This is not a post on Iraqi politics, but on longstanding Iraqi law. Those interested in the latest on ISIS might want to look elsewhere.

As many know, I’m co-writing a casebook on the operation of Islamic law in modern state courts, my role being to focus on Iraqi courts. While some might comment that there will be no Iraq in a few years, and while I find that a bit premature, the comment in any event misses the point of the book. It is not to offer any lessons on Iraq per se, but to demonstrate precisely how Islamic law, which is a body of norms and rules developed for a different polity at a very different time operating under a very different set of political and sociological assumptions, works in the judiciary of a modern nation state. My coauthor Mark Cammack is focusing on Southeast Asia as I focus on Iraq, so that we can show similarities and distinctions in trends and evolutions in quite different states and indeed across the sects and madhahib as well.

I came across a 2010 case that I thought highlighted some of the tensions quite effectively and thereby deserving of a blog post. I would expect it to be in the final version of our casebook, but there is much editing and cutting between now and then, so who knows. In any event, the case is at the trial level, in Baya’, and involves my friend Salim al-Musawi as judge. A woman, 17 years of age, seeks what is known as a khul’ divorce, and in this particular khul’, basically she gives up any rights she might have in shari’a and law, and in exchange her husband divorces her. This is potentially quite a substantial amount, including deferred dower (under shari’a), housing for three years and support for up to two (under law) and separate additional support for three months (again under shari’a). Judge Salim looks at the case and says, no, not in this court, and not on my watch. This is a girl, underage, who was married at 14, a marriage the court should never have permitted in the first place (because the minimum age for marriage is fifteen, and even then you need advance court permission, which was never obtained). The lack of capacity on her part means lack of a case or controversy, so the attempted divorce is dismissed.

There are other aspects to the opinion, but it’s good to focus on just this point for now. And it’s easy to ridicule the decision though I think that to do so is to be a bit unfair to Judge Salim. But to describe the logical problem, you dismiss the attempted divorce, this means she stays married. That means she has certain obligations to her husband as a wife does under the marriage contract, including an obligation to submit to her husband’s sexual demands whenever made and not to leave the marital home. (If you want a source, look up the rules of the nikah of practically any jurist who ever lived). Now it seems extremely odd to say that she remains bound by those obligations because, well, she agreed to them, and yet she doesn’t have the capacity to get out of them. How do you have capacity to enter a contract but not exit it? Surely this isn’t right and any divorce lawyer can see that too.

Yes, it’s a logical flaw and yes, it makes little sense. But consider the alternatives facing our judge. He could, he says in the opinion, operate on the basis that there is a marriage, and so we’ll just make a legal assumption, create a legal fiction if you will, that she has capacity to divorce given this. The judge doesn’t think that right, this is a major concession of severe financial consequence, he isn’t comfortable permitting a 17 year old to simply decide that. His opinion seems to conclude she would be reduced to penury, and he will not put state sanction to such a notion against a minor when he finds the decision to be such an ill advised one.

Why not, you say, merely declare the marriage invalid ab initio? Problem solved! He doesn’t raise it, but the reason is obvious why this can’t work. Because now in addition to the fact that she has none of the financial advantages she’d be giving up anyway (all available to divorced wives), she’d also be giving up an advance dower. And let the law says what it wants, she isn’t a virgin, she isn’t going to find another man interested in marrying her. She’s deemed divorced socially whatever the law says. Nice try, but you just destroyed this woman’s life if you go that way, far worse than permitting the divorce, which at least gives her a recognizable if stigmatized social status.

Aha, you might think, here’s a different solution. Don’t let any judge register a marriage contract for those under 18! Yup, they thought of that. That’s in the law, but then when parties think their marriage won’t get registered, they get married out of court and then register it later in court. If they are underage when they try to register it, sometimes courts don’t care. But some do, and in that case, they’ll go away, and come back when they are of age.

