I’ve been rather amused by the extreme reactions on all sides to Iraq’s recent decision to “importation, manufacture and sale” of alcoholic beverages. It’s either some sort of unconstitutional infringement of human rights, or it’s absolutely necessary because Islamically mandated. The head of the legal committee went so far as to “congratulate” Iraq’s clerical leaders the alcohol ban, even though they had nothing to do with it and he wrote it. Ironically, all sides point to the very same Article 2 of the Constitution to justify their position. It prohibits laws from being passed that infringe upon (i) the settled rulings of Islam, (ii) the principles of freedom, and (iii) the fundamental rights and freedoms contained in the Constitution. It has been argued that the problem is in Article 2 itself, for what kind of clause is it that can be used both to mandate and prohibit the very same activity?

Personally, I think the problem in this case is more about bad argumentation than anything else. On the more secular side of things, it is not a fundamental right or freedom to drink alcohol. Alcohol is a drug like no other–indeed some argue that it is more dangerous than marijuana. I’m not personally invested in whether or not that is true, but surely, if you believe in a democratic society, you have to believe in the power of the elected legislature to decide which drugs are too dangerous, and to ban them. It might be stupid policy, but in that case, vote the bums out next time around. So, yes, an Iraqi legislature can ban alcohol if it wants to. Just like they’ll be able to legalize marijuana if they wished to in the future, enabling Iraqi residents to eventually buy buds online while staying inside the law.

But the idea that this is Islamically mandated is even more bizarre. The law specifically bans the “importation, manufacture and sale” of alcohol beverages of any type in Article 14 and imposes fines for the violation. There is a reason for this. The law is actually a Municipal Revenues Law, and so there was some justification for slipping in a prohibition of taking revenue on alcohol because it is banned from sale, manufacture or importation. Still, if you’re going to get up and insist that Islam mandates this, and you are going to insist that the settled rulings are clear and you are going, in fact, to go so far as to congratulate Najaf for its passage which they had nothing to do with, you probably should learn your settled rulings first. Here’s Khu’i:

Whoever voluntarily drinks an intoxicant aware of the prohibition and is of age and sane, is punished by Scripture. There is no difference between small amounts and large, just as there is no difference in the types of intoxicants, whether taken from dates, grapes or something similar. . . .

There is no difference in establishing the Scriptural Crime if it is drunk, or enters the stomach.. . .

The drinking of an intoxicant is proven by two just witnesses, or by a single confession. The testimony of women, individually or together, is not sufficient.

The Scriptural punishment is 80 lashes, with no difference between the man and the woman, the free and the slave, the Muslim and the nonbeliever.

Minhaj 3: 217-220

 

The rules appear elsewhere as well, such that they can be fairly described as “settled”, within Shi’i orthodoxy anyway. (Reformists have their views, which are beyond the scope of this post). But there isn’t a single one of these settled rules reflected in the Iraqi legislation. There is no reference to proof requirements in the legislation, the punishment is a fine and not lashing, and, most importantly of all, if Islam “mandates” anything under these orthodox texts, it is the punishment, by lashing, of those who consume alcohol, not those who sell or import or manufacture it.

It would be fair, of course, to point out that one cannot consume alcohol if nobody can manufacture, sell or import it. Query whether that is true, depending on what “manufacture” is taken to mean (is leaving my grape juice too long “manufacturing” an alcoholic beverage?), but even if so, it’s purely derivative. That is, it might well be consistent with Islamic law to ban these derivative activities so as to stop the real Divine Crime of actually drinking it, but it is hardly “mandated” by Islam to ban the derivations, in particular if you leave the consumption legal.

So if conservative and tradtionalist orthodoxy mandates something, it is to lash the drinker 80 times, and if he does it again, another 80 and if he heads to happy hour a third time, he is killed. (para. 222, same source). If you don’t bother with that part, and you instead fine importers and manufacturers and sellers, then fine, do whatever you want, as an elected legislature. It’s your prerogative, you can decide what activities are and are not socially dangerous and how to go about prohibiting those that are.

Just, when you go about all this, stop calling it “Islam.” It’s not, and you aren’t respecting the religion by playing political football with it.

