Islamic Law In Our Times

Tolerance and Multiple Marriage

Haider Ala Hamoudi — Fri, 08 Mar 2013 16:18:55 GMT

I was reading last night through the leading commentary on Iraq's Personal Status Law, written decades ago by Dr. Ahmed Al Kubaisi in connection with an upcoming casebook on Islamic Law that I am coauthoring with Mark Cammack of Southwestern Law School. Therein, I found a most fascinating passage that I think reflects particular biases that are relevant in contemporary American discourse, specifically on the question of same sex marriage.

In the passage, Kubaisi is objecting to a provision of Iraq's Personal Status Code that grants to the judge the power to permit or deny a multiple marriage based on specified crtieria. Specifically, Kubaisi says:

Then many families will resent the judiciary interfering in their most private of affairs. Perhaps the wife has a problem that leads the husband to take another wife. Yet he is fair, and capable of supporting more than one. But he would disdain the fact that he or his wife would become the subject of inspection or investigation. So he accepts deprivation and oppression of his self to remain with his sole wife without purpose or profit, so induced rather than to go to the court and to disclose the secrets of his house. Hence the limitation of mulitple [marriages] in this manner or another results in interference of the judiciary in the right to contract, and the destruction of the human will of the man and the woman alike.

Now there is some implicit sexism in some of this, and I will return to that shortly, but I want to leave it aside for now, for the passage could well stand without it. For now, render the example that of a woman who wishes to take a second husband if you like. The point here is that Dr. Kubaisi is outraged by the idea that the state would dare to tell consenting adults who wish to form a multiple union that they are not permitted to do so unless they undertake some form of rigorous inspection. It is, to Dr. Kubaisi, a state restriction of a basic human freedom.

The connection to contemporary American debate is obvious enough. Opponents of same sex marriage have seized upon this, but in reverse, given the very different American biases. Aha, say Lindsey Graham and Rick Santorum. So you say that same sex marriage must be permitted because to do otherwise would restrict the rights of loving and consenting adults? Well what about plural marriage then? Why are we restricting the rights of three consenting adults to do what they will? What can justify such a thing?

Let me pause for a moment and leave aside other comparisons made by same sex marriage opponents to bestiality and to child molestation, for which distinctions of category are easy, and to which objection as comparison to my mind justifiably takes the form of outrage. Human beings can love animals, and vice versa. The love isn't comparable to the love two humans have for one another I would strongly maintain. And once we move into the rape of children, the matter devolves into offensive and despicable absurdity.

But not so with polygamy. I don't imagine Dr. Kubaisi would disagree with Lindsey Graham, he'd say of course three people who love each other should be able to form a union together. Tell him same sex marriage then, and he'll probably be about as flabbergasted as supporters of same sex marriage are when trying to distinguish polygamy. Usually, what emerges among American liberals is the reverse--a reflexive bias against polygamy that is more stated than defended.

Can you believe what Santorum said? He said polygamy is the same as same sex marriage! How offensive to homosexuals! Or Jon Stewart deriding this as being a "slippery slope argument" which ends in bestiality. All of this is based on an unspoken presumption, that somehow something is less legitimate about plural marriage than same sex marriage, and then less legitimate still are men and horses having sex. Hence, the "slope," meaning first they ban M-1 tanks, then they ban assault weapons, then they ban steak knives and we can't eat steak anymore. Each step follows from the last. Reverse the presumption, and the result is quite different. Replace the word "homosexuals" with the word "polygamists" in the first sentence of this paragraph, and I am sure you have Dr. Kubaisi's view (i.e. comparison of the two is offensive to the polygamists, not the homosexuals).

For my own part, it's hard to see why one or the other is any greater or lesser an expression of human love, perhaps because I have my own cultural biases. Like Dr. Kubaisi, I am a Muslim and an Iraqi and I have seen multiple unions, though admittedly in Iraq as a cultural matter there is a social stigma attached to them and they are deemed rather vulgar if legal, as marrying your first cousin would be in the United States. Like Rachel Maddow, I'm an American, and I've seen those loving unions too. I'm not at all interested in participating in either form of union myself, but I do wonder why we cannot tolerate both in our midst. When I hear American liberals therefore assault multiple marriage and defend gay marriage (and assault those who equate them), what I hear is a defense of some forms of bigotry, and an well articulated attack on other forms. As in, we're allowed to hate weirdos, but gays aren't weirdos, only polygamists are. And stop calling homosexuals "queer", that's offensive. It makes them sound like they're weird. They're not. It's the polygamists who are weird. All rather confounding to me as an expression of tolerance because of the unjustified limitations it imposes.

Having said that, some qualifications are in order. First, the sexism. I am certain that the late Dr. Kubaisi would feel quite differently about the freedom of contract as concerns multiple marriage if it was a woman who sought to marry two men. I imagine that would be no less offensive to his sensibilities than same sex marriage, perhaps even more so. And yet any distinction he makes based on the nature of men and women (I'm sure it would come down to that) could easily lead one to wonder precisely how strong Dr. Kubaisi's commitment to the "human freedoms" of men and women actually is.

In any event, here we do have an important categorical distinction that is based on sensible moral differentiation. We believe in equality of the genders, we do not believe in gender specific legislation, and hence we can immediately dismiss as not being remotely consistent with core American constitutional principles any sort of multiple marriage that is not equally granted to men and women. As Mitt Romney says, what is sauce for the goose is sauce for the gander. (If I might be permitted an aside, I barely understand this reference. What is gander sauce? And how does one even know the gender of the fowl they are consuming such they could even attempt a different sauce based on it? Very confusing.)

Connected to this, one might be able to argue that the ban on polygamy arises because of public interest concerns respecting the rights of women. That is to say, even if we were to write a gender neutral multiple marriage law, the reality is that overwhelmingly, the arrangements will involve one man, with several women. When we consider this, and its longer term social implications, we must give pause. I'll admit that for a long time, until somewhat recently, I've held to this view. And to some extent I continue to do so in places like the Middle East, where the state is weak and the position of women more vulnerable. I simply don't believe that many first wives in that situation consent to the second marriage, but they feel powerless to do anything, legal rights to deny or no. Women might have influence to block the second marriage, in fact often they do, but because of social stigmas against polygamy, described above, or because their own male family members will intercede on their behalf, not because of a court requirement. In this environment, much danger lurks in permissibility and it concerns me greatly, so much so I'd rather see no polygamy than tolerate consensual forms.