One final thing you might think is, “well, make everyone get married in court. No out of court marriages, which might be a restriction on marriage, but this is a crisis and deserves this intervention.” Uh-huh. Iraqi law does that too. You must go to court to marry, and it is a criminal penalty on the husband involving jail if you don’t. Except no judge enforces it. And it’s not because judges don’t enforce laws well. That’s a separate, but real, problem. In this case, the judge is actually probably acting prudently. We got ISIS taking over half the country and you want to be putting 19 year old rural goat farmers in prison for a year because they married 16 year olds? At what point in Iraqi history did we have the luxury of filling our jails with such folks, and what purpose does it serve to do this, when the social norms are so in favor of such marriages in many rural communities? So I’ve only seen this provision referred to twice. Once in a 2009 case in Kerbala I was reviewing, out of the hundreds of out of court marriages I’ve seen certified (no idea why this one made the referral) and then, well, me. I was married in the US to my Iraqi wife, and some police guy in Kurdistan got it in his head he could get a bribe out of me, so he pointed out that Iraq won’t recognize my Ohio marriage, and therefore I was married “out of court” and therefore I had to go to jail. I paid $150, got out of the police station. Rule of law wins once again in Iraq. I did try to explain comity to the guy, and how if Iraq really does take the position that no American marriages of American citizens will be recognized in Iraq (which is the actual, current position of the Iraqi judiciary, at least for people of Iraqi extract), it really will work out much worse for Iraqis than Americans if US courts reciprocate the favor. But that went nowhere, $150 got me out of prison, so there we are.

Anyway, back to the topic, here’s another option–give the right to the girl to dissolve the marriage on her own if she is underage, and treat it as if it’s a husband ordered divorce. So then she keeps the monetary benefits, the marriage was recognized legally and culturally but now she’s out with whatever she is entitled to. Again, they thought of that. She does have this right under the Personal Status Code, and yet this minor, in 2010, didn’t think to make use of it. Why? Because every jurist in contemporary Shi’a-dom considers a girl of age to consent to marriage at nine lunar years (which is about 8 years and nine months). So none of them would regard that dissolution as valid. Has to be a divorce pronounced by the husband.

(This is different, of course, from saying that Shi’i jurists find it a good idea for a girl to marry at nine, and indeed, in some cases it will be a sin to engage in such a marriage. Ask a Shi’a imam in Dearborn if you can marry a 12 year old, I expect he will tell you no. He certainly should, following juristic theory. Why? Because the state of Michigan prohibits such a marriage and deems it criminal, you chose to live in Michigan, you are bound by its legal conditions, they are effectively shurut to a contract that are presumptively valid. Of course if there are rules that require you to sin, that may be different, but one does not sin by choosing a 18 year old wife instead of a 12 year old one. So you cannot violate the law to marry a child. However, this has nothing to do with the validity of that marriage to that 12 year old if you undertake it. You are married, she cannot divorce you. Maybe you belong in prison, but as a married person.)

So as you can see, Judge Salim was out of options. He couldn’t tell her to dissolve the marriage when jurists wouldn’t accept that dissolution as valid. He couldn’t fail to recognize the marriage because an earlier court already had, and indeed while he criticized the decision, the social fact of her marriage was well established in her social fabric. He couldn’t make Iraqi rural folk show up to court to marry and not marry them when they don’t meet the law’s conditions. because they won’t and you can’t imprison them all. And if he could wave a magic wand and make every Iraqi actually care about the legal provision and internalize its values over those of tribe and tradition, then he should be prime minister, but he can’t. So he did what he could. Applied the doctrine of capacity as half measure, to disallow the divorce that would have been financially injurious to the wife while not commenting on the same capacity as it concerned marriage. Illogical, and best justice he could probably do in an imperfect world.

This is what happens when, in many Islamic societies, you get a progressive elite on the one hand writing laws purported to be Islamic, folks like me basically, working every progressive angle they can lay their hands on, and at the same time, you have this broad swath of social actors who don’t inhabit the same legal universe and will continue to act as they always have, in accordance with some amalgam of culture, tribal custom and religious tradition, law of the state be damned. There’s only so much you can do. Or, as Bruce Hornsby put it with respect to the Civil Rights Act, applicable mutatis mutandis to the Personal Status Code:

Well they passed a law in 64

to give those who aint got a little more

but it only goes so far

because the law don’t change another’s mind

when all he sees at the hiring time

is the line on the color bar . . . .

HAH

I just saw this quote on an article of separating fact from fiction re: ISIS conduct.

It is true that there are now virtually no Christians left in Mosul, and that the ‘tax or leave’ ultimatum was imposed week. There are horrifying reports of women being raped in front of their husbands when they said they could not pay.

