Islamic Law In Our Timeshttp://muslimlawprof.orgQuick BlogAlms and the Sunni Shi'a Splithttp://muslimlawprof.org/2008/05/16/alms-and-the-sunni-shia-split.aspxAs many of you no doubt know, Islam, as with any other religion I can think of, makes the giving of alms and charity a central requirement of the faith.  Concern for the poor, the orphan, the wayfarer, etc. is repeated countless times in the Qur'an, and Muslims, both liberals and conservatives, with ample justification point proudly to these verses as evidence of Islam's humanistic values, leading us all to the conclusion that not all that takes the name of Islam in the modern world is evil and not all is good either (I've written plenty on the bad stuff too) which you'd think is obvious but not from the blogosphere it's not. 

Anyway, what I thought I'd talk about today was the way in which Islam's requirements about alms are read so differently in the two major branches of the faith, and how that difference, articulated in doctrine, really owes its origins to the fundamental institutional and structural differences between the two branches.

The primary Sunni position is that the requirement of zakat is the vehicle through which to fulfill the requirement of alms.  While the term is repeated throughout the Qur'an, the primary source of the rules for zakat arise in the Prophetic Sunna, which require a 2.5% annual tax on all the gold, silver, wheat, dates and barley I think that a person owns to be given to the poor.  So Sunnism sort of looks at this, sees "gold" and "silver" and analogizes to currency using an established tool known as qiyas, or analogy, and hence we have a 2.5% tax effectively on a person's net worth.

The Shi'a don't do this, they say gold and silver and dates means precisely that--gold and silver and dates.  A house isn't gold, it's a house.  A dinar isn't gold, it's a dinar.  And so the zakat requirement, for those of us who don't hold much of our wealth in barley anyway, is effectively read out of the text.  Basically, we Shi'a don't pay zakat.

Instead, the Shi'a derive the requirement for alms from another source, a Qur'anic verse that says that of the "spoils" that one receives, one fifth must go to God and His Prophet, and relatives and needy and orphans and wayfarers.  Sunnis read that to mean "spoils of war", meaning war booty, and thus since most of us don't actually have much war booty these days, the Sunni requirement of the fifth, the khums, disappears.  But, the Shi'a say, "spoils" means much more, in fact the right translation is "treasures" and it means profits, winnings, earnings beyond necessary expenses, all of these are your treasures.  So it's not 20% of net worth, it's 20% of what you have received any given year over what you actually need (and they tend to be quite liberal on defining needs), and it goes into two camps--to the Messenger, or his descendant the Hidden Imam, the Mahdi who descends directly from the Prophet and is the inheritor of his Mantle, and to the needy (rules there on who in particular, but that's not the point for now).  Now of course the Imam isn't here, so who takes the Imam's share of this khums?  Well naturally the juristic authorities, who have the institution that defines the shari'a during the Imam's absence, the clerics known as the marja'iyya.

Now if you pay excessive attention to what the authorities say to justify these positions, the actual doctrine, something I feel that all too many of my colleagues do in law school, then you get an explanation that should give you pause.  Ah, the Shi'a say, we don't have analogy as a source, we can't go off and say "gold" means "currency", the Sunnis do that (a story will then be recited to you involving Abu Hanifa, eponym of the Sunni Hanafite school, and Ja'far al-Sadiq, Shi'a Islam's Sixth Imam, which will prove conclusively how stupid Abu Hanifa is in accepting analogy).  And that's why zakat is so narrow.

But the thing is, the other verse is read precisely analogically by the Shi'a to encompass far more than its terms.  The Shi'a will deny this, they will say "spoils" is not analogized to "treasures" in fact it means "treasures", whereas "gold" means the element.  And "Messenger" well clearly giving to the Imam is giving to the Messenger effectively, and giving to the jurists is by definition giving to the Imam, we call it the portion of the Imam, sahm al-Imam, they hold it for him and exercise discretion over it per his authority, so no analogy here.

And this is the type of esoteric debate that jurists love, and so many folks studying this stuff really enjoy.  What fits within the definition of a word or phrase, the nass?  What is analogized from it, the qiyas?   Is "treasures" from "spoils", or is it encompassed within?  What is the 'illa, the ratio, for the terms "gold" and "spoils" if we are going to analogize.  Everyone knows that there is no certainty to the answer to any of these questions, but people really enjoy to play in that muddle quite a bit.

And it's fine that people like this stuff, I was too dismissive in earlier posts, an advantage of this blog is it helps refine my thinking.  People are allowed to care, everyone has their own perspective.  But I think it's fair to say that most American lawyers looking at this from a US trained legal perspective in this era, what I call our post-Realist age, would think "what a bunch of transcendental nonsense.  You can expand words through making the definition broader, or you can work through analogy, it gets you to the same result, who cares how you do it.  This distinction isn't a real one, the real question is do you want text X to cover situation Y, the rest of it is meaningless, no matter what the cleric says, or thinks he's saying, there's only one real issue at stake, which is should X cover Y.  Period." 

Again, it's one perspective, not by any means the only one, but one I think we teach our law students in normal law classes (where we would never take this kind of parsing very seriously) and then sort of expect them to unlearn in Islamic law, which as a result only adds to the perceived exoticism of Islam.  Ah yes in our world we can pierce through these esoteric masks thrown up by judges to look at results, but not in the Muslim world!  In Islam, it's different, the parsing matters to them, they've got genies and lanterns and harems and witches, they don't think like we do, we can't apply our legal reasoning techniques to that world, we have to treat the shari'a differently, we have to understand that in their world, law and morality are one, and in their world, these distinctions matter and therefore to understand them, we must adopt that method of thinking and drop all that we know. 

I don't think anyone intends that message, but if one treats American law through an implicit Realist frame, and Islamic law through some sort of formalist paradigm where one actually takes seriously that ideas of what can be analogized to whom can be neutrally applied, well I'm sorry but to me that is patronizing.  If it's meaningless to the lawyer in one context, it's going to be meaningless in the other.  of course, one can approach the law through some Dworkinian model and show how moral understandings lead to definable conclusions in both cases, that's okay too, I don't mind if someone says I reject your definitions of law and I have this other model I apply everywhere.  I do mind when, if someone teaches UCC law, my field, they make frequent references to practice and explain why particular readings of code provisions work better in the real world and then that same student walks into an Islamic law classroom of that same professor, and it's all about lexical structures and what a word can mean strictly. 

And it's entirely unnecessary. As a Realist, I can look straight at this and say there is no reason under the sun that (a) the Shi'a have to read "gold" strictly to mean an element while reading "spoils" expansively and (b) the Sunnis have to analogize "gold" to "money" but do not analogize "spoils" to "profits".  Anything any cleric says about lexical structures and definitions and ratios and anything else can be ignored, it's just a smokescreen. Something else is going on.  What is that?

Well, quite simply, the Shi'a have an institutional religious structure, and the Sunnis don't.  If you wanted to analogize the word "Messenger" to refer to any absolute authority in Sunnism today, you can't find one.  So the verse which requires giving to the poor, but to the person in charge as well, turns out not to be helpful to your average Sunni, and it's read narrowly to refer to what to do with spoils of war, which nobody has anymore. 

Go to the Shi'a side, and the self financing of the juristic structure is the sign of its strength.  What enables Sistani to say what he wants is that he doesn't need the Iraqi state to fund him, he gets his money through the 20% tithe.  Of course he doesn't run off and buy a Mercedes with it, of course the poor are fed, but the seminaries are also maintained, students given small sums, etc.  The money guarantees independence and power.  And so it is fundamental then that almsgiving be tied in some way to the authority if it is to retain the power it has through the independent financing.  Thus, the khums verse means more, and the zakat requirements, which involve independent giving, are basically distinguished out of existence.



HAH




 
]]>Shari'a BlogsHaider Ala Hamoudi2008-05-16T14:57:02ZEvolving Definitions: On the concept of Disobedience and Women's Rights in Islamhttp://muslimlawprof.org/2008/05/14/evolving-definitions-on-the-concept-of-disobedience-and-womens-rights-in-islam.aspxٍI had jury duty yesterday, which turned out to be more or less sitting around in a room, getting called to another room, and then getting interviewed by attorneys and having a peremptory challenge issued to my being on the jury, at which point I went back to my original room to repeat the process.  Eventually they let me go.  But this potential ordeal turned out to be kind of a good thing, as it required me then to focus on actually reading a few articles I had left on a pile.  I picked up one randomly, something I had printed some time back, and it started like this:

Islamic law grants a wife who desires to break her marriage contract several options.  In the case where the husband is nashiz, (i.e. if he violates his marital duties) or mistreats her, the wife can turn to [a judge] . . . . . 

The piece is by a PhD candidate at McGill whose name is Mida Zantout, you can read it in full here.  It is actually quite a fine article that really pays serious attention to the relationship of theory to practice in a type of marital separation known as khul'.  I'm hooking myself onto the first sentence though for this post.

That sentence threw me for a complete loop, as it would I think any Arabic speaker.  Because in modern parlance, the adjective nashiz means something entirely different than what the author is suggesting.  I went straight to my handy copy of the Iraqi Personal Status Code (when I got home, I don't bring Arabic books anywhere anymore, which relates to another fine article I read while doing my duty to Allegheny County, concerning the practice of covering identity written by John Tehranian to be discussed another time and available here)  and confirmed my understanding was correct, and indeed it was, under Iraqi statute. 

Nashiz means "rebellious" (as close as I can get to a good definition) and it refers to a wife who fails to obey her husband, and who, because of her failure to adhere to this marital duty of obedience, sacrifices her right to demand her husband's marital obligation of maintenance.  Classical Islamic law requires that a wife must obey her husband, husband must support his wife, and it's written straight into most modern Muslim legal codes.  This requirement, and the term nashiz that currently accompanies it as used in the modern world, has been the bane of feminists in the Muslim world, so many I know despise this term and have sought invariably to remove it, with varying degrees of success.  One Kurdish women's group was quite proud of having successfully led a push to alter the Kurdish version of the Iraqi Personal Status Code respecting this matter.  Did they remove the obligation of the wife to be obedient, or to forfeit a right to maintenance?  No, absolutely not, that was hopeless to even try.  But they did take out the word nashiz, and replaced it with "disobedient".

Thus, so ugly is the word nashiz in some parts it's a victory just to replace it, even if you might be called "disobedient" instead.  To many women, it suggests a place they are supposed to be kept, a hierarchy at which they are on the bottom, akin to the disgusting term "uppity" directed at African Americans--know your place is the general idea.  I've never liked the word at all, I've always felt that as believing Muslims we should be looking forward by abandoning this awful terminology and finding new ways to approach our texts rather than employing them to continue the same old misogyny, but we all have our ideological disagreements I guess.

The Arabic grammar in the Iraqi law, and when described in the modern world by respectable muftis (typical example here) is also instructive.   The adjective doesn't take the feminine ending, it's always nashiz and not nashiza.  This generally happens in Arabic when the adjective cannot really apply to a man.  So, for example, a pregnant woman is hamil, or carrying.  Were she carrying a sparrow and not a baby in her womb, it would be hamila (asfoura), in other words, the feminine ending gets attached.  This is because anyone can carry a sparrow, so the adjective is called in to specify, but only women can get pregnant so you don't bother with a feminine ending.  (I know about the Oprah show, let's leave that aside). 