I'm not sure, however, that in the United States, this is necessarily a basis to prevent gender neutral consensual multiple marriage if we're going to start looking at these things as vindicating core principles of equality, as we do with same sex marriage. Surely we can do other things to protect women that would be, to use the Supreme Court's phrasing, more "narrowly tailored" to advance the compelling state interest of protecting women from mistreatment or abuse than to prevent all multiple marriages. I simply cannot see how one can deny, say, a third spouse a right to see a first spouse on the deathbed in the hospital because we are worried about other women in other unions being mistreated. Or I no longer see it that way I suppose. Or perhaps softer yet, can we at least have a conversation about it?

A final distinction is one of administrability. Surely there must be limits on the numbers of people in a marital union or the entire matter will devolve into farce. Surely some people deserve hospital rights that others don't and if one declares their entire village of 600 to be one big marital union, the system can no longer be administered because we cannot grant special hospital privileges to 600 people. One could deal with this partly through a clear standards on what we mean by marriage involving a shared life together. One cannot really be having a shared life with that many other people, many of whom they may never even have seen or met or know their names. But bright line rules are helpful, perhaps vital.

Again, however, there's no reason that two is a sensible bright line, it seems quite self evident that families share their lives together with more than two people in them. Absurd to suggest to anyone in a family of five that they only love one or two of their fellow immediate family members. So I suggest five members of a multiple marriage as presumptively valid, and perhaps 10 if shared life can be demonstrated. Hah, you say, five you derive from the Islamic rules permitting a man four wives, you've just adapted it to modernity. True, I will concede, but pray tell, where does your number of two come from?

I suppose in the end I don't dispute that values in modern American society are "heteronormative" as it were. But they are also "Christionormative" as well, and it's not clear to me why we can't talk at least about that too.

HAH

Rumi, Reason and Shi'ism

Haider Ala Hamoudi — Mon, 04 Mar 2013 15:43:54 GMT

I was reading my Arabic translation of Rumi’s Mathanwi over the weekend. (Admittedly, it is originally in Farsi, which should mean that English would do quite as well as Arabic, but for me, all respect to the Reynold Nicholson translation which I cannot judge not knowing Farsi, it’s not. Arabic is just a better language for poetry, with its multiplicity of overlapping words reflecting shadows and subtleties of meaning, even as English is a better word for law, with its clarity and straightforwardness.) Anyway, the whole thing is a series of rhyming couplets more or less, not really tied into some sort of entirely coherent narrative, though it does have recurring themes, one of which is the place of reason and knowledge, which Rumi quite obviously thinks of as having its limitations, in a broader Islamic world at the time that was far more enamored of reason as the means to know God and God’s Will than Rumi was. Hence, a telling passage is one that reads as follows:

Reason will say, as Gabriel has, “O Ahmad, if I take one step further, surely I will burn.”

So leave me, and advance. This is my limit—advance, captain of my soul, without me.

(Remember this is Farsi translated to Arabic translated to English so apologies for stylistic awkwardness). Reason to faith, as the angel Gabriel to the Prophet Muhammad (Ahmad is a reference to the Prophet Muhammad). Once the teacher, the one who guided and led and transmitted the Revelation, now the one who can go no further, who has to leave Ahmed to advance on his own, for reason brought him so far, and the rest is not for the angels, but for men. I always found something rather beautiful in this passage, something resembling Kierkegaard’s Leap, though not precisely the same (reason, after all, begins the inquiry which gets Muhammad far enough to advance on his own).

Yet I thought this was worth mentioning in this morning’s post, because it is quite evident that orthodox Usuli Shi’ism as it is taught in the seminaries of Najaf and Qum alike would read a passage like this quite differently. (If they bothered to read it at all. I get no sense that anyone in Najaf thinks or cares about Rumi. He is a figure of some pride in Iran, however, though probably not Qom. Still, even Ahmadinijad sings his praises, so who knows. I don’t spend my time in these places asking them about Sufi saints, I figure it’s not likely to get me much by way of useful information.) In contemporary Shi’i dogmatic renditions, reason likewise has a limited role, but quite a different one, and the angel leaving the Prophet would be a metaphor to invoke a very different type of departure demanded of each believer.

Reason for the jurists, essentially, brings one to Islam, and specifically Shi’i Islam. If you sit down and think about it, the theory runs, if you just apply neutral reason, free of bias and uncontaminated by circumstance, you will see that there must be a God, that Islam is the religion of his Revelation, and that Shi’ism is the correct, true path within Islam. Leave aside the politicized rhetoric about how our Sunnis are our brothers, nay, extensions of ourselves, and get clerics (not the highest jurists, hard to get them to speak with such specificity for very long) to start discussing specifically theology, and this becomes very obvious, very quickly. Why does the West think we Muslims are all terrorists? They are equating Islam with its deviant branches, let them look to Shi’ism and they will be disabused of this. And so forth.

Now I do find this ironic on so many levels. This uncontaminated reason is itself contaminated, borrowed quite extensively from Aristotle, for one thing. But I’m not a jurist, just an academic, so no reason to dwell on that. Anyway, once you get this far as a believer, reason generally disappears under the theory. That is to say, you accept Revelation, you accept Shi’ism, you accept the role of the jurists in expounding doctrine, and here, you really have to drop reason. Now you more or less have to listen to what the jurist has to say. Not because he can deploy reason better than you to expound on legal rules—reason is in theory the fourth source of law in Shi’i Islam, but it is a source more honored in the breach than the observance.

So you don’t trust the jurist because he can reason better than you can. You trust him because he has studied where you haven’t. He has learned the source material, and the means and methods, and he can deploy those methods even as a doctor can deploy her methods to remove a tumor from your body. Not because of reason, but because they know things you don’t. I don’t mean they are claiming to be nothing more than efficient automatons, obviously you have to use considerable intelligence to unearth a legal rule, even as, say, a navigator must use intelligence to find their way with a sexton across the ocean based on the positions of the stars and nobody wants an idiot removing a malignant tumor. It takes skill and a sharp mind of course. It doesn’t take open ended “reason.” Your intelligence is deployed not to construct a legal rule when the material seems to offer two potential answers, your intelligence is deployed to find the one proper and correct rule based on the methods and means that are authorized. And then you follow that rule even if it seems “unreasonable”. Just as you consent to a dude with a white coat saying they are going to split your belly open and take something out, not because it sounds reasonable, but because you know the doctor understands things you don’t. (The dominant metaphor I’ve heard in Najaf and Qum alike delivered to us layfolk is always the doctor.) So even as “Gabriel” leaves “Ahmad” because to continue to insist on reason would land Gabriel in the fire, so reason must submit to the protectors of the doctrine who will tell you what’s best.

