The other day as I was watching Sportscenter on ESPN (a guilty pleasure, I allow myself 20 minutes a week) I heard Herm Edwards say something quite interesting about the replacement referees that have caused such a fiasco in the National Football League.  The NFL as an institution, he suggested, and all involved in it–the striking officials, the recalcitrant league front office, the stubborn owners, the whining players, the hyperpartisan coaches–all had a responsibility to “protect the shield” and were failing to do so.

I’m not sure where the term “protect the shield” comes from, it sounds like it has something to do with a police force, but I like it.  Because in any system in which rules are going to be adjudicated, there needs to be a cover of legitimacy, authority, and finality in the adjudicatory process–a “shield”, if you will, with some level of trust, almost faith, as to the methods that lie beneath.  The system depends on that trust, that faith.  It isn’t inherently rational, it’s almost what my colleague Jessie Allen describes as “legal magic” in a recent piece in the Denver University Law Review.  If you want to know if you got ten yards in football, you bring out magic sticks and tug on them, and they tell you.  That’s ritual, it’s not reason, you cannot possibly think the sticks measure anything with any reasonable level of precision.  It’s not, to be clear, entirely divorced from reason, there is some predictability in the enterprise, but there’s a great deal of trust as well–that hold that was called was indeed a hold, never mind the referee doesn’t see it a good number of times, that offsides not called may not have been offsides, never mind that another referee on another day would have called it.  We close our eyes to the randomness, the arbitrariness, and trust in the ritual, believing even when we know it isn’t entirely true neutral rules are being applied with some level of predictability and certainty, or at least something close enough to predictability and certainty to count.   

But when the trust is broken, the faith shaken, the system no longer stands.   That referees from the Lingerie Football League make bad calls more often than regular officials would in a professional football game is so obvious as not to be interesting.  But what they do that’s worse is they break the trust.  Now every single time there’s a unpenalized illegal hold, even one perhaps an ordinary referee would not necessarily have seen, it is pointed out to us.  Every time the referees huddle to discuss, when perhaps ordinary referees would have done it, it is emphasized. And even when the referees end up making the right call, there is screaming and shouting from coach and player alike.  Bill Belichick was apoplectic, seemingly genuinely so, after two calls that did not happen to be in his direction at the end of his game.  One was a noncalled pass interference, and the other a field goal ruled inside the uprights.  Both were correct, and yet this went relatively unemphasized, in a manner that almost surely would not have been the case had the referees been the normal ones.  Then it would have been “you know Cris, Bill’s pretty upset, but the referees were right!” Cris:”Yup, two correct calls.”  That’s assuming the coach would have even been upset had his trust not been broken, his faith not shaken.  When you lose the authority, you lose control of the process, and chaos results.  Just look at Monday night.

Lotsa sports dude, you might be thinking, I thought this blog was about Islamic law. Right, so let’s answer the question, what does all of this have to do with Islamic law?

Easy, in the Sunni Muslim world, they’ve been playing the game of Islamic law for the last eighty years with replacement refs.  And so no adjudicator can actually rule on anything without being accused of bias.  Of course there’s bias and external influence, that’s how law is made to the Legal Realist and a running theme of this blog.  Yet when the judge is authoritative, we at least pretend it isn’t so.  Not the case when the judge is deemed false.  Hence the Taliban accuse Egypt of adopting Western, idolatrous family laws on divorce when they should stick to true Islam.  What did Egypt do?  It codified the rules of one Sunni school of thought, the Maliki, thereby replacing the rules of the other Sunni school, the Hanafi, that had ruled previously.  Under no reasonable conception of Sunni classical theory could that possibly be considered illegitimate let alone an idolatrous aping of the West.  Yet the Taliban said it, and frankly nobody knows who’s right when they do, it’s just a shouting match that leaves everyone confused.    The problem, in other words, isn’t just that the refs get the calls wrong, though they frequently do, it’s that they don’t have any legitimacy.  The shield, the trust in the neutral adjudicator, is missing. 