HAH

The New York Times opinion pages today seem engaged in some sort of war against diversity and “identity liberalism.”  As I understand, “identity liberalism” causes people to think less of the common good, and instead to conceive of themselves in some sort of divisive narcisstic navel gazing where none can see the broader public interest.  This seems to cause resentment among those left unmentioned by the high priests of diversity (white working class voters), though, incongruently enough, it seems also to be the case that we are deceiving ourselves into a sense of moral superiority if we think that somehow “whitelash” explains the election results.   Even worse, we need to learn speak in a language of common purpose, but, incongruently enough, this seems to involve understanding more about white working class voters and how important religion (i.e. Christianity) is to them.

This, of course, is not about transcending identity at all, those of us who are not white, not working class, and not Christian might point out. A criticism that somehow in our hyper politically correct diverse centered universe we’ve ignored some important identities and permit aspersions to be cast about such persons, is potentially a trenchant one.  I have no doubt the first kid from his high school in some small town in rural Pennsylvania feels as out of place at Harvard Law as a black student from an underprivileged urban neighborhood. But that is completely different from a criticism that we speak too much in the language of identity, and to take from that a lesson that we need to know more about blue collar people and how religion motivates them.   To suggest that somehow we are spending too much time learning about transgendered people in Egypt, which is divisive, and not enough about how evangelical Christianity motivates white people in Alabama, which is unifying, is not to suggest we need to forget about identity, but rather that those of us with different identities need to forget all about ours and conform ourselves to white, Protestant America.  This might explain why the article ends with the ideal of Rooseveltian liberalism, a risible analogy about which I’ll have more to say in a minute.

Douthat’s criticisms of diversity, to their credit, recognize this cost, and concede that effectively pre identity liberalism of the type represented by Roosevelt is nothing of the sort, and that it is, instead, assimilation and subjugation to a soft white Anglo Saxon Protestantism.  In his telling, there is something necessarily illiberal to which liberalism must cling, and while at one point in US history that might have been this sort of white Protestantism, the inherent racism, misogyny and religious intolerance that is at the very heart of non-identity liberalism caused a rethinking of this in the 1960’s.  This creates the crisis in which liberalism finds itself, because there’s nothing particularly transcendental about diversity on its own terms, and unless it can find something transcendental, it is purely material and procedural politics.

Two points, from an unabashed Muslim defender of the liberal order, and an advocate of that which is repeatedly referred to as “identity politics.”  First, I’m rather lost in how that which we seek in embracing diversity does not transcend material and procedural politics or, even stranger still, that it is somehow divisive.  The first article seemed to dismiss the story of  of Sally Mursi, the transgendered Egyptian, as just some sort of narratively appealing and yet politically irrelevant story, and I teach her story (oh yes, apparently it is also reasonable to ridicule me by referring to her by the pronoun of her choice the first article indicated, so shoot away), so let’s start there.  First, nobody intelligent teaches her story to learn something about material or procedural politics.  The identity liberalism piece referenced above admits this, and wants to know how students will ever understand Egypt’s current movements by reference to this marginal figure of no political power.  Answer: they won’t.  We aren’t trying to show that, nor is anyone I know who teaches the story of Sally Mursi suggesting that a course or a lecture on politics in modern Egypt needs to include her, or, that if it somehow did, her story would be the centerpiece around which Egyptian politics centers.  That would be idiotic, as idiotic as suggesting Egyptian politics is irrelevant because it doesn’t center around the transgendered.  What we’re showing, or I am showing in law school anyway, is how legal decisions and legal determinations and legal interpretations affect actual human beings.  And in so doing, incidentally in my course and more frontally in others less legal in orientation than mine, is building emphathy.  So yes it’s an ideological project. I want my students who were raised in conservative Muslim households quick to dismiss sexual unorthodoxy as deviant and unnatural to just think about how their position, reflected in traditional interpretations of texts, affect people like Sally.  And it’s not for material and procedural political reasons, it’s very much the core of what we believe a tolerant society is about, and it runs far deeper than procedural politics.

