Islamic Law In Our Times

Iraq elections and more

2010-03-14T01:46:00Z

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

Rights to Silence in the US and Iraq

2010-03-02T02:18:00Z

There are times when I wonder whether or not constitutional rights, as implemented, seem almost designed for the elite, and developed in a manner that ends up causing significant damage to the less advantaged. I am not suggesting this is necessarily intended, in fact often I would assume that it is not, but when the elite who manage the system after all try to come up with what they consider a reasonable panoply of rights, they do seem to reflect the interests and desires of what people like them would want rather than what the disadvantaged, who are more often than not the accused, might actually need.

What prompted this thinking was a recent conference in Basra I did not have the privilege to attend. But I've heard of it at some length from several different friends, and apparently a senior police officer, unaware of established global standards, suggested after being told of a recommendation that an accused be informed of his right to remain silent, thought about it, and then decided to oppose this supposed amendment because what would happen if defendants actually used these rights, what kind of obstruction would that be to law enforcement.

So this was hah hah let's take an opportunity to laugh at those dumb ignorant Iraqis and pat ourselves on the back at how wonderful we are because our police take these rights so seriously, we don't ignore them. And we do, of course. But let's look, seriously, at how they work. I wonder if the Iraqi officer after we do look at them was expressing anything but the view of most US law enforcement, albeit a bit inartfully.

To be completely clear, I do very much think any reasonably professional cop out there in the US would take any suggestion that they don't follow procedure, to the letter, as an insult. They would say I read rights when I arrest, or I secure a written waiver, because that's a requirement, and I take constitutional requirements seriously. I don't mess around with the constitution, I do my job by the rules. Let's acknowledge for a moment they do that, I think they do, my experience hasn't led me to think otherwise, no reason to doubt their sincerity when they say it.

But then ask what happens, and usually the answer is, well, we ask questions. If they're voluntarily willing to talk, why not? What's wrong after we've read them their rights, or we've asked then to sign a paper they could read that waived them, to note whatever they do say and take it down and note it for later? After all, if I've told him he has a right to an attorney and the idiot blathers he did it, I should ignore it? Come on.

So they ask. And they might ask a lot, unless the guy asks for an attorney and says he won't talk until he gets one. And they might suggest gee they might want to help, it all looks bad but maybe there's an explanation, they're all ears. And if he talks then he talks. We didn't beat the guy, we didn't waterboard him, he just talked. No cop would be embarrassed by a confession so obtained, no judge would think he should be. It's good law enforcement to do that, that's what a good cop does. Wasn't that the argument by the left by the way for NOT waterboarding this Nigerian dude who tried to blow up the plane? Why waterboard, our law enforcement people are good, they'll get cooperation, they don't have to resort to illegal techniques. ie he will be read his rights, and our people have methods, noncoercive legal methods (emphasize legal, and constitutional), to ensure that he won't use those rights.

So let's be realistic for a second. Our Iraqi cop was being inartful, but he wasn't expressing a concern that US law enforcement people don't have. They might smile at his comment, and not deem it acceptable of course as a method of practice, again no doubt sincerely. But if he followed up, and said "no seriously, what if everyone remained silent, how could I move forward on a case?" I might predict the following exchange with US law enforcement

"Come on, you have evidence. Silence doesn't doom the case, just get your evidence together. And also they won't all stay silent, don't worry, most won't in fact"

"well why won't they?"

"here's what you do. You read the rights, you have to. It's his right to have them, don't ignore his rights. If for nothing else, you don't want a judge bouncing the case because you messed up. Then after you read them, you say you want to help him , you really do, but he's got to help you, etc. etc. etc."

"Can I beat him?" asks the Iraqi.

"No, I just said, you can't violate his rights. It's constitutional, don't you care abotu the rule of law in your own society? You have to. OK even if you don't, a good judge will make you look stupid, so no beating. Look, they'll talk most of the time, 90%, if you just do what I say, you don't need to beat the guy or not read him his rights to get what you need. The other 10% is the price of living in a free society and like I said, you have other evidence you use that."

And that's all fine, most people even me on most days think that's the way it is and should be, we do need effective law enforcement after all. But still I wonder, when we laugh at the Iraqi who asks this question are we really all that different? Aren't we really reading the rights and taking that piece seriously but still hoping the defendant doesn't use them? Sure I and others reading the blog if picked up by the police are likely not to be dumb enough to talk to the cops without an attorney present once we're accused of something. but we're also not likely to be accused of something. That's partly because I didn't do anything (I didn't, I didn't!), but also because there's an assumption that people like me don't do bad things. My guess is most people who are wrongly accused (I assume with entirely good faith by the police) won't use the Fifth Amendment most likely. They won't know well enough to use it. And so then I wonder what the hell is it for, if not for them, and why didn't we design it better to suit people other than us, who don't usually have such problems.

More foam from a camel's mouth to quote Ali b Abi Talib.

HAH

Law in the American and Iraqi Paradigms: Myths and Realities

2010-02-22T22:05:00Z

Iraqi law has been taken a bit of a beating in the press these past few days, being described in fashions ("pliable" says Anthony Shadid, "untested" said someone in the Washington Post, "politicized" I heard on CNN) in a manner that most Iraqi lawyers would find rather horrifying. It's about time for a little perspective.

The recent Western media assault on Iraqi law has to do with the de-Baathification law, and its resulting ouster of Sunni hardlner candidate Saleh al-Mutlaq from the upcoming election. Essentially, the feeling, by people some of whom don't know Arabic (though Shadid clearly does) is that the law is vague and can be used by anyone to argue anything. This apparently is supposed to be in contradistinction to American law, which is clear and certain in its results and thoroughly "tested", whatever that means. (Seriously, what does that mean? That there is extensive commentary and case law about it? And there isn't on Iraqi law? And this by people who wouldn't know an Iraqi lawyer if they ran straight into them on a Baghdad street?)

Anyway, if we look at Section 4, Article 6 of Iraq's de-Baathification law (techincally, for those who want to look it up and can read Arabic it is The Accountability and Justice Law, No. 10 of 2008), where the disqualifications are held, the vagueness is far more limited than anyone wants to admit. Broadly speaking, for over 90% of government positions, it's rather clear. First three levels of Ba'ath party membership (udhu Shu'ba, or Branch Leader and up) removes you under Article 6(1), and first four levels (meaning Udhu Firqa, or Unit Leader, and up andyes the whole damn thing sounds like the Boy Scouts) removes you for certain higher positions, of special rank Article 6(2). The fedayeen and the agencies that engaged in torture and persecution and the like are out, period. That's Articles 6(3) and 6(4). Article 6(5) makes clear that former Unit Leader membership is okay for non-special rank positions. That's the first five parts, and they are pretty clear. That's also more permissive than the original CPA Order which I think covered the top six levels.

After that, the exceptions start coming in, but they are limited to particular issues. So Article 6(6) eliminates Unit Leaders from really high positions like Ministers, and from work in the MInistries of security and defense and the like, and Article 6(7) takes away pensions from people who stayed in the party after the fall of the regime and have political asylum elsewhere. Broader is Article 6(8) which takes away the right to be in a position of special rank if one was a member and gained wealth off of the public funds. I could go on, but the point is the limitations are primarily (i) working in security and defense, and the extent to which the provisions encompass some mid to high level ex-members, and (ii) who is eliminated for positions of special rank, and also for really high positions, like Ministers, or members of the High Judicial Council, etc. Of the vast public sector, 90-95% is resolved with about 90% of the remaning bit having to do with security and defense for mid level members (Unit Leaders). The really high positions are important and not clear at all but by sheer numbers not nearly as relevant and so weren't the focus of the disputes concerning tens of thousands of people who had been expelled from their jobs. That was the problem when this was passed, and it largely fixes it. it works as a piece of legislation at least.

Still, since the world is focussing on the problems in the law and Iraqi law generally, why are those remaining provisions vague and/or contested? Three points to note, which I hope will show Iraqi law isn't nearly as hopeless as those decrying it suggest, or perhaps better stated is no less hopeless than law anywhere else in the world.(Oh, and let's note as a preliminary matter while we're at it, before we get to the three points, the fact that the problem was CREATED by Paul Bremer and SOLVED by this law. So if the law is imperfect, perhaps the fault should lie not with the entity seeking to fix it, the Iraqi parliament, but with the folks who screwed it up in the first place, the US occupation authority which issued the initial ban).

The first thing to note is the provisions aren't as vague as they are made out to be. It is near impossible to read Article 6(6) to ban all former Ba'ath party members from the security and defense agencies, but newspapers did report disputes where some hardline Shi'a argued this. Media hemmed and hawed I remember back in early 2008 about whether or not all of the Awakening people in the Sunni heartland would be banned, despite the evident relaxation of the requirements from the earlier CPA order.

Problem was they didn't read the law, they just listened to politicians with constituencies to please.
To me the fact that yo yos from any faction run off and make spurious claims about pending or recently passed legislation isn't really all that important, and isn't a demonstration of what the legislation is ultimately going to do. The idea that the legislation bans ALL former members of the party from working anywhere in security and defense is silly, as silly as Sarah Palin's death panels. It proves nothing about Iraqi law as a social reality, it only proves something I long knew, far too many politicians are idiotic blowhards in every jurisdiction and among every political persuasion, liberal to conservative.