So what does this grammatical digression mean? That the term appears designed towards women.  otherwise we'd call the woman nashiza (nashizat pl.) and the men nashiz.   In the law, then, it's women.  Among scholars, women.  Among people fighting the term, women.  Everyone thinks it's about women, you can't call a guy nashiz, I think to myself as I read the first sentence, what the hell is this author talking about?

But of course, the author is well schooled and drops us a footnote, informing us that in fact, it is possible to use the term nushuz to refer to men, citing, in favor of the proposition, a number of dead men, the last of whom appears by my quick estimation to be Ibn Abidin, who died sometime in the 19th century.  And indeed according even to Hans Wehr, the authoritative Arabic English dictionary, that is correct.

Now we all know that isn't the modern understanding, the author calls the current understanding "conventional wisdom", I would call it "modern Islamic law" which I'm not happy to call it that as a Muslim, but it is what is in the codes, it is what the modern authorities hook onto when they use the term, incliuding senior mufti (see immediately preceding link), it's far more than a generalized conventional understanding, it's ubiquitous.  But centrally, the point is, some dead guys said this, and nearly everyone in the modern world thinks that, what actually counts?  You know my view, cold comfort to the woman about to lose her right to support that in fact some dude who died two hundred years ago is on her side, and Hans Wehr says her definition is supportable.

But this information and its use is actually quite striking, as it leads to cross currents in how to force the evolution of Islamic law.  We've got this unfortunate situation where our law, and I say this again as a believing Muslim, our law, our statutes, our legal systems to the extent they call on Islam are almost without doubt the most retrograde towards women in the entire world.  There are relative differences between different nations, but it's hard to find countries that are much worse than ours as a general matter. The term nashiz is one manifestation of that, and to me a much worse one than the veil.  A woman can wear a headscarf and be a government minister, can you really achieve much in society if you think it's your husband's right to deny you the ability to leave the home, travel, have friends, without his permission?

So what can Muslim liberals do?  One thing is to jettison old concepts, as with slavery, a reform that nearly all Muslims no matter how conservative accept.  The word means nothing, the classical rules mean nothing, the foundational texts are read to say something entirely plausible but something at odds with most of Islam's history, and onward we go. 

But another is to look again at the words.  Redefine jihad to focus on its peaceful aspect, again contrary to Islamic history but entirely consistent with Muslim foundational text.  The reason for the different approaches probably has to do with any number of factors, among them the more flexible uses to which the term jihad is put in foundational text (meaning Qur'an and Sunna), the relative infrequency of references to slavery in the Qur'an relative to jihad, the fact that foundational text embraces jihad where it does not slavery, etc.  (The latter redefinitional approach hasn't worked out as well in the context of jihad, but I've discussed that in earlier posts.  See here and here.)

Nashiz, it seems to me, lies at the crossroads.  It's not as central a Qur'anic term as jihad, I think it only appears once, but the disapprovals associated with slavery don't come as near and quite clearly it seems to have had a less sexist definition in its history.  And so you could I guess just jettison all of the obedience stuff that is all over the classical texts precisely as we do with slavery, which is what the Kurdish women's group wanted. Or you could take a step back and say, actually, the term is okay, it just means something different than you think.  The latter course is the one this author takes.  She boldly forces a definition to which my ears are unfamiliar, battering them with a term I've always understood as sexist and applying it again and again to husbands and men.  It's two different approaches towards remaking Islamic law in our times.

Either way, though, it should be clear that the actual words of any texts aren't really the constraint.  After all, if we can't really decide what the words even mean, it cannot really be said that they are any impediment to change.

HAH
]]>Shari'a BlogsHaider Ala Hamoudi2008-05-14T17:01:49ZPepsi and Pig Intestines: Rumors and the Recreation of Islamic Lawhttp://muslimlawprof.org/2008/05/12/pepsi-and-pig-intestines-rumors-and-the-recreation-of-islamic-law.aspxI tend to avoid excessive mention on this blog of silly rumors that bounce around the Arab speaking blogosphere.  They tend to be pretty weird, and heaven knows how much credence they can be given.  But every once in a while, a rumor gets widespread enough, and repeated enough, that it really is worth mentioning, particularly when it helps serve this blog's central themes, respecting paranoia in the Arab world and the manner in which it affects Islamic law, at least in that particular region.

A recent (meaning last couple of years or so) and persistent rumor has been that Pepsi is in fact made partly from pig intestines, such that the Assembly of Islamic Research (مجمع البحوث الاسلامية), the research wing of the Azhar, the historically premier Sunni authority in the world has called for experiments to be done to determine this.  I don't actually know if the Azhar has been involved, the blogosphere has been reporting this for some time, and you'd think the experiments would have been done by now, and it's not like the Azhar has a website reporting their stuff like the more populist folks.  I don't want to speculate on their role. 

Nevertheless, this rumor isn't sort of confined to weirdos and fringes, even Egyptian government sponsored websites or chatsites or whatever report it (in Arabic) here.  What is most interesting about this latter post, as well as numerous similar posts out there in the blogosphere, is that they begin with the following title: "Have the Americans truly succeeded in ridiculing 2 billion Muslims and Arabs and caused them to drink all of these years carbonated beverages made from pig intestines?"  Arabic readers:
هل نجح الأمريكيون بالفعل في أن يضحكوا على 2 مليار مسلم وعربي وجعلوهم يشربون طوال السنين مشروباتهم الغازية المصنعة من أمعاء الخنزير؟؟؟

So the rumor out there that has spread pretty far and wide is that Pepsi Cola, this huge ubiquitous presence in the Middle East (everyone has a Pepsi with dinner) with I would guess I don't really know billions of dollars of revenue per annum from the Muslim world is going to risk all of those substantial sums and a potential catastrophic drop in share price, for a laugh.  I should note the piece gives other potential reasons they do this, relating to digestion and whatnot but the title provides the most prominent and important one.  The posts explain if you drink Pepsi, you're participating in the humiliation and the ridicule of Islam and that more experiments will confirm this, at which time a decision will be made on the permissibility of Pepsi under the shari'a.  These folks seem to suggest the conspiracy is partly proven by Pepsi's insistence on shipping the basic ingredients as a powder to its bottling plants, and not to disclose the ingredients of the powder when asked.  apparently in this part of the cyberworld the only reason to protect a trade secret is to hide the distribution of pork to Muslims.

In a few of the blogs, the rumor gets siller.  Pepsi is an acronym for "Pay every penny to save Israel", they say.  Pepsi was created 1898.  The Balfour Declaration came in 1917.  Herzl had only written the Jewish State two years earlier, the first Zionist Congress met in 1897.  You've got to get pretty thick into anti-Semitic conspiracies to make Pepsi that prescient.

What's the point, other than poking a little fun at the blogosphere?  This, it seems, is another way in which rules can well be shaped by context.  In some cases, the way this happens is you sort of reread the texts to say something the author couldn't have intended, as per the last post on risk, insurance and Islam.  But sometimes, as with Pepsi, it's easier just to change the facts.  You feel humiliated and ridiculed by the West, you want to resist its influence, the shari'a has come to be the vehicle of that resistance, Pepsi represents the West.  Well I suppose you could sort of read through texts and try to come up with some sort of plausible reason that carbonated beverages are forbidden.  It might be tough though in a world in which large numbers of Muslims are pretty happy with the drink. 

Much easier, within the movement, to move a few facts around.  People think the West is out there laughing at Islam?  Well then, start up a rumor that Pepsi was formed to save an Israel that didn't exist, and another one (impossible to disprove given trade secrets) that Pepsi is made from a pig intestine, and from these a ban can be made.  You don't need to show how carbonated beverages resemble fermented, alcoholic ones, you just make something up and say it's pork, everyone knows pork isn't allowed. 

Now I'm not suggesting something quite this outlandish can fully make it mainstream.  Muslims still drink plenty of Pepsi.  But the point is, whether it's a trial in the US or rumors on the blogosphere, facts aren't as clear as they might seem.  Just as texts can be manipulated to serve particular outcomes, facts can too.  When something this absurd can get a pretty broad hearing, what about rumors that adhere closer to what might appear to be facts?  After all, if Averroes from his grave can tell us about Pareto-efficiency and Ibn Taymiyya from his can tell us all about judicial review, maybe they can both be resurrected to rule as well, indirectly, all sorts of Western notions.  All you have to do is move a few facts around . . . .

HAH

]]>Shari'a BlogsHaider Ala Hamoudi2008-05-12T18:07:46ZModern Insurance and Medieval Islamhttp://muslimlawprof.org/2008/05/10/terrorism-in-our-times.aspxFirst, apologies on the absence, but I've been busy promoting my book on my times in Iraq (link to Amazon site on left).  Latest interview was on Fred Andrle's estimable show, Open Line.  You can listen to it here  Also, if you haven't already, do buy the book.  

Secondly, I just posted another article up on SSRN that I think those who enjoy the blog will take significant interest in.  It's about how both national law and shari'a are blended and used among particular merchant communities in Iraq to create a remarkable and sophisticated commercial system.  It also has my typical criticisms of the dominant trends in our field.  You can find the article here.  It will be published in the inaugural issue of the Berkeley Journal of Islamic and Middle Eastern Law (SSRN does not reflect that now, but will soon.)  Also, if you can avoid it, do NOT download anonymously.  Set up a (totally, completely) free SSRN account if you don't have one, it's harmless (social scientist academics, what can they do to you) and then I get credit for the download.  See if you download anonymously and read carefully for three hours, it's wonderful, I am happy, but I get no credit.  You download, and read for 5 seconds, well that's too bad it didn't interest you more, but I get credit. Your spouse downloads, and you download your own version, double credit, and so forth.  And yes that means if you aren't sure whether you'll read it or not, download it onto your computer anyway, and do try to read it, that's the ultimate point anyway. Now, as the Arabs say, once they get to the subject of the day, "and what is more" (wa amma ba'ad):

Yesterday I had dinner with, among other people, the current President of the American Society of International Law Lucy Reed, who among many other things in her remarkable career negotiated with North Korea at some point on behalf of the US. One thing she had mentioned in passing was the challenge of explaining the concept of insurance to some of the North Korean leadership.  This dovetailed with a talk made that day about the development of the concept of risk in the 19th century, that unfortunately I missed.

Anyway, the lack of knowledge on the part of the North Koreans didn't surprise me in the least, because quite frankly it seems precisely the situation with medieval classical Islamic thinkers.  When you buy and sell in that world, it's goods basically--a camel, a slave, gold, dates, silver, etc.    Even when discussing the (prohibited) sale of some intangibles, it's all sort of rephrased as sort of tangibles.  For example, there is a prohibition against selling uncaught fish in the sea, on the basis of a Prophetic hadith.  I think if one really considers it, the sale isn't really about the animal itself, it's about the sale of the right to fish in particular waters.  That is, the fish must be in some waters I own (otherwise how can I sell it, on what basis could it possibly be argued that I own it), and the primary risk that the purchaser of the uncaught fish has is, really, that I don't know if I can catch it, or what it's going to look like when I do.  So I discount that when purchasing the right to fish, and we make the deal.  This is all prohibited under classical Islamic thought, but my point is a different one--that the sale of something that is fundamentally intangible is repackaged and rephrased as the sale of an item, a good, because that's generally how the authorities considered it.

