As readers of this blog are no doubt aware, I am rather sympathetic to the religious institutions of Najaf at times, and do consider them a positive force for the most part in Iraq's developing legal and political architecture. That sympathy is not without its qualifications or limitations, of course, no thinking person's support should ever be so unqualified, but in general, I have found their interventions into state affairs limited, salutary and non-divisive.
I thought I should reaffirm that before describing what I might describe as a less appealing side of Shi'i religious theory for one committed to the life of the mind, an aspect that is perhaps shared by religious orthodoxies everywhere, but is reinforced with some strength by core Shi'i theological tenets. Basically, I think Najaf suffers, and the high scholars of Najaf especially suffer, and the most learned of the Shi'i high scholars of Najaf above all suffers, from a general absence of true critical thought that prevails in the city. Essentially, they don't much engage with people who think they are wrong. If you are a good believer, Shi'ism in its modern manifestation demands of you that you follow the rules your high scholar lays out without question--to even ask the question respecting the wisdom of a rule is to risk appearing somehow less than sound in faith--to suggest you don't know you are speaking to the Imam's viceregent in the Imam's absence, and to not know that to die without knowing the Imam of the age is to die in a state of ignorance. So follow, don't argue.
Then on the flip side everyone else who rejects the whole Najaf religio-institutional structure is usually ignored, no real reason seen to engage them. And as for those who really seek out the high scholars to explain why they think what they do in contrast to what the high scholars say, who have considerable affinity to Shi'ism but also some heterodox views and reform minded ideas. They're usually shunned, Fadlallah was given the cold shoulder by the Najaf jurists, even more heterodox people like Abdul Aziz Sachedina are told not to spread their deviant views on Islam.
And the result when you never get to deal with people who think you are wrong, when you never get properly questioned and hammered on where your idea comes from, is that your thinking grows flaccid, weak, filled with logical errors, nonsequiturs, and unsustainable propositions. I've pointed out cloudy expressions in juristic rules in this blog before. But with the recent flap over the new moon sighting to declare an end to the Holy Month of Ramadan, the sloppy reasoning grew to such heights something really has to be said.
For those unaware, even within the Shi'i community, there was a split over the proper day that the new lunar month began a few days ago to signal Ramadan's end. Sistani said Monday, but others held to a moonsighting interpretation that rendered it Sunday. Let's leave aside the latter for now, and focus on Sistani's Monday, because really, upon the slightest level of introspection, the logic of his position falls completely apart.
As Sistani would have it, there is no such thing as 'unity of the horizons' when you are trying to see the moon to declare a new month, what in Arabic would be referred to as وحدة الآفاق What this means is that just because some guy somewhere else saw the moon and will therefore declare a new month doesn't mean you do too in your place. For the late Ayatollah Khu'i, Najaf's last senior cleric, that's exactly what it means, but for Sistani, no unity of the horizons, the place where the moon was seen must be in the same "horizon" or it doesn't count. So the new month starts in different places at different times. You saw a new moon, Brazilians? Good for you, but in Najaf we didn't, you are not "in our horizon" and so therefore it might be the end of Ramadan for you, but not for us. So far, so good.
Except it raises a question to anyone who thinks about it for two seconds. Now Najaf's folks aren't dumb by any means, quite the opposite. They're just unchallenged on critical points, and so they can think this far easily--to the obvious question this analysis begs and pretend to answer it at least. The question of course being "unity of horizons, what does that mean?" and here's where it gets funny. X and Y share a horizon, Sistani tells us, if the moon appeared in place X, and there is a reasonable conclusion that could be drawn that it should have been seen in place Y but didn't perhaps because conditions weren't ideal. What that has to do with a "horizon" I really don't understand, but okay. Except it's not really workable.
The problem? Go to moonsighting.com, and it's perfectly obvious that when and where a moon can be seen is going to differ each and every month. This past month, to mark the month following Ramadan, it would have been visible in ideal conditions in Miami, but not Tallahassee. So are those two not "in the same horizon"? If you scroll around that website you'll find that the new moon appears by sight in Tallahassee and Miami at the same time almost all of the time, this was an exception. So are they usually "in the same horizon"? Or do we go by the mean of the past five years? Suddenly the definition of the "same horizon" is losing sense, or needs some precision.
Now what you'll be told to this is 'dummy, we don't believe in following the astronomical charts, we have to SEE the moon, so forget what is and isn't visible to the naked eye as an astronomical matter.' This isn't a Luddite rejection of astronomy to be clear, the high scholar is not rejecting astronomy, he is merely indifferent to the declaration of a new moon astronomically. In other words, he's just saying by Islamic standards it isn't called a new moon even if it meets some scientific definition he isn't interested in. He wants to say the same thing for "in the same horizon".
The problem is, he can't do that logically and sensibly, it HAS to be the astronomical charts, it HAS to be science that gives you the answer of where one may assume a moon might be seen. Because if the question is whether or not it is possible to see the moon in place X if seen in place Y, or whether it is reasonable so to conclude, you are necessarily asking an empirical question, and it can only be answered scientifically, by an astronomy chart. There is no other way to answer it. You can answer "is there a new moon" one way by astronomical standards and one way by religious standards depending on what you mean by new moon. (i.e visible with telescope? By naked eye? By naked eye if you located it first on telescope? Etc.) But "visible in place X if it should have been visible in place Y" is purely empirical, you just need to measure, and those who do will tell you it depends month to month.
Unless you want to use an astronomical chart, you aren't asking an answerable question when you are asking if two places 'share a horizon'. And we know they don't want to use the astronomical chart, the results are preposterous. "This year, Tallahassee and Miami celebrate different Eids." Can you imagine? So what happens?