Then, live long enough with replacement refs, and all of a sudden random people start deciding they’re the refs, and some Yemeni runs off to Afghanistan puts a turban on his head and starts issuing what he thinks are religious edicts about near enemies and far enemies but which are more properly described as the incoherent anticolonial rantings of a lunatic.   To have a functioning system, you need, in other words, more than simply plausibilty.  You need a trusted referee, or it doesn’t work.  And the fact is, Sunni Islam has no such thing, which is in many ways its biggest problem.

To be clear, I don’t mean that if such refs existed, then the Muslim world would be liberal.  Shi’a jurists of Najaf for example, are trusted as real refs, no questioning is done as to their modes and methods of reasoning, no accusations of Western bias or obsessions with anticolonialism, they are no less affected by such influences in their interpretations than Sunnis, as I’ve pointed out many times elsewhere, but this is not seen, because the shield holds.  We believe it to be neutral even if rationally we know it cannot quite be entirely so.  And yet Shi’ism isn’t liberalism, nor does it claim to be.  But at least, when you have a question, there is an answer, there is a channeling, there is a doctrinal system and an underlying methodology to address the matter. 

Sunnism has none of that, it’s all replacement refs.  And seemingly will be for some time to come.

HAH

I am always rather bemused by those who tend to ascribe particular policies to particular places in the Muslim world on the basis of the fact that the populations in those places ostensibly support a strong role for Islam.  We see this most commonly in Egypt these days on the eve of its presidential election, where something like two thirds of the Egyptian public indicated they wanted Islam to play a strong role in the state’s new government, and three fifths said they wanted the state to strictly follow the Qur’an in setting the nation’s laws.  From this, I’ve heard all sorts of things, from the fact that hand amputations are imminent, to veils are about to become required by law, to interest will be banned, to whatever else marches next in the familiar parade of horribles.   You’d think if all of this was imminent, some presidential candidate would be arguing for it. Instead you have Amr Moussa trying to shake the stink of Mubarak off of him by accusing everyone else of it, while they all deny it.  Hardly seems consistent. But more pertinently, I keep thinking  over and over in my head:

Continuing on with our Abu Hurayra saga from two posts ago, and on the theme from the last post on the importance of state law in understanding social order in Muslim states, the eminent Sheikh Tantawi, after having spent some time excoriating the newspapers for attacking the person of Abu Hurayra as we discussed, then asked Egyptian President Hosni Mubarak to step in and do something about it. 

Now this, to me, is quite interesting.  The Azhar scholars have decided that there is some sort of massive shari’a violation going on, admit they don’t have the right to issue a decree (حق المصادرة) is the term they used and so go to the guy who does have the authority and ask him to issue the decree.  So then the question necessarily arises, why don’t the scholars have any authority here, and Hosni Mubarak does? 

Is it because the shari’a gives such power to Hosni Mubarak?  That’s a tough sell, indeed an impossible sell I think.  The claim that this is just the same thing as the old classical empire, where the jurists set the shari’a rules and the caliph passes administrative regulations, the siyasa, makes no sense here to my mind.  If that was the case, why aren’t the jurists able to prosecute or issue a decree enforced in the courts?  Why can’t a judge just do it, on the grounds that the fiqh is being violated?  If state law works within shari’a, well then we shouldn’t need state law here, we already have shari’a, just bring the guy up to the shari’a court, and apply the damn rule already.

But you can’t.  No lawyer within Egypt, Islamist or secular, would think you could.  The reason Hosni Mubarak can issue the decree and the jurist cannot and the judge cannot is because the state law permits him to do it.  This is important.  If the state law changed, and Parliament passed a rule saying a judge could do it, or the Azhar could do it, then they could.  If the vote lost in Parliament by one vote, they couldn’t.  If they said the judge could with the permission of the Azhar, then that’s what we’d do.  If they said that and Hosni issued a veto then it’s no good.  So where’s the shari’a.  It is present, but the determination about whether or not God’s Law is enforceable and how (not how to do traffic a la the caliph’s siyasa but how and whether and in what way to enforce sharia) is then not up to anyone but the apparatus of the state, passing the positive law through what is known as a “rule of recognition.”  (ie we recognize the process as the one that results in law, such as it passes both Houses of Congress and is signed by the President.) 