Second point is that, yes, clearly some of the confusion arises from the fact that the parties couldn't agree on particular bans and so papered them over with vague terms and moved it through. This is the more common criticism--tut, tut, you silly Iraqis, stop papering over your disputes and solve them instead. While I tend to think that criticsm is valid for any number of laws (or the Constitution actually), it's completely misguided here. As noted, about 95% of the problem was solved by this legislation, why in the world would you hold that up to solve every last detail? Is that what media outlets think the Congress does? If so, do you read? Just about every law contains gray areas where the legislature has no idea what to do and puts something in there and hopes the judiciary will figure it out. This is one of the primary criticisms of Scalian textualism, okay Scalia you say follow the text when clear, but what about the fact that so often the legislature is deliberately unclear and has asked you to do its job essentially? What then? I'm not entering that dispute, only pointing out something obvious to anyone who pays attention--the Congress is often unclear, and often intentionally, because it cannot solve a problem well enough. That's not a disaster, if other things are solved in the legislation, as they were here. Such an approach won't work all the time, it won't work for slavery in this country, it isn't going to work for Kirkuk in Iraq, but some issues can be deferred as others are solved. So THIS criticism, in this context, is hardly a sensible criticism of Iraqi law.

Finally, how would you go about drafting a clear ban for Ba'ath party members for really high positions? I don't think it's that easy. You could say no bans at all, but I have to say, that's a pretty American imperialist position to assume. Europe bans Nazis, Canada and Europe ban hate speech, Israel bans far right Jewish groups, the notion that you cannot put some limitations on the political process by parties that are not just illiberal, but positively totalitarian, on whom the blood of hundreds of thousands of innocent victims lie, seems impossible to demand. I favor America's marketplace of ideas, but I don't think you'd get most Iraqis to agree with me, in fact I think more than 60% support the ban completely.

So if you posit a ban, and you start thinking of high positions, all of a sudden a variety of factors come into play. When were they last a member? Are they supporting the party now? What connections have they maintained to banned members? And the like. It's not easy and a clear brightline rule hard to come by. Take Mutlaq, the banned member who is at the source of this. He left the party formally in 1977, most would agree that on its own hardly seems enough. He has been widely quoted as urging Sunnis to vote for him and his party because that will return 40 Ba'athis to parliament. He opposed the constitution because of the Ba'ath party ban. Originally he said that the party was larger than Saddam, so the ban was made the "Saddam Ba'ath" party. He opposed that too. What of this counts? What crosses the line? Is there something else we haven't seen? (that's one criticism of the process, the opacity, that is well placed actually but isn't a flaw in this law per se) I don't think clarity is possible, even if transparency is. And if that is not a characteristic of US law in certain important contexts, then someone please stop by my office and explain to me when it is exactly that a defendant from one state may be haled into the courts of another. No points for saying when there are "minimum contacts", that doesn't mean anything except what you want it to.

And of course once vague then of course it will be politicized. Challenges will be made to candidates as they are in the US, they will seem untimely as they can be in the US (if to someone's advantage to make it so), each side will accuse the other of using the law as a political football, there and here. And both will be to some extent right, there and here. Again, nothing I've described is unique to Iraq.

What is unique really, the only unique thing is that in our broader American culture, "law" is supposed to be pristine, clear, politically untainted, certain, and the source of justice. When it plainly is not, in our context, we tend to ignore it in media accounts or dismiss it as an anomaly. When we see the precisely same phenomenon elsewhere, we find it to be a flaw in the other party's legal system, it is "politicized", "pliable", "ambiguous", words I could use to describe any number of US laws. That's not to say there are no differences in US and Iraqi law (that would have to be for another time, but it's after the lawmaking process and at the itme of adjudication and enforcement where most differences lie), but only that looking at it from the lens of the de-Baathification laws, Iraqi law really doesn't seem all that different to me.

HAH

The Maqasid and Family Law

2010-02-16T22:05:00Z

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

Institutional Failures in Islam

2010-02-11T00:19:00Z

There are many reasons that the Muslim world in general has had a hard time developing strong institutions and institutional capacities of any kind, whether they be of governance, civil society or private enterprise.  Repression, economic stagnation, persistent reliance on clan and tribal networks to name but a few. For whatever the reason, the preference and tendency has always been to rely on individuals and not institutions to carry on with business. You don't contract with strangers and then rely on the institution of law to protect you, you contract with clan members and rely on the clan, or perhaps some sort of mediator among clans, to help in case of default. You don't report put your money in the bank and expect some sort of financial regulator to ensure its solvency, the regulator probably is crony filled anyway, so you put your money in your cousin's bank, on the expectation (often false) that your cousin is less likely to rob you.

For whatever the reason, this is the way of things in all too much of the Muslim world, and what results is in some cases a rather naive lack of understandings of how institutions and social systems are expected to work. This was brought to my mind just yesterday, after a talk I gave at the New York City Bar on Islamic finance. It was a panel, and all went well, I was my usual contrarian self, pointing out many issues with Islamic finance, but one that I couldn't imagine was going to create the difficulties it did, but which managed to nonetheless, was my pointing out that Shari'a Review Boards, responsible for approving shari'a transactions, were less than neutral because they were paid by the institutions which were seeking their approval to move forward on the deal. At first it seemed like I may have overstated it, obviously you can't just get them to say whatever the hell you want just because you pay them, assumign they have any reputation at all, but equally silly would be the notion that somehow the fact of payment coming from the institution they are supposed to be monitoring (with respect to any single transaction anyway) as being completely unimportant.

But the fellow following me said precisely that. I won't name him, but I'll say he was a late substitute so even looking at the program won't help, but he was an investment banker, which of course meant he was as humble, gentle kind and entirely nondismissive, as all investment bankers tend to be, especially the one years ago who told me ten minutes after meeting me I was a lawyer because I couldn't do math (I had the distinct pleasure of then telling him my degree was in physics from MIT, his was in accounting from a place I had never heard of, and so he didn't even know what math was.)   Anyway, the reason apparently I was wrong was twofold. First, that banks, including Citibank, in his 15 years of experience in Islamic finance, never told him he had to hit a profit level, never told him to improve business in that way, but only wanted one thing from him--to adhere to the spirit of Islamic finance. IN such a world, of course there would be no pressure on these people to do anything but adhere to the spirit of Islamic finance.   Moreover, there are only twelve or so of these people who approve any of the hundreds and hundreds of major transactins in the field. And they are economists. They have PhD's. They are scholars of religion. They are respected. How can anyone think they'd be biased simply because of money.

Now the first obvious point which is if 12 people are approving hundreds of transactions, they aren't exercising much, if any , supervision. Someone is showing them a chart maybe, they're taking a look, making a few comments, raking in a cool five figures and going away.  This is an obvious problem just starting to get the light of day. Even AAOIFI, one of the major issuers of standards in Islamic finance (which everyone then ignores, but anyway . . . ) has in a recent standard asked Sharia Review Boards to read the documents they are approving and make sure they are implemented in the way Islam approves.  If that's not indicative of a major problem, I don't know what is. An organization like AAOIFI has to tell these boards to read the documents.  Unbelievable, I'm just imagining the American Association of Law Schools asking us to read the books that we publish book reviews for in the future. What is it you people are doing if you aren't reading the contracts?

The solution to that problem of course is institutionalization. The 12 people don't have to be people, they COULD be 12 companies headed by these people, or even fewer if some merge. Their firm's reputations would then stand in the place of the people in question, and more real supervision could be exercised. This is particularly if, as our investment banker friend insisted, it's all "cookie cutter," one deal looks just like the other, you don't need intensive review to know that, it's just the same deal in a different context. Well you might not need the super high expert Grand Poobah dude to read every page of contract 2 if it is based on contract 1 and contract 1 is somehow okay, but if you are doing even minimal supervision, SOMEONE out there under the Grand Poobah, a junior associate perhaps, should be reading every word, every single goddam word, or signing off on the deal is to my mind an act of negligence. I can't imagine our investment banker friend approving of his law firm doing some sort of cut and paste of an earlier document without reading it and just hoping it's more or less going to work because it is cookie cutter. If it didn't, and the client was the investment bank and it was injured, I think they'd allege malpractice. hard to see why you wouldn't hold the Board responsible too. Yet somehow that's not really on the table, beyond rhetoric at least. Somehow the idea that this is really a task for an institution and not an individual is not real. What is important is the person himself, the man speaking, the company doesn't count, even when it's perfectly obvious the man couldn't possibly do the matter justice given other commitments.   Even AAOIFI doesn't say let's create institutins, it just says read the documents. as if changing the institutional structure isn't the only way to make sure this happens.

But let's go to the second part of this. Anyone who is anything but incredibly, four year old level naive would probably regard with some sense of amusement the notion of Citibank's Board of Directors telling bankers to go out there and, well, make money or not, who cares, but damn it, adhere to the spirit of Islamic finance! I don't even mean it as an insult to Citibank that they don't think that way (i'll insult them another time), what kind of bank is it that cares about such a thing more than it does its profit margin? Why in the world would they be concerned about "spirit" and not money? I am sure they have a commercial reputation, I'm sure they don't want to make Mickey Mouse transactions that everyone will laugh at in terms of shari'a compliance, so I'm sure they'll say whatever you do, make sure it's a blue chip review board you have reviewing it, in the same way that all reputable companies want a blue chip accounting firm auditing them. That doesn't mean they don't want to make money first and foremost, doesn't mean they won't lean on the auditors to cut things their way, doesn't mean they are more interested in GAAP and its spirit than a profit margin. You can't be serious.

And I think most of us would regard claims of PhD's and scholars and Harvard grads and whatever else as being indicative of a lack of bias as incredibly naive as well. Now let's leave aside our investment banker friend, who has a financial interest in trying to sell the impossible argument that because the man's name has Dr in front of it, he can't be bought. The point is not the banker, it's how can that argument sell?   I mean imagine for a moment that as a country we decided that from now on, judges in civil cases will be paid by the plaintiffs. I think there'd be an outcry. I think most people would think that this was viciously ridiculously unfair and bound to lead to unjust verdicts. And I don't think the argument that these people are judges, they have reputations, they graduated top of their class from law school, they are good God fearing men and women would carry an ounce of credibility as an argument. Even if all this is true of them, and I think it is probably mostly right, most of us think institutionally we think to get the right result in a world of imperfect individuals you create an institution with the proper incentive structures that individuals act within, you don't just call people up and pay them by one side and count on that as somehow working because the people are good when we all know judgment will have to be employed and judgment has a funny way of working out to be in the material interests of the person making the judgment when that is applicable.