Not to defend ISIS (as a Shi’i, I tend to think I ought to be immune from this claim, seeing as how the bastards would kill me on the spot if they found me), but that latter rape bit is highly unlikely. It cannot be made to work in classical jurisprudence, even under the most “extremist Sunni teaching” the article decries. You just have to know the fiqh to see that.  First, the only people a man can have sex with are his wife and his female slave.  This woman is neither.  She’s neither virgin nor child, so she can’t be married to anyone without her consent by unanimity of jurists, so she’s not the rapist’s wife.    If you are going to tell me she has been made his slave for failing to pay the jizya, then she’s a married slave, ie a slave married to another slave, and a slaveowner cannot forcibly divorce a  slave who is already married.  “Divorce is for he who takes her thigh” is the statement attributed to the Prophet, understood by all to mean the husband, told particularly in the context of a man who wanted to divorce his two slaves, presumably because he wanted the woman. Try another route and tell me the marriage is not a recognized one by ISIS and you’d have to explain the basis for deciding two Christians marrying under Christian rules is not recognized by an Islamic state. I see none.  And even if I did, then that renders her a fornicator, for which the punishment is lashing, not rape.  And even if one could somehow get around all of this, somehow, one still couldn’t have sex with her until she has been separated from her husband for three menstrual cycles.  So the rapist is a fornicator (forcing the sex doesn’t somehow unfornicate it), meaning he’s either whipped 80 times, if he is unmarried, or stoned to death, if married.

All of that, to use the article’s considerable reduction, is “extremist Sunni teaching,.”  Whatever you think of it (and I’ve got serious problems with pieces of it and in particular the slavery parts), it still renders the rape allegation highly suspect, at least as a practice justified Islamically.  Of course it’s possible some rogue ISIS dude raped a woman in a manner that violates ISIS rules quite strongly.  But then that was established as to rogue US soldiers in Haditha, Iraq as well.  That’s not particularly revealing about ISIS.

Ironic that an article emphasizing the importance of separating fact from fiction runs off and prints that, of all things, the most fantastical claim of all.

As many may have heard, Abu Bakr al-Baghdadi was a lecturer at the Islamic University in Baghdad many years ago, during the Saddam Hussein era.  The following are excerpts of his student evaluations, recently uncovered on ratemyprofessors.com

Professor Name:        Abu Bakr al-Baghdadi

School:                        Islamic University of Baghdad

Location:                    Baghdad, Iraq

Department:              Islamic Studies

Average Rating:        Poor

There are reports now suggesting that the ISIS letter ordering the genital mutilation of girls in Mosul is fake.  ISIS is denying its authenticity, and they don’t deny much.  So maybe it is, I don’t know, I certainly have no way of verifying the authenticity of such information, nor can I evaluate the witnesses who claim it is true to make a more informed judgment than those closer to the ground than I.  If it’s doctored, so it is doctored.

My added value to the extent there is any lies in Iraqi law and Islamic law, having spent the better part of my professional life studying the two.  And ironically, most of the (substantial) hate mail I got on my last post concerned these. And on these, I am certainly not wrong.  To wit,

First, there absolutely is source material, and juristic rulings, within the Sunni and Shi’a traditions, that can be understood to endorse the practice of female genital mutilation.  It is not “mandated” by Islam, nor is the conclusion that it is a good thing by any means a necessary conclusion of the source material, nor is its recommendation universally agreed upon. It’s not a major thing in the tradition, and one can read the sources different ways.  All I said, and what is clear, is that there exist strains within each of the traditions that endorse it, that render its endorsement not only plausible, but advanced at various times and places among authorities whose place in the tradition is prominent.  I’ve offered the material in support of that, I could offer more and I might, if I have time and interest.  Looking through the some of the rasail amaliyya of the past several hundred years might be interesting enough .  If I have time maybe in the future. There’s already enough though to demonstrate amply the limited claim.

Second, what would make an ISIS demand particularly radical is the notion of state enforcement of this. It is true that in the Sunni tradition a caliph can and does enact edicts to realize the goals of an Islamic state that go above and beyond what Islam requires as a minimum, and that this would be an example of such an edict. Hence, though only recommended, the caliph would maintain that given existing life and the sexualization of the global culture, the caliph is implementing as state policy and as state mandate, this thing.

But even if we humor ISIS in presuming the legitimacy of its caliphate, then as any lawyer knows, when you enact a state policy, you have to think of how it is going to be enforced.  This one would require the caliph’s soldiers to identify girls of recalcitrant fathers, their walis, take them against their will somewhere, and perform this operation on them.  Because if you say it is mandatory, that’s what mandatory means.  And to do something like that, to interfere in that fundamental a relationship as between a wali and his ward, and to do that not to enforce an Islamic requirement, but to advance something much less prominent in the tradition, is, I’ll say it again, quite beyond the bounds for any number of reasons.