Lots of ways to read Rumi I suppose, though I’ll stick with mine. Makes something magnificent of Faith, I think.

HAH

Qaradawi on Economics and Politics

Haider Ala Hamoudi — Tue, 26 Feb 2013 16:19:12 GMT

I have been derelict in posting, I realize, with more than two months passing since my last post. My wife and I had our first child about 40 days ago, and it's been busy, hence the delay. Should be better henceforth, though perhaps not like the childless days of yore, when I could post several times in a day if I wanted.

In any event, last night I was flipping through the Arabic channels and happened upon Sheikh Yusuf Qaradawi on Al Jazeera and thought I'd give it a listen. I do this often enough, and as usual he was his maddeningly vague self, pretending to take strong positions while making it nearly impossible to understand the categories he had managed to create while doing so. Normally I tend to ignore this, as it is hardly worth writing on. But I've been away, and last night was a little more interesting than most if not exactly newsworthy, and so I thought the matter was ripe for a few observations.

First, I really wish our reporters in the Arab and Muslim world would stop treating jurists and clerics with kid gloves, acting so deferential around them in a manner that they would not before a head of state, for example. I do not mean engaging in a debate on first principles--if you are watching Yusuf Qaradawi you aren't doing so to hear him respond to someone who claims there is no God or that Muhammad was not the Apostle, any more than you watch the President to hear a defense of constitutional government--but when he takes a position, the reporter point out previous inconsistencies, ask why it is that some jurists seem to disagree, suggest it is entirely unworkable, something other than just moving to the next question. I get that just about everyone seems to have a satellite tv station these days and so I get that when Kurdsat interviews Jalal Talabani, or Furat interviews Ammar Al Hakim, they are going to be more political ad than they are interview, but this is Al Jazeera, not some wing of some political party. It is the largest and most popular satellite station in the Arab world, and they have decent journalists. Ask some questions. An example from last night expounded:

Interviewer: Honorable Sheikh [that sounds deferential, but really it's more of an honorific, like "Mr. President"], it is said that the definition of a modern state is one that holds a monopoly on violence, and our ulema have said over the ages that fitna and civil war are sinful and worse than decades of oppression.  What is your opinion then of armed opposition in Muslim states like Syria.

I am paraphrasing, but that was more or less the question, and actually I like it. Never thought I'd see Ibn Taymiyya and Max Weber used in the same question but it's nice, it works here.

Qaradawi: The state holds a monopoly on violence why? So that it can pursue criminals, and bandits! So that it can make people safe! But if it uses that violence to oppress the people, to prevent them from speaking out, so that they are afraid to say anything, because someone from the security services might be watching, if it uses violence to kill innocent people, then of course armed resistance becomes necessary because Islam demands justice and fairness, and the establishment of the scales of justice.

Then we move on, though I could think of about a dozen follow ups to this one. Here are a few:

Doesn't every armed resistance group suggest that it is fighting a regime that uses violence to oppress its people? So how do we distinguish the just state fighting bandits and terrorists and seeking to provide security from the one oppressing its people? What are the standards? In which of the following countries is armed resistance permissible and why? Iraq Iran Egypt Qatar Morocco Jordan. Are you disclaiming Ibn Taymiyya's theory that sixty years of unjust rule is better than a day of fitna? Hasn't there been quite a bit of fitna in Syria now? Didn't you just quote him in the context of Bahrain not long ago?

Alas, but we're stuck with these ill defined abstractions that pass for ideas until someone decides to push these guys, and these guys feel the need to get out into particular fora and get pushed.

Second,  I found it interesting that though the interviewer had no questions really on economics, Qaradawi kept returning to it as a theme. Hence, for example, on a question about politics and Islamist movements, he delved into how the goal of "American capitalism" is about trying to corner the entire market for onesself to make millions and billions, while in Islam, it is about sharing, and cooperation to build and network and establish products and services that serve people. On a question about different types of Islamism that exist, the diatribe ended up being somehow something about how in the US agriculture conglomerates "toss their seeds and their wheat" into the sea to prevent them from being sold at a cheap price, and Islam rejects this, it does not allow one to make money in this manner that robs the poor of their ability to buy bread.

To be clear, it's not interesting because it shows particularly much about economics, obviously it is simplistic nonsense hardly worth dissecting at length. Most business owners I think would tell you that their efforts to increase market share are precisely about servicing the consumer, as there is no other way to do it. That might not be true in many instances, and in many cases the whole market could fail entirely, though then the distinction between "Islam" and "capitalism" would need to be far more refined than whatever it is Qaradawi is saying it is.

Nor is it interesting because it shows profound ignorance about economics. It does, but there are Islamic economists who are more sophisticated than this many times over. Qaradawi's failure to understand economics cannot be fairly attributed to every single person who thinks in terms of Islamic economics in modernity.

Rather, it is interesting because it reveals a worldview, a stubborn and persistent one that has existed since Qutb and Sadr and Maududi began propounding it half a century ago--that Islam in its economic and social arrangements is more equitable, fairer, more cooperative and more attuned to the demands of social justice than, to borrow Qaradawi's words again, "American capitalism." I'll only point out that so long as this remains the worldview, and is propounded by senior clerics even when not asked about it, on Arab wide satellite television, Islamic finance will continue to disappoint, as its methodology is hardly based on any of that, but instead on mimicking the methods of "American capitalism" while avoiding only its forms.

Third, it is surprising to me how much of mainstream Islamism continues to depend, as not a few forms of Marxism did before it, on the idea that when the proper society is established and put in place, all will be well because human beings will magically change from the selfish, wealth-maximizing, deceptive folks they are now to alms-giving, cooperative, sharing and honest people they will be under "true Islam."  Requring this presumption is usually a bad sign about the viability of a given set of ideas, because people don't change all that much all that quickly.

So I don't really know what Qaradawi is talking about when he mentions selfish American capitalists dumping wheat in the ocean rather than giving it to the poor, as it makes no sense to me why a person who cares about profit and not a thing else would go through the time and expense of producing wheat, and then dumping it into the ocean. They could have just grown tobacco, or hops, or leased the land to a local brothel (remember, I'm assuming amoral folks out for the best buck) instead of grown wheat to throw away. I suppose if there was a farm subsidy for growing wheat, it's very possible, but that's not a problem of laissez faire capitalism, that's a demonstration of why the government shouldn't be intervening in markets.