In the Muslim world we all too often do not think this way. What we think we need to make Islamic finance work is not institutions but better people, superhumans who don't care about money, for whom financial incentives are worthless, who apply sharia neutrally and who have the magic ability to read a shelfload of documents in 15 minutes. And so to fix Islamic finance we figure we need to just get new people. Theproblem is that you don't need new people, you need a system that makes sense, and this isn't it.

This happens in Iraq as well incidentally. I cannot remember how many times I heard lamented that ministers are chosen in Iraq on the basis of politics and party loyalties, not on the basis of their competence. THe selection of a minister should not be political, it is insisted. In Friday prayers, at the Council of Representatives, among senior lawyers within the Council of Ministers, everywhere. Even the Minsiters themselves said it, they just denied being the beneficiaries of politics. This is why these Ministries are so poorly run, the people running them are just too political, the theory goes. Technocrats, everyone just wants technocrats. It's become an Arabic word, tiqnograt.

I am sorry, but I know of no world where a Prime Minister can appoint a Cabinet and get it approved by an elected legislature without politics. It's naive, it's silly, it's deluded to suggest otherwise. If you want to make ministries effective it's not by trying to make Hillary Clinton into a figure with no political loyalties, it's by creating incentives and structures within the institution at a lower level that assure that governance is effective and, yes, political, but still effective and competent within defined political objectives. Civil service is not government largesse, work continues smoothly from one government to the other, and the like. What we in Iraq wanted was some miraculous turnaround at the Minsitries led by superman Ministers who cared nothing of politics and wanted only to run things for love of country (how one does that without a set of political assumptions concerning what is good for the country is hard to know). We were disappointed when the Ministers turned out to be political animals, normal humans and now want them replaced by others. That won't work, any more than replacing these 12 Islamic scholars who review every transaction with another 12 will do anything. It will just be the same thing unless you create institutions and incentives that work better. You can't make them entirely independent admittedly, someone has to pay the Board and it won't be the government, but you can take steps to assure greater independence and competence and review.

That one prefers to sidestep that and instead focus on the need for exceptional honesty of the individuals in question goes to the very heart of the problem.

HAH

Death on the Fortieth

2010-02-05T16:13:00Z

I tend to be dismissive of the previous administration's good and evil, with us or against us, cowboy attitudes toward everything. The idea that you cannot blink when facing the enemy (Sarah Palin's preferred phrasing) to me is more symptomatic of a studied refusal to reason than in any sort of genuine military tactic. There isn't a successful general anywhere who doesn't blink when facing the enemy. They don't just blink, they study the terrain and the conditions, the exhaustion of their troops, they make decisions on when to engage, or whether to engage or retreat tactically and fight another time. When Longfellow tells Lee to withdraw from Gettysburg prior to the battle, he isn't suggesting weakness, he is saying blink, because those guys have the high ground, it's an open field, they are going to destroy us. And Lee clearly should have blinked.

But while the notion of rushing forward like some sort of unthinking unblinking maniac into a foreign country without much of a post occupation plan is rather dumb, at times it seems to me that the left makes rather silly conflations of its own, and fails at times to understand the nature of Al Qaeda and its offshoots and affiliates, collectively this violent Sunni extremist enemy that threatens the United States, and the Muslim world even more quite frankly. (Yes Shi'a extremism is bad too, and threatens US interests of course as well, and so is neoNazi extremism but this post isn't about any of that.)

Here is what happened today. At one of Shi'i Islam's holiest of days, commemorating 40 days from the death of one of Shi'i Islam's holiest personalities, a parked car exploded at the entrance to one of Shi'i Islam's holiest cities, killing a few pilgrims who had come to the city on foot to commemorate. Though perhaps obvious, it bears mentioning that people who walk from Baghdad to Kerbala over a period of days and sleep on the dusty roads and eat whatever food the people of the villages en route can provide are neither decisionmakers nor businesspeople nor professionals, they are simple peasants or the urban poor, come to do a religious duty, and killed by a car bomb at the Qantara Salam gate en route to doing that. The fellow who used to clean my home goes every single year. I never met a kinder or gentler man in all my life. He told me the story, though it's on media outlets as well in largely similar form.

If only that first explosion were all. The car was parked, it was some distance away, it wasn't intended to do much damage. What it did was send a panicked throng of poor villager pilgrims straight back onto the highway and running toward the Holy Mosque, away from the bomb and toward the only Sanctuary they could identify. God and His Holy Imam, the Prophet's Grandson whose body is buried in the mosque surely would protect them they reasoned, get to the Mosque, the Tomb, and all will be well. So they ran on the road in that direction.

Which is precisely what the terrorists had figured they'd do, and which is precisely why they had a second bomb waiting for them on that road, this time detonated by a suicide bomber when the panicked crowd approached. Hundreds were injured, close to a hundred dead.

That's what happened, and the person who thinks you are going to get people who do a thing like that to stop doing it by getting a court to let Saleh Mutlaq and the others excluded from the elections back in, is every bit the roses and perfume hippie stereotype the Bushies would make him out to be.

Now I don't mind letting Mutlaq back in, in fact I tend to have the American bias of let everyone run and let's see who gets what, I'm happy to let Saddam's daughter run too, because I don't think her party will get 5% of the vote. I'll agree that reversing the exclusion would help with reconciliation of millions of disaffected Sunnis who feel shut out of the process. I think reasonable minds can disagree on how shut out Sunnis really are, but we should all agree that reconciliation is a good thing and should be encouraged and we should work towards it.

I don't see how that has a damn thing to do with what just happened at Kerbala, because what happened at Kerbala was perpetrated by people who you don't reconcile with. You don't reconcile with folks who send pilgrims straight into a suicide bomb. What you do to them is you find them, you capture them, you try them, and you punish them severely (I'd say stick needles in their arms but will pull short to avoid a death penalty debate which is a side show. I don't mind if you throw them in prison and toss out the key, I can live with a 3000 year sentence).

Yet for some reason these things are always linked. This stuff is supposed to be connected to the whole election episode. read any media account today and they discuss these events as if one has something to do with the other. The theory seems to be Mutlaq is not included in the elections, and violence rises, and now the court has seemed to let him in and this thing happens which means maybe what the court did isn't enough. As if some group of people is cooking eggs in the morning poring over the court's opinion trying to decide if it's done enough or if they should carry forward with their plan of killing as many poor people as they can who have come unarmed and without property of any kind really to perform a religious obligation. If we were talking of violence against a minister, or against an empty government building, I could understand the theory to some extent I suppose. But we're not. To suggest they are linked is to give this violence legitimacy it cannot possibly deserve, to conflate a reasonable (if contested) belief of insufficient inclusion with tactics so barbaric and inhumane they are painful even to describe.

The fact is the people who did this aren't interested in who is or is not participating in an election, they don't like elections at all. They're probably happy there are exclusions to make the elections seem less legitimate. So by all means let's have some national reconciliation, let's air all the grievances on all sides, because everyone has legitimate ones, Sunnis claim they are excluded, Shi'a claim that Sunnis are in denial of demographics, Kurds claim nothing is being done on Kirkuk, and ask for painful compromises from all. But the reason to do that is to avoid private militias and guerrilla groups, to create a strong state, a functional state, one that serves its citizens well by developing infrastructure, fostering investment, encouraging education, and harnessing its domestic talent. And, yes, absolutely, keeping pilgrims safe from the likes of Al Qaeda through the unabashed use of an iron fist. Iraqis applauded when Maliki did that against the Shi'a extremist Mahdi Army in Basra, they'll applaud when he does it against Al Qaeda. It's got nothing to do with reconciliation, everything to do with crushing an implacable enemy which deserves nothing more than its own destruction.

HAH

Environmentalism and Islam in Our Times

2010-01-31T13:27:00Z

If ever there was doubt that some sort of theory of environmentalism has taken root within modern Islamic discourse, Osama Bin Laden's recent diatribe against the West for global warming of all things probably puts an end to the matter. When the homicidal Bin Laden advocates some sort of ethic of environmentalism, you know this idea that in Islam we protect the environment has gone viral.

There are I think a few interesting observations that might be made about this. The most obvious is that it demonstrates I think a new direction to Islamic fervor that I have been writing about, see this piece on what I call the Death of Islamic Law. The piece itself focusses on what is the true source of law in Muslim societies. Shari'a might be selectively enacted by the state, and Islamist and secularist will not be engaged in debate about how much selective enactment there should be. But at the end of the day, selectivity is the standard to which all adhere, really conservative Islamic Party and really secular party alike, using no yardstick and no consistent standard (repugnancy is not a consistent standard in application anywhere, Islamic constitutionalism is therefore deeply overrated, that's part IV of the piece). Islamic law is really in our times for ALL (including Islamist groups) therefore just a set of ideas that a state might want to think about as it develops its largely transplanted legal and political system, nobody wants a comprehensive Islamic system based on classical juristic theory, everyone wants to drop some of those rules for Western transplants, the only question is where, and how many.

The objection I am receiving most often to this is one that seems to conflate "The Death of Islamic Law" by which I mean the use of fiqh as a means to create a legal system, as opposed to supply a few useful ideas here and there, with "The Death of Islam" which would mean nobody cares about the religion anymore. The latter I think you'd have to be living in a cave to think, but that Islam is important does not mean that "Islamic law" is the basis of the legal or political system.