So far as I can tell, they just sort of make it up. Najaf and Bahrain are in the same horizon, Sistani declares. So are Teheran and Mashad. It really doesn't mean anything other than "kinda close together". And because you couldn't have a conversation with a religious office in Shi'ism on this, it never gets properly fleshed out beyond this. To do that, you'd have to push the questions, and you can't. ("Hold on, Sayyid, why are these two in the same horizon? They are 1000 km apart. Three of the last five times it was scientifically impossible to see the moon in Bahrain if in Najaf. What's the standard? Then let's apply it to Mashhad and see if you're being consistent. Etc. Etc.) No jurist in the world will tolerate that type of perfectly legitimate intellectual argument, so they can get lazy in their thinking. And I'm sorry, but "same horizon" is lazy thinking, if it's not please defend it substantively, and prove ME wrong. Not through creative insult, but through superior analysis. I will devour the leek with relish if you manage it.
One last wrinkle, since we in the US cannot be in the same horizon as Najaf whatever it means, does this mean when they can see the moon and we cannot, that Sistani breaks his fast but we don't? Heaven forfend! Of course not! But why not, if he won't break it if Brazil sees the moon, then why on earth should Brazil break it if he does, if the point is some horizon sharing theory? Ah, because Brazil is to the West. For more, here's a quote
“If the new moon is sighted in the east, it also applies to the west, as
long as the latitude of the two locations are not greatly apart. If the new moon is sighted in the west, it does not
apply to the east, unless it is demonstrated . . . .”
Forget the "demonstrated" part for our purposes, I cut the sentence off unnaturally because I wasn't focused on it. But the point is, East rules over West. Maybe because the sun rises earlier the further east you go is the idea?
Now this is absolutely, positively unsustainable. Or perhaps better stated you need an international date line to have it make sense so you're more or less admitting you aren't purely interpreting religious text. To develop this rule, you have to use modern colonial era notions of west and east just as much as you do sacred text or it's entirely meaningless. Why? Because in the time of the Prophet and the Imams until the Occultation, to ask which city was east of which one on a global scale would have been absurd even if they didn't see it as such. Every city is west, and east, of every other one. The earth is round, whether they knew it or not. Head west from DC and you'll hit my town of Pittsburgh in about four hours. Or head east, cross the Atlantic, go across Europe and Asia, then the Pacific, then most of the continental US, and you'll get to Pittsburgh as well. Take you longer, but you get there.
No no you academic nitwit, you say. One is closer, you go by that, that's all he means, everyone describes Pittsburgh as west of DC. Yes but they aren't thinking globally, if they did, that analysis would in certain places be impossible, and wrong. Hawaii, closer to Japan going west or east? Answer is east of course. Four hour flight east from Tokyo gets you to Hawaii, go west and you cross Russia, then Europe, then the Atlantic, then the US, etc. So the "closer" theory, means Japan, being west of Hawaii, follows Hawaii, if Hawaii sees the moon, it's the new month the same day in Japan. Know what time they'll see the new moon on Hawaii? 7 pm on, let's invent a date, August 17. Know what time that is in Japan. 2 pm on August 18. Anyone want to tell me how the Japanese are supposed to do that? You see the new moon, it's the religious holiday, so you can't fast, but these folks have been fasting half the day, and they've missed the prayer time, it does not work.
No no, the only way to make east and west make sense over a round place is to declare a starting point, the World's Starting Point, and say that at high noon at this World's Starting Point on Day Zero the clock and time zones are defined. You go east from there, you advance the clock all the way to midnight on the opposite side of the globe. You go west, from there, you reverse the clock all the way to midnight on that same opposite side of the globe. That makes the opposite side of the globe from the World's Starting Point the date line, the place where one day jumps to another to make it all work out. And that date line, across from the World's Starting Point is where East and West have to start, you can't cross the date line and claim to be going west, (that's why Japan is not west of Hawaii for time purposes and sighting purposes, it's ahead in time, because on the other side of the date line. Same for Alaska and New Zealand, or even Alaska and Siberia which are so close you can see Russia from Sarah Palin's doorstep. In each case, you cannot regard the one as "east" of the other for purposes of this rule because of the date line).
And there's only one World's Starting Point baby--Greenwich England. So that's what Sistani is saying. If you are east of the international date line running opposite Greenwich, you lead. Everyone else follow. Because the Prophet said? No, because the bloody ENGLISH said. That's the only way to make sense of the rule. The only way to make the definitions of East and West work.
Now wait, you might say, why can't Sistani mean that the starting point is Mecca, or Najaf, or whatever, rather than the date line? Then he wouldn't be following the English. Simple answer--because it won't work. If you start in Najaf and say "this is the starting point for what is east, so everyone follows us, and those to the West, look to those to the East and follow them", more or less declare Greenwich replaced by some Islamic place, then the Hawaii-Japan problem happens again, because you don't cross the date line at that point anymore, and you have to cross the date line at that point, or there is no sensible way to make the rule work so long as the world isn't following your watch but the international standard set by the English, as we've seen above.
One final riposte might come in. No, no, no, it is argued, you took a quote from Sistani about a Code of Practice for Muslims Living in the West. He's merely saying America follows Najaf, he's not saying each point west follows each point east. First, that's not true if you see the rest of the quote, but more importantly, assuming it is, it STILL assumes the date line precisely where it is, or the rule does NOT work. Had the English thrown the date line in the middle of the Atlantic, then the dawn of any given day wouldn't break in New Zealand first, followed by Australia and Japan, and so forth. No, the dawn of any given day would break in NEW YORK first (really Quebec, but anyway), and Najaf wouldn't be 7-8 hours ahead of us, it would be 16-17 hours BEHIND us. And again, we could not, possibly, in that case, follow Najaf. They'd say they saw the moon Monday at 7 pm and for us it would already be Tuesday at 11 am, too late to pray, having already started fasting. It's based on the dateline, the rule is developed from the English, not the Prophet, or at least has to claim both as sources for its delineation.
But of course you cannot have an intelligent conversation about postcolonial influences on Sayyid Sistani either. It's very difficult to have any sort of thoroughly reasoned conversations about these topics at all. You're supposed to just obey. Not a surprise so much shoddy reasoning comes out from such smart people when anti-intellectual notions like that prevail.
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.