But I'll attempt to make sense out of all that he says and assume that the seeds he talks of being thrown into the ocean are patented, and that some bad evil corporation acting as only an "American capitalist" would, sells the seeds it can and destroys the rest even though it could just give them to poor Egyptian farmers. This parallels the issue that arises with patented antivirals for HIV that arose a few years back and one can certainly see why poor Egyptian farmers would be upset. And it has arisen I believe, though I'm not sure the seeds are actually destroyed, much less thrown into the ocean, but now I'm being a bit churlish I suppose.

Anyway, there is a problem, though it isn't really solved by just making the corporation give the seeds away at low prices. They are going to argue that they spent a fortune developing these seeds and they do need to recoup their profits somehow. Ignoring their patent is bad for future seed innovation. You could still just grab their seeds and pass them out to the poor. You could grab the wheat that was to be thrown into the ocean and sell it. Heck you could make them sell it at lower prices and start lashing them if they don't, as was done in the Mamluk era. Or you could just raid their piggy bank, take all their money and pass it out to the poor and liquidate the bread selling/seed selling/wheat producing industries. All of these forms of forced wealth transfer might make you feel good. None solve your actual problem. Generally they make it worse.

But there are poor Egyptian farmers who could really use the seeds and those of us who care for the poor aren't willing to wash our hands of it, any more than we should be willing to ignore those desperately in need of HIV antivirals. So give a few away? Set up a program where some UN body gives some number away, exclusively to poor countries, exclusively to people who couldn't otherwise afford it? I don't know the solution, let me say it's vastly improved with AIDS drugs, so there are paths. We can talk about it and give attention to it, we can call the corporation to task for not cooperating more, we can call international bodies to task for not caring more, there's much to criticize here and much to demand.

What I don't think we can do is simply say that in Islam it would be better because in Islam everyone would know it is a sin to leave land fallow, or not to give away extra wheat when you have it, or to hold on to patented seeds, and so people would conduct themselves differently. That seems to assume a certain selflessness on the part of people working in corporations in the true Islamic society, a concern for an Egyptian peasant that is as great as their concern for the Ivy League education of their own children. I don't know any people like that. In the liberal law school professoriate among folks genuinely interested in the poor and more than willing to jump on any bandwagon that castigates Wall Street greed, I still don't know people who in their conduct put the needs of the poor above the need to cover their kids' college education tuition.  And I tend to think good economic policy tends to assume people will stay that way, and finds solution that don't depend on their changing fundamentally in order to create a better world.

There were other examples of this continuing problem in the talk--when the interviewer asked whether or not some of the Islamist candidates were justified in perhaps truth stretching in their ads because it was so commonly done that unless they did it, they'd surely lose, Qaradawi tells us this is only a problem in the West, with its lack of concern for truth, but true Islamic societies would consider adherence to truth as core virtrue and fail to depart from it. This is naive. Muslim brothers jailed for decades at their first real opportunity to taste power are going to find a way to justify an ad that takes maybe just a little bit of license if that's what they need to do to get power. And once you take that step, others come soon enough. That's not to say one cannot regulate campaign ads, it is to say that the regulation cannot come on the basis of the assumption that declaring lying to be sinful is going to do very much to achieve it.

Anyway, that's enough for one Qaradawi interview. Good to be back,

HAH

Great New Book on Islamic Law in the Mamluk Era by Kristen Stilt

Haider Ala Hamoudi — Fri, 21 Dec 2012 19:44:36 GMT

The book is probably a year old by now, but as with academic book reviews generally, mine is delayed, and doesn't come out for a few months yet. But my review, which points out considerable areas of strength and things I find foibles is here. Overall really interesting consideration of exactly how the Mamluks managed to apply, manipulate, evaluate shari'a during the period they controlled Egypt.

I also think it helps to put to rest some of the silly romanticism that often arises respecting the historic conduct of Islamic states. If anything, I think Kristen was a little too soft on the Mamluks, as the review makes clear. Their use of religious rules was designed to ensure existing social stratifications, and their official charged with "enjoining virtue and forbidding sin" was really nothing more than a glorified rent seeker, utterly despicable fellow I think. Oh, and their treatment of religious minorities was "tolerant" only if your prevailing standard is the Inquisition. By any modern standard, they were appalling. Not fair to judge earlier civilizations by modernity's values really, though it is important to bust up historical myths wherever they appear.

Read the book. No, first read the review. Then read the book.

HAH

A Problem of Overselling: Realistic Expectations and Islamic Finance

Haider Ala Hamoudi — Fri, 23 Nov 2012 13:12:39 GMT

I realize I have been derelict in my posts and that nearly two months have passed since my previous post. Incredible personal and professional obligations elsewhere have kept me occupied, unfortunately. (None bad, most quite good--all very time consuming). I should be a little better positioned now.

Last week I was at an Islamic Finance Conference in Sarajevo where I heard a very interesting comment from my friend, colleague and waterpipe smoking buddy Mehmet Asutay (you have drinking buddies, we have shisha buddies . . . .) Professor Asutay is really a leading voice on some of the failures of Islamic finance to develop what he describes as a "moral economy" in his persuasive writing on the subject (see his SSRN page with his substantial scholarship here).

One of the most interesting comments from him arose from recent findings from a study he led regarded expectations of the Muslim community on the conduct of Islamic banks. When you ask them how they want the banks to behave, they say the bank should forgive more loans, it should foreclose less often, it should bear some of the losses when the borrower must bear them, it must be, overall, more concerned with the community, with morality and distributive justice and less obsessed with profit over all else. Homo Islamicus, as Professor Asutay would describe it. Then ask the consumer the return they want on their deposits from that Islamic bank, and it's perfectly clear--the same thing as conventional banks, and they'll pull their money if the returns are noticeably lower. Homo economicus.

Now when he presented this really interesting finding, there were noticeable chuckles in the audience, from many, including myself. It's easy to see why, the whole notion is preposterous. Precisely where is the bank supposed to get the money from to pay those competitive rates if it's off forgiving loans and sharing losses? The math clearly won't add up, the Muslim consumer is running a politician's budget--I'll you give you all this stuff and cut your taxes. And then I'll yell and scream about how bad deficits are later. All true, all salient if one wants to figure out how to fix an industry so many of us regard as flawed.