(To be clear, it's not that the concept of risk is unfathomable, you can talk to a North Korean or a Muslim from the medieval era and they will understand what you say when you say "what happens if you purchase a camel and it turns out to be sick".  Everyone knows stuff happens, part of that is the reason the uncaught fish sale is prohibited.  But understanding that is not enough to create insurance, what you need to do is to commodify risk, to buy and to sell it, on the basis of how likely particular events are.  That's the part that I don't think meant anything to anyone prior to the 19th century).

So now you get to this day and age, and you try to make sense of all of these rules so that they fit a modern paradigm, and you can't.  My mother laughed when she first heard you can't sell an uncaught fish (she didn't know it was on the basis of a hadith at the time)--who sells an uncaught fish?  Tell her the sale of the right to fish, and she gets that.  We all get that in the modern world.  Economists hear of the fish prohibition and they shake their head.  The two parties agreed ex ante to a transaction.  Why prohibit it, why prevent the efficient distribution of goods among these commercial actors?  What's the problem here?  And then we come to the commodification of risk and the sale of insurance, and Sunni Muslims refer to these medieval texts, which really aren't going to help because you're talking about texts written by people centuries ago who have no idea what you mean when you say you are going to package risk and sell it.  

This isn't to say you can't sort of reinvent the texts to mean something new.  You could say,for example, well where do the classicists say I can't sell risk?  Obviously they don't, if they don't, then it should be okay, on the Ibn Taymiyya highly permissive theories of contract and stipulation.  That more or less is what Mustafa Zarqa said in the 1960's.  Insurance is not speculation, it's the purchase of a product, the avoidance of risk, and there is no reason I can't buy that any more than I can buy a guard dog to protect my property.  (He uses the hiring of a guard as his example, but I'm trying to stick to goods and avoid services for now).  I guess, though that's sort of like saying I don't oppose the sale of bsdasafa because I never said anything against it.   Which is true, because the word bsdasafa doesn't mean anything to me, so I have no reason to say anything for or against it.   

Or we can draw on other prohibitions to encompass ideas like insurance.  So that if it is forbidden to sell uncaught fish in the sea, then that's because of the risk--I pay for something not sure what I'm going to get in return, possibly nothing.  Insurance is the same, I pay my premiums not sure what I'm going to get in return.  Now again, this is hardly precise, I don't seek to "win" in insurance, only cover potential losses, but close enough to make an argument, I guess.

Or we can turn to broader overarching themes in Islam to justify or decry insurance.  We can consider it sacriligious to suggest that you are going to predict the date of death of a man.  Or we can point to how in Islam, as brothers and sisters, we are supposed to take care of each other in times of calamity, and this is all that insurance does.

Or we can read the words to be espousing modern concepts indirectly.  There is a very interesting passage in Averroes' work The Distinguished Jurist's Primer where the fellow tries to explain the basis of the riba prohibition, from which modern Islamic finance found its ban on interest.  There are economists who seem to think it espouses a  notion of proto-Pareto-efficiency, there are left leaning social justice types who think he's talking about exploitation and hoarding, and it's not that these guesses can't be made, it's that they are precisely that--guesses--that tell us much more of the person interpreting the words than they do of the person who originally wrote that. 

All of the above have been raised to discuss modern financial and economic concepts, to varying degrees of success.

So what ultimately is the point?  Well it's that ideas such as economic efficiency, or the commodification of risk, or democracy or human rights or constitutionalism, are modern, they meant nothing to anyone born before the 18th century, whether that be Ibn Taymiyya or Thomas Aquinas or Averroes or St. Augustine or Jesus or the Prophet himself.  We are educated and understand concepts in the context of our own times, they understand them in the concept of theirs.  And so ultimately, when asking the question "does Islam permit  [insurance, transactions that enhance the efficient distribution of goods, democracy, human rights]" we as a Muslim polity are making up the answer as we go along, using our texts to make the arguments to be sure, but hardly circumscribed or defined by them because they don't address the question, and couldn't address the question given the people relaying their ideas.  The answer isn't provided in a book, it's provided by a living, breathing people.

And to understand, therefore, why Muslims have opposed insurance and then adopted it another way, really the last thing you want to be doing is relying solely on texts and doctrine to figure that out.  It won't tell you, it's the surface, yeah put the pieces together but then, to paraphrase Karl Llwellyn, once you've  figured out what the authorities are saying the doctrine is, look underneath to really understand what they are doing to recreate the doctrine, and why they are doing it, through references to factors outside the law (social, political, cultural, economic, etc.).  As true in Islamic law as it is in American.

HAH]]>Shari'a BlogsHaider Ala Hamoudi2008-05-11T09:38:07ZOld and New Testament, Mecca and Medina: Different Views of Religious Narrativehttp://muslimlawprof.org/2008/05/06/old-and-new-testament-mecca-and-medina--different-views-of-religious-narrative.aspx _uacct = "UA-3194495-1"; urchinTracker();

It is starting to seem to me that for a religion to actually be successful, by which I mean transcend any particular time, place and set of social conditions to spread beyond them into a variety of eras and places, it is always helpful  to be able to call upon an early narrative that is rich and varied.   In the case of Christianity and Islam, the narrative is sort of dualistic.  In Christianity, that dualism is represented by the Old Testament and the New, and in Islam, in the extraordinarily life of the Prophet Muhammad and, specifically, his life and times in both Mecca and Medina.

Now I don't think any Christian sort of dismisses either Testament as totally irrelevant, and certainly no Muslim I know regards the Meccan period, or the Medinan, as being worthy of neglect.  Nevertheless, given the dichotomy, it is inevitable that one period is read in light of the other, one understood in the context of the other, and therefore one effectively representing the truer and more pure form of Islam.

For those unschooled in the outlines of the parable, the Prophet Muhammad lived in Mecca, and received his first relevations from the angel Gabriel while in Mecca.  He continued on in Mecca, preaching his message and gaining converts until forced out in an emigration known as The Emigration, or the Hijra.  That's when a state was formed, in Medina, and rules came down and wars eventually broke out, etc. 

You take an average Muslim in America, and he bristles at the notion promulgated by Islamophobes that Islam compels him to violence, almost always calling upon the Meccan example.  Clearly you know nothing of my faith, he says, as if you did, you'd know that the Prophet Muhammad lived for years among people who did not respect his right to practice his beliefs as America's system (and countless Americans, even if there is a loud and persistent and annoying minority who are an unfortunate exception) does and yet he did not wreak violence upon them.  They hated him, they tormented him, but he did not pick up arms, and God through Gabriel exhorted him in the words of the Qur'an, again and again and again, "on you is the deliverance of the Message, and on us is the Accounting on the Final Day."  It's repeated dozens of times at various points in the Qur'an.  

This Muslim, and I don't just mean a maverick liberal like me, I mean people like the very influential Imam Qazwini in his book American Crescent (second time I'm plugging it, as I don't get how anyone can ask where are the moderate Muslims who don't believe in violence and yet this man's book lies at #449,000 on Amazon--though buy my book first, on the sidebar) calls on the Mecca narrative, and a particular story I heard in my own American mosque maybe fifty times, so that we as kids started to roll our eyes on hearing it AGAIN, of the man who left garbage in front of the Prophet's house every day, and one day it was no longer there.  The Prophet grew concerned, what happened to this fellow that he neglected to insult me today and went to visit the man, who turned out to be sick, to ensure his well being.  THAT's the Prophet we knew and grew up with, the one who cared about all people, even those who despised him, and was so trustworthy, scrupulous and honest that he was nicknamed, Al Amin, the safe one.

Take the Muslim conservative, and he starts with the Medina story.  The one where the Prophet brought together a community, led it under a "constitution" (really a treaty among tribes, though I guess it helps get modern constitutionalism accepted among modern Muslim polities by calling it a constitution, and so I won't stand in the way), instituted the perfection of God's Rule on Earth, and brought Mecca, the home of Abraham, back to the worship of the one true God.  How can you say we must tolerate unbelievers, this conservative asks, when the Prophet says in a war against the unbelievers "I have been commanded to fight until they say there is no god but God"? 

Now again, I don't think most of us disregard the other period, any more than you'll find a Christian who says he doesn't much care about Moses.  But the liberal and the moderate point to Mecca first, I think.  In some cases, particularly the liberal, they will claim to.  Fazlur Rahman and Mahmoud Taha, for example, both liberals (one was at the University of Chicago until deceased, one killed in the Sudan, so yeah I'll acknowledge they are a marginal force in today's Islam even if I and lots of American Muslims admire them) view the Meccan period as being the ideal, and Medina not bad of course, but one in which necessary compromises are made, as they always are in this profane world.  Rahman says there was slavery and misogyny everywhere in Medina, the Qur'an's Medinan recitations (slavery with limits, four wives maximum) were meant as a floor, a minimum, a necessary and immediate change, one that over the course of time would become unnecessary as society developed and, to use Taha's phrasing, the true "Second" message of Islam, the one developed in Mecca, burst forth. 

But even voices more within the mainstream than the assassinated and those in American universities tend to say something like this, though not quite as stark.  They might not touch polygamy, but they will attack the tradition about killing people until they say no god but God.  There are shari'a professors in Iraq criticize this as a misreading, look, the Prophet was saying this while criticizing, severely, a companion of his, Khaled Ibn Waleed, who killed a man in battle after the man had recited that there was no god but God.  Khaled said he just recited faith because he was afraid of losing his head, this was what the Prophet was responding to and criticizing when he said "I have been ordered to kill them until they say "no god but God", the point is that when the man in battle recites the profession of faith, fighting, with him, is over.  There was an Afghan fellow teaching shari'a in Kabul who I met at the AALS conference who said precisely the same thing--it's a rule of war and meant to say, the fighting is over at a recitation of faith irrespective of motive, it is akin to accepting a surrender.  The Prophetic statement, he said, has no application beyond war, to argue that it does makes this one statement of the Prophet at odds with dozens of (Meccan) verses which say repeatedly that God punishes, the Prophet only delivers a message.  Shari'a professors in the Muslim world are important figures, not to be lightly ignored.

Of course, the conservative replies that there are verses that indicate one should kill the polytheists wherever found, and that therefore the Meccan verses must be read in light of these later verses or abrogated.  The Prophet's statement is therefore a broad one here, not narrow.  The liberal responds, this isn't a human law, God doesn't realize he made a mistake in an earlier verse and abrogate, the Meccan verses are the pure, true ones, the Medinan verses, and Prophetic statements have to be understood as necessary compromises given human foibles in light of the purity of Mecca, and round and round we go. 

So what's the point of all of this?  Well, you take someone like me, raised in this country, proud of this country, and proud of my strong and continuing connections to Iraq and proud of my faith, and the Muslim narrative appeals to me, largely through the Meccan stories.  The Medinan stories play a huge role, of course, when they don't conflict with the Meccan, and when they seem to, well Mecca was the true Islam.  And the conservative, deeply attached to traditional notions of shari'a, reverses that presumption,again not necessarily disclaiming Mecca, but viewing any potential inconsistency as one capable of resolution through favoring later in time. 

And thus does Islam find a way to speak to us all, in the same way that Christianity has found a way to speak to everyone from Jefferson Davis to Martin Luther King.  Ultimately then, I guess the point is, it isn't hard to reform Islam doctrinally, we've already got a narrative, the real problem is getting the social, political, and cultural conditions right such that people are receptive to that reform.  