Moreover, I find absolutely unfathomable that somehow identity politics is divisive.  How many transgendered Egyptians do you think I teach?  Building empathy for others is as universal, as human, as transcendent as it can get.  And anyone who thinks we’ve built walls and not bridges by referring to people as Muslim Americans and Arab Americans and gay Americans and Chinese Americans and Jewish Americans and African Americans and Latino Americans might want to stop to consider just one thing.  In these dark days, as I, as a Muslim, start to fear where the nation is heading and what my place in it might be, I have heard remarkable expressions of empathy–from white students and gay ones, Latino professors and Jewish ones, in moving editorials from George Takei reflecting on their families’ experiences and urging us not to make the same mistake twice to editorials of rage at recent appointments written by black journalists that reflect my own feelings, but conveyed much more articulately.  They aren’t Muslim, not a one, and yet, they understand empathy, and empathy is not divisive.   By contrast, are you really going to tell me that those who resist our diversity embracing multiculturalism are doing so because they really would prefer to be part of some unifying message that attracts all Americans?  Is that a fair description of the campaign the Wall Builder ran?  We’re supposed to believe that the racism and misogyny and ethnocentrism was incidental and it is only our convictions of our own moral superiority that causes us to think otherwise. Personally, I don’t feel morally superior.  I feel scared.  And somehow, as I noted in my last post, it seems to me most of those voters knew that, and didn’t care.  Perhaps if they had learned a little more about the transgendered in Egypt?

Which brings me to my other objection, which is in the contention that identity politics is some invention of the left which we need to find a way to get past in order to find common cause.  That’s not how I see things. In fact, my community came out 3 to 1 in favor of George W. Bush in 2000, and I don’t think that is because of his embrace of some particularly progressive form of multiculturalism, some sort of hostility to the whit-ces-het people of good will who then are driven rightward.  No, we as a community (not me! not me!) bought the myth.  We figured W. himself obviously made a point not to scapegoat Muslims, and so this sort of post identity politics would work out okay for us.  Then a black man got elected, after having to deny four million times over that he was a Muslim, a term which in that particular context might as well have been substituted for “child molester.”  “They keep saying Senator Obama is a Muslim. It’s not true!  No, please, understand, he’s a Christian!  You can vote for him!”  Then there was the Ground Zero mosque, then Muslim registries and Muslim bans bandied about and now the incoming NSA director does not even think Islam is a religion.  And the problem?  Apparently us being divisive, by thinking about our own religion so much.  Not only was it politically shrewd for the Democratic party to see this and say nice things about Islam (and Latinos and blacks and gays and . . . . ), it would have been the act of a political imbecile who would do anything else.

So let’s go back to where we started–on post identity liberalism and how we’re all supposed to come together, black, white and Latino and everyone else, on a platform like Roosevelt’s Four Freedoms, which will unify us all in a fashion that is independent of identity.  That’s the image we’re left with in defense of this notion–Roosevelt’s Four Freedoms speech of 1941 unifying all the Latinos and blacks and whites and men and women, Americans all.

I have a different image though.  I imagine just the same scene back when Roosevelt first told us of his Four Freedoms.  I imagine some Japanese Americans sitting rapt listening to it, completely sold on the Four Freedoms, never feeling more American than they did at that moment, prepared to serve the country, and defend it, and speak English, and eat at McDonald’s, and do all the good things that good Americans do. Because it’s not about identity, right?  That’s the KKK, we liberals don’t think like that, right?  We believe in freedom to speak, and to worship and to be free of want and fear. So, when the first soldiers came for them, on the same Roosevelt’s orders, only a little over a year later, what do you think they were thinking then?  What when this horror was justified by a supposedly liberal Supreme Court, in the Kohrematsu decision, written by one of the court’s desegregationists? Post identity liberalism indeed.

Forgive me, but there’s no such thing as a liberalism that exists independent of identity. It’s either a white Christian liberalism, to which we are supposed to assimilate, and forget about our identities.  But they won’t forget ours, not when Pearl Harbor gets bombed or the WTC is attacked or a black man is elected president.  Then, all of a sudden, our identity is what makes us suspect, and the whole ugly lie reveals itself.  Or it’s a liberalism that not only tolerates, but embraces, the differences among us.  So, fellow others, the next time someone tells you they wish you’d just play down your religion and ethnicity and join with him on a program that builds infrastructure because that’s a common cause and shouldn’t we cooperate and strive together on common causes that are independent of our identities, I have but one word I want you to remember.  Kohrematsu.

HAH

Much has been written this week on the late Muhammad Ali, and all of it well deserved.  But one perspective has been missing, that of the immigrant American Muslim, and I hope to shed some light on what he has done for me, indeed for all us, in these few lines.