Just read an interesting short piece on SSRN concerning the practices of Malaysian pawn brokers supposedly adopting an interest free form of finance where you deposit collateral with them, almost certainly something with a readily ascertainable value like gold, they give you money for the gold, and a "benevolent loan" whereby you pay the same amount back in 3-6 months time. They seem to call it Ar-Rahnu, clearly from the Arabic for the term "rahn" or mortgage/secured loan. Of course, it isn't actually benevolent, because principal is not all the borrower pays, he also pays rent for the benevolently lending pawn broker to hold on to the gold, and naturally the contracts jigger a way to adjust things appropriately to take account of wildly swinging prices in gold should they occur.
So what's the net interest rate, oops I mean the cost of leasing your stuff to another guy to hold on to, or let's just be neutral and call it the cost of borrowing? Half of what a conventional pawn broker charges, it is said. In keeping with the goals of the shari'a, it is said. A mechanism for the poor to finally get access to meaningful credit, it is said.
Or do you want an actual number, and less bullshit? ELEVEN PERCENT PER ANNUM. That's the low end, it rises to 15% at the high end. You drop off your gold, you pay an 11-15% percent per annum markup when you come back for it in three months. The BNM interest rate in Malaysia is about 3%. You want to tell me this is better than conventional pawn brokers, I believe you. You want to tell me it beats loan sharks, I'll believe that too. It's even better than credit cards, somewhat marginally at the higher end, though maybe not I don't think the pawn brokers charge random fees. Let's just say it's better.
But I'm sorry, you charge 5 times the amount of the prevailing interest rate for a guy to give you a bunch of his wife's gold to pawn to pay a hospital bill, you are screwing the poor. You're exploiting a person in hard times and desperate need of cash, and you're screwing him. And if he wasn't in hard times, and he was poor, he wouldn't give you all the gold in his house. Your supposedly "Islamic" way might be better than the mafia, but that's about all it's better than.
If you actually cared about your fellow Muslim world poor, you'd find a way to get them better access to the credit markets that are priced more competitively. You wouldn't pretend interest was inherently exploitative and then extol this. That's just shameful cant.
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).
الكافي ج 2, كتاب الإيمان والكفر, باب دعائم الإسلام, ح 5: علي بن إبراهيم ، عن أبيه وعبد الله بن الصلت جميعا ، عن حماد بن عيسى ، عنحريز بن عبد الله، عن زرارة ،
عن أبي جعفر ( عليه السلام )... قال : ثم قال (أبو جعفر): ذروة الامر وسنامه ومفتاحه وباب الأشياء ورضا الرحمن الطاعة للإمام بعد معرفته ، إن الله عز وجل يقول : ((من يطع الرسول فقد أطاع الله ومن تولى فما أرسلناك عليهم حفيظا)) أما لو أن رجلا قام ليله وصام نهاره وتصدق بجميع ماله وحج جميع دهره ولم يعرف ولاية ولي الله فيواليه ويكون جميع أعماله بدلالته إليه ، ما كان له على الله عز وجل حق في ثوابه ولا كان من أهل الايمان ،
ثم قال : أولئك المحسن منهم يدخله الله الجنة بفضل رحمته.
For the non-Arabic speakers, it reads in the part most relevant for our purposes as:
Then [Abu Ja'far] said, the essence of the matter, its climax, its key, the door to things and the pleasure of God is obedience to the Imam after he is known. And God the Mighty and Momentous has said "Who obeys the Apostle obeys God, and who turns away, We have not sent you as a protector." (Nisa:81) But as for a man who stands his nights [in prayer] and fasts his days and has given all of his wealth in charity, and has done the Hajj in all periods, and he did not know the sovereignty of the one near to God [i.e. the Imam], to follow him and have all of his deeds be through his guidance, there is no right to him for repentance from God the Mighty and Momentous, and he is not of the people of faith.
Then he said, He is a good person among them, and Allah shall enter him into Paradise by the grace of His Mercy. ----- The reason I find this so fascinating is that it explores one of the central historic tensions in Shi'ism that is very much around today. On the one hand, it is quite important to render the very notion of the Imamate central to Shi'i theology--that after the Prophet Muhammad there came a sequential group of twelve male lineal descendants known as the Imams, that the Imams have an ability to understand the secret meanings of the Qur'an, that to them is owed the same temporal and spiritual obedience as to the Prophet himself, and that the last of these remains hidden among us and will make himself known one day. This really is the pith and pit of Shi'i theology, what makes it the most distinctive, or to use the phrase of the Fifth Imam, the essence, the climax, the key.
The competing tension, however, is that you do have to be careful not to go too far in the alienation of Sunnis who of course do not share the belief in the Imam. If you render the Imamate as like the Prophethood, in all theological respects, then you are effectively saying that he who denies it is equivalent to one who denies the Prophethood of Muhammad. That at best renders a Sunni a 'person of the Book', equivalent to Christians or Jews, and at worst a heretic as a Baha'i is often regarded. It's not strategically wise for a minority to hold to such a position, and it does, in modernity, tend to cut as against core normative judgments of most Shi'a respecting the status of Sunnis.
So there needs to be a balance, a careful one. Emphasize the absolute equivalence of belief in Imamate to belief in Prophethood, to deny either is an equal theological deviance, then you have a real problem with relations with Sunnis and how to treat Sunnis. Render this whole distinction of little moment, that really we do believe in the same Qur'an, and our substantive Islamic rules are so similar, and we both pray and the like and let's just call the Shi'a a fifth school of Islamic thought, etc. Sounds nice, but to the committed theologian, all of a sudden, you've made belief in the Imamate rather trivial, akin to Shafi'i's acceptance of some commercial practices shunned by Ahmed, which most Muslims don't even think about. So what to do?
A few things. First, legally, by rule, you have to declare the Sunni a "Muslim", as Shi'a jurists do, if there is to be any hope of getting along in this world. So for all temporal purposes (who one can marry, for example, or to or from whom one can inherit) there is no distinction drawn. Again, it has to come out that way. If you start saying that Sunnis cannot inherit from Shi'a, even as Christians cannot inherit from Muslims (I am describing these clear rules, not defending them let's be clear), then it's pretty hard to see how anything but permanent hostility will result so long as traditional rules are heeded.
