Shari'a, Good Governance and the Rule of Law
Noah Feldman and I had a most pleasant dinner and conversation at West Point's historic Mess Hall last week. (We spoke at the same conference. He opened the conference with the evening lecture, I gave the keynote luncheon address the next day. Click the link, and the conference program and speakers is on that page somewhere to review).
As he was speaking, I thought the distinctions between our two positions became somewhat clearer to me as mine has evolved over the course of a few years. He's done a very good job convincing me that shari'a in our times has transformed itself to some extent away from any attempt to implement specific (if selective) shari'a rules that have some historical pedigree (whether that's the application of the strict traditional hudud punishments, historic family law rules or obsessions over women's dress) and more in favor of what I think of as good governance (anti-corruption, open elections, no abuses of authority, etc.). I think we'd both agree neither the Taliban nor Boko Haram in Nigeria fit this model particularly well, but it is something of note that people like me aren't in a panic and actually do not think much bad will arise if the Muslim Brotherhood assumes control in Egypt, or that much bad came about from Iraq's Islamist party rise because of how fundamentally they have moderated the Islamist message. Except for the rather cacophonous Sadrists, whose more extreme elements scare the hell out of me, I see little problem with the balance of the parties in Iraq's mix. Whatever Iraq's problems are, Islamism as threat is not one of them and in fact given my spiritual affinity to them relative to Iraq's secularists, I sort of like these folks even if I don't agree with them much politically. At least they don't offend me. Where before it was uncontroversial among Islamic parties that the state had to enforce the veil, now the trend is very much in the opposite direction. Iraq, Tunisia, Egypt, the Islamists win, the veil remains legally voluntary. There's all sorts of civic pressure (more on that another time), but not state enforcement.
Noah and I no doubt disagree about precisely when this change took place. (Based on his remarks, he seems to think FIS would have been in Algeria in 1991 something like what Ennahda is now in Tunisia, I think you were looking straight into the teeth of a second Iran). And I think he'd phrase it "rule of law" and limits on executive authority and I really think it's more broadly matters relating to good governance. But these might well be quibbles, the kinds of things law professors write back and forth in law reviews to each other all the time, but in the end are not of great importance.
No, the real difference is that Noah works hard. very hard, to grant some historical pedigree to the Islamist claim, and I do not. He seems to find this good governance/rule of law stuff in Islamic history, and I think that's like finding shapes of Greek gods in the clouds (look hard enough, you'll find 'em. Unless you want to find flying squirrels up there, in which case you'll find them). His approach is to earnestly search for that which explains the Islamist change as having pedigree, mine is to dismiss all of that as hindsight driven justificatory exercise and focus on the actual political and social reasons it came about.
Both approaches have their insights and to be fair, he's concrete and sensible about it cynical as I might be. Unlike others in our academy (I'll leave my powder dry and not name them now), who believe in shari'a as the best basis for organization of the Muslim state, and who describe it on the basis of the "goals" of the shari'a (protection of life, mind, honor, football, family, religion, headscarves, property, beards, something else), Feldman isn't peddling voodoo, this random highly abstract and effectively meaningless nonsense that couldn't get you to a concrete legal decision on anything. He is talking about rule of law in a much more definite fashion in history and in modernity (which of course makes it easier to challenge as a matter of history, but that's a task for others).
I just don't think that what happened was Islamists looked back at Islamic history and thought they had rule of law and so what we really should be doing is engaging in rule of law. Or they didn't have corruption so what our program should be is reducing corruption.
What happened, I think, is that shari'a, as a means of legal organization, failed. It failed to provide sensible rules of commercial organization through "Islamic economics" that could function in modernity, and so it compromised itself. It failed to provide peasants with better lives by making sure that urban educated women couldn't walk around in short skirts, and so it toned that down. It failed to create societies that proved more morally pure through stoning and amputation, and it dialled those back too. Failure and retreat is the story, over two decades until the parties got the message--drop shari'a, or die. And so they dropped shari'a.
They of course couldn't say that. They could I suppose have said that they believed in a secular state with a religious people in it--that shari'a is a means by which an individual believer might live a good life, has rules that can constrain individual behavor in a manner that when done on an individual, voluntary level leads to social betterment (nothing calms me more than the noontime prayer, like looking at the Milky Way, it helps to remind me that whatever is stressing me at that particular moment in fact is not important at all). But even that is difficult for organizations that spent their careers defending a more public, social, legal, political role for Islam.
So they changed what they expected sharia to do into something (rule of law, good governance, call it what you will) that you really don't need shari'a to explain, defend or justify at all. And I just don't think it's got legs in the long run, though in the short run the history of these groups will help of course. But over time, I think once you've taken this step, then eventually you'll be down in the muck with the rest of us. If the Islamists can deliver, on good governance, on economic betterment on the rule of law, then sure whatever it's our history, caliphs, jurists, all the rest of it. If they cannot,well the other dude that says rule of law, that doesn't tie it to Islam, that actually can deliver, maybe he'll not look so bad. After all, it's hard to describe the secularist as "unIslamic". He's got the same program the Brotherhood does. He's just missing the rhetoric.