None should underestimate the impact that Muhammad Ali had on the lives of any Muslim born to an immigrant family in the United States between 1960 and 1985.  For we American Muslims in that Generation X, he was The Greatest, and we didn’t need an noun to follow that adjective.  The Greatest Boxer who could have ever existed, the Greatest Athlete of all time, obviously, and the Greatest Muslim of our time.   As children, we all had our different heroes, all pointed to different childhood legends in our small Islamic Center in Columbus Ohio, and not all of them Muslim.  It was Columbus in the 1970’s, and if there was a child growing up there who didn’t know the name of Woody Hayes, someone had trapped him in a well.  But not everyone was a football fan, so when it came to unanimity, we could only point to three–the Prophet Muhammad, his cousin, son in law and companion Ali, and the one they called the Louisville Lip and yet he came to took the name of the both of them, Muhammad Ali.  If you wanted to find common ground at the Islamic Center among the youth in those days, you had three choices. Bless the Prophet, bless his progeny, or sing the praises of Muhammad Ali.

For us, it was not merely that he was a magnificent athlete and a Muslim.  That was as true of Kareem Abdul Jabbar, and even Ahmad Rashad, and while we knew them, and admired them, they were not Ali.  (Those who want to point out the heterodoxy of the Nation of Islam, or the sect to which Rashad converted, may hold their comments. In the early seventies, I would not have hoped to know what heterodoxy meant, and my parents, searching the landscape for Muslims born in this land whom we could admire, were not inclined to explain it.) To understand Ali’s appeal, you had to understand us.

We were children born here, whose parents were not. Our parents, however, did not come to the land involuntarily as was the case with the other great branch of American Islam, rooted in the African American community.  We did not know them, though we were told they were our brothers, and we accepted that, as children do.  As for us, whatever the circumstances of our brethren about whom we knew so little, we had good opportunities, attended good schools, were raised in two parent families for the most part, largely went to college, and all in all have done good for ourselves. Fulfilled the American dream is how liberal white America might put it.

But you can’t grow up in middle America with a name like mine, or those of my friends (Muhammad, Ahmed, Mustafa, Yusuf, Tariq, Khalid, Heba, Dara, etc. etc. etc.) without just a few nightmares interspersed in that pretty little dream that has been interposed for us.  None of us were persecuted in some legal sense, but you don’t have to be persecuted to be hurt, particularly as a child.  I was Houdini on the football team, because the coach misread the name, and everyone thought it was funny.  I’m sure they thought the joke was on the coach, but Jim Ross never got called Houdini.  That was me.  Or Hammy.  It’s funny, get it?  Because Muslims don’t eat ham.  Or asked if I had a nickname, or asked if my father was really on a several week long trip to Mecca because good, family men don’t leave home alone for that long.  And this, let me stress, was all from teachers.  Best not to get into students and how my name can be contorted into songs from the Culture Club’s Karma Chamelon to the theme song of the Breakfast Club.  Or the experiment on how long I could hold out when the only lunch left to eat was pork based. (As if that works–I’d have eaten any one of those tormenting motherfuckers before I’d let them win).

I don’t think any one of us could have survived without scars of some sort without our parents and each other. And, indeed, if you want to know who I credit most with where I am today, it is my mother and my father, who put me in those best schools, instilled me in that work ethic, drove me to success, and taught me how adults respond to these in the grander scheme minor taunts and jibes.  We don’t get even, my father used to say, the mafia gets even. We make it right.  Our Prophet teaches us no harm and no retribution.  So form an advocacy group, join the ACLU, support an anti-bullying campaign.  Make it right, don’t make it even, words I can live by, and in fact words Muhammad Ali came to represent in a far better way later in his life than I would pretend to be able to manage.

But when a kid is ten, well, no harm and no retribution does not sound so much wise as it does craven.  I, and my fellow Muslim peers, and each one of them could tell you each one of these stories and more (my parents owned your parents, don’t kill me and go to heaven just because I’m Christian, anyone ever tell you you look like Moammar Gaddafi, and that’s what I remember from them) needed something else.  We needed a big man, a brash man, easy with his words, with a lip he wasn’t afraid to use, one who was not humble but whose humility to quote one biographer could fit in a thimble with room for an elephant left over. One who stood in their face, spat in their eyes, made them all look foolish and ridiculous. One with the courage of his convictions and such immense talent that he could get away with all of it. And, most of all, one who could take the two worst possible non-Russian names you could have in 1970’s America–Muhammad and Ali–and make them his.  Not because he had to, nor because he was stuck with them, as we were, but because he chose it.  He saw them and their power, and he saw us, and he chose us.  And for that, he idolized him.