God’s Law, as law, is meaningless if not endorsed by the rule of recognition. And to say well in Iran it is different is not true.  It’s not that the positive law is subverted to shari’a, it’s that the rule of recognition is transformed so that the Supreme Leader is the one issuing the decree.  He still follows state processes (vetoing, for example, only when it is his turn, after the Council of Guardians have voted, according to legal process).  Ask an Iranian lawyer, “how come when Khamene’i speaks, the judges have to follow it” and he will not say “because the hand of the Mahdi is over him”, he will say “because provision X of the Constitution says as much, in circumstances x or y or z.”  The former isn’t meaningful in today’s world, it’s not what gives you power or legal authority.  A pretender who comes in and claims he has the right hand of the Mahdi over HIM doesn’t have any legal authority even if some believe him, unless he gets so popular he takes over the state, and then changes the law and maybe even the rules of recognition, to say as much.  Note what grants the authority to shape so much of the social order–the law, and the state.  

But see how different this is from the argument that is commonly and to my mind repeatedly erroneously made in our academy.  To most, it is the law that has to justify itself with reference to shari’a.  If the law doesn’t meet shari’a standards, then it’s not really law to the Muslim state, or so it is argued.  I don’t see that.  If that was the case, if the law was part of an overarching shari’a system, then we wouldn’t use it here in the Abu Hurayra case.  We’d say the jurists have decided this violates shari’a, judges do your work.  Find a judge who will act on the basis of that in Egypt, or even Iran.  I thnk shari’a is only enabled through the law.  The only way shari’a makes its way in here is because the law lets it.  It is pure state positivism, neither the jurist at the Azhar, nor the Islamist Muslim Brotherhood member, nor Hosni can conceive of it any other way. 

The state, that thing created not by God but by Sykes and Picot, not with Revelation but with the end of WWI, and certainly not on the basis of fulfilling God’s Will, is the touchstone of legitimacy. If you are going to ban something in Egypt, find a law that lets you do it, and use state legal processes.  If you can’t, I don’t care how much of a shari’a violation it is, you cannot do it.  Nobody would think you could, in Egypt, in Iraq, in Pakistan, even in Iran.  (Let’s exempt Saudi just for now, though I think it’s much the same with some nuance–law by delegation.)  It’s done by law. 

That’s the reason the Islamist is so obsessed with controlling the apparatus of state power.  Because to say shari’a means nothing unless the state, and the law, make it so.  The Islamist is of our times, this is the only way he knows too, no less the legal positivist than I am. We cannot change the clock, the caliphs and the jurists are dead and cannot be resurrected.  we live in different times now, times where, if there is a coordinated assault on Islam (in the Azhar’s eyes), there is but one path to shut it down legitimately–reliance on the state and its apparatus, in other words, the law.   Nobody else, but the state, has the power to issue the decree.

Though I’m sure you won’t be hearing much of that at the Prince Alwaleed bin Talal Center for Muslim Christian Understanding. . . . .

HAH

As I was sort of reading through the Noah Feldman book I just reviewed (again my review to be published at Middle East Law and Governance is online in draft form here, I came upon a sentence appears that startled me.

In the process of a general theme of linking Islamist movements throughout nearly all of the Muslim world to the desire for a rule of law, it said something to the effect that secular calls for rule of law and democracy that are divorced from Islam have not had much resonance “in the Arab world” and that “the only rallying call with staying power in the Arabic-speaking countries is the claim that the presidential governments in power have abandoned the teachings of Islam.”  (Lebanon is later exempted).

There are two problems with this evidence, though I’m less focussed here on the book and the context in which it was made than this one statement and the larger implications I can draw from it that really have less to do with the book.  (The review deals with the book itself more thoroughly).  I’ll deal with one in this post, and the other in the next one I do, probably Wednesday.   The first I think is perfectly obvious to any Pakistani, or Kurd (as my wife will attest), or Indonesian, or Iranian, or African, or African American or even Arab Muslim.  Surprisingly though, I’ve found it shockingly zooms past most white folks, even the ones who are extremely well read in Islam.