But then, as the passage indicates, you must describe them as somehow deficient in belief, or what is the whole Imamate about? How can belief in the Imamate be so central on the one hand, and not somehow an impediment to true faith on the other? So here it pulls necessarily the other direction. A Muslim, but not a Believer, meaning not one whose faith is really complete, it's lacking something important.
But then you have to ask if not a believer, then why a Muslim? What is it that renders someone whose faith is missing one key component of what the Shi'i jurist would consider true Islam into a person his daughter can marry when she cannot marry a Christian (again, describing rules, not defending them). And here, of course, we can turn and take refuge in one of God's greatest and most extolled attributes, Mercy. Ok you're missing something, something important, something that renders you not one of the "People of Faith". But God is Merciful, he knows your deeds, he sees you have prayed and fasted and made the pligrimage to Mecca and so because you are good, to Paradise you go. And why on earth couldn't my child marry a man to heaven bound?
So it works out decently well, or as well as it could under the circumstances.
While I tend to spend most of my working days reading modern court cases from the Middle East rather than classical texts on Islamic law, being more interested in modern manifestations of shari'a than whatever the classical jurists intended, of course one cannot show the evolution or manipulation of whatever it is of doctrine unless one begins with its starting point, and so due attention must be paid. Moreover, every once in a while, something appears that I sort of know but is brought centrally to my attention, and that is so bizarro that I sort of feel I have to dig up the dusty books and go through them. Such a moment occurred to me just a few days ago, as I was digging through Kubaisi's commentary on Iraq's Personal Status Code, and its cases decided thereunder, when he recited a matter that many others have as well--that the Hanafis did not think that duress was a sufficient reason to invalidate a divorce, that if the man merely said "inti taliq", or "you are divorced", that was enough, even if stated under duress. Again, I've heard it before, but not paid much attention, mainly because the other schools don't hold to that position, and so most modern Arab laws don't adopt it (easy to do when one school has the weird rule), and so there wasn't much a point. But this time, I thought, I just have to figure this out. Why in the world, how in the world, could duress not be a defense to the entering into of a marriage contract of all things.
Ohers have, to be clear, discussed the notion of intent under Hanafi doctrine, and found that the Hanafis were reluctant to permit marriage contracts to be avoided because one party claims they didn't intend the contract. Baber Johansson did work on that, even the renowned Schact claims sharia in this area is infected with this--a desire for certainty and clarity. Paul Powers took issue, boy are these scholarly debates fun, but my point is, intention has to be regarded differently from duress. Even in US law, there is some reluctance to allow a party to escape a contract when every indication is they intended to enter it, even if they could prove, subjectively, that they had no such intent. Holmes and Hand were big proponents of the objective theory, that if a reasonable person would think you intended it, then you are bound, even if you didn't mean it, even if you thought you were joking. The goal is certainty, you don't want folks wandering arond claiming that contracts that all reasonable people thought were concluded were not because one of the parties wants to claim it was one big joke. So all this stuff about intent and Islamic law is interesting, but to a lawyer, quite familiar. There are perfectly good and sound reasons to determine that if a man tells to his wife in what appears to be complete sincerity "you are divorced", he cannot come back six months later and say "What? That? I was kidding! Why do you take everything so seriously?" Even if he didn't mean what he said, even if Learned Hand's forty imams (I am paraphrasing) came to testify that he told them he was joking, there are sound reasons to bind him by his words.
Duress, however, is a much different matter. It's just a bad rule to suggest that you can force a man to issue a divorce he does not want to issue. I'm perfectly happy to stand here and say I don't particularly care much for the Hanafi rules that seem to make it easy for a man to divorce because he doesn't like the flavor of his wife's hummus, but a woman cannot seem to get a divorce for anything other than a husband's impotence, but surely the solution cannot be to tell women to put a gun to their husband's heads and force them to pronounce a divorce formula. Involve a third person, who for spite or jealousy, or to get the husband to marry someone else, invokes the duress and the incentives are not only perverse, but they also make a mockery of the institution of marriage as some sort of sacred bond. Marriage isn't a sacrament in Islamic law, you say, but a contract? Fine, what sort of contract is one bound to that is not in the slightest bit voluntary, but imposed. And I haven't even begun to discuss fairness, how it could be fair to allow one with means to use force (ie the powerful) to impose divorces on recalcitrant husbands is beyond me.
Add in the triple divorce, and the result is more absurd. You say "divorce" in Islamic law, and you are divorced (most don't know that, but it is the preferred formula). You say "divorce divorce divorce", then the marriage is not only over, it cannot be resumed unless the woman marries another man, and that second marriage is consummated. How convenient if you're the powerful noble seeking to have sex with an attractive woman married to a peasant who works for you. Use duress, and you can be that second man. Then he can marry her again, and all is well.
So what explains this oddity of the Hanafis, or at least some Hanafis? Droit de seigneur? No, I made that up, no evidence of this in Islamic history that I know of. Some odd bit of Revelation, it's just God's Will and so follow it? Not that I can see. According to the Maliki Averroes, it's because divorce is according to the hanafis, to use Averroes' term, mughalladh مغلظ a sacred oath. My modern sensibilities as a modern lawyer took me in two directions. The first was to read this word, as one could in Arabic as part of the root Arabic as "crude" or "vulgar". Divorce is vulgar and therefore even when pronounced under duress it's binding? No, besides the root is manifested wrong, should be غليظ Then I remembered the rather unused now phrase to take a sacred oath as using the same verb (nowadays you take an oath, it's halafa, not ghalladha) from an old Arabic play, and it became clear.
But then my modern sensibilities took me in another direction, which is "so what?" If you make me take an oath, and that oath was rendered under duress, modern biases would lead you to conclude you aren't bound. It doesn't count when you're forced into it. Really, oath or contract, duress should not affect it.