Everyone knew the fights, and if Ali was fighting, we were watching.  No American Muslim old enough to remember will ever forget the Rumble in the Jungle.  They said he’d lose, they were sure of it, every single old white commentator on television couldn’t say it enough. And he rope a doped every last one of them.  A few of us tried rope a doping at school after a taunt or two after that, but it didn’t much work. Turns out fists hurt much more than Ali let on.  But he managed it, he beat them, because he was better than them. One of us was the Champ.  And as much as the Rumble in the Jungle defined our triumph, so did the Holmes fight define our loss.  Because that time They proved right, and the Champ could be Champ no more.  I resolved that night never to watch another Ali fight again. I’d have died rather than see him lose once more.  In fact, I never really watched another fight again.

Of course, Ali himself proved watching for many years later–out of the ring–for showing just as much courage then as he did inside of it.  Fighting a disease that ravaged his body, living a more orthodox Islam, maintaining an equanimity in the face of an adversity that would have destroyed many others.  The child, the youth, and the man, as Goethe said of Beethoven.  Few have lived as fully, been through as much.

In the end, for me as a child, the best fight of them all was the one I had not seen.  Muhammad Ali against Ernie Terrell, the one they said was Ali at his cruelest, but I didn’t think so at the time.   There had been a news conference before it, Ernie Terrell repeatedly called him by his child name, Cassius Clay, the one he gave up to join us.  Ali said to him the words which countless American Muslim children can repeat by heart.  My name is Muhammad Ali and you will announce it right there in the center of that ring.  It rang so true, so authentic, so real, and melded itself into my own streams of consciousness.  The name’s not Hammy, or Houdini, and it’s not funny melded into the lyrics of Karma Chameleon.  Laughing with the joke doesn’t make the hurt go away either.  It’s Haider Ala Baqir Abdul Majeed Hamoudi, and YOU, shithead, will announce it, right there in the middle of that ring.  But of course, I did not have the fists to make that a particularly sensible thing to say, nor did the reference to the ring make much sense.  Not that it mattered.

What mattered then was that Ali carried Ernie Terrell from the seventh round to the end of the fight just to beat him senseless. Opened up on him and didn’t knock him down. Instead, he came in with a barrage of punches and repeatedly asked him one simple question. What’s my name?  They called it a taunt, they said it was heartless, they said he could have just kindly knocked him down. Once, on ABC, I remember the words “uncalled for.”  Uncalled for?  Really?  Oh, I think Ernie called for it. I think he called for it quite a bit.  

My parents never let me watch that fight (on film, I wasn’t born when it happened), balancing my adulation for an American Muslim they were happy to support with a strong desire to inculcate in me a distaste for violence, and that was one particularly bloody fight.  And I could not begin to understand my father’s repetition of no harm and, he emphasized, no retribution,  even against Ernie Terrell.  He called him Cassius Clay, I’d say.  And do you think they’ll stop calling him that now?  He’d ask me.  Because he beat that man silly?  And of course he was right.  As the world changed, and as Ali helped change it, his name went in the news from Cassius Clay, to Muhammad Ali Clay, to Muhammad Ali, formerly Cassius Clay, to finally, just Muhammad Ali.  And none of it was because he beat another man silly.

I came to know that many years later, of course, and later still I finally did see the Ali-Terrell fight.  It more or less went down as I had imagined it, except for one important thing.  Ernie Terrell was actually black. In my imagination, it had been a white guy Ali had been beating senseless for calling him Cassius Clay.  Seemed to make more sense that way. Still does. And it was not nearly as satisfying as I thought it would be.

And now, these many years later, I know what Muhammad Ali did for me, indeed for all of us, which was far more important than anything his fists alone could deliver. He filled our hearts with pride, with unadulterated joy, and he gave us just a little more license to deliver a little more sass, in the style of the Louisville Lip.  If in the end the way forward doesn’t involve hitting a man who wrongs you, well I think it’s more important to remember that once, there was a man who chose a name that everyone else reviled and who stood toe to toe with the powers that would recognize it, and told them his name was Muhammad Ali, and they were going to announce it right there, in the middle of that ring. And eventually, after a lot of pain and hurt, that’s what they did.  He shook it up, when it most needed shaking, as the President said, for that, I honor him.

And so farewell Champ, and let the boxing experts say what they will, I don’t need to know the sport to know you were, are, and always will be The Greatest of All Time.  In our shared, honored and forever proud tradition, for your soul on its passing, the Fatiha:

In the Name of God, the Merciful, the Compassionate

All Praise is Due to God, Lord of the Worlds

You alone we worship, and in You alone we seek refuge

Lead us on the straight path

The one tread by those with whom You are pleased

Not the one tread by those with whom You are angry

Nor the strayed.