Try it with Pakistanis–say “come on, democracy in the Muslim world cannot work without Islam, how many Arab countries do you know of where lawyers actually would protest the action of a dictatorial government in any significant way for any reason other than that it was not Islamic enough” and see the reaction you get, from the country whose Muslim lawyers have done the world of Islam proud.  The answer will be, ummm, don’t know about the Arabs, but as for us, well watch the damned news, friend.  Indonesians as well, it wasn’t the shari’a that brought down Suharto. They voted for a woman in large numbers, Iwas there, her face, unveiled, hair showing, was everywhere, the visage of the resistance.

The fact is that what has or has not happened in the Arab world is almost irrelevant to determining whether or not democracy and the secular rule of law is possible in a manner that will please contemporary Muslims.  Why?  Because the Arabs are an ethnicity, and Islam is a religion.  And that ethnicity has a strong Christian minority and even as to its Muslims is composed of about 15% of the world’s Muslims and not at all representative of the states working, sporadically and fitfully, but with some resilience, with democratic rule.  I think if a Democratic pollster were to say “Americans are going hard for Obama, we project a 50 state sweep” and then used, even as a tangential piece of evidence, even as just one piece of a larger puzzle, that overwhelming numbers of blacks intended to vote for Obama and that proves it, well I think that would make The Daily Show. That kind of generalization is not the problem in America, the problem is generally the opposite, the media completely ignores the entire black community almost all of the time, except when Jeremiah Wright says whatever he says, and then it’s news.  When it comes to Islam, it’s all reversed, the Arabs become the representatives of Islam, the central front in its authenticity.  Yet there’s less Arab Muslims by percentage than black Americans.  Go figure.  

It hardly begins here.  From third grade, I’ve had to tell people what the difference is between an Arab and a Muslim, and while I can forgive Miss Diamond/Mrs. York (broke my third grade heart when she got married) for the conflation, it managed to repeat itself over and over again, to the point where I have to take a deep breath when a PROFESSOR at college responded to my offhand remark that George Mitchell is an Arab with “no, he goes to church.” “Yes he’s an Arab Christian” only got me a stare, as if I had just suggested he was a little green man from Mars. 

To be clear, Noah Feldman knows the difference between an Arab and a Muslim and did no more I believe than commit an innocent and inadvertent error.  This post really isn’t about that.  I cannot imagine that if one went through my works, they couldn’t likewise find a mistake here or there.  Actually, I can say more, I can think of mistakes I have made, in footnotes or even in text, or at least simplifications of ideas far more nuanced than I have allowed.  But here, this error passed the notice of the reviewers, and the prestigious Princeton University Press, and as I said even people who should know better, it sort of glides on by when I say it.  You point it out, and then they say “oh yeah . .. . ” It’s the nonArab Muslims who glare at me the Arab Muslim, saying with their eyes, you damn bigot, there’s more to Islam than your benighted lands.

So why is this a problem, that Westerners, even learned ones, (as noted if this was one person it’s one thing but really it’s not, it’s a general conflation that folks in the West can’t help but make sometimes) can’t keep the two straight or at least if not paying attention let it slip by? It is not just a civics lesson.  It is because I think there is a movement, a growing one in the Muslim world, that has begun on its geographical edges and is working its way inwards (again, geographically) in which devout Muslims, sincere Muslims, praying Muslims, believing Muslims, are working secular democracies. Turkey’s AK party is an example, and Anwar Ibrahim has clearly been working in this direction too.  I would say the same of Yudhyono in Indonesia, who has as many Muslims in his country as there are Arab Muslims (meaning that if Indonesia is running a democracy, fitfully, with highly marginalized Islamist tendencies, even assuming the Arabs cannot do it, the Muslims are tied in terms of their ability to do it). Sure the Indonesians had a thing with banning the Ahmadis (posted here), but generally, you look at the law in places like Turkey or Indonesia, and making Islam more part of the legal system is not at all a prominent part of the agenda. I think that’s making its way to Iraq, where even Sistani is not seeking to project shari’a much through the state.  Or at least I can say there are plenty of calls for rule of law and more democracy among the opposition groups in all of these countries that are certainly not tied to a claim that the current regime is not Islamic enough.  Even those who subscribe to AK or Anwar a hidden agenda (not me, not me) will concede that, even they claim the agenda is “hidden”, if it was so resonant they wouldn’t be so quiet about it you’d think.