There's something else going on here, something almost totemic in its quality, a form of sacralization of the pronouncement of a word over all else. It isn't merely "strict formalism" as one commentator has indicated, it's exaltation of this word, as Sacred Oath, and therefore inviolable almost no matter the circumstances in which uttered.
Understood this way, the whole notion of the triple divorce can be rendered more comprehensible, albeit not defensible. Usually the jurist tells you it is detestable to so utter divorce. It is an innovation, and as the Sunni Imam always says in the Friday prayer, every innovation is a straying and every straying is in the Fire. Yet if you do it, if you say "divorce divorce divorce" then broadly the jurists agreed with limited exceptions (Ibn Taymiyya etc being the exceptions among the Sunnis, the Shi'a generally rejecting triple divorces) then it was valid and binding. No remarriage to that woman unless another man has sex with her first.
That's always struck me as silly, how can it be both sin and yet achieve what you want? Isn't that just obfuscation, pretending someone cannot do something and then allowing them to do it? Yes it is, in the modern setting, but regard the Word as Totem, as Sacred Oath, as effective in and of its own, and it makes sense. You pronounce the Word, it does the Deed. Ask me, is it okay to kill innocent people in a Sikh temple, I will tell you, of course not, get shot by the police in this life, burn in hell in the next one. You ask me, but if I do it and shoot an 84 year old man whose sin is opening a temple to worship, will he still die. Well, of course he'll die, he dies from bullets just like everyone else, you're doing a bad thing and yet it achieves its intended aim, not because I want it to , but because that's the paln of living in this world. I wouldn't think the same thing of a triple divorce, as a Realist I'd say it only has the effect we choose to give it, but then I'm not much for totems or voodoo. not clear to me that this view of mine is shared by the classicists. I don't mean they were obsessed with totems, only maybe, perhaps, sometimes, some of them as this example maybe perhaps demonstrates they took them more seriously than we do?
Maybe? And if so, yet another way our sensibilities and biases are so much different from those who invested Muslim legal doctrine.
I was watching the Arabic satellite channel Al Hurra a few days ago, and specifically a show called Musawat, or equality, which I watch rather regularly. (Actually my wife watches it regularly and I end up dragged into it.) But it is a nice talk show, focusing largely on women’s issues, and this one was with a Kuwaiti women’s rights activist who was discussing mostly the rather distressing electoral results for women in the recent Kuwaiti elections. By way of background, per the decision discussed in my previous post, women managed to earn four seats in the Kuwaiti parliament in 2009, only to lose every single one in the elections held this year. She was largely there to answer the question “what happened?”
I gleaned three answers to the question, each in its own way interesting. First, she accused the regime of largely not caring about women’s participation, seeking to lift worldwide criticism and scrutiny over previous formal prohibitions to vote, and to be elected, and that having been achieved, to return to its substantive indifference. Probably true, though as much an indictment of the international community as the Kuwaiti emir. The fact is that in a great number of these legal reform initiatives, a great deal of focus in put on formal bars and formal legal enactments, and as soon as those are completed, the interest of the international community tends to wane. How many people even know, for example, that there are currently no women in the Kuwaiti parliament? Not as many as knew in 2009, when the prohibition against their appearing was put in place.
The same idea might be transposed elsewhere, the current burning issue is whether Saudi women should be able to participate in the Olympics. I wouldn’t be surprised if this worked out as the Kuwaiti situation did—a formal prohibition is lifted, some small number of Saudi women participate, and then it all stops a few years later, with attention having long moved elsewhere. To get substantive change, as in, say racial integration in the American south, you need strong, continued, persistent effort, and even then it is progress that is halting and incomplete over a period of decades. There’s simply not the same push, at least not now, domestically or internationally.
The second point the activist made was of general liberal indifference as well, in the sense that of course the liberal groups formally supported greater women’s involvement, but when push came to shove, when the decisions had to be made, and the sacrifices had to be delivered, they always seem to come down against women’s interests. This also is interesting and consistent with what I’ve seen elsewhere. I was rather shocked actually in Iraqi constitutional negotiations how often women’s groups ended up isolated, abandoned by their liberal supporters, Arab and Kurd alike, and even the US Embassy.
I don’t mean the latter groups didn’t profess to oppose, say, a repeal of Iraq’s Personal Status Code and its replacement with highly traditionalized forms of sharia, they did, sincerely, to the end. But what I do mean is that if you took a Kurd leading constitutional negotiations, and the issue came down to greater federal power for the region of Kurdistan on the one hand, and a repeal of the Personal Status Code in exchange, he’ll take the deal. And all will end up going along, to the rising frustration of women’s groups. And that continues, to the very formation of Iraq’s current government, where the wrangling was between the more secular and nationalist Iraqiya, and Maliki’s more Islamist Shi’a coalition. Guess how many women ended up in the Cabinet after all that? Give you a hint, your guess is either correct or too high. Iraqiya is looking to maximize its influence, women’s participation is very much secondary after that. “What can you do, there are these groups, and they are so powerful, and it’s a negotiation, and you can’t just force things down people’s throats,” you might hear from a constitutional negotiator, an outside adviser, or a government forming coalition representative.
Of course that’s true. The real question is if some powerful group came up and said “new provision. Only Arabs are permitted to get a passport on their own. If a Kurd wants one, an Arab has to sign on agreeing to it.” I cannot imagine you’d find people saying “oh well, what can we do”, I think you’d hear liberal groups, embassy folk, whoever going to the wall to block that. But make it men and women, and it’s running law in Iraq. What do liberal groups do to try to change it? Write nice letters to the Department of the Interior. Which doesn’t work.
But the most interesting thing that the Kuwaiti rep said was that it was an election that led to Islamist victory, and it was perfectly in keeping with Islamist priorities and preferences to exclude women to the extent possible, as they had tried to do in 2009. Now this to me was fascinating because on the one hand, it’s hard not to see it as being tied in one way or another to shari’a. I don’t mean by that a definitive conclusion that a woman’s participation is per se prohibited by some sort of interpretation of sacred text, though perhaps such an argument might be made, stranger fatwas have been issued. More likely, as with justifications for the prohibition of women driving in Saudi Arabia, it’s a form of sad dhara’i, or the closing of means to other sinful activity. Women driving on its own is one thing, the argument goes, but it’s going to lead to all sorts of female teenagers off and running and cavorting with men and next thing you know, there’s no virgins left in the whole country. Etc.