That’s all on this for now.

HAH

There has been much press on the decision by ISIS to expel what remained of Mosul’s 1400 year old Christian population yesterday.  The attention, and the attendant criticisms, lamentations, and denunciations are thoroughly justified. It is a tragedy for Iraq, the latest of many, but this one is of historic proportions.  We had among the oldest Christian populations on earth and now, between Islamist extremism targeting the Christian community and incompetence plaguing our security forces thereby rendering them unable to protect the vulnerable, it is rapidly disappearing, to the dismay let me say of just about every Iraqi Muslim I know (and I know quite a few).  In any event,  I had little to add to the growing chorus, so I wasn’t going to post, but then I noticed that the actual declaration has not been translated. So I figured I should do that, given its self righteous and highly tendentious claims of Islamicity, along with my own commentary thereto [in brackets and italics]. So here we go.

[Letterhead first, which reads as per below]

Top Right Corner

[Logo of ISIS, which frankly looks like a child scrawling “There is no god but God, Muhammad is the Apostle of God.”]

Center

In the name of God, the Merciful, the Compassionate

The Islamic State

Judicial Division

[The references to God’s Mercy and Compassion are of course the standard Islamic benediction and would be expected to appear at the top of such a declaration no matter its contents. Still, given the contents and everything else we know about ISIS, one might be tempted to ask them to define “Merciful” and “Compassionate” and explain precisely how these Divine attributes inform their own decisions and actions.]

[I have no idea if they actually have a judicial division, I very much doubt it exists as an independent and professionalized independent unit within the state.  Yet their desire to convey an impression of a thoroughly bureaucratized state is nonetheless quite notable.]

Top Right Corner

Number: 40 [40????  The Judicial Division has issued 39 earlier declarations?  How have they had time?]

Date: 19/Ramadan/1435 H

17/7/2014M

[Two things are interesting about this. First, again, the desire to demonstrate some sort of officialdom in their activities, as to legitimize them as the actions of a state. Second, and equally intriguingly, the willingness to include reference to the calendar of Christian origin in a declaration expelling Christians.  The reason? Perhaps inertia, everyone else does it, but I suspect that it is for another reason. Within about 3 years people aren’t going to have a clue when the 19th of Ramadan, 1435 actually was.  Almost nobody uses that calendar for purposes other than the religious.  Ask an Iraqi what happened on the 7th of Safar, 1424, and my odds on bet is that most would have to subtract in their head, think about it for a second then they might, only might, know. (Think about it my Iraqi brothers and sisters, eleven years ago around the Arba’een. What happened?)  Give them the Gregorian date of April 9, 2003, there isn’t a soul from Iraq who doesn’t know that one.  So the Islamic State succumbs to postcolonial Western influence, of indubitably Christian origin in this case. 

Interesting, also, that they did not mention the month name in the Gregorian calendar, only the Islamic.  God forbid we take the name of Julius Caesar in an Islamic bayan.]

[Body of Letter]

Praise is to God who strengthened Islam in His Victory, and humiliated polytheism in His might, and He created days for a state in His justice. And peace and blessings on he who God lifted as a light for Islam with his sword, and what is more.

[The reference of ‘polytheism’ here isn’t to Christians I don’t think. That’s not because ISIS would regard Christians as monotheistic, my guess is they would surely not do so.  But the references to war and God’s victory make it unlikely he’s referring to Christianity, because they didn’t really achieve any sort of military victory over the Christian population of Mosul.  I think it’s a reference to Shi’ism, the idea being that the Shi’i reverence for particular holy figures, and most particularly the male lineal descendants of Muhammad known as the Imams, renders them into polytheists. As polytheism is described in really bad terms in the Qur’an, the one sin God does not forgive, the conclusion respecting the Shi’a is pretty clear.  Of course, he does not use the terms more closely associated with Shi’is among Sunni extremists-the rejecters–so an implication to include Christians is possible.]

[More intriguingly, the reference to Muhammad (the one lifted by God, etc.) is very unusually made.  In the normal case, peace and blessings are descended unto Muhammad by name, or by an appellation so common it works as a name. “Apostle of God” “the Mustafa [Chosen One]”, etc. along with his progeny and, for Sunnis, often his companions.  Here there is reference to sword, to violence, and to precisely the type of image of the Prophet that most Muslims decry.  And in so doing, he ended up with a misplaced pronoun.  (Whose sword? God’s or Muhammad’s?)  Lesson in the end is that ISIS is doing a far better job of spreading negative stereotypes of Islam and its Prophet than the most vicious Islamophobes ever could.