But on another level, just like the American voter, it's not clear that the Muslim consumer is herself the sole source of blame, as it's not like she's ever really been levelled with, talked to with some level of maturity. If one looks at the early works on Islamic economics--MB Sadr, Maududi, Qutb--infected throughout the work is an insistence that Islamic economics is not only more socially just, but also that it is more efficient. In an interest based economy, the theory goes, capital goes to enterprises that won't reap the best returns, because the lender doesn't care how successful the enterprise is given their fixed return. Interest based economies, the theory runs, lead to vast disparities of wealth and thus result in productivity losses as the owners of the capital grow fat and lazy, and the workers surivive on subsistence and hardly develop entrepeneurial skills. And so on. You read this, and it seems reasonable to think you can have it all--social justice and higher returns all at once.

Now of course before someone starts shouting at their computer screen I will admit that it would be absurd to suggest that any Islamic bank in the world actually buys into everything the earliest thinkers on the subject were saying, and in particular this quasi Marxist stuff on owners of capital and the like. (And to be clear, I'm not criticizing the early folks either they did not have the benefit of our hindsight). But proponents and leaders in Islamic finance from Usmani to Chapra do make the simultaneous claim that Islamic finance can be more productive than conventional finance and at the same time that it is fairer, with obvious deviations on the fairness principle often being dismissed as compromises to necessity in an interest based world. Hence both the self congratulation on avoiding the financial crisis, and the insistence that doing so was driven out of concerns for fairness (avoiding exploitative gain) and prudence (avoiding gambling). (Completely wrong, as I've posted before). The conventional bank is thus not only riskier, but also less fair. You can still have it all or would be able to if only our methods became more broadly accepted. So goes the claim.

So is it a surprise to me when the Muslim consumer wants the same returns as a conventional bank, but a practice grounded in a moral economy and less obsessed with profit? Not at all, it's what's been sold by the industry all too often. A more honest approach would be to inform the Muslim consumer that at some level and to some extent, there is a zero sum game at work here. Some methods of financings might prove more efficient than others, who knows, but at the end of the day, there's a tradeoff to be made. Either the industry mimics conventional finance, as it does now, and offers the same return and subjects itself to the same risk exposure in the process, using only differences in form to achieve the result, or it actually does do something different, something actually concerned with social justice, or the development of a moral economy, or the redistribution of wealth. But if it does that, then the money has to come from somewhere, and that somewhere are going to be the depositors, who will have to live with lower returns. That's the choice, it's the choice now, it was the choice when the practice started to bloom about 3-4 decades ago, and it will be the choice 3-4 decades hence given the economic realities of the globe. So pick your poison, as the shisha guy tells us. Rather sad when the guy selling me apple tobacco seems more direct and forthright than the guy trying to sell me an Islamic mortgage.

HAH

What the NFL's Replacement Referees Have to Do with Islamic Law

Haider Ala Hamoudi — Thu, 27 Sep 2012 03:28:56 GMT

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

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

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

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

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

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

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

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

HAH

Are Salafists "Literalists"?

Haider Ala Hamoudi — Thu, 20 Sep 2012 18:00:21 GMT

I heard an interesting report this morning by Leila Fadel on National Public Radio describing the Ansar al-Shari'a crazies in Libya who at least appear to endorse the killing of Ambassador Stevens as adhering to "the most literalist interpretations of Islam." The two examples given were that they don't allow any public intermingling of the sexes anywhere and reject all Western influences. I think that's the accurate quote, it is substantially correct, it was radio so cannot guarantee "literal" accuracy, as it were.

As to the claim the statement is making, it's wrong. Sorry, but flatly wrong. For a prohibition on intermingling of the sexes in any context to be "literalist", it would mean that there is a Qur'anic verse or Prophetic statement out there indicating "Thou shalt not publicly intermingle with members of the opposite sex under any circumstances." But there's not. What there is, is a Prophetic statement that when a man and a woman are secluded together, Satan becomes the third. And from this, one might be able to suggest that prohibiting intermingling is a means to cut off the possibility of such seclusion, and hence must be implemented in the truly virtuous society. Whatever that is, it isn't "literalist."

And similarly, to be "literalist", a shunning of Western influences, whatever that means (do they use forks? or toilets? or wristwatches?), would require Revelation to declare "Thou shalt shun all influences from the West." Which of course it does not, and could not, as nobody much thought of the West or post colonial influences on the House of Islam during the Prophet's lifetime--again one must take verses and utterances and analogize to reach such conclusions. Nothing "literal" about it.

And of course Salafists are not the same as these Ansar types obviously, but they aren't literalist either. It's not "literalist" to say that one must practice Islam as practiced by those in the two generations following the Prophet, as the Salafists do. It requires a presumption, that the interpretations of those who existed in the generations immediately succeeding the Prophet are more genuine or more accurate than ours would be, reading the same text and interpreting it as we might. It is an interpretive preference, but absolutely not a literal one.

Whenever the strictest, most austere and (in the case of the Ansar) the most violence prone are described as "literalist", it creates an assumption, not spoken but perfectly obvious, that the Qur'an and the Sunna are generally strict and austere and prone to violence, and that to the extent that there are "moderate" Muslims, it is because they have taken liberties with the text. I see no particular need to confer a priori such high levels of legitimacy to the austere conservatives in such a skewed fashion. They'll interpret verses, and my friend Abdullahi An Naim will interpret verses and we'll have our normative debate. But nobody's a "literalist". It's all religious construction of core text.

HAH

Enough Already. On the "Innocence of Muslims."

Haider Ala Hamoudi — Thu, 13 Sep 2012 16:20:26 GMT

So I'm going to say something that might get me in some trouble with a few of my fellow Muslims, but nonetheless, needs to be said.

Yes this 14 minute Innocence of Muslims trailer is designed to provoke Muslims, yes it takes every lie and fabrication about Islam and the Holy Prophet (SAWA) that can be imagined and condenses it into a 14 minute video, yes it is hurtful and offensive, not to mention obscene and ridiculous. What so many Muslim authorities have pointed out over the past several days is true I do not dispute it.

But it's also a fourteen minute video shot by a guy whose name we don't know on a budget that doesn't really look like it could have been more than $50 involving no actors from the Actors Guild some of whom were apparently deceived, shown by no movie theater and posted on YouTube.