In any event, what’s so interesting is that this position on women’s participation is not nearly as much an issue among other Islamist groups anywhere. While the Muslim Brotherhood or the Supreme Islamic Council of Iraq or even the Sadrists who want to whip “emos” might view a quota for women in the legislature as a concession, it’s a concession they accept. And that’s a quota, something that I don’t think you’d get the US Republican party behind. I’ve never heard anyone suggest women should be banned from running for legislative office. (Chief executive you hear, though frankly the possibility is so remote it’s not much brought up, legislative office, it’s just not on the agenda at all). In fact, with the quota, Islamist groups have started to see advantages. They get popular women wearing veils to help organize and run the campaign and appear in parliament and they deflect criticism that their legislative agenda is anti-woman. Tell a Sadrist his positions on women’s issues are retrograde and I will tell you his almost automatic response. “Really? How come the top vote getter among all women in Iraq anywhere was Salama Khafaji, a Sadrist? How come she supports our electoral program?” I’d actually argue the liberals are the ones who drop the ball here, acting somewhat smug that they do a better job on women’s issues and so there is no need to actively push to garner women’s votes. But the point is, most of the mainstream Islamist groups do not think of women’s participation in electoral politics as a problem, and they’ve figured out how to accommodate it and use it to their advantage.
I guess what it means is that when it comes to recognizing and restoring shari’a values as Islamists seek to do, and to do so by transposing very old ideas into modern settings, there are quite a number of ways that this might be done, and rather similar groups with similar leanings come to massively different conclusions. And those disparate conclusions are often dependent on nothing more than the nation-state they happen to reside in. So much for the caliphate. . . .
The Kuwaiti Election Law (as amended as of 2005) was recently brought to my attention, and specifically Article 1 thereof. It reads as follows:
To each Kuwaiti who has fully reached 21 years of age is the right of election, and exempted from this is one naturalized for whom 20 years since his naturalization have not passed . . .[more stuff on the naturalized, not interesting], and it is a condition on the woman in her nomination and election that she hold to the bases and rules recognized in the shari'a
The law, and this article, became the basis of a lawsuit by some folks unhappy that a couple of Kuwaiti women not wearing a headscarf were attempting to be sworn into the legislature. For that, see Jill Goldenziel's really commendable new article in the AJCL here. And the court runs off and interprets it and finds no violation, again, read the article if you want to know that particular story, it is fascinatng, but I won't steal Jill's thunder.
But what I immediately thought upon reading the law is how on earth it could ever pass constitutional muster under any constitution which requires gender equality, as all Arab constitutions do. A constitution might say equality "in conformity with shari'a" or some such qualification (not Iraq, no qualification there), but it still says equality. And whatever the heck "in conformity with shari'a" as qualification is supposed to mean, usually a pretty much limitation on equality is intended, such that equality becomes almost unrecognizable, but the point is however big the limitation, it cannot possibly apply in a case like this. Because there is no Islamic principle in the world that says that Islamic principles don't apply to men.
At least not in theory. In practice, happens all the time. When Arab men leave their home countries to study for a few years, it's pretty understood that a fair number of them are going to be sleeping around, what in the shari'a is called committing zina. And when families sit around a cafe on Abi Nuwas street in Baghdad or in Sirchanarin Kurdistan, the men are often found to be partaking in some whiskey, another one of the clear violations of the shari'a's hudud. The women will be sipping cokes as the men getting progressively drunk, only the most secular women will touch so much as a glass of wine, and only the rarest will come abroad to study, and heaven help them if they go back and try to marry after already having had sex. Surgery will be necessary. And, of course, if you ask why it is everyone seems so obsessed about an intact hymen, they'll look at you in shock and ask you if you've never read the Quran? Don't you know the laws Allah has laid down? How can you ask such a monstrous question? You'll even get that if you show some lenience on the effects of triple divorce. From a guy (this literally happened to me) who is asking me to help him cheat on a takehome exam, nursing a hangover while there is a stripper, or a prostitute, or I don't know who in his luxury apartment cracking jokes, I find as he has summoned me early in the morning because the exam is due that afternoon. (Of course I turned him down on the cheating thing and returned home, and I'd take credit for my sterling character, but it wasn't exactly tempting to help this dude.)
Now of course if you asked him if cheating, or drinking, or casual sex was not also a violation of shari'a, naturally he'd smile and shrug his shoulders and admit it was. But to him, that's no different than if you ask me if jaywalking is illegal. It is. But if you then asked me why I think Jerry Sandusky is so awful, I'd be shocked and ask what's jaywalking got to do with Sandusky deserving the rest of his life in prison for raping kids? Because obviously there's rules, and then there's RULES. And the distinction between rules and RULES isn't really based on doctrine, though it could theoretically be. It's more based on what any particular culture views as being particularly offensive to a core sensibility.
So doctrinally under shari'a, it's hard to explain why it is that a person who appears publicly drunk shouldn't be whipped, or someone who in front of a dozen witnesses steals something under guard not entrusted to him over a particular value shouldn't have their hand amuptated. These are God's rules, and only God can forgive them, under the core doctrinal principles. (Tariq Ramadan has called for moratorium, about as far as I've seen anyone who really takes the tradition seriously be willing to go.) And in some places, that spectacle does take place. But you go walking around Kuwait, or Iraq, or Egypt, you don't find many folks thinking of this as being particularly core and quite a few are repelled. Which is why the Islamist movements tend to play that stuff down, despite its doctrinal centrality. It's rules, easily ignored.
RULES are women wearing miniskirts. Is there doctrinal support rendering that sinful? Surely there is. Is it as close to the prohibitions on drunkenness or theft or fornincation? Surely not. But there's more support to scream about how the society has lost its way when women are running around in miniskirts than when a bunch of Arab men take a sex tour to Thailand.