God the Exalted has said,” When some of them said: “why do ye preach to a people whom Allah will destroy or visit with a terrible punishment?”― Said the preachers: “To discharge our duty to your Lord and perchance they may fear Him.” (A’araf: 163)

[I just used the Yusuf Ali translation of this verse, which is broadly adopted.  Here’s the funny part, they cited the wrong verse. That is verse 164, not 163. How many lashes does that get you? Beautifully ironic though, all this Islam talk and they can’t even cite to the right verse.  In any event, it is a verse and it is not unusual for any Islamist movement to begin its argument with one, the idea being you can’t really argue with God’s word. The problem of course is that the Qur’an is like the Bible, I can quote it to reach more than one conclusion if I’m just going to throw something out there without context. If this were my declaration, I’d start with a different verse (and of course reach a different conclusion). Mine would be

And dispute not with People of the Book except by better means, save those who oppress.  And say to them we believe in what was sent to you and what was sent to us, and your God and ours are one, and it is to Him that we submit ourselves. (Ankabut: 46)

or I’d pick

Those who believe, those who follow the Jewish scriptures, the Christians, the Sabians and any who believe in God and the Last Day and do good deeds shall have their reward with the Lord. On them shall be no fear, nor shall they grieve.  (Baqara:62)

I don’t mind if you tell me my postcolonial westernized mind causes me to turn to these verses and not the ones ISIS picked. I’m a Realist, I never denied my own ideological bias. But please, don’t pretend ISIS is the neutral interpreter of Sacred Verse here. Their strong normative preference to stick their middle fingers straight up at the whole of Christendom surely plays a role too. And they materially benefit from confiscating the homes and properties of Iraqi Christians as well, a more direct material benefit than any I gain by virtue of my view.

Also, my citations are correct.]

After notice to the heads of the Nasirites [they used a more archaic name for Christian, a Qur’anic term, to make it more legitimate I’m guessing] and their followers for the date to appear to clarify their situation under the shadow of the Islamic State in the province of Nineveh, they objected and failed to appear at the appointed time designated for them earlier.  It had been decided that we would put before them one of three choices: 

 1. Islam

2. The Covenant of the Dhimma (and this means the taking of jizya from them)

3. If they decline that, then there is nothing left but the sword.

[The reference of dhimma is to the medieval practice of taking a tax from the Christian population and, in many historical instances, degrading and humiliating them in the process of their paying it.  This thus rendered them “dhimmis” meaning second class citizens of a sort, protected by the state against violence to be sure, but limited in their activities, often made to wear humiliating or degrading outfits, etc.  This is not the only way that the dhimmi status could be practiced, it could be far more humane, but it is one that was practiced this way in many cases, was supported by juristic authorities (not universally of course) and I raise it because I have little doubt that this is what ISIS intended.  I should also say that until about two years ago I dismissed all of the dhimmi talk as only so much Islamophobia. I don’t pretend that if I were Christian I’d celebrate the rise of Hamas, the Muslim Brotherhood, the Sadrists to positions of political authority–I’m Muslim and I don’t celebrate that. However, neither they, nor other mainstream Islamist movements from Nahda to Hezbollah proposed actually taxing Christians and rendering them formal second class citizens.  But as our Islamic world appears to be in a continual state of regress, so we have regressed to this in Iraq’s second largest city, the home once of everyone from prominent Jewish intellectuals to Arab pop stars.

The Commander of the Faithful, the Caliph Ibrahim, God strengthen him, has shown benevolence by permitting them to evacuate–by themselves only–to the borders of the Islamic caliphate no later than noon Saturday, which is the 21st of Ramadan, 1435. After that date, there is nothing between us and them but the sword.

Second, I think the most logical way to read this is that had they showed up when ISIS had told them to, they would have been subject to the three choices set forth above of Islam, jizya or death. but they didn’t, so now it’s exile without their property, or death.  This is interesting because the things they say they would have done but don’t actually do at least have some historical pedigree as described above. Controversial, not a necessary reading of history, rejected in modernity, but there is something to point to.  Of course, though, they didn’t do these things, because the Christians didn’t show up to the meeting. They don’t then announce it on Twitter, though they could have, seeing as how they tweet mass murder, they just leave it as something legitimate and yet foregone for reasons that aren’t their fault.