Environmentalism is a good place to explore this precisely because there is no "Islamic law" on environmentalism, the vast corpus of rules that comprise the shari'a have no material on it. Go to the classical sources, you're not going to have an outline of what types of environmental practices are permitted, what are not, Sarakhsi has no Book on Ecology, nor does Qarafi or Kasani or anyone else. So whatever differences I have with many of my Islamic law studying colleagues on the importance of the integrity of the so-called legal tradition to Islam in understanding modern Islamic practices, I think they'd have to agree that in some areas, like environmentalism, the legal traditon isn't that relevant because it has nothing to say, and environmentalism is one of those areas. (Just as I'd have to concede on the limited nature of the relevance of the tradition in other areas where there were detailed rules and they still have some application of course).

Nor is shari'a going to be extended in any sort of fiqh like manner to cover environmentalism in any sort of comprehensive fashion. I don't doubt one might get clerics to start indicating that littering is a sin, or even edicts from Najaf, say, to Baghdad, that it is a government's obligation under Islam to clean the streets of trash, but that's not a legal system. That's random rules inspired from an ethic that are neither comprehensive, nor complete. Does Islam support cap and trade? Is recycling paper required by Islam? What if there is no recycling facility within 200 miles? What if one is 10 miles away but a person has no car? And so forth. And those, including perhaps not a few American Muslims, rolling their eyes and thinking "who approaches religion like that, you're missing the 'spirit' of the faith" should take a look at any classical work on shari'a, or any modern Najaf jurist for that matter and examine for themselves whether or not such casuistic hair splitting is or is not the essence of our legal tradition, because it is. I'm not suggesting that's a bad thing, or a good thing, but if we're going to talk of the legal tradtion, that's the tradition.

No, what you have instead in environmentalism is an environmental ethic, not a shari'a system. I would certainly argue that it is not one mandated by sacred text, the SAME verses used to support this ethic were used when I was a child to suggest environmentalism was a Western plot with no recognition in Islam. Essentially, and in dramatically reduced form, the pro-environment theory arises from the fact that the Qur'an is replete with verses pointing out the glory of creation, the heavens, the earth, the trees, the mountains, the stars, and so forth, as evidence of God's Beneficence. Humanity is left as khalifa, or God's representative, of this bounty. A fortiori, the representative has an obligation to protect his Lord's interests,which is the environment. Absolutely workable, absolutely legitimate.

But you could take those same verses, as people did in the 1970's, to prove its opposite. The bounty of the heavens and the earth is often, though not always, tied to humanity's exploitation of them, which God encourages. The verses do thus indicate that God spread the earth like a carpet before man so that he could travel on it, he made water in a manner that allowed ships to travel over it, he provided animals that could be eaten, springs that could be drunk, and from this a "representative" isn't one who has to protect it, but to turn it to humanity's use, to find more means (like digging for oil) through which God's bounty for humanity might be used by humanity. In the Qur'an, Mary is dying of thirst and God tells her to shake from this root, and from it will spring clear water. It is not a fantastic leap of imagination to move from this to an impoverished society that miraculously discovers oil beneath its worthless sand. Not to exploit that land is like turning down God's gift.

So certainly the doctrine is contingent,as all doctrine is, but as noted at the outset, when Bin Laden starts to advocate the first of these, the pro-environmental stance, it's fairly clear the stars are aligned for now in its direction. And in our times, with Islamic fervor running high, that might well mean that Islam will be used as an ethic to advance environmental policy, at least in rhetoric. But that's different from saying that "Islamic law" has to control the outcome in an Islamic state and people demand an Islamic state. In environmentalism, that's easy to see because there is no law to speak above. You're not going to be able to stand up in a legislature and demand cap and trade because God's Law is superior to man's law, you don't have the resources in the legal tradition to make that claim plausibly, the most you'll be able to say is God wants us to preserve the environment and this is the best way to do it. And that might well have some influence. And other points might have influence too, among them "this will cost too much", "my constituency could use the work", "the oil companies bribed me to say no" and who knows what else. The decision ultimatley taken is thus influenced by a strong ethic of Islam, and other factors, and the state decides which of these it's going to adopt. Islam counts, but so do other things that claim no heritage and no basis in Islam. It's not that political influences affect the outcome of what is Islamic, it's that the state uses Islam as one of many factors, in determining an outcome.

I'd only argue the same holds true when Islamic "law" is in play, that in other areas when the legislator can shout it's God's Law and you have to follow it and has rules she can bring forward with unquestined pedigree, she doesn't really mean that. She doesn't say that for all rules of fiqh which she's have to if she is serious. Instead, she consciously adopts (or more likely quietly supports) rules from Western law that have no basis in fiqh in other areas, my paper uses negligenceas the example, there are others. So the question "is codification of Islamic law a distortion of Islamic law", a debate my colleagues love after first posed by Schacht fifty years ago, to me is a red herring. who cares? The reason I say who cares is that even if it isn't, certainly in any state I can think of, codifications are more often than not NOT grounded in Islamic law but Western transplant, and that includes Iran and that includes Saudi and that includes the Tanzimat codificatins of the Ottomans except the Mecelle. Read Iran's Civil Code and explain to me how its definition of contract is based on Shi'i rules set forth by the Grand Ayatollahs. It's not, the theories of the Ayatollahs have been ignored in favor of French transplant, and that in a state run by Ayatollahs. That's worthy of some thought right there. If "God's Law is superior to man's", the rhetoric that supports countless Islamist movements, was real to them, how could you explain this?

I don't think you can, except by rendering this idea obsolete and more rhetoric than reality. Islamic law, thus, really isn't "law" anymore, it's more a political influence, one of many, to which the state might pay attention as it decides on a proper course of action with respect to any given field of law, accorded no more prima facie validity than a competing draft of legislation in the same area by a lobby which decries the use of shari'a in a modern state. State decides what to do then. Read the paper for more, welcome your comments after you've read it.

HAH

The Real Electoral Crisis in Iraq

2010-01-23T22:11:00Z

For those of us who are comparatists by profession, we are I think to a person sensitive to what I might call the transference fallacy. This is the glib and unthoughtful effort to transfer of a set of lessons learned in one place into another without stopping to consider whether the lessons drawn are really the right ones given the different contexts, indeed without thinking about the contexts of all. I accuse the popular media and most policy experts of doing precisely this with Iraq as concerns the current electoral crisis.

The crisis, for those unaware, is that some hardline Sunnis, and some Shi'a (it is about a 50-50 split, conveniently ignored in the telling of the story elsewhere) have been excluded from the upcoming election, most notably Sunni hardliner Saleh Mutlaq, which has been disconcerting enough for the US to send Joe Biden out to mediate. (From my time in Baghdad, if I learned one thing, it's that the US will delay the Second Coming of Christ if necessary to get this election off, successfully, so they can start their major withdrawals. Any threat to the timetable or legitimacy of the election is taken very seriously, and this is precisely such a threat.)

Now if you are a journalist, meaning a reasonably intelligent person with some knowledge of the place but no more than 15 minutes to think about it before putting pen to paper, you might end up embracing the fallacy as follows:

In Iran, or Afghanistan, indeed generally, the reason you exclude candidates is because they might end up beating you. They are a threat to your victory, so you have to move them aside. This is also an attempt at electoral exclusion. Therefore, Saleh Mutlaq and his party, and Bolani and his party, are secularists who might end up beating Maliki and so Maliki is trying to move them out of the picture, so they don't weaken him.

The problem is, you'd have to be living in some sort of cave to think that the dominant parties after the next election are going to be anything but Shi'a middle Islamist. Mutlaq himself, the so called patriot of this tale, is actually a hardline borderline bigot, a man who has had the temerity to describe a vast number of his countrymen as being more loyal to Iran than Iraq, whose party members have referred to Kurds as locusts, and whose base of support is therefore the Sunni heartland, and if he's lucky give him 15% of the urban secular Shi'a vote. He is no electoral threat, Allawi his partner is no electoral threat, they will be a loud and perhaps annoying party in the upcoming legislative session, but really, the idea that Maliki is scared of him is silly. He can't touch Maliki's base and honestly Maliki can't reach his either. Ban Mutlaq or leave him, he won't get those votes.

So the model is wrong, Mutlaq is despised by overwhelming majorities of Kurds and Shi'a, he isn't going to win anything. But then why exclude him, earn America's concern, Sunni wrath and the rest of it? Why not let him run like the Chinese let democratic advocates run in HK so long as their minority status is assured as surely it is here?

The reason, simply enough, is that Maliki will lose votes if he tries to relent. Not to Saleh Mutlaq, that's silly. To the INA, the other Shi'a party. The reality is that the Shi'a by and large, the base, the religious core that dominate the Shi'a, are deeply, fundamentally, viscerally anti-Ba'ath, and former members of the party make them sick. Mutlaq's efforts to woo the former Ba'athists back, promising to be their vehicle, has offended the base. So at some point, a move was made to exclude the guy, one couched in the language of law by the way (making overt political interventions theoretically off limits, but as I mentioned two posts ago, America isn't so concerned about the rule of law when its interests are threatened). At that point, Sunni ire was raised, but so was Shi'a rage, less reported in the Western news though prevalent in Iraqi media. The Shia don't want him around, and there are two coalitions vying for the Shia vote, the INA and Maliki's Rule of Law. If Maliki backs down, the INA is going to use it to the last day, "Maliki, friend of the Ba'ath and friend of Saleh Mutlaq" their outlets will say. He's not scared of Mutlaq, he's scared of looking like a friend of Mutlaq, which would be electoral disaster for him. He cannot do that, and if the New York Times wants Maliki to ignore the constituency and do it anyway, well then frankly democratizing the place wasn't the way to go. You can't call for elections and then get upset when people who aren't liberals don't vote liberal and their officials don't act liberal. What the hell did you expect?

What's the REAL lesson we then learn from this? That Iraq's Shi'a and Sunni communities remain bitterly divided over the form of the state and the exercise of power within it. One leans to soft federalism and wants harsh justice for all Ba'athis of the past, stringing them to the lamposts if you can, banning them from politics if you cannot, and that includes people who left the party in the 70's. Sort of like banning LA from the playoffs because they stole the Dodgers fifty years ago. The other is quite enamored of the former Ba'ath and more or less seeks a return to their rule, (and implicitly Sunni resurgence within it). Not in terms of the disaster of Saddam, Saddam's Ba'ath predecessor is more the model, a strong and when necessary brutal central government that keeps people (ie other groups) in line.