HAH 

]]>Shari'a BlogsHaider Ala Hamoudi2008-05-06T13:44:48ZShi'ism and the Rise of Salafi and Wahhabi Doctrine: Another Viewhttp://muslimlawprof.org/2008/05/04/shiism-and-the-rise-of-salafi-and-wahhabi-doctrine-another-view.aspxOne of the most common refrains that one hears from scholars of Islamic law in the United States, when asked why it is that they barely address Shi'ism, is that they don't really understand it, they haven't studied it, they can't really access it, and so they tend to avoid it in their scholarship.  These folks let me be clear are by no means driven by animus, I think they'd genuinely like to learn more, and in fact quite a few approach me to try to learn ways to teach Shi'ism.  But in their own work, because they haven't really considered it, they sort of think the best thing to do is just to talk about Sunnism, and to indicate they aren't going to address Shi'ism, which deserves separate study in its own right.  Wael Hallaq I think says this explicitly in one of his books.

As a corollary to my general theme of I wish people studying Islamic law would look to something beyond legal doctrine to explain the evolution of legal doctrine, I wonder whether or not my colleagues might be doing Sunnism a disservice by adopting the positions that they do.  In these ruminations, I focus, as always, on the modern world. 

And in the modern world, a great deal of Sunnism has been deeply, fundamentally affected by the austere anti-rationalist creed of Salafism, which really got its start in Saudi and spread throughout the Sunni world through the use of petrodollars, to such an extent that your average Sunni in much of the world is almost reflexively a Salafi.  All of the Sunni Islamist movements, from the Taliban and Al Qaeda to the Egyptian Muslim brotherhood, are all Salafi in outlook even if they don't overtly state it.  (More on that later.)

This is all sort of old hat, everyone knows it.  But if looking at these things while excluding Shi'ism, I think you sort of miss a key aspect of the rise of Wahhabism and more broadly Salafism. That is, if you look at the area in which Salafism arose (Saudi and in particular eastern Saudi, the gulf nations in that region, southern Iraq), the Shi'a are quite a significant minority.  I think personally it's a little silly to look at Salafism without at least considering the possibility that it is a REACTION to Shi'i thought and Shi'i influence in the region.  Certainly their attitude towards the Shi'a was very negative, they did attack Holy Shi'a Sites, they did declare Shi'a infidels. 

Yet while this is discussed, its influence on Salafi doctrine is less addressed. People sort of recite the rise of Salafism as a theory that sort of goes "well, the Muslim world has gone all bad, it must be everything that happened since the earliest followers of the Prophet died, let's wipe away all that crap and go back to that period and all will be well."  Okay, but why does that hold, among Sunnis who ran caliphates whose achievements stunned the world?  Why not go back to the Baghdad calipate, or the Syrian one, why the immediate followers of the Prophet? 

There can be any number of reasons for this, but if one says we EXCLUDE the practices of people following the Prophet, so much of what the Shi'a do is then rendered un-Islamic.  How can you commemorate the death of the Prophet's Grandson and make a big to-do about it, when clearly it was not something the Prophet himself and his Companions and their immediate Successors did.  You're innovating!  You are an infidel!  This argument is not available if you want to go back to Harun al-Rashid and the Baghdad caliphate, once there Shi'ism gains legitimization it would not otherwise have.  The Salafi position also by the way DELEGITIMIZES huge portions of medieval Sunni thought, but more on that later.

Consider also the extreme (and I mean extreme) literalism of the Salafi readings of the Qur'an.  "The Most Beneficent One (referring to God), who sits on His Throne."  The Salafi says that must mean God has some sort of form, what kind who knows really, but some sort befitting His Majesty, that He uses to sit on a Throne.  

Now let's be clear, this does not come from the broad consensus of classical Sunni thought, my friend Mohammad Fadel at Toronto can demonstrate this a hundred times over, though I've read enough to be sure of this too.  So where does it come from?  Is one possible influence the fact that the Shi'a are decisively focussed on the Qur'an's hidden meanings (the ta'wil), and that they use this to read any number of verses any number of ways to justify any number of Shi'i doctrines, from the martyrdom of the Prophet's Grandson to the Imamate?  The Salafi doctrine strips all of that away, and yes again at the cost of consistency with the Sunni past, but that's less important.  

Then this literalist nonsense, as well as the innovation absurdity, spread, and infect the entire Muslim world, to the point where we have Egyptian courts and Egyptian judges actually declaring in the Abu Zaid case brought against a professor by the Muslim Brotherhood (see Kristen Stilt's article on the remaking of Islamic law for a great synopsis and analysis of this case)  apostasy to say something that I personally find too obvious to even think about, that God on the Throne is magnificent, poetic and metaphorical language that inspires our awe of Him but that isn't literally true (an old guy in a chair with a beard, come on, THAT's insulting God).  Again, this Salafi position, now the official position of Egypt it seems, is in absolute derogation of Sunni medieval theory, and a notion spread that medieval theory matters none, what really counts is the Prophet and his Companions.  Peculiar and particular social conditions give rise to an idea, the idea then spreads due to other conditions (oil) well beyond its initial conditions to impose itself on a broader set of systems, and this then establishes itself as Islamic "doctrine", maybe not in the ivory tower but certainly in the world where it counts, and centuries of history are thereby erased.  This really deserves study it isn't receiving.

And to be clear, I am not suggesting that Shi'ism is the ONLY influence on Salafi legal doctrine, but it seems quite clearly to be there, and it is, largely, undiscussed, and will remain so as long as folks continue to look at Sunni Muslim doctrine as somehow independent of the conditions that created it, and independent of any other doctrine being promulgated by its chief rival within the Muslim polity.

HAH]]>Shari'a BlogsHaider Ala Hamoudi2008-05-04T18:12:10ZThe Mosque in Americahttp://muslimlawprof.org/2008/04/30/the-mosque-in-america.aspx _uacct = "UA-3194495-1"; urchinTracker(); I wanted to pick up on this post something I had mentioned in my last post, respecting a common complaint of some African American Muslims I know, that immigrant Muslims often associate Islam with their countries of origin, rather than America, which thereby neglects or dismisses the vibrant practice of Islam among Muslims whose ancestors have deep roots in this soil.  I think that it is right to call this a problem, for any number of reasons.  For one thing, to associate Islam with America, and some of its oldest inhabitants, takes away a weapon in the Islamophobe's arsenal, that America welcomes Muslims to this country from other places and then they ungratefully spread a message of hate.  That's difficult to sustain for a variety of reasons of course (it ignores the reality of the American Muslim experience, which nearly universally has nothing to do with a message of hate), but once we start to talk about black Muslims, well then it just becomes too stupid to say (for just about anyone other than Virgil Goode, that is).  America didn't exactly "welcome" blacks, I'm not sure "ungrateful" is the word I'd use for people who were brought here by force and in chains.

But aside from this, another problem I am noticing is that it leads to an alien Islam, a foreign Islam, one that is more difficult for American Muslims to relate to or appreciate, and that creates tensions within the community, and between the community and those outside of it.  The best example I can think of respecting this is the deplorable conditions of all too many mosques in the United States concerning the treatment of women.  Asra Nomani and her father wrote a really wonderful, and terribly sad, piece about this in the Journal of Islamic Law and Culture (vol. 8).  Prayer areas are tiny, women's sections are overflowing with crying babies, there's always some sister or two in there enforcing dress code rules, to prevent the horror and abomination of a loose strand of hair showing, or worse yet, flesh near an ankle, sometimes they are so cordoned off you can't even see the women enter and leave, much less pray, and heaven forbid I run into a female friend outside the mosque and attempt a conversation.  What kind of evil temptation am I tempting to draw her into through such inappropriate behavior, it might well be asked.

Now when I'm in Iraq and I walk into the mosque and this is it, I sort of get it, this is another country, I know gender relations in Iraq, they aren't the stereotype they're made out to be here (yes, I can talk to a female bank teller for God's sake), they are different and it's a different place.  What I want to know is why when I walk into a mosque in America, I feel like I've backed up, well beyond Iraq and sort of entered Saudi or something. 

Of course we can all parse Islamic foundational text and get to different answers about gender relations and what women's sections should be like, but this is hardly the point.  As I've said so many times on this blog, in religion as in law, texts don't much determine anything, a person with particular cultural biases and predilections and ideological and ethical leanings and assumptions reads those texts, and an answer is shaped thereby.  As it goes with Roe v. Wade, so it goes with Prophetic statements concerning khulwa, or unlawful seclusion of a man and a woman. 

The point, rather, is that this isn't the dominant cultural predilections or practices of most of the people sitting in the mosque, and certainly not something they think of or dream about outside of the mosque.  Yeah sure, each place has its weirdos, but your average Friday going dude isn't actually traumatized by his female coworkers, isn't scandalized by the fact that his daughter has a conversation with male colleagues (if they are Muslim and she is single, he might even be encouraged by that), and might not ever see a veiled woman outside of the mosque.  So what's up, why aren't these people looking at their religion differently, interpreting the texts in a manner that makes sense to them, given their own biases and leanings?  Why do you go nuts if I talk to a woman in the mosque when you know I talk to women, Muslim and non-Muslim, outside of the mosque all the time.  Why are you such a fascist about the hair when you know she's taking the thing off as soon as she walks out?   To be clear, this is not about hypocrisy.   It's not like these Muslims think, outside of the mosque, that all of this behavior is unIslamic.  Ask a Muslim in America if a woman's voice is prohibited to be heard, and he might think you're joking.  Certainly he's not going to say yes to that, or to get mad if he sees me in conversation with a woman on the street.    Yet in the mosque, different rules.

I think the explanation for this dichotomy is partly this notion that "Islam" for all too many immigrant Muslims is associated with the Muslim practices of their countries of origin.  So mosques have to look as the mosques they remember in Karachi, or Cairo, or Jakarta, or wherever else.  If they start to loosen up, or they start to change things around, it starts to feel, to them, less like the Islam they understand, grew up with and associate with.  So in the mosque, we're therefore in Karachi.  Outside of it though, well there is more need to adapt, and doctrine does adapt.  American Muslims take remarkably flexible positions on any number of issues, in the name of Islam.

Go to the next generation, my generation, the native born, and we don't quite get it.  It seems to us as Muslims there is stuff we're supposed to do, and stuff we aren't supposed to do.  Don't eat pork.  Pray.  Work with coworkers of both genders.  It doesn't change for us based on location.  While we can sort of get some limited additional rule or two when actually worshipping (women here, men there, fine), it makes no sense to us to pretend as if a strand of a woman's hair is so tempting as to distract us from prayer and make us want to drop our pants and masturbate when we're heading back to an American campus where a bit more is shown.  Muslim students are even more perplexed--you keep saying I should marry a Muslim, the student tells her parents, yet the rules of the game are set up such that the one thing I really can't do is talk to a Muslim in an Islamic setting.  We don't internalize Islam as much as being related solely to some other country, we look for one big harmonious frame, not some stark dichotomy between what Islam requires of us in the mosque (a bunch of weird stuff we don't get) and outside the mosque (the world we know well). 

And naturally I have my own worldview, and yes I do think it is a problem to have this dichotomous universe, because it seems to me that it is doing less to really plant an Islam on American soil to which American Muslims relate, and more to remind people of another place.  But while that other place may be wonderful and worthy of commemoration (I love Iraq, I have always loved Iraq, I enjoyed my two years there and hope to be able to spend more time there in the future), it's not here.  Here is America.  And we are Americans.  We know that outside the mosque, let's just make that mosque in our own image, not the fantastical image of another place, another time.