This then leads them to do the one thing that lacks much pedigree, which is confiscating the entirety of one’s property and exiling them for failing to heed a notification. The idea that the caliph can just wake up and take your stuff because he called you to a meeting and you didn’t show is, at the very least, tendentious, a real stretch. Moreover, it’s described as benevolent, but of course it’s only benevolent relative to killing them, and it’s really hard to find any Islamic justification for that under these circumstances.  For what, exactly?  It’s not war, you’ve won already, and they haven’t done anything but failed to appear at a meeting or leave the state.  I suppose it would be justified as the executive acting in the public interest of the state to preserve it and cause it to prosper but killing people and taking their property is a level of executive discretionary power that would be hard to find much justification for even in medieval juristic manuals.

So again, the stuff they said they would do is controversial but has some historical material from which to draw. That which they do end up doing is far less justifiable under the doctrinal tradition.]

To God is strength, and to His Apostle and the believers, but the hypocrites do not know.

[I agree with ISIS. The hypocrites are ignoramuses who spoil Islam’s name.  We just disagree as to their identity.]

State of Nineveh

[Stamp of the Judicial Branch]

As I finally made a move from what was a pure blogging site into a more full fledged personal website, I seem to have managed to lose my subscribers, with many apologies.  Anyway, if you do wish to continue to subscribe to my blog, I welcome it greatly.  But you will unfortunately have to subscribe again.  Again, I apologize for the inconvenience.

HAH

I recently returned from Iraq supposedly on paternity leave but in fact on leave attempting to fight for time with my kid among an assortment of grandparents (completely understandable), uncles and aunts (fine), cousins and spouses of cousins (getting a little annoying) and then wives of the brothers of a cousin’s wife (who the hell are you and why won’t you go away).  This left me with some spare time, which I used to begin some work on Iraqi tribal law.

The work is in its relative infancy, and there is no particular need to describe it in any great detail here and now.  But one thing that struck me, as I was attending my very first fasl in person, effectively a tribal resolution of a dispute which is usually criminal, and tortlike, in nature, was the role of the Banner of Abbas (Standard of Abbas?  Staff of Abbas?  Raya not alam, so an archaic and romantic word for flag basically is what I’m going for) at the end of the resolution.

So leaving all else aside and skipping to the end (you’ll have read my future work if you want to know the details of tribal resolution), when the tribes finally reach on an agreement on precisely what the compensation is going to be for a particular harm done to one of their own by one of the rival tribes, what happens is each side ties a piece of cloth to a walking cane, referred to as the Banner of Abbas, and the deal is sealed. To break the deal, as was done previously in this case I witnessed, is to render the blood of the sealbreaker lawful for the taking.  That doesn’t mean they’re going to kill him, they didn’t here, they asked for another fasl and demanded money and that the breaker and his father sell their home and move further away, but it’s an extremely serious affair.  It resulted in serious money and effective part exile here.

So why is it the Banner of Abbas? For the unaware (white people, Sunnis, basically The Man), Abbas is not the uncle of the Prophet, as kids, we Shi’a barely know that guy exists.  He’s Imam Hussein’s half brother, son of Imam Ali, who died in Kerbala.  Legend has it he was carrying the Banner of the Prophet, which the Prophet had given to Hamza, then Hamza had died and the Prophet took it back and gave it to Imam Ali, who gave it to Imam Hassan, who gave it to Imam Hussein, who gave it to Abbas, and Abbas died with it in his hands on the barren sands of Kerbala, hence it being the Banner of Abbas.  (There are problems with this latter part of the story.  If Abbas died in battle and was one of the greatest warriors on Imam Hussein’s side fighting in the battle of Kerbala, what’s he doing carrying around a flag?  I asked, and was told he was such a great warrior, he could fight with a sword in one hand and a banner in the other better than anyone else could with just a sword.  Of course, that’s not the relevant question.  The question is whether Abbas could fight better with a banner occupying his left hand or, say, nothing, or a shield, or something useful in it instead.  After all, Usain Bolt doesn’t go around sprinting with a 10 pound backpack on his back because he’s still faster than other people when he does.  Plus doesn’t Abbas lose his right hand in the battle. So is he holding a flag and a sword in his left hand then?  Why? Is there no safe place to leave the flag?  But these are questions you don’t ask among Iraqi tribes from Amara, so I let it go.  Banner of Abbas it is.)