Now that you know the problem, imagine trying to solve THAT by early March. You can't, all you might be able to do is paper over the problem, delay it for another day, something Iraqi officials have become deft at over the past half decade. But solving it? Impossible.

Haider

America's Two Muslim Communities

2010-01-22T21:20:00Z

If you go to any city in the United States with a Muslim community of almost any size, you are nearly guaranteed to find at least two mosques. One of those mosques will be largely African American, and the other will be largely immigrant. This split is far more common even than a Sunni Shi'a split. Until the Shi'a community reaches a particular nucleus, they often don't even bother with a separate mosque, they might do Shi'a things in homes and the like, but otherwise go to the Sunni mosque. But there will almost certainly be a separate mosque for African Americans. Growing up in Columbus Ohio this was certainly the case, and even here in Pittsburgh where there is a Shi'a mosque, it was opened recently, long after there were several Sunni mosques, among which were, as you might guess, predominantly African American mosques and predominantly immigrant mosques.

At one level, to one focussed more on doctrine than the social context in which that doctrine is located, this is perplexing. Islam is nothing if not race neutral, particularly in our time, particularly on a docrinal level. Why wouldn't the substantially more significant Sunni-Shi'a split, with the thorny questions about the first three caliphs, the doctrine of the Imamate, the notion of the returning Mahdi, end up being the first division? Why would it be black and immigrant when they're both Sunni and more or less believe the exact same thing?

To those of us more accustomed to looking at things in their social context, the Realists, it's not so surprising. First, America is a society riven by race in myriad ways. Whether it's television shows, movies, the people a person chooses as friends, neighborhoods, schools, there is a stark divide between black and white that is quite clear in American society that only a fool would fail to recognize immediately. Second, when brown people from other countries move into that social space, they effectively have to decide which of these two camps they are going to belong to. Are they going to be like white people, or are they going to be like black people. And to the legitimate dismay of African American Muslims, they almost always choose to be white people, and yes I think racism has something to do with that. Not Bull Connor racism, of course, American Muslims of the immigrant variety inhabit the social space of contemporary America, not 1950's Alabama, so it's not like they won't pray behind black people, or won't let a black imam lead the prayer, or will bar the doors to black people entering the mosque, any more than white people today demonstrate to prevent blacks from entering their schools. Most American Muslims would react violently to the notion that they are racist, they would regard it as the same insult that white Americans would. But if the question becomes do they want their daughters marrying African Americans, and let's make it easy and say African American Muslims, I think you'd find those preferring that over those preferring a white non Muslim entirely would be a very small minority. this despite the doctrinal ban on interfaith marriages of this sort (Muslim women can only marry Muslim men, reverse though it's a bit more open) and, as noted above, total race neutrality on marriage as a doctrinal matter.

But it's not just racism that causes them to choose to be white on the white black divide. Immigrants who come to the US tend to be from communities and places where they have had exposure to an America that isn't black, both in visitors who have come to them, in the colleagues who go to them to teach, and the like.

It really doesn't matter what the reason is, the point is, Muslims enter the US, and their doctrine doesn't recreate the social space, rather they adapt themselves to the social space. They adjust themselves to the social space, it becomes their lived practice. They become "white", they have white friends and like white movies and live in white suburban neighborhoods. And like most whites, they tend to forget there's a whole group of underprivileged black people living not too far away, such that the difference between the immigrant mosque and the black mosque in terms of facilities and their disrepair is rather stark. Again, not overt racism, more benign neglect. An African American imam if he comes to the immigrant mosque and tells the tale of his mosque, and of course he'll be invited, might gather a lot of cash, he will gather a lot of cash actually. What he won't gather is many visitors even if he pleads that they come take a look. A few might think about it, fewer still might venture over once or twice, and that will be that. The immigrants mean well, but they don't treat the brother as their own, they neglect the whole notion of the race blind brotherhood they are supposed to be following from the sacred texts, they send far more money back to their home countries for charity than they do to their coreligionists in the same city.

They adapt, that is, their doctrine to the social space, not so much by overtly changing the doctrine, but more by practicing parts and ignoring other parts to match the social space, which in this context is America's perduring racial divide. It's not pretty, in fact it's rather shameful and ugly, and even if I've overstated my case (meaning there is more cooperation and more intervisitation than I've allowed in these short remarks), that divide, among American Muslims, is tragically more real than I think many of us care to admit.

HAH

On the Chimera of the Rule of Law in the New Iraq

2010-01-16T00:38:00Z

Fans of the blog may well note that I've grown increasingly skeptical of the term "rule of law" over the past several years, mainly because I am not sure what it's supposed to mean, other than something we in the U.S. have that other countries don't and it is our American Burden to pass it on to them. Or something. Recent events in Iraq have only come to fortify this conclusion of mine, though I have to add the U.N. as coequal culprits, the institutions liberals love and conservatives despise and I've come to lose nearly all respect for in my time in Baghdad.

If "rule of law" means anything, it's supposed to mean noninterference on the part of other, supposedly more political, branches of government in the affairs of the judiciary, and that,  mostly I guess as a consequence, "law" should reign supreme over other interests and forces in the social order. That's as thin a definition as "rule of law" can come by. But recently, in Iraq, we know for a fact that an independent commission disqualified a number of candidates, including Sunni firebrand Saleh al Mutlaq, that the matter has gone to a court for determination, and that the US and UN are exerting pressure to have that decision reversed. Now it would take some form of idealism to imagine that the US and the UN were taking this position because they are just certain that the determination to exclude Mutlaq was just wrong as a legal matter. They are paying no attention to policy ramifications, they've just read the Accountability and Justice Law and they disagree with the conclusions made, really? Of course it's political. And yes the decision to exclude him was political, get the annoying Sunni removed, but the effort to reinstate him is also political, don't antagonize the Sunnis, neither one of these is "law" in the sense that "rule of law" is supposed to mean. These positions aren't dependent on statute or code or interpretations thereof, they are based on political preference.

Though at least with the Mutlaq episode, if one actually bothers to look at the law, plausible arguments can be drawn all around, because the law concerning who to exclude, and indeed the responsibility and authority of the Accountability Commission to do it, are matters of legal debate. Yet even when the arguments are more difficult to make, or better stated limitations of time and resources make the fashioning of good arguments impossible (precisely what happened in Bush v. Gore, the arguments of the Supreme Court were awful and as a result too overtly political, and time constraints made them bad--since then better positions have been developed), America hardly seems in the camp of the "rule of law" when it's political interests run contrary.

We know for a fact that America has quietly urged the Iraqis NOT to hold a referendum on the Status of Forces Agreement even though Iraqi law calls for it, because frankly America is afraid of losing the vote. Lawyers who knew something about Iraqi law we know for a fact, an absolute certainty, were told not to say anything, because anyone with an ounce of credibility would have pointed out the requirement for a referendum, and that's not what America wanted.

There are other examples involving the recent election crisis and how to count the time necessary to respond to presidential vetoes, but that's for another time and perhaps another forum.  But it's very much about ignoring law and seeking to influence courts and institutions to ignore law, or to develop the flimsiest and most transparent of positions to circumvent law in a time crunch. Again, not necessary to develop in depth here.

The point is, in a fundamental manner, it's not about the Rule of Law, it never is, and it never was. The United States has a rule of law section in its Embassy, and I don't dount the sincerity of its personnel in their belief in this thing called a "rule of law" and in their sincere desire to spread the message of its importance to Iraq and elsewhere for the benefit of Iraqis.   But those people aren't the ones who get to make the decisions when America's central political interests (consensual politics, lack of sectarian strife, and most of all, an on time election that permits and justifies a troop drawdown) are involved. When those core interests come into play, suddenly Iraqi law isn't so important, America's interests, or the UN's interests are more important. Heck you can even overhear the UN people at parties in the Green Zone say it, "nobody actually follows Iraqi law anyway" and "what are we supposed to do follow the law and watch the country go to pieces?" are two things I've overheard myself which I can relate without betraying confidences since they weren't told to me directly or indirectly, I overheard them. So there's the point then--law is secondary when other interests are involved.

In the old days, I suppose we could all just blame W. and say it has something to do with his disregard for law, but now the constitutional law professor is our President, and still, US interests are US interests. That's not to say they always control, because judges have interests in some level of autonomy, and Iraqi political actors have interests, and the UN has interests, and Iraq's neighbors have interests. Always is thus, and always shall be.

But what strikes me as silly is the naive belief that somehow, "rule of law", which given the thinnest definition above has to involve handing more power to the judiciary over decisionmaking in individual cases and in applications of statutes, can be "taught" to developing nations. The reality is that whoever the hell is doing the teaching has interests, and those interests are never going to be in perfect harmony with those being taught. And then they're not, the judiciary is going to find, understandably, some level of hypocrisy on the part of the teachers who are ignoring their own lessons when convenient.

So it seems to me the United States, and the United Nations, should probably stop spreading the message of "rule of law" like some fervent crew of maniacal evangelicals.  At least in Iraq, both of them are looking increasingly ridiculous in the process.

HAH

Worship of the same God in the Muslim and Christian paradigms

2010-01-12T11:23:00Z

There is an enduring question that seems to arise in any number of contexts respecting whether or not the Muslim "Allah" and the Christian "God" are one and the same that I think deserved more considered treatment than it has been receiving, because what the question is trying to address is I think somewhat different than what appears. I began thinking about this after the fascinating debates that have surrounded this issue in the United States and Malaysia. In the US, Muslims are desperate to get people to recognize they worship the same God as Christians, and Jews. Opposing this are some elements of the fanatic right who deny this and insist we worship "Allah" instead. In Malaysia, it's the Christians who just received hard fought court permission to use the word "Allah" to describe God, and it has sparked violence on the part of the Muslim religious fanatics there. Which is rather fascinating, Christians fighting to use a word for God that America's fanatics regard as satanic, and Muslims denying them the right to use it in a manner that confounds American Muslims, who would be delighted if everyone just started calling God "Allah".