God speaks truth.

Beyond the ordinary subject of the blog, but I did an interview on Obama’s proposal to close Guantanamo Bay with Essential Pittsburgh, a local radio program on the station that also airs all of the NPR programming here in Pittsburgh.  If inclined to hear it, you’ll find it here.

HAH

Those with the time and inclination for a thorough, careful, balanced and nuanced portrayal respecting the position of Islam respecting the notion of equal citizenship under law irrespective of creed should very seriously consider looking at Sh. Dr. Usama Hasan’s recent work on the subject, entitled From Dhimmitude to Democracy.  It  summarizes a progressive’s account of how Islam and secular democratic citizenship might be reconciled in 80 richly satisfying pages.

The task, to be clear, is different from that undertaken by friend of the blog Andrew March in his excellent work,  Islam and Liberal Citizenship. March imagines how what he calls an “ideal typical” Muslim (and I call an unreconstructed Salafi) with unalloyed loyalties to the premodern tradition might reconcile Rawlsian liberalism with Islam.  This necessarily involves consideration of the subject in the context of a state that has no Muslim majority, because you can’t actually get to anything approaching modern liberalism in an actual Islamic state if you take the premodern tradition that seriously.

What impressed me particularly about Sh. Dr. Usama Hasan’s work is his willingness to examine the premodern tradition in a critical fashion.  All too much work on Islam and democracy falls into one of two unsatisfactory camps. The first, the apologists, somehow claim that in fact Islam always believed in full equality of citizenship for non-Muslims. To get to this, a variety of rules of deep pedigree. among them the special non Muslim tax, the exemption of non-Muslims from military service, the special dress requirements established for non-Muslims, and the like, somehow are rationalized or ignored in a fashion that can only be described as ignorant or intellectually dishonest.  Opposing them are the second camp, the Islamophobes, who argue incoherently that to be a Muslim, one must believe in these things, and there can be no evolution or reconsideration of previous generation’s beliefs while still retaining loyalty to the heritage. Therefore every Muslim seeks to subjugate every Christian no matter what they might say or do to suggest something quite contrary.  Obviously, if you applied that in any other context (every Southerner must believe blacks to be inferior to whites, every Catholic must persecute scientists who believe the earth spins around the sun, etc.), you’d sound racist, ridiculous, or quite likely both.

Dr. Hasan’s work painstakingly carries out the necessary task of laying out the premodern rules, noting their context, describing their many variations and of course not shying away from their limitations.  Concerning the latter, for example, he points out how deeply problematic it is to criticize ISIS for killing a Christian hostage on theory that the hostage is a dhimmi.  If you start arguing from that part of the tradition, which renders non Muslims second class citizens, you will certainly face counterarguments, from other works of medieval provenance, justifying all sorts of things that are an affront to modern civilization, and you’ve already more or less given up getting to anything modern or liberal. At the same time, Dr. Hasan is careful to point out that the roots (not the full manifestation of, but the roots of) modern respect for others, and modern human rights discourse, can be found in Hanafi notions of adamiyya, or, even earlier, in the Charter of Medina.  The premodern tradition, that is, must be seen as part of a broad and rich continuum, with medieval limitations to be not merely disregarded, but positively disavowed, yet with aspirational elements establishing the basis for the evolution of Islam to follow.

But I suppose what I found the most impressive about Dr. Hasan’s work was his willingness to show that evolution of Islamic thought through references to modern thinkers and modern clerics, without pretending that they were not responding to modern stimuli. That is, one could not responsibly claim that if you were to sit in some sort of isolation tank, read the Qur’an and the canonical Sunna, and then asked to establish a state on the basis of it, you’d draft a secular liberal constitution.  Of course modern thinkers are taking the world as they see it and attempting to find Islamic principles to make their way in it.  But so what?  And more to the point, didn’t the classical thinkers do the same?  The dar al harb and dar al Islam are precisely the same thing. And if you say you can find verses justifying this, so I can find language in the Charter of Medina justifying coexistence.  In fact, the modernists are far more consonant with the general flow of Islamic thought over centuries, Dr. Hasan shows, then the radicals, who are attempting to pull together acontextually and anachronistically pieces of a medieval tradition into a world where they just don’t belong.