To go on, the claim that it was shown at a theater in Hollywood does not seem credible, no theater claims as much. No actual full movie has appeared. If $5million was raised for this thing as was claimed I'm rather happy because $5 million was burned pretty badly if this is all the hatemongers could manage with it. Its defenders are really on the lunatic fringe of US society--a guy who doesn't give his name, two other guys who claim to know him and distribute fliers against mosques at high schools and yet say the director cannot use his name because he'd be killed (but you're using your names. And distributing flyers on the street near mosques. Go figure) and a Copt who has earned a vigorous denunciation from his own church in Cairo.

As Muslims, we can't go on like this. I don't mean we can't use violence like this when the Prophet is insulted, that's so obvious I don't see how any civilized person can dispute it and the overwhelming response from reputed clerics across the Muslim world has been to denounce the violence, of course, as a result. Again, too obvious to even debate.

I mean we can't go on CARING about nonsense like this. I'm happy the Southern Poverty Law Center follows the loons around and makes sure none are dangerous, we should support them financially and morally. I'm perfectly happy to raise my voice when Huma Abedin is attacked by members of Congress and to say and do something, or to ask Hollywood to offer more positive portrayals of Islam and Muslims than it is doing.

But this is some idiot and his idiot buddies with a couple of bucks in their pockets filming a video and putting it up on Youtube. We can't get sidetracked by this sort of thing, can't let it sting us or hurt us, have to realize the big big hyperconnected globalized world is going to have wackos in it, and in our times, they're going to be able to do this no matter what we think. It's just the way it is in our times. I won't insult my Prophet by imagining him so insecure that he'd rather have me take time out of my day to defend him against meretricious nonsense like this than doing what it is I do.

Time not to obsess over it. Time to move on.

HAH

More Iraq Media Bias

Haider Ala Hamoudi — Mon, 10 Sep 2012 14:35:52 GMT

My sporadic posts are due to my desire to get this bloody Iraq constitution book that has been the center of my professional existence for a couple of years now out of my hands and over to the publisher, but today, I could not help but comment.

I'm sort of seeing this very interesting cycle when it comes to Iraq news since the US withdrawal that really bears mention. The first part of it is a broadly held assumption, that the state cannot possibly survive in its current form without large numbers of American troops there to support it.   Hence as the US withdrawal neared, all my articles, and encyclopedia entries and manuscripts and even opeds that were still under edit, came back with an editor wondering if all of my thoughts might prove obsolete in X days, when the US withdraws from Iraq. Honestly a number of pieces were held up for weeks out of certainty by one publisher or another that everything I write is about to be ripped apart by an imminent civil war once the US leaves.

And, with that assumption, step one of the cycle begins. Something happens, arrest warrant against Hashimi, attempt to dismiss the Finance Minister, whatever. And the media crawls everywhere over it. This is it, it's over, the whole thing is coming apart, Bush's grand experiment falling to pieces, the theory runs. Sectarian tensions are at an all time high, there's violence everywhere, Lebanon civil war about to hit Iraq, and so on.

Then, step two, nothing. I mean some things, complaints about bad electricity, or bad government, or a call for a conference on national reconciliation, or how about the fact that Maliki couldn't even fire his own Sunni Minister because the Sadrists wouldn't allow it, but beyond that, not much of anything.   So it goes unreported. Your average US reader tends to forget.

Then, another blow up is usually step three.   Which really is just step one all over again. For example, provinces that are Sunni dominated demand autonomy, or something. Sectarian tension we are told returns to all time high. No US troops we are told can save the day anymore. Civil war, we are told, is imminent.

Then back to nothing. And again when nothing, there's no report. and so it repeats.

I noticed it this morning when three different colleagues came to my office and asked if this was it, whether Iraq was finally entering its civil war phase which has been imminent apparently for I don't know four years now (long period of imminence), because of the death sentence issued against Tariq Al Hashimi. And what that might mean for the Iraq constitution. My reaction, it's worth a footnote.

This past summer in Baghdad was the most normal I've seen it since 2004. Stores open late, checkpoints reduced, fish restaurants on the Tigris chock full again, violence comparably low, and now talk of a breaking point?

Why? Because of a death sentence of a guy who has now been out of the country for so long the only person even the New York Times could find to interview to denounce the sentence was a minor Sunni tribal leader? Not Rafi Essawi, not Iyad Allawi, not Saleh Mutlaq, not the political leaders in Baghdad, but a random tribal leader? Really? It's a crisis when Obama does something and the highest profile Republican who denounces it is a state legislator from Iowa? Run a Google news search on "Ayad Allawi" in English or Arabic and the recent news is of a press conference he gave before this whole thing came about, not this. Iraqiya did denounce the verdict as "political" and a "deviation from justice" in a memo. Really, when you're fighting mad, you don't go off issuing memos describing things as "deviations", you get up on TV and start shouting. Especially we Arabs, we do that even when there isn't a crisis.

To me, the more profound thing about the Hashimi death sentence which is really permanent exile since he is in Turkey and everyone knows the Turks won't turn him over, is how powerfully easy it is to sideline a political opponent through exile. I realize the Shi'a almost universally think the man is guilty of terrorist acts even as Sunnis don't, but taking the Sunni story for a second, all Maliki had to do was effectively throw him out of the country, and fairly quickly they become irrelevant to the internal debate. Nobody's paying attention anymore. That's a disturbing lesson, one far more relevant to the current dealings in Iraq than another iteration of the "cycle".

I suppose the cycle is inevitable, to me progress is that there are these amusement park/playground things that run all day in Baghdad during religious holidays for kids that are crowded when years ago nobody hung out in such crowds, and I guess that's not news, it's kids riding a roller coaster. Hashimi's death sentence is, however, news. But still, it is so terribly distorting. If I acknowledge that the Prime Minister has taken actions that are disturbing to sideline opponents (if not this case, there are others), if I acknowledge a corrupt and very poorly functioning government that frustrates its citizens on a daily basis, if I acknowledge that sectarian tensions do exist, and that they are potentially destabilizing, and if I proclaim the broad need for dramatic economic redevelopment on a broad scale, and even if I say that all of this could cause serious problems if allowed to fester forever, can I ask that others maybe meet me one eighth of the way to admit that life in Iraq is not in a perpetual state of imminent widespread humanitarian slaughter, that there is sufficient capacity in the system for it to be handle at least modest crises that might erupt from time to time?

Perhaps too unrealistic. Oh well. I shall wait the next revolution of the imminent civil war merry go around I suppose . . .