The question is very, very much different than a question in almost any other context on whether or not X is the same as Y. "Am I reading the same book as my friend Fu'ad", or "are you the same Professor Hamoudi who taught my brother," are what we normally mean by "same" and are totally inapplicable in this context. In the cases of the book or me, you are looking for a total identity match, meaning it is precisely one and the same. yes in the case of the book you don't mean the physical paper, but what you mean is the same printed words, but in the case of me, you mean me, only me, not my brother or some guy that looks like me. I suppose you could get into some rather deep philosophical inquiries about how you know who I am, that I exist, that I existed then, what identity means and how it is determined, but I'm going to leave that one to the philosopher friends of the blog and pull out the lawyer's copout, to paraphrase Justice Stewart, I know me when I see me, and I know the same book when I see it, and so does everyone else.

Surely we don't mean this by the same God, because then clearly Muslims and Christians worship a different God in that the Muslim God doesn't have a son, and the Christian one does, the Muslim one sent an angel to speak to Muhammad and the Christian one didn't, and so forth. But then again, by that same standard, Chrisitans and Jews don't worship the same God either. Nor do those in the American north who despised slavery and thought Jesus did too worship the same God as those in the American South who felt that God endorsed slavery. Nor do the Copts who believe that the Father and the Son are of the same substance worship the same God as Orthodox Christians who are heterophysites. Or for that matter the Muslim who doesn't get up at dawn to pray and figures if God is All Forgiving, surely he'll forgive that as compared to the real horrors that occur in this world worships a different God than the guy who says breaching the rules is a terrible offence to God.

I could go on, the point is, one isn't really asking in using the adjective "same" a complete identity match, but a substantial enough one. Are there enough characteristics that are similar that they are basically the same? At one level, the question is silly. Who cares? It's sort of like asking (now I'm paraphrasing Richard Dawkins, Allah please forgive me for this horrible sin. . . . ) whether or not Newton or Einstein or Darwin was the greatest scientist of all time. It's not a football game, Newton developed the physical laws that govern our world as we can see it with the eye, Einstein refined it for very high velocities and broad spaces, Darwin defined how life has blossomed into admirable diversity, they all made breathtaking contributions to humanity's understanding of itself,and should be celebrated on their own terms, "greatest" doesn't mean anything.

Similarly, Muslims and Christians and Jews believe that there is one True Eternal God, that He loved humanity so deeply that he sent to it a series of messengers and prophets and that he will judge them at the end of time for all they do. They disagree on who the Messiah is, and whether or not he is Divine, and the mission of Muhammad. You want to call that the "same" or "basically the same", fine. You want to call it different, okay. You want to call it fettucine alfredo that's fine too. It's just a label the similarities and differences are what they are.

But at another level, there is a world of importance to this rather subjective determination of what is and is not substantial enough to be the "same". What one is trying to do when they say you are worshipping the same God is setting forth a position of deeper social, and at times political, legitimacy. When a Malaysian Christian wants to use the term "Allah" in his prayers, and points to the Koran itself which indicates to the People of the Book "your deity and ours are One" as proof that he should be able to, he is seeking some level of recognized legitimacy to his faith, and the Muslim who opposes him is doing the opposite, he is seeking to exclude him from some aspects of the social order on the grounds that his God is somehow different. Similarly American Muslims are seeking some sort of legitimacy from and inclusion in a broader national religious fabric commonly described as "Judeo-Christian". As to why Iraq and even Egypt with its current religious tensions managed to avoid this problem of distinguishing God by name, I think the reason is just the realities of the Arabic language. Ignoramuses in the US and Malaysia aside, the word "Allah" means "God" in Arabic, and Christians and Jews have used it from the Prophet's time. To devise another name would be to break with centuries of tradition. You'd have to make up a new word for God, which would never be done lightly. That's not to say the religious tensions are less as a result necessarily, though it has to help when the deity has the same name, but that they aren't manifested in this linguistic acrobatics.

The same would apply intrafaith I might argue. I think you'd be hard pressed to find a serious person today who would say that the Monophysite Copts worship a different God than the Heterophysite Orthodox, same substance, different substance, I think people don't put that into the category of social exclusion anymore. But I think I could find quite a few people on the left who might say if you think God hates gays, then you believe in a different God. It's not really a question of theological compatibility, but rather of whether the other believer is close enough that you consider him in some way part of a broader religious ethic in a particular social order, within the larger tent, that is.

Of course, for those of us deeply, deeply respectful of (and believers in) faith and the role it can play in the life of a person, and indeed in the story of humanity, yet who simultaneously are ardently secular in our insistence that none of this can relate to political systems such as the modern nation state, it is distressing that all of this should matter as much as it does for the political purposes to which it is often put. Whatever the value of deciding that a follower of another faith does or does not worship the same God, and it may be substantial, surely it must have nothing to do with that person's equal political citizenship in the nation state.

HAH

Free and Hurr: On the redefiniton of Islamic terminology

2009-12-29T19:52:00Z

One of the most moving stories told during the Ashura processions, commemorating the death of the Prophet's grandson, the Imam Hussein, killed by the sixth caliph for refusing to swear loyalty to him and generally dated as the origin of the Shi'a Sunni split, is that of Hurr. Hearing Imam Hussein speak just before the onset of the battle, with only a few dozen fighters by his side while the caliph commanded an army of tens of thousands, Hurr began to tremble in terror. His compatriots asked what was wrong, he was the great Hurr, commander of men, how could a single men with a few dozen people scare him? And the answer returned was that he, Hurr, was afraid of no swords but when the son of the Apostle of God spoke, he saw his soul fluttering between Paradise and Hell.  He switches sides, obviously ends up getting killed, but as he is taking his last breath, Imam Hussein says to him:

You are Hurr, and so you shall be. Hurr in this life and Hurr in the next.

Hurr would generally be translated by any modern linguist as "free" and indeed that's how I have always thought of it as a modern Arabic speaker, familiar with modern Arabic in its modern forms particularly as concerns the law. Hurriya is freedom, political freedom, memorialized in constitutions throughout the Arab world as such. It's a transplanted idea, but one that has taken root. If you adopt it in the Hurr context, the idea would be that Hurr acted freely, he chose to distance himself from the constraints of command and post, and follow his conscience. It was in that sense an ultimate act of freedom, of breaking the bonds that tie one in this life, and earn them freedom in the next.

But I've been thinking about this rather modern understanding recently and realize of course I'm imposing modern meanings on older words. There is another moment recounted in the battle of Kerbala, where Imam Hussein tells to the gathering barbarian hordes who have come to kill him

آل أبى سفيان.ان فان لم يكن لكم دين وكنتم لا تخافون الميعاد فكونو احرار في دنياكم

or roughly translated, "Family of Abu Sufyan: if you have no religion, and you have no fear of the appointment, then be free in this life of yours"

Now given that these are Shi'i accounts, Imam Hussein can't be understood to be asking the family of Abu Sufyan to be free to follow their conscience. They have none, that's the point of the whole story of Ashura, they are unconstrained in their willingness to soil the religion by murdering the Prophet's grandson and desecrating his corpse, none of it works as a defining legend of a faith if the bad guys are acting not according to their own evil intentions, but because they are constrained by other forces they are too cowardly to contest. There is someone in the tale who occupies that role, the Judas of Kerbala, Omar ibn Saad, but those who Imam Hussein addresses in this account aren't going to be swayed by conscience.

Things became much clearer once one starts to think about the matter of the word "Hurr" more carefully. Generally the term is used, even in the Qur'an, as a contrast to "slave". So the verse on retaliation for murder (life for life unless blood money paid instead) says the free for the free, the slave for the slave, so you don't take the live of the free person for killing a slave.   That much everyone knows and yet that still works for the modern mind, other than that slavery could be tolerated, but that's another matter Muslims have largely dispensed of. The point for the meaning of the word Hurr is that clearly a slave isn't free, and so Hurr still means free as in politically free.

Yet thinking in terms of class distinctions, and classical Islamic law is rife with them particularly in marriage (another fact that seems to escape the notice of many modern Muslims, who seem to think Islam never believed in social class), the opposite of a slave is not just a "free" person, but also a "noble" one. A man with property, with means, a man of substance and depth. And in early Islamic sources, it's pretty clear "noble" works better than "free" in most instances when the term is used without reference to slave.

And so Hurr, your name is Hurr, and so you shall be. Noble in this life, and noble in the next. And so Family of Abu Sufyan, if you have no religion, and you don't fear the appointment, then at least be noble in this life of yours.

It works quite well, there are many other examples.    What is the point of all of this? Mainly that "freedom" meaning political freedom as understood by a liberal, isn't a term that has any meaning in early or classical Islam. The word doesn't mean what we take it to mean, it means something else in the sources of law. That isn't to say that liberal freedoms are incompatible necessarily with classical Islamic law. To take an easy example, I think you could talk about the "right" to an education, or the "freedom" to learn, and make a pretty good case that the sources presuppose that. Still, they don't say it, in fact it's more an individual duty than a public freedom, it takes some transformation to make the one into the other.   The notion that learning has to do with "freedom" would be baffling to anyone from earlier eras, they might well retort "but the duty to learn is incumbent on everyone, slave and free, it has nothing to do wth that status."

So in sum, we invent new concepts, like freedom. We go back to classical sources to justify them. We use words for them that would have meant completely different things to different generations of people. And yet the notion that we reinvent the religion to suit the times is met with stiff resistance. Why that is, I will never know.