HAH
]]>Shari'a BlogsHaider Ala Hamoudi2008-04-30T14:40:58ZAlternative Narratives in the Muslim Paradigm: Bin Laden's Caliphate Revisitedhttp://muslimlawprof.org/2008/04/29/alternative-narratives-in-the-muslim-paradigm-bin-ladens-caliphate-revisited.aspx _uacct = "UA-3194495-1"; urchinTracker(); At the start of a New Yorker article written shortly after 9/11, Bernard Lewis writes the following:

In his pronouncements, bin Laden makes frequent references to history. One of the most dramatic was his mention, in the October 7th videotape, of the “humiliation and disgrace” that Islam has suffered for “more than eighty years.” Most American—and, no doubt, European—observers of the Middle Eastern scene began an anxious search for something that had happened “more than eighty years” ago, and came up with various answers. We can be fairly sure that bin Laden’s Muslim listeners—the people he was addressing—picked up the allusion immediately and appreciated its significance.

Lewis then goes on to explain that the eighty year reference was to the fall of the Caliphate.  Apparently Muslims remain haunted by this humiliation, and unlike Americans, who think of history that is something that is past and therefore unimportant, Muslims are continually animated by their (slanted, inaccurate, biased) versions of history.

So there's a lot that's really questionable about this--we Americans are to some extent animated and seek to self define ourselves by our own sense of US history, which is slanted and reductive.  We base policy on these highly simplified historical perceptions all the time (Saddam is Hitler on one side, Iraq is Vietnam on the other.)  And among Westerners the Americans are quite an ahistorical people.  Most Greeks, for example, are vividly aware of their own historical narratives, and certainly use it to define their identities.  In the Middle East much of the Arab Israeli dispute is a clash of two alternative narratives, a Jewish one and an Arab one, not one group with a keen sense of its own history and another that dismiss history as, in Lewis' words, "something that is unimportant".  Does anyone know any Jewish person, let's say Western oriented, lets say American born, let's say who hasn't ever left US soil, who would dismiss the horrors of the Holocaust with a dismissive wave of "that's history"?  Armenian Americans respecting a calamitous historical event no closer in time than the fall of the caliphate would they do that?  Aren't they part of the West?

But it's the converse of this fallacy I wish to explore a bit more, not so much the importance to non Muslim peoples of perceived history (something I will call a historical narrative--a story spread among a people they use to define themselves, which ALWAYS is less nuanced and less complex than an historian would demand) but rather the supposed fascination of Muslim peoples in this one narrative that roots itself in the caliphate and the medieval world.  A polity that defines itself as a "House of Islam" even as it is divided into nations, unable to come to grips with its own modernity.

Lewis' theory then dovetails well with SOME of my Islamic studies colleagues at law schools who actually despise him.  This you see is why we pay so much attention to medieval theories of jihad.  Because Muslims care about these! They remember well the destruction of the caliphate!  These nations are artificial, they're fake, they don't even have a word for nation!  These ideas range from simplistic to just false, the word watan means nation, in Arabic.  I don't follow Lewis' etymology, and I don't really care.  Words change meanings over time, and clearly clearly when an Arab refers to his watan, he means his nation.  When Iraqis stand up and sign Mautani (variant of same word, watan), and fly their flags and wave their purple fingers and fill the streets of Baghdad when their team wins the Asia cup, against another Arab, Muslim country, trust me, that nationalist identity is far more central than something that happened in Istanbul eighty years ago.

Which doesn't mean that the fall of the caliphate isn't one thread, one narrative, that plays an important role in the Muslim world. Of course it is important to some.  But it isn't the only narrative.  In fact, as a Shi'i, as Lewis is reciting this narrative, I was reading it and thinking "not my narrative."  See, in my narrative, the one I was raised with, all that happened in 1918 was one occupier, a Sunni Turkish one, was replaced by another occupier, a British Christian one.  I don't care, I don't pretend to care.  You tell me back up 80 years from 2001 what's an important Muslim event, I think the Iraqi Shi'i uprising against the British in 1920.  THAT's my history.  Yes it's informed by religion, but by nation too.  I have no idea what the Iranians were up to then.  It doesn't play a part in my narrative, as a Shi'i Iraqi.  The caliphate wouldn't have made by top ten, so little attention is given it in my narrative.

Muslims want Islamic constitutionalism because it reminds them of the classical golden era, some say?  That's why Iraq has a constitutional provision respecting shari'a, it's similar to political theories of medievals, they continue?  Again, you've projected some other history onto mine.  To the Shi'a, there WAS NO classical golden era.  We hate all those guys--Ibn Taymiyya, Harun al Rashid, Abu Hanifa, anyone in between these aren't people we have any affiliation with.  We're not putting stuff into a constitution we write because of them.  Our historical narrative is important to understanding why the Shi'a are so suspicious of Sunnis in Iraq and have done far too little to include them, I think.  But that narrative (discussed here) gets no press, the one we keep hearing about is somebody else's.

Same conclusion for the supposed fascination we have with Saladdin liberating the Holy Land from the Crusades, a history we cannot seem to escape we are told.  Except it's not my historical narrative, not the one I learned.  In my (simplistic, as all of these are) narrative, the Christian dudes who called us infidels were replaced by some Sunni bloodthirsty thug whose main military feats were directed against the Shi'i empire that controlled North Africa.  And I'm supposed to be happy for him why?

Take secular Arab nationalists, and their narrative has nothing at all to do with the caliphate, they aren't captivated by it, they actively celebrate its fall as part of the Arab revolt during World War I.   They are ecstatic about the Turkish defeat, their colonizer had British people roaming its capital so what?  And sometimes these narratives bump up against each other, the Shi'i secular nationalist, for example, who has to balance the glorification of Sunni exploits against non-Arabs as against oppression of Shi'a.  These are all competing stories, one as against the other and from the muddle a diverse set of peoples with a diverse set of beliefs emerges far more nuanced and complex than a supposed fascination with one version of the medieval period. 

And we haven't even left the Middle East yet.  I lived in Indonesia nearly two years, I don't know how many Muslims there could tell you when the caliphate ended, or care.  In another land, I think the general (fair) complaint among my black Muslim friends is that we American Muslim immigrants are not doing enough to meld ourselves onto an Islam that grew up here on American soil, among some of America's oldest inhabitants, excluding Native Americans of course.   That narrative is more infused with Elijah Muhammad and Malcolm X than the final Ottoman caliph, whatever his name was, I don't even know, I'd have to look it up on Wikipedia to find out, and I don't think I'm alone on that.  By contrast, most Iraqis who have never been to America barely know who Malcolm X is, they know black Muslims from the one they've seen--Muhammad Ali. 

And sure the Wahhabi funded extremists have managed to spread the narrative Lewis is peddling about the humiliation related to a fallen caliphate, but I'm wondering, what about the other voices?  Don't they deserve to be heard?  There are a lot of grievances in the Muslim world, plenty of anger and rage and humiliation to go around, but maybe not all of it actually relates to one particular version of history.  Perhaps more nuance, more complexity, more understanding of the different trends and threads and stresses and strains might actually lead to a more sensible policy, adjusted by geographic region, nation, sect, in an attempt to be more sensitive to the variations in the wide and vast Muslim world. 

Then we can stop suggesting that anything Iraq wrote in its constitution had anything to do with a medieval period the Shi'a despised, that Indonesians want nothing more than to see some Turkish leader establish authority over them from Istanbul, that American Muslims are uncomfortable with liberal democracy because someone from a medieval era, at a time when black Africans were kidnapped en masse and enslaved by Muslim empires, said we're supposed to be one happy House of Islam, and somehow we think we're supposed to listen to that guy.  I think we can all handle just a bit more complexity than what we've been given.

HAH


]]>Shari'a BlogsHaider Ala Hamoudi2008-04-30T14:41:15ZQaradawi and the Consumption of Alcohol: Scholarly Authority and Sensible Debatehttp://muslimlawprof.org/2008/04/23/qaradawi.aspx _uacct = "UA-3194495-1"; urchinTracker(); One comment lament on hears in the Sunni world is that because Sunni authoritative scholarly authorities disappeared around a century ago, the Sunni world is in some level of chaos and uncertainty, captivated by pseudo-scholarly charlatans hurling Qur'anic verses and Prophetic statements wildly out of context and refusing in the most anti-intellectual manner to engage in any serious debate over anything they hold dear.

There is some truth to this, though it's a little overstated.  Yes, the Shi'i interpretive community is certainly far more intellectual than some of the Wahhabi nonsense you hear coming from some Saudi funded mosques and Sunni Islamists (my favorite Muslim Brotherhood line "there are no debates in Islam"---compare to the Shi'i Muhammad Baqir al-Sadr's, "interpretation occurs at the spearhead of dispute").  And so when my thoughtful and deeply intellectual Sunni friends lament, I understand it, though they should realize that the interpretive community LIMITS intellectual debate as well within its boundaries.  By which I mean, while anti-intellectual Islamists in Sunnism run rampant, it's also easier to be a renegade, smart, careful very intellectual liberal in the Sunni world than in the Shi'i, where if the marja'iyya after due and careful and thorough consideration declares your opinion to be beyond acceptable limits, there isn't much left you can do to dispute it.  You're sort of like the priest who disagrees with the Vatican.    My Sunni liberal friends also might underestimate the extent to which an interpretive community is still in this day and age going to be very conservative.  Muslim doctrine doesn't just pump out from the interpretive communities like some sort of computer, it's shaped by political and social circumstances and so the same circumstances that cause such anger in the Muslim world in the Sunni context exist in the Shi'i, and doctrine is thus shaped.  There are no real discussions of women's rights as I understand them in the marja'iyya, for example.

But as noted, there is some truth to it, too, the fact that when you have scholarly authorities who actually are forced to think about things and come to sensible conclusions about them, it's much easier to have a healthy, responsible and honest debate rather than just engage in silly name calling and accusations of false agendas.  Today's post shows just that in the context of alcohol consumption, in the Sunni and Shi'i paradigms.

Just days ago Yusuf Qaradawi, the Qatari based Sunni scholarly authority, issued a fatwa (in Arabic) indicating that certain types of beverages containing alcohol percentages less than 0.5% alcohol--that's 1 proof--are permissible, in particular those that as a matter of course become alcoholic over time (fruit juice, for example).

Now while I've been critical of Qaradawi on other posts (particularly concerning female genital mutilation), in this case he seems only to be trying to be sensible about something that too often Muslims largely dance around.   The reality is that if you pretend that even one molecule of alcohol renders a beverage suspect, then a large number of seemingly ordinary drinks (orange juice) for example, become forbidden.  That is, and I did check this with a chemistry friend, it's not like the alcohol starts to form in orange juice days after it's left out, it's a slow and exponential rise over time, so that there are perhaps molecules of alcohol in orange juice virtually immediately.  Or grape juice.  Or apple juice.  I've always thought that if the point is "intoxicants", which is how the Sunni authorities include beer in an initial prohibition of date wine, then surely if the alcohol content was so low that a 95 pound woman on an empty stomach could consume large amounts and feel nothing, then it's not an intoxicant.  I see Qaradawi as trying to sort of create bright lines of this sort--to distinguish between real intoxicants and stuff that might have trace amounts developed naturally.  After all, Sunnis drink orange juice, so we need some sort of rule. 