The irony here is the cultural distinction as between rules and RULES unwittingly, seemingly without anyone paying attention, made its way into a formal law in Kuwait. It just slipped through, nobody noticed, how easy the slide was. Everyone can be elected, but women, only if you adhere to the shari'a. Boys can be boys. And even a court asked to rule on the interpretation of the law doesn't seem to have noticed. These aren't dumb people, the drafters of the law, the lawyers arguing the case, the litigants raising the objections, the judges interpreting it. They're smart, but they're people, with ordinary cultural biases, just different biases than you'd see in the West. So, leaving aside it's a religious rule made into law, even without that problem, that law wouldn't go five minutes before someone pointing out the obvious gender discrimination, and if it did the first thing an American judge reading it would notice would be the gender discrimination and easily avoid any problem of interpreting it by just saying it's no good, it clearly does not treat the genders equally and there's no basis to subject one gender to a rule, whatever the rule, and not the other. It's the first thing I thought reading it with my US legal education. But in our parts of the world, we subject women to shari'a and not men all the time. And even if that's a rule that breaks the constitution, it's not one that got picked up, because it's so much easier for that not to be noticed when it seems to utterly natural in the Arab world.
A familar refrain among those seeking to infuse Islamic law with meaning in modernity is this consistent notion that the positive law of the nation state is not itself infirm under the Islamic conception, nor has it ever been. That is to say, it has never been the case that the only rules of order that existed in the Islamic polity were the juristic derivations of holy text, which are the fiqh, but rather that the shari'a encompassed both this fiqh, and something known as siyasa , which was effectively policy based rules issued by the sultan. The limitations on that exercise of siyasa lay in the theory of siyasa shar'iyya, Ibn Taymiyya being a premier but by no means exclusive proponent of this notion. If Muslims could only figure out how to reinvigorate that fiqh-siyasa distinction, the theory goes, or at least understand it, they'd be well on their way to establishing an Islamic state with some pedigree.
Now I've never bought that as readers of a fairly recent article of mine know (Death of Islamic Law), mainly because I don't see much of the fiqh side of things. Judges applied fiqh in Islamic polities, maybe the rules of one school, maybe simultaneously all four working side by side, but they applied it. As did the whip wielding fellow known as the muhtasib (and for that see Kristen Stilt's really splendid book Islamic Law in Action). And the fact is that broadly in the Muslim world today there is a general acknowledgment that the only law that exists is that enacted by the state, a judge simply has no jurisdiction to apply any rules beyond it and unless you want to provoke a national crisis as an Islamist party, you don't call for the return of the muhtasib to take on this role. (I'll leave aside exceptions that prove the rule for now, while acknowledging they exist.) So it's sort of empty to say you resurrect the Islamic state without any sort of role for the state enforcement of fiqh.
But that's old news, what about siyasa? Surely I must acknowledge that just as the sultan positively made rules, so legislatures do now, and hence so long as that legislation is not somehow transgressive of shari'a (and let's leave aside what that's supposed to mean), it's valid as a positive state enactment. What's so different about a legislature and a sultan?
Here's what's so different: let's start with the word, siyasa. Look, the Islamic studies people tell me siyasa once meant positive command of caliph, or sultan, or amir, fine. I got no cause to question it, based on my own readings of classical texts. But it certainly doesn't mean that now, not on Arab media channels, not in chatrooms and not among Arab lawyers or politicians. What it means now is simply "politics", almost precisely what the English word means in all its multifarious uses. Office politics, university politics, etc.. And so if you want to go around saying to premier members of the Arab legal community that they just need to start thinking about law as siyasa, you're effectively saying they should think of law as politics. And trust me, I think I've probably given more talks in the Arab world than anyone(Qatar, Baghdad, UAE, Amman, Suleymania, Basra) on Legal Realism, and the idea that the interpretation of law is inevitably subject to political influence is not one that goes down well in this very formalist part of the world. I tried to translate Legal Realism once sort of literally as the title of a talk in Doha, but it didn't work out well, and so I changed my title to "social, political and economic influences on the interpretation of law" I couldn't get past the title in my talk there was so much resistance.
Oh so what, you say? That's nomenclature, so the meaning of that word changed, who cares? I say that's too reductive. What changed wasn't just a meaning of a word, what changed was a basic understanding on the means by which law is understood to be created and interpreted, and who is responsible for these respective functions, and that itself caused the changed meanings. Siyasa is as I say poltics, in all its various forms, but here it refers to the mechanism by which law is created. It refers to competition among interest groups working within a legislature to hammer something out in a manner that resembles sausage making and is assumed in every polity to be a dirty, messy, corrupting business. What comes out, though, is qanun, and that product is then severed from the means of its creation, it's central to the conception of a balance of power that it is so severed, and that qanun, and only it and other qanuns like it, are what the state bureaucracy known as the judiciary is supposed to interpret.
The balance between the two is such that the judge is limited in his capacity to interpreting that which the political process blessed as qanun, and the legislature is bound by that determination, effectively unable to change it or replace the judge making the determination or indeed do very much to influence the interpretations of jurists and judges alike of the law once created. They can make more law, but they can't interpret the law that's there. Or so goes the formalist legend, deeply embedded in Arab legal discourse. Don't believe me, go call the decision of the Egyptian Supreme Constitutional Court to disband the parliament as one that was influenced by siyasa and judge the reaction. nobody thinks you're talking about sultans. And all of these assumptions are transplanted from the West. The notion of a judge able to turn to juristic rules not created by the legislature's siyasa is nonexistent, and the ability of the legislature to exert the kind of control that the sultan had in the interpretation of his siyasa (a muhtasib he could replace at any time, or indeed whip if he didn't bring sufficient cash, a judge he could imprison if he didn't like the ruling) is not present. because that kind of siyasa no longer exists, hardly anyone even understands what it is anymore. All that's left is politics. HAH
I was rather intrigued as I suppose previous posts have indicated with the surprising showing of Ahmed Shafiq in Egypt's election. Not only did he manage to sneak into the second round of voting, by itself not necessarily an achievement when the opposition is so divided, but the guy managed to get almost 49% of the vote in that runoff. That's really not shabby for a former Mubarak henchman.