In any event, you swear the deal on the Banner of Abbas, and to break it is to court serious discord and to risk your life.  Hence the cloths are wrapped around in earnestness and handed to a descendant of the Prophet, a sayyid, who wearing the black turbans only sayyids can (you’re better off with a Crip tattoo in Blood territory than wandering around the south of Iraq with a black turban if you’re not a sayyid), solemnly pronounces the deal sealed.  

Of course, as a Realist, you can be somewhat skeptical of all of this. First, that’s a dude’s walking crane, that’s not the Banner of Abbas, he probably bought it for ten bucks a day before.  Second, those are random white kerchiefs they’re tying onto it, they aren’t the Prophet’s flag.  What the heck is wrong with you people, one might ask?  You are finalizing a deal, you aren’t refighting the battle of Kerbala.

Yet formalisms have their place, and perhaps none better than in the law of contract, as well as accord and satisfaction, which is more or less what this is, when a deal is finalized.  For the essential problem that lies in the contract is that we want, indeed in the common law, expect, vigorous negotiations with no constraints prior to the finalization of the deal.  One can always back out, one does not have a good faith obligation to continue negotiations, and the parties are given maximum opportunity to use whatever leverage they have to strike whatever deal they like.  The world is better, the classical theory runs, when the parties are left to decide their own interests as they see fit.   

But, of course, contracts don’t work unless, once struck, they are binding.  Where a moment earlier to negotiate a better price is sharp bargaining, perhaps with hard elbows, to do so a moment later is to hint at breach. Where contracts and deals contain a moral element (as they generally do outside of the law and economics hegemony of the American legal academy), it is to court accusations of perfidy to do that.  So the more that line gets blurred as to when the contract is formed, the harder it is to separate the breacher from the sharp negotiator.

Plainly, the Realists didn’t care. The Uniform Commercial Code doesn’t concern itself with when the contract is formed, only that it is, however it is, even if you can’t find the offer and the acceptance, and it dismisses the ancient formalities for creating contract formation, the medieval seal, as being only so much voodoo.  Even signatures aren’t taken particularly seriously, whatever authenticates the document is good enough.

Yet of course the Realists weren’t working among traditional tribes whose capacity for violence is significant and whose resort to it without state sanction is frequent.  To adopt such a rule here would be to court significant danger, as debates devolved into who agreed to what and when they agreed to it. Better yet to seal it, better to engage in formalism, to play the voodoo game, to pretend that somehow some guy’s walking stick is the Banner of Abbas, and to break a pact signed on it is to earn the anger of the Moon of the House of Hashim, the mighty hero who could wield a sword with one hand and hold up the Standard of the Prophet in the other.  The stories have their uses.

HAH        

For those unaware, President of Egypt Muhammad Morsi just reversed a military order issued just before the election that limited the powers of the presidency in important ways and further arrogated to itself interim legislative powers pending an election of a new legislature, itself required because the Supreme Constitutional Court had determined that the electoral law violated an earlier military order that was an interim constitutional measure that reserved a certain number of seats in the legislature to independents.  Got it?

Ok, we’ll slow it down.  March 19, in Egypt, there’s a referendum that calls for relatively modest constitutional changes, the idea being to ensure some level of maximum continuity pending greater constitutional changes that can be done through legal processes over time.  The Brotherhood likes the idea (because they’ll win earlier elections, and because earlier elections are only possible if you don’t try to dismantle the system first), the liberals hate it for pretty much the same reason, but the referendum does pass, overwhelmingly.    But then on March 30 it’s the armed forces that declare this referendum effective through a military order that they call a “constitutional declaration” and they then sort of feel free to play around with it over time by issuing further constitutional declarations that amend it.  And so that starts working as the constitution, these declarations or really amendments to the original declaration.  One of those later constitutional declarations reserves one third of the legislative seats in the lower house to the independents, the electoral law allows party members to run for those seats, the Supreme Constitutional Court declares this to be unconstitutional and the legislature’s lower house illegally constituted, and the military pursuant to this shuts it down. (Details here)   This does not please the Brotherhood, which controls that house (as noted, early elections were good for them) nor frankly many others, but the objection is framed as not directed to the Court, which is respected, but to the military, for shutting down the legislature.  Michael Wahid Hanna called that sophistry, I agree, the SCC declared the body illegally constituted, if that’s right, it has to go and if not, then the problem is the Court, not the body enforcing the natural consequences of that conclusion.  But in any event, there it is.  Then the military issues another constitutional declaration limiting presidential powers, and then a president gets elected, Mohammad Morsi, who then issues a presidential declaration saying that the older constittuional declarations are void, and he isn’t so limited and that’s more or less where we are now. 