(I can't resist but add to this that in the classical Sunni world, among Hanafi jurists, the consumption of alcohol that was not "wine" was not even criminal, as it was in the other three major Sunni schools.  Yes, whiskey consumption for a Hanafi in the 15th century was okay.  Why modern Islam ended up rejecting this position, even in areas of former Hanafi dominance, can be traced to any number of factors of a social, political, cultural nature that I will write about some other time, but suffice it to say, it doesn't have anything to do with faithfulness to some autonomous classical doctrine that supposedly exists somewhere.  There are many instances where Hanafi rules are adopted to the derogation of the other schools, and here it is the opposite.).

In the Shi'i world, this hasn't been an issue.  Sistani has developed rules similar to those that Qaradawi seems to propose, allowing small amounts of alcohol (up to 4 proof) in medicines and other beverages, but prohibiting beers from which alcohol was removed on the grounds that they are impure because once impure.  It creates a pretty workable rule that doesn't require rather extreme measures to self monitor, even if some might scratch their heads and wonder if Kaliber is really that bad because it used to have alcohol in it.  (As an aside, link above is to the Arabic rules, the English ones are badly translated and as translated make no sense, though they are available on the Sistani website.  They seem to say certain medicines are okay because the alcohol "dissolves" in the medicine.  Indeed, as vodka dissolves in tomato juice, but I don't think he meant to suggest that Bloody Marys are okay.  It's got to be a translation issue).  And Sistani being who he is, devout Shi'is read it, incorporate it and move on.

Anyway, the point here is that Qaradawi in this case was trying to put together something similar that made sense and that worked and that more or less coincided with Sunni practice, which is to drink orange juice, but not anything that can intoxicate in the slightest.  And the extremely negative reaction on the blogs, the websites, even media has been quite shocking. He's an American stooge, he's paid by multinational Big Oil (why they want to get Muslims drinking is left unexpressed), even Qatari official press sources  are saying he's being far too confusing by allowing this, and blanket prohibitions are best.

But anyone who isn't overcome with irrational revulsion at anything that looks like any form of accommodation to the West we are supposed to be resisting, anyone who just stops for a second and THINKS about it, would come to the necessary conclusion that a blanket rule saying any single molecule of alcohol is forbidden would be very difficult to implement, and in any event bears no resemblance to the praxis of the believing Muslim world on the subject who drinks fruit juice to break the Ramadan fast.   But unfortunately everyone is in resistance mode, nobody is thinking and there is no authority in the Sunni world to make everyone stop for a second and consider this. Qaradawi, as close to authority as it gets, is shouted down for even suggesting a workable rule. We can't have one, we have to scream our opposition to the decadent ways of the intoxicating West to the hilltops, listen to Friday Prayers about how bad their fraternities are and how good our mosques are and then refuse to engage in any thoughtful debate on how to deal with any liquid with sugar in it, which could very well have a molecule of alcohol in it.  It's really a sad state of affairs when things devolve to this level of stupidity.

HAH



]]>Shari'a BlogsHaider Ala Hamoudi2008-04-30T14:41:32ZIslamic Law and Jews and Christians in Iraqhttp://muslimlawprof.org/2008/04/22/islamic-law-and-jews-and-christian-in-iraq.aspx _uacct = "UA-3194495-1"; urchinTracker(); Some miscellaneous matters, before getting to today's post.

First, don't blame me for whatever happened in Pennsylvania, I voted for Obama, and from the signs and buttons everywhere everyone on my route to the university did too.  But then that's rather posh Shadyside to a large university with a whole bunch of twenty somethings on it, somewhat of an anomaly in Western Pennsylvania.

Secondly, those interested in Islamic finance, check out my article in Forbes online.  Basically, they hype the practice, I'm brought in, as always, to be the contrarian that everyone more or less ignores.  Playing to my strengths, I guess.

Finally (on miscellaneous matters), sources close to Grand Ayatollah Kadhim Al-Haeri in Qum say that the Grand Ayatollah just told Moqtada he isn't going to meet with him, as Moqtada al-Sadr had requested a day or so back.  I think this helps fortify the point of an earlier post, that Moqtada al-Sadr has no hope of gaining any sort of clerical cache through spending some time in Qum even if this is Iran's hope.  When you can't even get a senior cleric in Qum to meet with you, it doesn't bode well for your clerical status in Najaf, where education in Qum isn't quite viewed as highly.  And yes Haeri broke off from Moqtada some time ago, but still, rebuffing a request for a meeting shows no small level of contempt for the guy.  On to today's post.

Two items of news interesting in Iraq in the past week, that I think highlight the postions of modern Muslims towards those known as People of the Book (basically Christians and Jews, though others get added in different times and places).  I focus on Iraq, but I do think the lesson is broader.  In the first bit, the clergyman in charge of one of Baghdad's largest churches, Hari Tonyan I believe is the name, issued a press release thanking the various organizations and institutions and governments in the US and Europe rallying on Christians' behalf, but indicated that Iraqi Christians do consider themselves Iraqi and don't actually want to flee the country.  The second is the entirely embarassing spectacle of seeing spokesmen from the Ministry of Health having to solemnly deny to everyone that, press rumors to the contrary, they aren't taking Iraqi kids to Israel to get healed, and perhaps indoctrinated in the process.  Wow. 

Here's what I think we can take from the first bit--generally, Muslim countries can get awful press on the treatment of Christians, and that leads to the silly and quite frankly erroneous conclusion that Christian communities in the Muslim world are everywhere under threat of annihilation, a persecuted and deeply hated minority that hangs on as best as it can.  This just isn't true, in Iraq.  Christians have served in high leadership positions, they are well integrated into Iraq's population absolutely (one of our staff was Christian, my wife's best childhood school friend was Christian), and generally well liked.  The Shi'a marja'iyya has been outspoken in its severe criticism of attacks on Christians and Christian communities, the kidnapping and killing of a senior authority in Mosul a few weeks ago prompted demonstrations throughout Muslim areas of the country.  I used to pass a church on my way to my uncle's house in Kerrada every day.  At the time (things have gotten worse for everyone since them), it was unguarded entirely.  We stopped in a couple of times to say hello to a friend we saw hanging out in the yard, it didn't strike anyone as mildly unusual.  We really aren't just a bunch of extremist maniacs, the overwhelming majority of Iraqis judging by all of this are entirely comfortable with the Christian minority. 

To be clear, this isn't to suggest Iraqi Christians have no problems.  Clearly in this lawless land, with Islamic fanatics running about (who weren't there until 2003, but anyway. . . ) they are special targets, and clearly that is not an enviable position to be in.  And yes, even at other times, Christians do have to deal with crap that we Muslims in the United States don't deal with (leaving class when religion starts getting taught, etc.), I'm not suggesting it's a pure liberal state.  But it's also not the hell on earth it's made out to be, and it is a little offensive to constantly hear about how Islam cannot tolerate Christianity and that's why Christians have so many problems in Iraq now.  Uh, then why did a Christian become foreign minister a few years ago?  And why was that Christian, Tariq Aziz, the one least hated among the senior leadership, travelling around Baghdad with just one bodyguard at times?  Guarantee you Uday, Saddam's son, wouldn't be doing that.  And why are many Iraqi Christians saying they want to stay in Iraq?  And why is it the religious leadership that blames the political, not vice versa, for the killings that take place?  Is it possible that maybe the Christian plight can be traced not to Islam but rather to the horrible incompetence of US policies that have failed to establish security for ANYONE,leaving small minorities particularly vulnerable? 

At the same time, it's pretty fair to say from the evidence that while Islam in its modern form can coexist with Christianity passably decently in some places, Iraq in particular, it clearly doesn't tolerate Judaism.  Jews didn't want to hang around in Iraq after 1967 for pretty good reason, had I hired a staff member who was Jewish, as opposed to Christian, I would have taken serious heat for that (wasn't an option, of course, as noted the Jews fled for good reason). I don't hesitate to speak out against virulent anti-Semitism in Iraq, and there is some support, particularly among the younger generation, for whom the great Arab cause to destroy Israel has meant nothing but misery to them, but honestly, it's still quite shocking to see the levels of paranoia over Jewish control over Iraq among Iraqis and the level of surprise that I would even dare to suggest that, I don't know, a Jew hath eyes.  Most think that rents are still being paid to Iraqi Jews for lands they had to abandon when heading to Israel, as if anyone would actually pay rent to some dude who had no hope of enforcing a collection right.  And apparently, the ridiculous idea that kids are being flown to Israel for treatment and political indoctrination (into what I want to know) is taken seriously enough to merit a sober denial.

And while some might dispute my account above (I think they'd be wrong, but anyway), it seems pretty obvious to anyone with eyes I think that there is a stark and obvious difference between how Jews on the one hand and Christians on the other are viewed in Iraq, and throughout most of the Middle East.  This is interesting for two reasons.

First, there is NO classical basis for this.  I won't go into the classical treatment of the People of the Book, other than to say they were tolerated, but it wasn't a pluralist panacea for the most part.  Different era, different standards, we can try to hold them to our own ideas, though if we did that we might then have to dismiss our own founding fathers as racist, rapist pedophiles.  The real point for this post is that classical law pretty much treats Jews and Christians as one big group, people given a Holy Book by God (hence the phrase People of the Book) who are therefore entitled to some level of rights, but at the same time people who have corrupted their Holy Books and therefore given rather limited rights.  There isn't really any basis to think differently of Jews, all of this is really a radical departure from the classical tradition, entirely a part and parcel of so much of modern Islam, yet ahistorical. 

The second interesting point, a corollary of the first, is that this virulent anti-Semitism draws far more on its European predecessors than it does on Islamic history.  The idea of the Jew in particular as a threat, the source of conspiratorial danger, that's much less common in a religious tradition that more or less grouped all of the People of the Book into one category.  What does Hamas cite in its charter--the Protocol of the Elders of Zion, a European fabrication.  What does Hezbollah show on its station?  Jews drinking the blood of Muslim children for Passover, again a European calumny.  

How ironic is it then, that the same forces that accuse us Muslim liberals of Westoxification, of cravenly and in a defeatist fashion accepting Western notions of governance rather than true Islamic ones have, rather than calling upon Islamic tradition, imported their own, far less salutary European notions into their own doctrines.  But of course they adopt ideas from Europe that have been thoroughly discredited now, and they adopt them in a manner that therefore looks as if designed as "resistance" to a Western paradigm (when in fact it is slavish compliance to an earlier Western paradigm), and in so doing, in a polity racked with paranoia and anger towards Israel, manage it all with a degree of legitimacy that truly makes us jealous.  

It's just another example, of how what is legitimate and authentic in Islamic law, or any type of law really, has less to do with classical doctrine, than political and social realities.   Perhaps then in trying to find out how to reconcile Islamic law with liberalism, and with less anti-Semitism, it would do us well to look more to those realities (Arab Israeli conflict would be one good place to start), and less to doctrine.  Just a lawyer's perspective.

HAH]]>Iraq BlogsShari'a BlogsHaider Ala Hamoudi2008-04-30T14:41:47ZThe Veil on Iraqi Campushttp://muslimlawprof.org/2008/04/21/the-veil-on-iraqi-campus.aspx _uacct = "UA-3194495-1"; urchinTracker(); First and foremost, apologies for the rather sporadic posts over the past two weeks, but book publicity has been keeping me busy.  Sales have been moving quite briskly, happily enough, but it has been exhausting.  I'll try to do better in the next few weeks.