HAH

Realism and the Right to an Attorney: Lessons from Iraq

2009-12-23T17:15:00Z

I realize that I have not written in some time, perhaps my longest respite from the blog since it began. But Thanksgiving came and went, and then we were thrown into an election law crisis and my is there much to discuss there, but virtually none of it can I talk about right now (it's coming, it's coming) and beyond that I had almost no time to think about anything, hence the delay. Starting in the New Year, I will be returning to the US after my many months in Baghdad, and will of course be much more assiduous about keeping current the blog.

For today's post, I did want to raise an issue I have been thinking about for some time now, which is Realism and the right to an attorney, spurred by a conference I attended some time ago here in Iraq, where as I've noted Realism has no purchase in the slightest and the strictest forms of formalism reigns, where basically legal interpretation is akin to a mathematical formula that leads one clearly to a right answer, or a wrong one.

At this conference, held some time ago, and I don't want to go into more detail about it at this point, but let's say it was some pretty significant personalities in the world of Iraqi law, and it became clear to me that these fellows had a pretty hard time in justifying the point of an attorney in a criminal trial, and their strict formalism had something of a role.

In the United States, the right to an attorney in criminal cases was established as Realism began to creep into the legal academy, and the processes I submit were related. When one believes, as I do, and as we in the US came to believe, that under just about any given set of facts, there are several equally plausible doctrinal arguments (and we don't have to go to the reverse extreme of Iraq's formalism and say under ANY set of facts, ANY argument can be made to make the point here, the softer one, which I think the huge majority of lawyers in the US would accept as true, will do), then it is rather important to have a lawyer. He is going to know where the strengths of the case are, where its weaknesses are, what arguments can be presented, what cannot, and without this, the defendant is at a tremendous disadvantage.

But if you posit two things--first, a nonadversarial system where the determination of the facts is not done by the attorneys (prosecution or defense) in the first instance, but by an investigative judge (because plainly factfinding is the most important function of any attorney at an adversarial trial), and second, you presume that law is a mathematical formula, the purpose of a lawyer is I will certainly not say nonexistent (that would be plainly untrue) but a little less obvious. That is, if it's a formula, why can't the judge just apply the formula and get to a right answer? Why in the world would you need a lawyer? Or that might be a first instinct at least.

And indeed, you had some pretty senior Iraqi legal personalities saying some rather horrifying things, stuff you'd expect maybe at these tea party rallies or whatever they seem to be having in the US or did at some point anyway (I'm out of the loop, I didn't even realize Tiger Woods was a "moral authority" before this stuff. I thought he was a golfer), but not by important figures. The role of the lawyer is not to defend criminals, but to defend the nation, one guy said. (So my lawyer should take the other side if he thinks it's in the national interest? Seriously?) Or quite commonly it was said that lawyers often don't follow the law, they just say something that helps their clients, they're more interested in getting money from their clients and serving their interests than in serving the law. Of course where we come from if a lawyer isn't zealously advocating for his client by making the best arguments available he's engaging in malpractice. Yet if legal interpretation is a mathematical formula, making good arguments that are "wrong" is clouding analysis, not supporting a fundamental right. This I heard often enough to be rather depressed by it.

To be absolutely clear, the Iraqi constitution does contain an absolute right to an attorney in criminal matters. And the argument for it can be made, and indeed was made quite eloquently by the head of the Iraqi Bar Association at the conference, even in the ultra formalist mindset. Simply, the judge can err in his mathematical derivation. We know, the IBA head said, that this happens, we've seen reversals at cassation of convictions made at trial and sustained on the first appeal. So the lawyer is a defender then not of the nation, but, in his words, of truth, of making sure the derivation is right and if not right to the derogation of the client, to fix it. That certainly does restrict the lawyer's role in a manner that would pretty clearly be unethical in the US context (I can make it an argument, I think it will work, it is nonfrivlous and legitimate, it's entirely unethical in our context not to present it because the lawyer happens not to like it or find it "true" whatever that means in legal argumentation) but it certainly points to why a lawyer might be necessary. And certainly the man has a point. If it is a mathematical formula, clearly it's not an easy one if there are reversals at cassation.

Still, given this cultural difference alone, it shouldn't be hard to imagine the daunting task any group of American lawyers would have advising Iraqis on much of anything in a manner that is likely to succeed. And I haven't even touched forensics, or the role of confessions, or much of anything else.

HAH

Aspirational Constitutionalism in the New Iraq

2009-11-08T18:31:00Z

I had the distinct pleasure of reading some of the latest work of my colleague and mentor Michael C. Dorf of Cornell Law School just as the Iraqi Council of Representatives was passing its election law, finally, paving the way for a Jan. 16, 2010 election. This is fantastic news for Iraq, or perhaps better put a fantastic relief after what could have been an awful disaster. However, before I go into details, I should say the election does directly relate to Professor Dorf’s work, and as I read his piece, I could not help but reflect on how some of his thinking on American constitutionalism might, or might not, apply beyond US borders. It is a fair question, as Professor Dorf to some extent mentions cross border examples, and in any event it’s the only question I dare ask, as it is only there where I feel even remotely competent to comment (and largely praise) publicly and even then only by virtue of a cursory blog post.

Professor Dorf’s work, Aspirational Constitutionalism, is primarily an attempt to answer from a different perspective a question that seems rather prominent among constitutionalists—that of the philosophical justification for the “dead hand”. Why, in other words, should a bunch of dead, white, Protestant, slaveowning (in many cases, anyway) men have any right to rule from beyond their graves by virtue of a document that is almost impossible to amend, someone like me, who is neither dead, nor white, nor Protestant, nor slaveowning (though I am a man, I’ll cop to that one)?

Some rules, such as structural rules, Professor Dorf indicates, might well be justified because by setting forth ground rules, they help focus later generations on substantive policy questions rather than reinvent the wheel every single time. This is the first of many parts that is relevant to Iraq, as every election we reinvent the wheel here. Number of seats, open and closed lists, voter registration rules, and of course Kirkuk, always Kirkuk, are reargued and the entire work of the parliament is held up for weeks while everyone jockeys for position. I like the notion of a constitution establishing ground rules to avoid this nonsense, and more effectively than Iraq’s constitution has.

But this notion of ground rules is harder to explain when it comes to rights. The general explanation to justify the dead hand, Professor Dorf indicates, has something to do with “anti-backsliding”, meaning the establishing generation knows pretty well what rights are important to be respected, and they know that at times of crisis, there is “backsliding”, and if we start to ignore these rights during these periods, we will come to regret it. The Founding Fathers, much like Ulysses with the Sirens (Dorf’s analogy, I can’t take credit for it), bind us so we don’t do something we ourselves know we will regret. Much analysis follows concerning backsliding, its justifications, and whether or not it is largely accurate, but I will omit here in this cursory reflection. I highly recommend the very readable article, however (77 GW Law Review 1631) to get a fuller flavor.

Dorf indicates, however, that very often the drafters of an amendment aren’t trying to prevent a status quo from backsliding, they are trying to create a change, and entrench it. So backsliding isn’t what it’s about. The 19^th Amendment is about giving women the franchise when they didn’t have it in a great number of states, the 13^th Amendment is about freeing the slaves. It’s not like the US had no slaves and were worried in a time of crisis they might be tempted into enslaving people; quite the contrary, they had slaves and wanted to free them. But tied to this notion of entrenching change is an aspirational element, of hoping future generations take it further, in a manner that befits the later generation’s time. Due process and equal protection are broadly worded in the hope of allowing for the realization of aspirations concerning the values entrenched in them, as are things like free speech. Even giving women the franchise might contain broader unstated aspirations regarding gender equality. Professor Dorf is largely okay with these aspirational values notwithstanding the dead hand, seeing as how they are not unlocked until a future generation chooses to do the unlocking, and their unfolding is a product of court interpretation that constantly changes anyway and so aren’t as binding as one might think.

My thoughts on this are two as they relate to Iraq. First, I’m rather surprised by Professor Dorf’s seeming indication that the dominant theory of constitutional rights among scholars (which he is challenging) tends to relate to backsliding. I take the man at his word, he is the constitutionalist, I’m the Iraq person, but I cannot help but wonder if only Americans could come to such an unnatural and odd conclusion that the point of rights is to prevent backsliding of future generations. The structural rules of a constitution are certainly not about backsliding, they are about creating and entrenching a change. Yes they aren’t necessarily aspirational either, but they certainly are much more about creating a change and entrenching it than worrying about backsliding. You don’t say 4 years instead of 5 for a president because you are worried about backsliding, you are doing it because you think it’s a good idea that hasn’t been done before and that you want carried forward. In Iraq, the entire constitutional structure is about creating such changes.

For Americans, I suppose it’s natural given the structure of our constitution to imagine drafters thinking one way about structural rules (change the past) and another way about rights (prevent their regression) because our rights are largely amendments, our structure largely articles. It breaks down prettily that way. Few other constitutions do. The argument that rights are about preventing backsliding seems to suggest constitution drafters in other countries think one way about Chapter One, and then another about Chapter Two and yet another about Chapter Three. Like I said, odd and unnatural.

Even more obviously is the fact that most emerging democratic countries did NOT enjoy the rights they are granting and in fact struggle mightily to determine what rights, particularly of the social and economic type, should be ruled by the dead hand, and what should be left for future policy. I’ve been reviewing closely the constitutional provisions of the Iraq constitution and their evolution in drafts in preparation for my own book on the Iraq constitution, and it is remarkable how much play there is, how much give and take, precisely on this question. Everyone is seeking to entrench particular choices, the real question is which ones belong entrenchment.

Moreover, there is no doubt that many of these articles have aspirational elements, again particularly as concerns social and economic rights. In Iraq, they are so broad, so extensive, so generous, that they are hard for the state to realize, and the fact that much of the direct language (guarantees of “appropriate income” to the unemployed) were replaced with more general phrasings that appear now suggest a strong measure of (unstated) hope of progressive realization in the future.