This really is Islamic argument at its most elevated.  The sad part?  He’d be shunned, and the work quite possibly banned, if published in Arabic in no small number of modern Muslim states, where any deviation from orthodoxy is heresy. Recall, after all, that it was not long ago that Dr. Nasr Abu Zayd  was declared by the Egyptian Court of Cassation a heretic for, among other things, challenging the Islamic normativity of a man’s right to rape his female slaves.  No wonder, then, ISIS is given room to emerge in such a stultifying environment.

HAH

There’s been a fair amount of good work on the intersection of sex, gender and sexual identity in Islam generally, from Judith Tucker to Kecia Ali to Khaled Rouayheb, and Samar Habib’s edited book (includes article from Junaid Jahangir).  Christian Lange as well on the liwat as hadd or tazir, and I’m sure I’m missing a ton of others.  However, there has not been much on Shi’ism.  Rouayheb touches on Shi’ism in his excellent book “Before Homosexuality” and Tucker discusses it some in her work on gender and family law in Islam.  But it’s ancillary, and the result are broad statements about an “Islamic” position toward, say, lesbianism, which is fundamentally at odds with the opinion laid down by the Shi’i jurists.  If the Sunni jurists had a hard time thinking much about lesbianism or how to punish it because there was no penis involved and there could thus be no penetration, rest assured the Shi’a did not have this problem.  Lesbianism is a scriptural crime, one man “thighing” another was a scriptural crime, and even two men or two women naked together under a blanket had a set punishment for it.  This is to say nothing of what the very institution of temporary marriage does in terms of creating particular sexual values that are not quite as easy to get to within Sunnism, at least in modernity (the focus of my paper) where the traditional dispensation of the male master to use his female slaves for sexual enjoyment is normatively and descriptively lacking, ISIS depradations notwithstanding.

So to do justice to my sect, I wrote this journal article to be published with the Fordham International Law Journal later this year.

HAH

Quick post today. For those who don’t know, Nasr Abu Zayd was a Muslim intellectual and a reformist who was effectively exiled from Egypt for allegedly committing apostasy.  That’s not literally true, no banishment applied, but he was forcibly divorced from his wife for being declared an apostate despite his forceful denial of this in a ruling by the Egyptian Court of Cassation in 1995. Thus, he either had to leave his wife or leave the country, and it is a sign of who he is that he left the country (returning only for short visits) and remained married, dying in 2010.

“Twenty years ago, ustadh,” you tell me.  “Surely, the blog post is a little dated?”  Wait, I say, lest we forget, let us remember why he was declared an apostate–not by ISIS, which did not exist, not by Al Qaeda, which did not exist either, not even by the Muslim Brotherhood. By the highest court of general appeal in Egypt under Mubarak.  Quite a few reasons given, but having reviewed the opinion today in connection with a casebook on Islamic law I am writing, I found two particularly interesting:

• Condemnation of the forced tax on Christians and Jews living in Muslim lands, known as the jizya
• Condemnation of sex with female slaves that a Muslim man purchases.

These things, the Court says, are not up to debate. You deny them, you aren’t a Muslim.

May we then review?

If Professor Nasr Abu Zayd says we must develop understandings and approaches to our Holiest Texts that do not require that we impose the jizya, or he says we should do the same as concerns the enslavement of non-Muslim women from the House of War for sexual enjoyment, then he is an apostate for denying that which is absolutely clear, say Mubarak era high judges, and Islamist parties in Egypt who threaten his life, and the Kuwaiti authorities who deny him the right to enter that country in 2009 for his apostasy.    But if ISIS imposes a jizya, or kidnaps women for sexual enjoyment, then, of course, they are acting totally contrary to Islam, according to those same sorts of authorities.

You can play word games, and suggest ISIS is taking slaves the wrong way, or it is the wrong authority to impose the jizya, and thereby deem it entirely unIslamic, of course.  Or you can focus on those aspects of ISIS that clearly seem to be beyond any classical permission, about which I’ve blogged here in relation to killing Christians and here with respect to slavery.

But the ethical problem remains.  If Professor Nasr Abu Zeyd is indeed an apostate, then you have to, as an ethical matter, deem acceptable the imposition a tax on people on the basis of their religious affiliation, and you have to, as an ethical matter, find no problem with the abduction and rape of female slaves, so long as it’s done the right way.  Or, you can join us renegade liberals, the ones who pull their hair out when they’re called apostates by the Man and pull it out again when the very things they’re called apostates for by the Man are then condemned by the Man when someone actually takes the Man’s words seriously.