So this week on Radio Sawa the question that is presented on their "Express Your Opinion" segment (where they hit the streets throughout Iraq, and ask people a question and get their opinion on it throughout the course of the week) was whether or not people supported or opposed the constant interference of various Islamist political parties within the sanctity (haram) of the universities with respect to women's dress in particular.  In fact, this is but one of the many forms of Islamist political interference iin university affairs, my close friends in law schools in Basra, in Kerbala, in Baghdad, in Mosul tell me horror stories of how directives are often given by parties requiring a certain list of students to pass, with dire (though unspecified) consequences if they do not. Actually by comparison, the imposition of the veil is not quite as significant. I have nothing but admiration for the Iraqi professors who continue to work under these conditions--friends, I'd name you but don't want to expose you to danger. 

Anyway, in this Sawa segment naturally they got opinions from all sorts of people with all sorts of opinions, I don't think that's particularly interesting (Iraqis have different views on this, clearly).  But the segment did lead me to want to discuss something that has largely been left undiscussed in the media respecting the veil in Iraq in particular, and it has to do with the unnatural focus of the Western media on the actual, state law in order to gauge women's status, a fact that Islamist parties know well and successfully exploit mercilessly.  Clearly, from the segment, the Arabic speaking media isn't quite as naive, even the American run stations like Sawa.

Look, Islamists aren't stupid, while the veil is fundamental to them, they know they aren't passing a law imposing it in Iraq under these circumstances.  The Americans won't let it happen, the Bush administration knows how terrible that will look, what the New York Times editorial page will do with material like that while more than one hundred thousand US troops are in the country.  But you don't have to talk to the party faithful long to know it's a pretty big deal, and they want to see veil wearing expanded where possible.  So the veil in Iraq becomes sort of like Roe v. Wade, you aren't getting it overturned, you know that, so you start to chip away.  (Incidentally, there's a similar phenomenon beyond Iraq--Islamist parties are accused of wanting to impose the veil, this is used as a reason to clamp down on them and gain liberal support for the clampdown, so they dampen their explicit advocacy of a veil requirement and move the agenda forward in other ways).

So what are the other ways?  Well, here's a few. Iraq's Minister of Sports, back when I was in Iraq and Bremer still ran the place, a fellow selected by the Supreme Council, called on women working in the Ministry to dress in decent clothing ("muhtashim") when coming to work.  Yeah, he didn't say veil, but were women really showing up in miniskirts and tanktops to work in Baghdad before he said that?  The answer is no, so what was this about then?  Women in Basra have been killed at various times, according to media reports, for failing to meet veil requirements.  And, as every faculty member at every university I know has pointed out, students and other distasteful elements roam campuses as any Iranian police force would and make sure everyone is covering the right body parts.  And not mixing too much either, a Basra graduation picnic was busted up by Sadrists a few years ago (almost three years ago today) because of inappropriate mixing of the genders.  I've been to these sorts of gatherings, 6th grade church functions are more steamy than this. And this is the university, want to guess what happens to unveiled women in Sadr City? 

All of this makes for some news, but not very much.  And it works then quite well for the religious parties.  Look at the state law, and you see nothing.  Maureen Dowd has nothing to point to and get excited about.  But then look to the more subtle reality, get on the street, talk to the people, listen to the radio shows, correspond with faculties, and one can start to see the development of the rules that bind in the social order that have nothing to do with state law.  The rules that control the polity, in other words, extend far beyond the government and its laws.  Everyone knows that, every militia, every party, every faction.  And so they don't bother to try to bring something in that is going to upset the Americans, what's the point?   The shari'a can be enforced in entirely different ways, and is.   But so long as we continue to ignore that, to decide it isn't really important because it's not really any sort of "law" that people called "police" enforce, so long as we so limit ourselves, we aren't really going to understand how Iraq, or so much of the Muslim world, actually works.  

HAH  ]]>Iraq BlogsShari'a BlogsHaider Ala Hamoudi2008-04-30T14:42:02ZVarieties of Muslim Experiencehttp://muslimlawprof.org/2008/04/15/varieties-of-muslim-experience.aspxFirst, obligatory self promotion.  I've done an interview with Leonard Lopate on WNYC regarding my book.  Both the link to that, and to the book itself, are on the sidebar, pick up a copy.

I've been reading Sayyid Hassan Qazwini's wonderful book, American Crescent, describing his life as an Imam in one of Shi'a Islam's largest American Masjids, and how he, as a firm, pious, traditional believer, reconciles entirely life in America with the good life in Islam, quoting the Prophet's son in law and Shi'a Islam's first Imam to the effect that your land is the land that treats you well. America, he says, has treated him well, as compared to the persecution suffered by him and his family in Iraq in particular.  It really is a heartwarming, rich and quintessentially AMERICAN memoir that deserves to be more widely read than it is.  So many people ask, "why is it that Islam has no tolerant and modern voices?" and yet all I can think when I see his book is "why is this book #500,000 on Amazon's rank if people really want to hear tolerant voices?" 

There was one set of things that sort of caught my eye reading it, and that I wanted to delve into for a second, relating to the complexity and variety of the Muslim experience.  There are times when Sayyid Qazwini says something to the effect of "Islam says . .. " or "in Muslim societies. . ." and then something follows that I find unrecognizable.  Not something I disagree with or don't like, but something where I think "who does that?"  The first example was when he mentioned that he cannot readily write "dear" in a letter addressed to a woman because in Muslim societies one really does not do this.

That is not my experience.  I right dear, or "al anisa al fadhila al aziza", all the time to women in my emails.  OKay not if I've never met them, but same for men, "dear" isn't just surplus polite verbiage in Arabic, it does mean something suggesting you know the person, but never in my life, to a woman veiled or unveiled, has it occurred to me that there is anything wrong with "dear", or aziza in Arabic, addressed to a woman.  In fact, if I wrote to two professors I know in Basra in the same letter, and addressed the man with "dear" and the woman without, I actually think it would come across as offensive. 

The second related to the Sayyid's engagement, where he said that in Islam, following engagement, the man may visit the woman's home, but going out is impossible.  Serious social restrictions remain in place.  Again, not my experience.  In my experience, once engaged, couples go out all the time.  Yes the marriage is not supposed to be consummated certainly, but unchaperoned and at dinner is entirely normal.  Nobody would say something in the circles that I swam, if a woman and her fiancee were wandering streets together shopping or eating.    Some of these folks were quite religious, it didn't matter.

The point is not that I have some sort of ability to decide what is or is not Islamic, and have made appopriate corrections, that would be dumb of me, the point is that in fact the diversity and multifacetedness of Muslim society is such that at times what one person, even a learned person, even an Imam, describes as something that is typical of Muslim societies, another person who considers himself quite intimate with such societies wonders what he's talking about.  And that's two Iraqi Shi'a at this point.

I learned this lesson in a rather stark way living in Indonesia, where my secretary was a pious, believing Muslim with a scarf covering her hair.  I got to know her fairly well, and one day some dude came by in a bike, and she hopped on.  I asked the next day if this was her fiance.  No, she said, just my boyfriend.  It came as quite a shock to me because in many Arab societies, and certainly Iraq, hopping on the back of a bike of a man not related to you is likely to get you killed, and no respectable woman ever utters the word "boyfriend".  But in her circles in Surabaya, this was clearly not the case. 

The point is that I think all of us, Muslim and non-Muslim tend to generalize from our own experiences, and that this can mask some of the wondrous varieties of the Islamic faith.  I can't imagine a veiled Muslim woman with a boyfriend.  The Sayyid can't imagine liberal use of the word "dear" in missives.  The Indonesian secretary looks at us and thinks we must be of some sort of cult.  We see certain types around us, they then seem typical, we extrapolate, and out comes Islam as recreated from our own experiences, while the reality is considerably more subtle.

This natural and often harmless phenomenon replays itself to much more devastating effect, I think, the reaction of all too many Americans to Islam post 9/11.  They see the horrors, they see some random Palestinian village dancing, they know no other Muslims, brave men like Sayyid Qazwini try to reach out, but in the fear and the noise and the cacophony and the ignorance, an ugly picture starts to emerge.  And all of a sudden a group of violent, angry, stupid group of thugs, a group that if they ever crossed paths with Sayyid Qazwini, or me, or my former Indonesian secretary, would behead us in an instant, these people start to define our faith.  And we actually have to explain why we are different than people who want us as dead as they want any American dead.  The complexity, the muliplicity, the variety and the wondrous totality of the Muslim experience disappears, and we're all reduced to something quite repulsive.  It's probably the saddest aspect of our experience these days.

HAH ]]>Iraq BlogsShari'a BlogsHaider Ala Hamoudi2008-04-15T11:30:08ZThe Veil, from classical to modernhttp://muslimlawprof.org/2008/04/12/the-veil-from-classical-to-modern.aspxIn order to understand the modern shari'a, and its considerable divergence from the classical world, perhaps better example exists than that of the veil.  The veil in the modern world as anyone who has been paying attention knows, is sort of the centerpiece of the Islamic revivalist movement, the symbol of Islamicity in our times.  There is almost nothing that is more important in the rising religiosity than the wearing of the veil.  Go to a Shi'a mosque in Ashura, the Imam will at some point urge the women who don't cover their heads outside the mosque to redouble their religiosity, to put on the veil, because this is what the martyred Hussein and his sister Zainab want to see, as devotion to their cause.  Head over to Australia, and the titular head of Australia's largest Islamic organization once compared unveiled women to "uncovered meat" and suggested an analogy between the sexual assault of said women to the attraction that flies have to uncovered meat.  Go to Iran or Saudi Arabia, and the veil is imposed by law.  Go to Basrah, Kerbala, Falluja, Sadr City, and it's enforced effectively by quasi-law. Look at the women in any Islamic party, and you'll be hard pressed to find unveiled woman.  It really is the essence of Islamic authenticity, which doesn't mean women can't be unveiled and religious (of course they can), but that these unveiled women are likely to be receiving comments in any Islamic gathering they go to respecting the importance of getting the veil on themselves sooner rather than later.

The irony being, go to the classical texts, and very little of this is present.  There are rules on all sorts of stuff, pages and pages on trades of this thing for that thing, or acquisition of slaves, or conduct of jihad, and no section called "women's dress."  That's not to say the classicists never thought of women, they did, but the general idea was that they should be "secluded", not veiled as we understand it.  Kept in homes or wherever, not seen publicly, not running around entering markets or engaging that extensively outside.  There's not a hard and fast rule about this--much of it is class driven.  Shafi'i for example distinguishes between the purer women in the home and, in language I see as dripping with contempt, refers to those who have defiled themselves by going out onto the street and engaging in common affairs.  But that's not really something he's describing as punishable, just undesirable and base.  And certainly neither he, nor any other classicist I can think of, develops a distinction solely on the basis of dress.

But in the modern world, so much of that has changed.  Yes there are remnants of the notion of seclusion certainly in much of the Muslim world.  The Taliban restrictions are reminiscent of this,throughout the Muslim world, certain places are regarded as inappropriate for women.  It's not hard to find markets from Pakistan to Falluja where you never see women, anywhere in sight.  But the burgeoning revivalism of our times is not based on such notions, clerics aren't out agitating for that.  Islamist women demonstrate, they organize, they form associations and unions, and the Islamists support that.  so long as they wear the veil.  Entry into society is no longer the problem, what you wear when you enter it, is.  Egyptian women sue in the Constitutional Court, not because they have to go to school, but because they can't cover their faces when they voluntarily go to college. The suit is precisely on the basis that public participation is a good thing. The premier Shi'a revivialist in Iraq, Muhammad Baqir al-Sadr, had a sister just as active as he was promoting the Islamic agenda among Iraq's women, Bint al-Huda was her name.  Probably the most well known woman's name in Iraq's south remains hers.  And she was certainly not secluded.