HAH

Similar Horizons, Unified Horizons and Other Transcendental Nonsense

Haider Ala Hamoudi — Thu, 23 Aug 2012 15:21:31 GMT

As readers of this blog are no doubt aware, I am rather sympathetic to the religious institutions of Najaf at times, and do consider them a positive force for the most part in Iraq's developing legal and political architecture. That sympathy is not without its qualifications or limitations, of course, no thinking person's support should ever be so unqualified, but in general, I have found their interventions into state affairs limited, salutary and non-divisive.

I thought I should reaffirm that before describing what I might describe as a less appealing side of Shi'i religious theory for one committed to the life of the mind, an aspect that is perhaps shared by religious orthodoxies everywhere, but is reinforced with some strength by core Shi'i theological tenets. Basically, I think Najaf suffers, and the high scholars of Najaf especially suffer, and the most learned of the Shi'i high scholars of Najaf above all suffers, from a general absence of true critical thought that prevails in the city. Essentially, they don't much engage with people who think they are wrong. If you are a good believer, Shi'ism in its modern manifestation demands of you that you follow the rules your high scholar lays out without question--to even ask the question respecting the wisdom of a rule is to risk appearing somehow less than sound in faith--to suggest you don't know you are speaking to the Imam's viceregent in the Imam's absence, and to not know that to die without knowing the Imam of the age is to die in a state of ignorance. So follow, don't argue.

Then on the flip side everyone else who rejects the whole Najaf religio-institutional structure is usually ignored, no real reason seen to engage them. And as for those who really seek out the high scholars to explain why they think what they do in contrast to what the high scholars say, who have considerable affinity to Shi'ism but also some heterodox views and reform minded ideas. They're usually shunned, Fadlallah was given the cold shoulder by the Najaf jurists, even more heterodox people like Abdul Aziz Sachedina are told not to spread their deviant views on Islam.

And the result when you never get to deal with people who think you are wrong, when you never get properly questioned and hammered on where your idea comes from, is that your thinking grows flaccid, weak, filled with logical errors, nonsequiturs, and unsustainable propositions. I've pointed out cloudy expressions in juristic rules in this blog before. But with the recent flap over the new moon sighting to declare an end to the Holy Month of Ramadan, the sloppy reasoning grew to such heights something really has to be said.

For those unaware, even within the Shi'i community, there was a split over the proper day that the new lunar month began a few days ago to signal Ramadan's end. Sistani said Monday, but others held to a moonsighting interpretation that rendered it Sunday. Let's leave aside the latter for now, and focus on Sistani's Monday, because really, upon the slightest level of introspection, the logic of his position falls completely apart.

As Sistani would have it, there is no such thing as 'unity of the horizons' when you are trying to see the moon to declare a new month, what in Arabic would be referred to as وحدة الآفاق What this means is that just because some guy somewhere else saw the moon and will therefore declare a new month doesn't mean you do too in your place. For the late Ayatollah Khu'i, Najaf's last senior cleric, that's exactly what it means, but for Sistani, no unity of the horizons, the place where the moon was seen must be in the same "horizon" or it doesn't count. So the new month starts in different places at different times. You saw a new moon, Brazilians? Good for you, but in Najaf we didn't, you are not "in our horizon" and so therefore it might be the end of Ramadan for you, but not for us. So far, so good.

Except it raises a question to anyone who thinks about it for two seconds. Now Najaf's folks aren't dumb by any means, quite the opposite. They're just unchallenged on critical points, and so they can think this far easily--to the obvious question this analysis begs and pretend to answer it at least. The question of course being "unity of horizons, what does that mean?" and here's where it gets funny. X and Y share a horizon, Sistani tells us, if the moon appeared in place X, and there is a reasonable conclusion that could be drawn that it should have been seen in place Y but didn't perhaps because conditions weren't ideal. What that has to do with a "horizon" I really don't understand, but okay. Except it's not really workable.

The problem? Go to moonsighting.com, and it's perfectly obvious that when and where a moon can be seen is going to differ each and every month. This past month, to mark the month following Ramadan, it would have been visible in ideal conditions in Miami, but not Tallahassee. So are those two not "in the same horizon"? If you scroll around that website you'll find that the new moon appears by sight in Tallahassee and Miami at the same time almost all of the time, this was an exception. So are they usually "in the same horizon"? Or do we go by the mean of the past five years? Suddenly the definition of the "same horizon" is losing sense, or needs some precision.

Now what you'll be told to this is 'dummy, we don't believe in following the astronomical charts, we have to SEE the moon, so forget what is and isn't visible to the naked eye as an astronomical matter.' This isn't a Luddite rejection of astronomy to be clear, the high scholar is not rejecting astronomy, he is merely indifferent to the declaration of a new moon astronomically. In other words, he's just saying by Islamic standards it isn't called a new moon even if it meets some scientific definition he isn't interested in. He wants to say the same thing for "in the same horizon".

The problem is, he can't do that logically and sensibly, it HAS to be the astronomical charts, it HAS to be science that gives you the answer of where one may assume a moon might be seen. Because if the question is whether or not it is possible to see the moon in place X if seen in place Y, or whether it is reasonable so to conclude, you are necessarily asking an empirical question, and it can only be answered scientifically, by an astronomy chart. There is no other way to answer it. You can answer "is there a new moon" one way by astronomical standards and one way by religious standards depending on what you mean by new moon. (i.e visible with telescope? By naked eye? By naked eye if you located it first on telescope? Etc.) But "visible in place X if it should have been visible in place Y" is purely empirical, you just need to measure, and those who do will tell you it depends month to month.

Unless you want to use an astronomical chart, you aren't asking an answerable question when you are asking if two places 'share a horizon'. And we know they don't want to use the astronomical chart, the results are preposterous. "This year, Tallahassee and Miami celebrate different Eids." Can you imagine? So what happens?

So far as I can tell, they just sort of make it up. Najaf and Bahrain are in the same horizon, Sistani declares. So are Teheran and Mashad. It really doesn't mean anything other than "kinda close together". And because you couldn't have a conversation with a religious office in Shi'ism on this, it never gets properly fleshed out beyond this. To do that, you'd have to push the questions, and you can't. ("Hold on, Sayyid, why are these two in the same horizon? They are 1000 km apart. Three of the last five times it was scientifically impossible to see the moon in Bahrain if in Najaf. What's the standard? Then let's apply it to Mashhad and see if you're being consistent. Etc. Etc.) No jurist in the world will tolerate that type of perfectly legitimate intellectual argument, so they can get lazy in their thinking. And I'm sorry, but "same horizon" is lazy thinking, if it's not please defend it substantively, and prove ME wrong. Not through creative insult, but through superior analysis. I will devour the leek with relish if you manage it.