HAH

The question I am most often asked as a professor of Islamic Law is precisely how Islamic ISIS is.  The matter came to the fore particularly after The Atlantic published an article on the subject a few months back, relying to a significant extent on Prof Haykel, and advancing the position that it was Islamic, rather than, to quote the article, “a collection of psychopaths”.  Haykel is quoted in a slightly more strident form than this in the article, suggesting that Muslims who argue otherwise are “embarrassed and politically correct, with a cotton-candy view of their own religion.”

I am no apologist for traditionalist fiqh, as any reader of this blog will know.  So the cotton candy comment actually does resonate with me, as do the castigations of the liberal elite issued by the bete noir of many believing Muslims, Ayaan Hirsi Ali.  I’m always somewhat surprised by American liberals who are (like me) appalled by the positions of Rick Santorum or Ted Cruz on either birth control or the right of Christians to deny gay people pizza without realizing that Rick Santorum, by the standards of family law courts in Egypt and Iraq, is a radical progressive.    I’ve never heard him say a wife’s primary marital obligation is to make herself available for her husband’s sexual enjoyment at any time of his choosing.  And that’s the family court mantra in Arabic, borne of long tradition, sort of like an American contracts case beginning with “the purpose of contract law is to put the injured party in the position it would have been in had the contract been performed.” You start with that obvious statement and move forward from there to the particular facts of the case.

At the same time, as a believing Muslim myself, when Hirsi Ali ties this back to the Qur’an rather than to a deep and long patriarchal tradition in Islamic discourse (one effectively dissected by folks like Amina Wadud), or when we start talking about ISIS being Islamic, I have to balk.  I’ll come back to Hirsi Ali another time, but on ISIS, it’s very, very hard to see how whatever it is doing is somehow “Islamic”.  It’s not the medieval “caliphate.”  Nor is it sensible to argue that any association of brigands who toss a flag up and say “caliphate” somehow earn that legitimacy, and with that the ability to describe all other entities challenging them as rebels and highway robbers in the Islamic tradition, thereby subjecting them to whatever convenient rules they can pull together from the juristic texts.  If you can do that, then it’s just a free for all, the realization of the reductio ad absurdum challenge to the Realists that if all law is what the judges say, then who decides who the judges are?  Surely only a world of massive political instability where law is effectively meaningless could accommodate this inherently nihilistic position.  If that’s the position, then there is no Islam to speak of.  That there is some historical resonance that attaches to some of their actions does not somehow avoid that core problem.

Let me try to illustrate by way of analogy.  Suppose for a moment that due to political dysfunction, appalling corruption, and a renting of whatever social fabric once existed, a group of white supremacists manages, by force of arms, to invade the city of Boston, kidnap thousands of its black citizens, and kill those of its police force who didn’t flee when the supremacists arrived.  Now if they start selling their kidnapping victims, and sending them places to make them go work in cotton fields, separating them from their families and whipping them when they don’t work enough–you tell me, is that “American”? Is it even the position of those who speak today of the Southern tradition or their Southern heritage?  If not, why not?  Because they don’t know about slavery and are too politically correct to admit it existed?

My own position would be that it is a cotton candy version of American history that denies a hypothetical dystopia of the sort above as having any resonance with any aspect of American history.  And it is true that too many of us Muslims are unwilling are to confront the realities of our pasts, and for that matter the medieval juristic texts that still tend to be studied in seminaries throughout the Islamic world (and in which, I assure you, the ability to deny gay people pizza would be far far more progressive than anything those texts say).  So yes, say we are embarrassed by our history, and say we are politically correct. And say we need radical reform.  The accusation stings, because it is accurate.

But it might well be true of America as well. Not to the same extent perhaps (American children at least study the history of slavery) but we do live in a world where a small town cop actually thinks he can shoot a black man six times in the back and get away with it because, well because cops always seem to get away with it these days, don’t they? Yet ask white Americans, an astonishing number seem to think the society is basically race neutral at this point.

None of that makes my white supremacists some embodiment of a true “America”, simply because contemporary politics proved so bad that they could actually take over territory and enslave black people.  And Muslim cotton candy doesn’t make ISIS Islamic for the same reason. Whatever change we need, the fact is that they’re still just a ragtag collection of psychopaths taking advantage of political instability through the clever and opportunistic use of Islamic vocabulary. Nothing more than that.

HAH