I’ll leave others, political scientists, to discuss the dangers of unchecked power in a president who can since there is no current legislature both make and enforce law. As a lawyer I turn to legal considerations.  The most pressing being, of course, does the President have the power to void the military’s constitutional declarations? 

Now while this question seems to be taken seriously among Arab lawyers, who argue back and forth about its legitimacy on television at least, in the US I think it might evoke a smile rather than any thought.  How in the world could you possibly even begin to answer the question using the mechanisms and modalities of law? The military seems to sort of make up the constitution as it goes along, and for a while that works, they even get the courts to take their declarations seriously enough to void a parliament on that basis.  And even when it goes that far, the opponents of the move seem to defend the court when they could have asked what in the world made the constitutional declaration valid anyway, issued as it was by unelected military commanders.   But then a declaration limiting a president seemed a bridge too far, and the Brotherhood more or less declared the declarations invalid and now Morsi is creating his own declarations. And you’re asking me can he legally make the cosntitution?  Or can the military?  It’s impossible to answer that.  Even if a court were to opine, and who knows they have already gotten involved they might again, its decision is so transparently political, so devoid really of legal content and that any legal reasoning, any resort to legal terminology, will be derided as a false mask hiding true intentions.  It’ll look a bit like Bush v. Gore did to so many Americans.

Yet we should be clear, for us Realists, that happens all the time when a Court opines.  The difference is that usually we have stable institutions that make enforce, interpret, manipulate law and that carry with them a certain legitimacy that makes their decisions over law authoritative.  And once you have that, you can use “law” to mediate these political disputes, mask their political character.  The root problem in Egypt, really, from the start, was that the military just decided it could make up constitutional declarations as it went along.  The real miracle was that this worked at all and lasted as long as it did, not that it eventually came to an end.  (You’d think people would fill up Tahrir again the first time the military arrogated to itself the power to issue a constitutional declaration, in March of last year, but then perhaps folks were tired.  The sociologists can explain.)  And so you have these sort of constitutional things of dubious validity being invalidated by a presidential thing of pretty dubious validity too.  (Yes he’s elected, but Egyptians aren’t blind to the world, they know well that a president issuing a constitution effectively and declaring himself empowered to issue laws, and to enforce them, and apparently to change the constitution to make sure they comply therewith, is bizarre and dangerous).  And hence whatever a court says is going to sound just as invalid because there really isn’t any “law” here to guide that is not itself subject to a legitimacy challenge.

Change the system to create some level of legitimacy though, in some set of documents or historic doctrine or something created by authoritative institutions, and  law can work and courts can function to intervene in these political disputes less obviously but no less intrusively.  That’s not because the text of whatever law produced is so clear it addresses the problem.  The Egyptian declarations are pretty clear, didn’t help, the US interstate commerce clause is muck, yet it works.   Because you have in the US a text that is regarded as authoritative and so law works to manage those transitions, where in Egypt it cannot.  I can easily argue that Congressional power is greater than you think it is and do it via legal argumentation if you posit for me a Constitution or a historic legal doctrne that all regard is legitimate.  I don’t need to say Roosevelt or New Deal or anything political, all of that I can hide, perhaps even to myself, and come to that very pro-Roosevelt, pro-Democrat conclusion. Or I can be a Hooverite and do the same thing in reverse and still keep the matter well hidden enough.  The doctrine may mask.  Take away the Constitution, take away a historic legal doctrine, render the very existence of the Congress or the President in some level of doubt as legitimate authority as a result, and I’m left with what I’m actually deciding on, political preference.

And that’s the problem in Egypt.  If a Court says Morsi
can make his own constitutional declarations, they’re going to look pro-Brotherhood.  If it says he cannot, and you look pro-military, or at least anti-Morsi.  There’s no doctrine to provide cover to disguise the nakedly political position. Which means to my mind a smart judiciary avoids this because they won’t look good getting involved, but we’ll see what happens.

HAH 

 

I’ve been having a series of enlightening and interesting conversations with my brother in Najaf, and in the context of one, he brought up this report from one of the historic Shi’i hadith compilations, Usul al-Kafi, developed in approximately the ninth century, or three hundred some years after the Prophet’s death.  I found it fascinating (and take sole responsibility for all conclusions I draw from it).