So I suppose my own limited comparative view causes me to endorse rather enthusiastically the notion of the reality of aspirational constitutionalism, though the same experience causes me to wonder whether there might be harm of a different variety associated with it that Professor Dorf does not anticipate or at least does not mention. I wonder whether aspirationalism might be a feel good method for current decisionmakers and elites to avoid what they recognize to be a moral responsibility to the disadvantaged through effectively inviting some later generation to worry about the problem rather than addressing it themselves, however imperfectly.

In Iraq, I suppose there are two ways to go about achieving health care. You could do an assessment of the current health problems. You could then determine how much money dedicated to what could help where. You could try to dedicate that money. You could approach aid organizations, or you could figure out whether oil revenues could be allocated, and you could make hard, controversial decisions that will improve people’s lives immeasurably, but will also cost a significant amount in time, money, effort and political capital and will fall far far short of anything approaching reasonable universal health care. Way short. Or you could draft a pretty constitutional provision you never intend to do a thing about that offers health care universally and hope someone else does all the rest of it for you and more at some later date. And in Iraq, it seems we’ve been doing a little too much of the latter, a little too little of the former. Not enough achievements on the ground, far too many unachievable promises on paper. This, I submit, is for us becoming an existential threat.

And I wonder whether or not I might make a similar (if not existential) argument in the US case, though I tread on dangerous grounds, not being a US historian or an American constitutionalist. Couldn’t one argue that the Reconstruction Amendments paved the way for the abandonment of black rights rather than their realization? That the North was tired, the price paid was already too high, that it wasn’t worth the additional effort, and that in any event, the laws all look good now, so hopefully the South will go ahead and do the right thing, if not now, then later. Couldn’t you argue that aspirationalism is in some ways a copout, an attempt to avoid difficult decisions and a way to allow someone who sees what they recognize to be a moral wrong and is not committed enough to end it to do something about that wrong (Jim Crow, no health care, whatever) to sleep at night? Couldn’t you maintain that the proper course of action is not the dead hand but the living one, to make real, effective changes, not paper ones you know will be ignored, and achieve what you can, and hope the next generation builds on your achievements, not puts into practice what you put into words? I wonder.

But like I said, all of this is but momentary reflections from a different perspective on a much more deeply considered piece.

HAH

Islam and State According to the Grand Ayatollahs of Najaf.

2009-11-05T13:39:00Z

At the below link is my latest and perhaps last contribution for now on insights from my latest trip to Najaf. I saved the best for last, this is the role of religion in the state in the view of the Grand Ayatollahs, definitely the most interesting aspect of the trip for a legal scholar like me. enjoy.

http://www.dailystar.com.lb/article.asp?edition_id=10&categ_id=30&article_id=108305

Reexamining the Doors of Ijtihad in Najaf

2009-11-01T09:16:00Z

Two stories stick in my mind most about my latest Najaf trip, each told by a different one of the four Grand Ayatollahs, and both of which demonstrate that too much can be made about this "doors of ijithad" propaganda that Shi'ism continues to pronounce as an identitarian distinction with Sunnism and that reformist Sunnis have historically pronounced as the means to liberalization of Islam (though recently they have moved to the maqasid something I've criticized before and will again but not now).

By way of background, Shi'ism holds to the legend that it has always believed that the doors of ijtihad are open, meaning that rules may be derived directly from sacred sources, namely the Qur'an and the Sunna, while in Sunnism, the doors of ijtihad are closed, and all relevant derivations have been made.  There is scholarship on the Sunni world that suggests that the doors never really closed, most notably from Wael Hallaq, and certainly on the Shi'i side this notion of extensive ijtihad does not accord with my own understandings of Akhbari Shi'ism which had it's heyday perhaps a couple of centuries ago, but history isn't the point at the moment. Let's assume the legend and start with the postulate that Shi'ism allows interpretation of text from sacred sources, and Sunnism does not and has not since the end of the first millenium. I still maintain it does not add up to much of importance.

The first story was told by Sheikh Bashir Al Najafi. Sheikh Bashir indicated that there was a key distinction between the Islamic regime and every other human regime on earth. Every human regime other than the Islamic is, to him, "reactive", meaning that it carries on, and then finds itself in some sort of predicament over something, and has to pass a law to fix that predicament, and then it carries on with that change. Over time, a set of laws that resembles a system comes to pass, having addressed however imperfectly problems that have arisen. The Islamic system, by contrast, has all necessary rules put in place 1400 years ago (or maybe 1200 with the disappearance of the Mahdi, to be honest I can't remember what number he gave), and all that is left is for humans to "discover" those rules from the primary sources left to us. Sayyid Ja'far al-Hakim, rising star in the Najaf Hawza, points to something similar to explain how "theoretical processes of elucidation in Najaf have become correlative with praxological processes of experimentation in countries of advanced development." That's a quote, I had tried to translate it simultaneously from Arabic and failed (sorry team!) but this is accurate from benefit of hindsight. The point was that Najaf had theorized from looking at the text what the developed world has come to realize by trial and error. We have the answers, you're finally getting to them imperfectly.

The second story is from Sayyid Muhammad Saeed Al Hakeem. His was of the giant Grand Ayatollah of his day, Sayyid Muhsen Al-Hakim, whose reputation only grows with time and memory. Sayyid Muhsen, he told us, once derived a rule from Islamic text and then lay down to sleep. he realized in terror that he had made a mistake in the derivation just as he turned out the light. He could have made the correction in the morning, but, said Sayyid Muhammad Saeed, what if Sayyid Muhsen passed in his sleep? Then an incorrect derivation would exist in his handwriting, people would rely on this error, and the mistake would only propagate. He could not sleep until he marked it as wrong.

The obvious conclusion is of course that these eminent figures are not anything approaching Realists. They are very formalist. The rules are out there, they exist, there is one proper derivation, the role of the scholar is to use the techniques to "discover" استنبط the rule from the sacred text. These scholars aren't stupid, in fact they are incredibly smart. Of course they know humans can err, of course they have biases and predispositions, of course that might lead them to make a mistake, but that does not detract from the fact that in Najaf, there is a right answer, and the cleric's objective is to derive it, much like a geometry proof.

But think for a minute about what this means for the supposed interpretive flexibility of Shi'ism on the basis of ijtihad. If you are going to actually get up and say there is one right answer, and it is derived like a geometry proof, then in order to decide something differently from the generations earlier, you pretty much have to declare everyone who looked at the question before you to be in error. If the question has been hotly contested before, then sure you can jump in on a side, Najaf likes nothing more than argument about a particular question of law. The Muslim Brotherhood notion that "there are no disputes in Islam" is not something the clerics of Najaf have much patience for, for them disputes in Islam are where they spend their lives. Like I said, there is nothing intellectually deficient about these scholars--quite the opposite in fact.

But it is one thing to take a position on a disputed matter, quite another to break with generations of previous scholars on something they agreed upon. It's hard to credibly claim every single person has gotten the geometry proof wrong, but you. If you allow for flexibility in interpretation, if you assume policy, and economics, and sociological realities, play a role in the law, if you, to use Sheikh Bashir's distinction at least for this purpose, see a legal regime as "reactive", then it's easy to break with past generations. They lived in a time different from our own, they saw it differently and they "reacted" differently. But if the law has been buried in the texts for 1200 years, and we've been engaged in a slow process of trying to uncover it, then that's a much harder thing to change. And it helps to explain why, notwithstanding the supposedly continued opening of the gates of ijtihad, Shi'ism isn't much more progressive than Sunnism when the doctrine is examined up close, at the level of substantive rules, rather than discussed in cursory glimpses of theory related to open and closed doors.

So much for reexamining old rules, but what about developing new ones? That's the selling point in any event, not that Shi'ism is good at revisiting its old rules, but rather that it is adept at "discovering" them over time, whereas Sunnism stopped digging and so much remains under the dust for them. Again, closer examination might call this into some question. Let me use as an example a question posited by Richard Norton of Boston University to a couple of the Grand Ayatollahs, that of the permissibility of artificial insemination. (He was using it to understand the role of reason as a source of law, they pretty much said all the rules existed in the texts independent of reason, but that's a separate point). Now if we assume you to be Shi'i, you say the gates of ijtihad are open, so you go straight back to the Holy Books to find the answer. If you are Sunni, you have to go to the medieval texts.   But either way, you are going to try to find an answer by digging for something.

That is, Sunni scholars don't say "look, the medievals didn't deal with it, so go away" to questions of moral imperative asked by believers to them. Assuming the Sunni scholars in question don't believe in ijtihad, they're still going to do digging, it's just they don't use the original sources, they use the medieval juristic compendia. There's quite a bit to search for still. Sanhuri's Civil Code shows how much can be "discovered" (as a Realist I'd say "invented" but let's leave that aside for now) from reviews of medieval sources rather than sacred text. There's nothing "frozen" about Sanhuri's codes.

To be clear, I think there is a clear distinction between Shi'ism and Sunnism but it isn't really about ijtihad but rather the people doing it. Shi'ism continues to have an authority that pronounces the rules, where Sunnism does not. Perhaps the continuing existence of that authority helps to explain why Shi'ism is willing to leave the gates of ijtihad open, where traditionalist Sunnism is more concerned that if everyone can run off and reread the Holy Books, meaningful interpretive control is lost.

Or maybe not, that part is speculation. The point really is that there's too much emphasis, both in Najaf and in our legal academies, on ijtihad and taqlid, sacred sources and medieval texts, as if any of that matters.  It isn't the books that are important however, it's the people with the power to tell you what they mean who count. Najaf has such people, vested with such authority. The Azhar in Sunni Egypt does not, or at least they aren't accorded nearly the same level of authority. And therein lies all the difference.

HAH