Now I think the Arab/Islam conflation, which I think is just endemic in Western society no matter how many times explained in books or articles and the like, is quite damaging to this story.  People aren’t seeing this changing reality, that Islam IS developing a secular rule of law tradition, where religion is not marginalized, by any means, but faith separated from state governance.  Theorists aren’t thinking about how this might work, how Muslims might view it, how it is that hundreds of millions of the world’s Muslims are now living in states with Muslim majorities and are both religious personally and not committed to the realization of shari’a in the state.  How can this be?  Why is everything assuming the l
aw will reflect shari’a to any devout Muslim and so how do we change shari’a not to stone adulterers, why isn’t anyone noticing nobody gives a damn in most Muslim countries about stoning adulterers, they have a transplanted criminal code they are happy with?  Why are they happy, what’s the theory that marries Islam, devout Islam, to a secular code?   It’s dramatically understudied in my view, and deeply and fundamentally undertheorized,and I think it’s because, in our blinded world, nobody is looking past the Arabs, and the most extreme among them.

HAH

I am back now from the trip to Iraq, and many apologies for the delay in posts, but it took a while to get adjusted to the US again after over a month abroad, particularly with classes coming up soon.  We should be back on schedule now with three posts a week.

For those who missed the Olympics, there was a Bahraini sprinter who participated in it named Ruqaya Al Ghasara who chose to participate in the races in a manner compliant with current traditionalist understandings of the shari’a– angle length pants, wrist length shirt, loose enough to cover her figure, and of course, the headscarf.   I would describe the coverage of her as largely positive in a superficial way.  The brave Muslim woman who was participating in these international games while choosing to conform to the dictates of her religion–pious and tolerant, and an example of the world’s diversity.

And in some ways, this type of thing is quite welcome.  I certainly found much to admire in the sister appearing and participating in the Games in the fashion she wished.  Absolutely there IS something to be said about global diversity and unity at once in her appearance.

But what struck me as odd in the coverage was the frequent reference to her as the “Muslim” runner, the “Muslim” participant, the one wearing “Muslim” dress.  The immediate equivalent of the sole participant dressed differently, exotically, unfamiliarly, as the “Muslim.”

In one narrow way, this is clearly true–conservative Muslims would equate our sister sprinter as wearing the dress required by the sharia.  Naturally if they were too conservative, they would deride her as being some sort of recluse “fake” Muslim, and if they were liberal enough, they might find the get up unnecessary, but we can say mainstream conservative Muslims would look at the sister with pride and say “she’s wearing what Muslims are supposed to wear, and she’s performing well.”

At another level, however, the description is absurdly false and woefully misleading.  The conservative Muslim might well say that Ruqaya Ghasara is wearing what Muslim women are supposed to wear, but unless he’s off living in a cave somewhere, he surely knows it is not what Muslim women always do wear.  Not wearing a headscarf does not strip one of being Muslim, except among those at the fringes.  Sinners some would say, falling short of what the shari’a demands perhaps others would argue, but non-Muslim, almost none.  Most would regard that kind of infidelization as itself unIslamic.

So let’s go through some other Muslim women who participated in these Games.  We need not go far.  There is Mariam Jamal, Ruqaya Ghasara’s teammate.  Being actually a somewhat better athlete, and indeed a favorite for the 1500 meters, she received a fair amount of press.  She also received attention in the Muslim world, and garnered a great deal of support in the Arab press, not less than Ruqaya Ghasara.  No Muslim, and no Arab that I know cheered any less for the one than the other, we wanted both to do well, and we were all disappointed when Jamal, also our Muslim sister, fell apart at the end of her race even as we were happy our Muslim sister Ghasara defied expectations and got as high as the semifinals. 