To be clear, no I'm not suggesting that Islamists have progressive views towards women, but I am suggesting that Islam has changed with the times.  Western influence, state requirements on education, political, social, economic necessities, tapping into a potentially huge resource of recruits that clearly Western influences were reaching, all of this led to very different notions of Islamicity as the previous century unfolded.  We were different, but not because you couldn't

The latter factor in particular can scarcely be gainsaid, MB Sadr (not the present dude) in the 1970's was watching his society's loyalty to its clerics disintegrate before him, he saw them growing less and less enthused with antiquated rules.  He saw the cultural encorachments of the West and Marxism. In shaking up Shi'a Islam to respond, the idea of engaging women who were previously ignored no doubt appeared attractive, no doubt his sister, born in these turbulent times, saw it this way as well, no doubt their own understandings of Islam's mulitfaceted and complex history and foundational texts, shaped in their own times, based upon the needs and necessities of those times, led to very different conclusions on the role of women in the ideal Muslim society than those of the clerical forebears.  And so with her brother's encouragement Bint al-Huda left her home and took to the streets, to lead an unprecedentedly powerful, public Islamic movment composed exclusively of women whose reverberations have lasted three decades now in Iraq and show no signs of abating.  

Though before walking out the door, she did put a veil on her head.  

HAH

]]>Iraq BlogsShari'a BlogsHaider Ala Hamoudi2008-04-12T11:51:10ZOn the pitfalls of the Islamic democracyhttp://muslimlawprof.org/2008/04/09/on-the-pitfalls-of-the-islamic-democracy.aspxI've heard the term "Islamic democracy" now for some time, and the more I hear it, the more harmful I start to think it is.  To understand why, I think we should ask ourselves, what is this Islamic democracy?  

Let's take Turkey, a commonly cited example of a successful Islamic democracy.  It is said that an Islamist party controls it, that these Islamists are committed democrats, and that they want EU integration (more than the secularists), and therefore here we have it, the proof of the virtues of Islamic democracy.  It brings EU integration and more liberalism!  What else can we want than this?

I actually like the Turkish party in power (AK), but why is AK Islamist?  It doesn't claim to be, its proposed constitutional amendments seem to embrace free exercise of religion American style, it has strong ties with Israel, it wants to remove the army from public life, or limit its role, it campaigns on being less corrupt than other parties, not more religious, it seeks freer and more open trade and it is committed to secularism in public affairs.  All of that is probably why it won,too.  Sure their members are religious in large part, sure that's their base, but we must need something more than this, or else the United States is a "Christian democracy" because both parties here profess faith far more than AK does.  Surely something in their platform has to be identifiably Islamist, and proposing allowing women to wear veils in college does not qualify--that's the position of the US Supreme Court.  But I can't find anything, save a few Islamophobic McCarthyites running around claiming there's a secret agenda nobody except them knows about that AK has and that it will spring upon us any day--a claim growing more ridiculous by the year, in my opinion and apparently in the opinion of the Turkish electorate too judging by their continued victories. 

So to me, Turkey seems to answer a different question, the one sort of considered by friends of the blog Andrew March and Mohammad Fadel, which is whether or not Islam is compatible with liberal democracy, or liberalism generally.  THAT question I understand, I am Muslim, can I also live,and be loyal to a liberal democracy, whether it be Turkey or the US?  This is important and serious, and deserving of consideration.  (Whether the question is a legal one or not, I think Professor March and I disagree, but that's 2-3 posts ago, and the comments thereto. I agree with him that the question is important to answer, for devout Muslims.)  

So the fact that the base of a profoundly liberal democratic party is religious should be sung from the mountaintops, but as proof that in the real world, there are lots of devout Muslims out there who believe, sincerely, in liberal democracy.  They like it, they embrace it, they find no contradiction between it and Islam, and they are fighting for more of it.  There's your story.

But Islamic democracy, that sounds different.  It seems to suggest there is something wrong with the regular democracy model that Turkey adopts (or at least that AK is pushing it towards), and what you need to do is make it "Islamic" to make it work with Islam.  And generally, that's done through some number of techniques.  On one side, there's Egypt, where the Constitutional Court can void legislation that is in conflict with sharia.  One another, there's Iran, where the democratic part is sort of folded into a larger whole that involves theocratic control of the state, so that Parliament's laws can not only be invalidated, but candidates can be stricken from lists, judges are selected without the Parliament's control, and any number of issues from foreign affairs to the army are controlled by unelected jurists.  Of course there are any number of permutations or combinations of these models.

The interesting thing though is that where in Turkey, the "Islamic" modifier seems misleading (it's a regular democracy with a lot of Muslims in it), in Iran or Egypt, the "Islamic" does not so much help describe the term "democracy" as qualify it.   In other words, there is democracy, it's a regular democracy, and then when you slip the "Islamic" part in, that's to place limitations, sometimes big,sometimes small, on the democratic process.  It's the undemocratic part of the phrase "Islamic democracy."

Compare to "constitutional democracy".  In that case, the constitution can limit the democratic process through judicial review of course, but the constitution also defines the democracy.  Who gets elected, what they do, how many terms they serve, any number of issues.  I'd say the same for "liberal" democracy, where the term may limit, but also defines the nature of the democracy in the state. 

Here there is no definition of the nature of the democracy itself--it's a Western adaptation.  The addition, the "Islamic" part, is to derogate from the democracy, to limit it and control it, not to help define what it is.   This becomes painfully obvious when you really try to take apart the Muslim Brotherhood chant "The Qur'an is our constitution."

Really?  Okay then, how many branches of government in the Qur'an?  which branch controls the military?  How long is the term of the state officials?  Two years?  Four years?  Is it bicameral?   The Qur'an is a Sacred Text, a Book I revere over all others, a guide, to me, on how to live my life in accordance with God's Will, but it is decidedly NOT a constitution.  It doesn't create, define, structure a government.  That's not its purpose.

So then here is the result.  All sorts of folks, Islamists to sympathetic Western scholars, go running around touting the virtues of the Islamic democracy.  Apparently Muslims in a regular democracy is not going to do it, we have to have an "Islamic" one.  And what emerges, in theory, is something that is basically a democracy, with a bunch of roadblocks, impediments, interferences, and that's the "Islamic" part.   This theory of course leaves Middle Eastern countries some justification to be profoundly undemocratic, because the theory runs (from Mubarak to Abdullah), if we democratize, these Islamic guys take over and they aren't democratic, because Islam limits democracy when it becomes "Islamic democracy". 

In the process, devout Muslims, sincere Muslims, believing Muslims, practicing Muslims who actually want a real democracy, are shunted aside.  When they're here (An Naim, Abou El Fadl), they're dismissed as far too Western influenced.  When they run a majority Muslim state (Turkey), they're told by Western intelligentsia they are "Islamic democrats" no matter how much they seek to deny it, and no matter how much their own electorate disagrees with that conclusion.  And this is our current state of affairs. 

Gee, no wonder Islam and democracy seem so irreconcilable to so many.  

HAH]]>Shari'a BlogsHaider Ala Hamoudi2008-04-09T08:43:27ZOn the nature of "Islamophobia"http://muslimlawprof.org/2008/04/05/on-the-nature-of-islamophobia.aspxRecently I've heard some discussion about whether or not the term "Islamophobia" is really the right term to address some of the rather disconcerting noises you hear from more unpleasant voices on the xenophobic right in the United States and Europe, and I thought the debate over the term is probably an apt place to try to take apart the phenomenon.

As for the history of it, I don't know but it seems like it was more or less adopted from the term "homophobia" to delegitimize something and equate it to other terms of bigotry.  The main objection to the term is that it seems to suggest opposition to an idea, similar to anti-communism, rather than a hatred of people, as racism or homophobia or anti-Semitism would be.  Generally, it's okay to oppose an idea, we're all anti-Nazi and I think more than a few don't mind being called anti-communist (or anti-IslamIST), but it's not okay to hate groups of people, the theory goes, so we should be changing the term to focus on the hatred of particular people.

All well and good, though thinking of it more now, I'm not quite sure it captures the idea that well to say focus on people, not beliefs.  That is, I'm guessing Geerts Wilder and Franklin Graham and Ann Coulter (though who knows with her) are quite sincere when they say they don't hate all Muslims.  For example those who abstain from practice entirely, like Salman Rushdie and Ayaan Hirsi Ali, are probably fine with them.  That's not really true of anti-Semitism, religiosity has nothing to do with it there. 

At the same time though, it's hardly the opposition to an ideology, as anti-communism is, and therefore not at all legitimate on those grounds.  There are a lot of people who take the Qur'an and the Prophet's Sunna very, very seriously, who consider it holy and sacred, and to suggest that ALL of these people, Islamists and secularists, deeply pious and more casual observing, Western born and not, are ALL necessarily in some way intolerant, enamored of war, secretly harboring hatreds of others, even if they haven't done anything to suggest this, is as obvious an act of prejudice and bigotry as can be imagined.  Islam is not an ideology, as communism is, it is a rich and vast religion, with some elements that are not only distasteful but horrible and deserving of the most strident criticism, and some of which imply nothing that anyone I know considers objectionable.  (I think if you had a problem with the way either of my grandmothers practiced Islam, for example, there would be a pretty big problem with you, not with them, not with Islam.)   It's just not possible to chalk up an ideology that defines itself as "against Islam" in all of the latter's complexity and multifacetedness as driven by anything but the types of paranoia, xenophobia, bigotry and hatred of the other that we in the West should abhor and denouce.

But I can't really say the Islamophobes hate everyone called a Muslim, I'm not sure that's true, when the issue of nonpracticing Muslims, or cultural Muslims or whatever comes up.  But they do hate Islam, and they hate the practice of Islam, in whatever form, in whatever capacity, in whatever manner.  And that's what we are supposed to be rejecting, and what we're trying to get at with the term.   So that, for example, I don't think it's inherently bigoted to say all too many Muslims accept violence against the other.  Or even all too many Muslims adopt interpretations of the Qur'an, based on certain verses, that make life in a liberal society impossible.  I'm not saying it's true, but we have to accept that position as legitimate, it's wrong to stifle debate like that.

But if you just say "the Qur'an stands for hatred and violence", and insist on that, and wish away any loving, caring, deeply sympathetic human beings who find sustenance and spiritual comfort in the Book, if you deny the very possibility that the Book can be so read, well then I'm sorry, but that is a position we have to put into the category of bigoted and entirely unacceptable and itself illiberal and intolerant.  That's I think what we're trying to capture--neither the hatred of anyone calling themselves a Muslim, nor the opposition to a particular ideology, but a fear and a hostility to a faith more complex and nuanced than this particular group of people will accept, which necessarily tarnishes anyone who takes it seriously.  And in that lies the illegitimacy.

Which makes me wonder if perhaps the term "Islamophobia" isn't the right one after all.   

HAH]]>Shari'a BlogsHaider Ala Hamoudi2008-04-05T23:50:46ZFour Critiques on Islamic law scholarship in law schoolshttp://muslimlawprof.org/2008/04/03/autosaved-44032-pm.aspx