law.
So many problems, so little time. First, as I understand it, the theory is, the first part of the clause means nothing until the law is passed. That effectively hands to the legislature the right to decide when the right operates and until it does, the constitutional right is meaningless.
Think right away about how stupid that sounds. You will have a constitutional right to abortion, as soon as we the legislature decide to give it to you. Until then, you don't. What's the point of the constitution in that event? Let's apply it elsewhere. Here's Article 23(2) of the Iraq Constitution
Prohibited is the confiscation of ownership except for the purposes of public benefit, with just compensation, and this shall be organized in law.
The theory attributed in the interview to Yaqubi would if applied here mean that until such a law were passed, we could safely ignore the prohibition and take people's land whenever we wanted. Like I said. Idiotic.
So that's the first impossible thing. Let's believe it for fun. We still have problems. Even if you had to wait for a law, the law plainly would have to do precisely what Yaqubi supposedly objects to in order to be itself constitutional. It cannot "organize" in law through a statute that denies the Iraqiness of a person born to an Egyptian father and an Iraqi mother, that would make a mockery of the principle of constitutional supremacy. Extended elsewhere again, surely the Article 23(2) implementing law cannot read "and property may be taken at the whim of any member of the Council of Representatives without explanation or compensation." So in the end, the objection would have to be a temporal and procedural one, meaning you cannot implement quite yet, but it's not, it's substantive, we're told it's a threat to Iraqi nationality. In order for that to be, you'd have to think that an implementing law for a constitutional right could obliterate that right for some people.
Two impossible things. First, the constituional provision means nothing absent the law being passed, second, the implementing law may ignore the constitutional directive. Let's believe them both, for more kicks. Let's pretend now the constitution is gone, the implementing law may ignore it anyway. Still, we have to do something until we get the law that this fellow wants right? we have to operate by a current citizenship law, don't we? The constitutional provisions we've impossibly removed, so what is that law? Ah, it's Law No. 26 of 2006. Wonder what that says. Here's Article 3(1) of that law
Considered Iraqi are those born to an Iraqi father or an Iraqi mother.
Other than a changed verb of near exact meaning "deemed" يعد to considered يعتبر it is the Constitution's very text. Ignoring the constitution gets us to the very same result. Three impossible things. To come to the conclusion that Iraqi citizenship under Iraqi law passes through Iraqi fathers alone, we have to believe three impossible things.
1. The Constitution's rights do not mean anything until the legislature decides they do.
2. In implementing the constitutional rights, the legislature may ignore them and deny them entirely as it sees fit.
3. An Iraqi law passed in 2006 does not exist.
Time to play the Bashir Najafi card. Interviewee dude perhaps saying things attributable to Yaqubi, stick to shari'a. When it comes to law, you're out of your depth.
HAH
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