And he did it through promising security and restoration of order, of course, but also through the repeated promise to stand by the "civil state." (Dawla Madaniyya) The phrasing has been around Arab media circles a fair amount over the past year (Amr Moussa used it a fair amount too), but Shafiq really brought it front and center, and secular intellectuals have embraced it. While on one level it might sound like "civil state" is meant to hint at civilian rule as opposed to continued rule by Egyptian military (and there is certainly some of that), the fact is he really isn't usually referring to the problem of military rule, an area where both he and Morsi tended to tread carefully. Instead, it was always the looming threat of Brotherhood religious extremism, but don't worry, says Shafiq, with me you get the "civil state." Naturally Morsi then denies he is against any such "civil state" and dismisses all of this as fear mongering. In fact, Morsi in his own inaugural speech makes reference to his commitment to preserve a "civil state".
What do I think is going on here? Well the traditional word for "secular", 'ilmani, is effectively retired. As in English, where the term is supposed to mean a commitment to establishing statehood in a manner that renders it religiously neutral, but has come to mean "irreligious", so in the Arab world it has gone, but to a much greater degree. 'Ilmani denotes a hostility to religion, a relegation of it to the private sphere where hopefully it will wither away and die, a pronouncement that God and His Dictates have no place in modernity. Those of us who think nothing of the sort, who have no problem with religious exercise, indeed who might well deem it healthy for a society and spiritually nourishing for a soul, but would like to see a state that is not defined by religion and indeed is indifferent to religious exercise are left a bit lost. "Civil state" starts to sound pretty good to us .
But there is something else as well--secularism is a rather strong claim respecting the role of religion in the public sphere, and while I do think and have long thought that the idea of a state defined by and organized under any recognizable version of shari'a is dead and gone, that's not quite the same as saying shari'a should have no place in the public order. For many Muslims, that's a step too far. Yes the state is organized under neutral principles not derived from shari'a and yes the constitutional arrangements are positively enacted and fundamentally secular. But still, family law remains religious, and quite a few like that. There are other areas where some vestige of shari'a might be important as well. The state might decide what in religion is worth keeping and what may be discarded, but still, it should be able to decide on religious rules in some areas, the theory goes.
And perhaps even more importantly, there's the romantic commitment. If you say "secular", you are saying the competition law should not derive from shari'a. If you think of a state where the laws derive primarily from juristic texts, which nobody does anymore (though they did once, they certainly did, everyone from Khomeini to Banna can be found saying it), then you are rejecting the legal transplant. By "civil state" you get it both ways. You don't actually derive the competition law from juristic rules, that's just crazy. You get it from some other non-Muslim country, it's as secular a piece of legislation as it comes. But by not saying "secular" you can still insert a constitutional requirement, unenforceable and unenforced but of enormous symbolic significance, that all law must have shari'a as its "primary source." Nice.
So "civil state" is where the two trends might come together. The Brotherhood and its ilk might be comforted because it is vague enough to allow shari'a some role in specific legislative areas if they want it, as it permits shari'a to continue its role as constitutional ornament. And yet any secularist likes it too because it plainly has been used to mean a state organized and run on a positivist basis, with a "civil" constitution and law made by elected representatives, and only elected representatives, not holy men. It's a muddle, but one that seems to work well enough.
Apologies to my legions of fans, and I have no doubt there are indeed legions of them, who have been anxiously awaiting a post for me for the past two weeks, but I've been out of the country, for work and pleasure, in Wales and England alike. For now, just a quick thought, after my trip to Wales.
One statement that often is made with respect to the Kurds of Iraq is that it is hard to find a single one who actually wouldn't prefer an independent Kurdistan. This is meant, of course, as an indication of a general sentiment, not an immediate demand for independence--after all, the Kurds did vote overwhelmingly for a constitution that rendered them part of Iraq--but it is offered as a suggestion that there is some inherent instability to the Iraqi state, and an inevitability to Kurdish independence, barring some sort of miraculous change of heart.
But is that true? I spent about five days in Wales, and I don't think I met a Welshmen who wouldn't prefer an independent Wales. I even met a few, though admittedly not all, who cheered pretty hard for England to lose to Italy in the European Cup. Certainly those I asked generally viewed the England as a foreign nation who had spent centuries oppressing them, though many could put that aside for soccer (even as Kurds I might add do cheer for the Iraq national team). Still, that generalized sentiment in favor of an independent state hasn't led to independence.
Naturally the circumstances of these states are different from that of Iraq, and I intend no broad generalization. So please don't ask me when the English bombed the Welsh with chemical weapons, clearly they didn't, as Saddam plainly did. (Though any who would like to describe the English treatment of Wales as being kind and benevolent should be careful around any Welsh when they take that position).
My only point is that the mere fact that a people would in some highly idealized world prefer to be independent is not much of an indication, at all, that independence is imminent, or even likely in the longer term. Because people don't live in idealized worlds, they live in this one. And in this one, the decision is based on whether what you get from independence would be better than what you get from staying put.
In that light, some numbers. Iraq oil production (approximate): 4-5 million barrels a day. Percentage dedicated to the region of Kurdistan: 17%. Kurdistan oil production(approximate) --150,000- 250,000 barrels a day. For the math challenged, 17% of 5 million is more than three times better than 100% of 250,000. Now would the balance change if Kurdish autonomy was threatened, if the Kurds developed so much foreign investment they didn't care much for oil, or if they could exploit their own oil more effectively? Of course. I'm not suggesting that Kurdistan could never be independent.
I'm merely suggesting that when you want to know if a people are going to demand independence, you should ask the right question, and the right question is not whether or not they would ideally like to be independent one day. That's an abstraction. The question is whether or not they see a better future for themselves declaring independence right then than they do sticking with what they have. And for the Welsh and for the Kurds, for now, the answer seems rather clear.