But Mariam Jamal was not once referred to in the press as a Muslim.  Why?  Only one reason it seems to me–she dressed like the other athletes. Want to know the best synchronized swimming team in Africa?  Egypt.  Their names–Reem Abdel Azeem, Aziza Abdul Fattah, Lamyaa Badawi, Dalia El Gabaly, Shazia Al Sayed, Yumna Khallaf, Mai Mohammad and Noura Saleh.  About as Arab, and in many cases as Muslim (Mai MOHAMMAD?) as they get.  Yet never once called the Muslim team, or Muslim representatives, so far as I could hear.  They ended up sixth I believe, or maybe eighth.  It is mentioned in the Arab press, again there is pride over their accomplishments in our circles.  But they wore swimsuits, and so nobody paid attention to their religion in the West.  You can say this is as it should be, religion is a private matter, but had they worn swimsuits with headscarves, is there serious doubt that references to Islam and “Muslim” dress would be made?

“Muslim” does not, in Western circles, describe people who belong to a particular religion called Islam (with varying levels of religiosity from the deeply devout to the entirely formal and limited). It isn’t that group of people, because Maryam Jamal and Mai Mohammad are also members of that group of people, yet aren’t recognized as such, only Ruqaya Ghasara is.  Rather, it is some sort of exoticized construction of the West, some weird fantasy of what we are supposed to be than that which we are.  Osama Bin Laden in many ways therefore makes sense, he fits the image.  Not everyone who does fit the image is bad, Ruqaya also fits the image, and she is wonderful.  The positive coverage goes to her, see Muslims are not all terrorists look at this woman playing in these international games, respected by all, it is said.  Fair enough, actually, great that this is said. But why just her?  Why not Jamal?  Why not the synchronized swimming team?  Isn’t that also a good example of diversity in the great wide Muslim world?

But you have to look and act, by Western standards, funny, to be called a “Muslim”.  My father in law, who wears suits to work, who against our advice to him enjoys all too much Johnnie Walker Black, who shares household duties with his wife, is unrecognizable as a Muslim to the West.  Yet he is Muslim, not the world’s greatest Muslim, but a proud one, ask him if the Prophet ever spoke an ill word, and hear his response. 

My father in law is hardly unique.  The reason faculty meetings are different in Iraq than the US isn’t because the Iraqis dress up in what US soldiers call “man dresses”, it’s because they wear full suits and ties, jackets on, and I’m not convinced most of my colleagues here even know how to wear a tie anymore.  But it’s not “Muslim” dress, “Muslim” dress is what they wear at home, by which standard Fruit of the Loom is “American” dress and we won’t see an American wearing American clothes until we see him racing in his Fruit of the Loom.  We are exoticized, made different, foreign, unusual, not like everyone else. 

I’m going to sleep in a bed, not a cave, tonight,and wear a suit, not a dishdasha or a kuffiyeh tomorrow and teach commercial transactions, not how to stone an adulterer.  If I say this to an Arab law school, in an Arab and Muslim country, the Arab and Muslm dean says, in all seriousness, please come back and work here for us.  He doesn’t think of it as “unIslamic” quite the contrary his sell is you can help the Muslims if you do this here.  Why then if I tell this story of my day tomorrow to an American, does he think of me not as a Muslim, but some sort of fake Westernized pseudo-Muslim?  It’s a problem, from the Olympics to law schools, in the dominant culture, we aren’t who we choose to be, only what others project us to be.

HAH 

Traditional accounts of modern Shi’ism divide leading jurists into two camps: the Quietists and the Activists.   One of the contentions I will be making in a book I am preparing (more details on that later) is that there is sort of a collapse to the middle from these two traditional poles.  The Activist view, that the jurists must run the state, still firmly holds in Iran among its ruling elite, but it has suffered a considerable loss of prestige.  As for Quietism, or the view that the jurist must disassociate himself from the state to the fullest extent possible, nobody really holds to that in its purest form anymore.