One last wrinkle, since we in the US cannot be in the same horizon as Najaf whatever it means, does this mean when they can see the moon and we cannot, that Sistani breaks his fast but we don't? Heaven forfend! Of course not! But why not, if he won't break it if Brazil sees the moon, then why on earth should Brazil break it if he does, if the point is some horizon sharing theory? Ah, because Brazil is to the West. For more, here's a quote

“If the new moon is sighted in the east, it also applies to the west, as long as the latitude of the two locations are not greatly apart. If the new moon is sighted in the west, it does not apply to the east, unless it is demonstrated . . . .”

Forget the "demonstrated" part for our purposes, I cut the sentence off unnaturally because I wasn't focused on it. But the point is, East rules over West. Maybe because the sun rises earlier the further east you go is the idea?

Now this is absolutely, positively unsustainable. Or perhaps better stated you need an international date line to have it make sense so you're more or less admitting you aren't purely interpreting religious text. To develop this rule, you have to use modern colonial era notions of west and east just as much as you do sacred text or it's entirely meaningless. Why? Because in the time of the Prophet and the Imams until the Occultation, to ask which city was east of which one on a global scale would have been absurd even if they didn't see it as such. Every city is west, and east, of every other one. The earth is round, whether they knew it or not. Head west from DC and you'll hit my town of Pittsburgh in about four hours. Or head east, cross the Atlantic, go across Europe and Asia, then the Pacific, then most of the continental US, and you'll get to Pittsburgh as well. Take you longer, but you get there.

No no you academic nitwit, you say. One is closer, you go by that, that's all he means, everyone describes Pittsburgh as west of DC. Yes but they aren't thinking globally, if they did, that analysis would in certain places be impossible, and wrong. Hawaii, closer to Japan going west or east? Answer is east of course. Four hour flight east from Tokyo gets you to Hawaii, go west and you cross Russia, then Europe, then the Atlantic, then the US, etc. So the "closer" theory, means Japan, being west of Hawaii, follows Hawaii, if Hawaii sees the moon, it's the new month the same day in Japan. Know what time they'll see the new moon on Hawaii? 7 pm on, let's invent a date, August 17. Know what time that is in Japan. 2 pm on August 18. Anyone want to tell me how the Japanese are supposed to do that? You see the new moon, it's the religious holiday, so you can't fast, but these folks have been fasting half the day, and they've missed the prayer time, it does not work.

No no, the only way to make east and west make sense over a round place is to declare a starting point, the World's Starting Point, and say that at high noon at this World's Starting Point on Day Zero the clock and time zones are defined. You go east from there, you advance the clock all the way to midnight on the opposite side of the globe. You go west, from there, you reverse the clock all the way to midnight on that same opposite side of the globe. That makes the opposite side of the globe from the World's Starting Point the date line, the place where one day jumps to another to make it all work out. And that date line, across from the World's Starting Point is where East and West have to start, you can't cross the date line and claim to be going west, (that's why Japan is not west of Hawaii for time purposes and sighting purposes, it's ahead in time, because on the other side of the date line. Same for Alaska and New Zealand, or even Alaska and Siberia which are so close you can see Russia from Sarah Palin's doorstep. In each case, you cannot regard the one as "east" of the other for purposes of this rule because of the date line).

And there's only one World's Starting Point baby--Greenwich England. So that's what Sistani is saying. If you are east of the international date line running opposite Greenwich, you lead. Everyone else follow. Because the Prophet said? No, because the bloody ENGLISH said. That's the only way to make sense of the rule. The only way to make the definitions of East and West work.

Now wait, you might say, why can't Sistani mean that the starting point is Mecca, or Najaf, or whatever, rather than the date line? Then he wouldn't be following the English. Simple answer--because it won't work. If you start in Najaf and say "this is the starting point for what is east, so everyone follows us, and those to the West, look to those to the East and follow them", more or less declare Greenwich replaced by some Islamic place, then the Hawaii-Japan problem happens again, because you don't cross the date line at that point anymore, and you have to cross the date line at that point, or there is no sensible way to make the rule work so long as the world isn't following your watch but the international standard set by the English, as we've seen above.

One final riposte might come in. No, no, no, it is argued, you took a quote from Sistani about a Code of Practice for Muslims Living in the West. He's merely saying America follows Najaf, he's not saying each point west follows each point east. First, that's not true if you see the rest of the quote, but more importantly, assuming it is, it STILL assumes the date line precisely where it is, or the rule does NOT work. Had the English thrown the date line in the middle of the Atlantic, then the dawn of any given day wouldn't break in New Zealand first, followed by Australia and Japan, and so forth. No, the dawn of any given day would break in NEW YORK first (really Quebec, but anyway), and Najaf wouldn't be 7-8 hours ahead of us, it would be 16-17 hours BEHIND us. And again, we could not, possibly, in that case, follow Najaf. They'd say they saw the moon Monday at 7 pm and for us it would already be Tuesday at 11 am, too late to pray, having already started fasting. It's based on the dateline, the rule is developed from the English, not the Prophet, or at least has to claim both as sources for its delineation.

But of course you cannot have an intelligent conversation about postcolonial influences on Sayyid Sistani either. It's very difficult to have any sort of thoroughly reasoned conversations about these topics at all. You're supposed to just obey. Not a surprise so much shoddy reasoning comes out from such smart people when anti-intellectual notions like that prevail.

HAH

Law without the Mask: Egyptian Legal Confusion

Haider Ala Hamoudi — Thu, 16 Aug 2012 14:51:26 GMT

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

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

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

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

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

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

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

HAH

Malaysian Pawn Brokers and Islamic Finance

Haider Ala Hamoudi — Tue, 14 Aug 2012 02:47:51 GMT

Just read an interesting short piece on SSRN concerning the practices of Malaysian pawn brokers supposedly adopting an interest free form of finance where you deposit collateral with them, almost certainly something with a readily ascertainable value like gold, they give you money for the gold, and a "benevolent loan" whereby you pay the same amount back in 3-6 months time. They seem to call it Ar-Rahnu, clearly from the Arabic for the term "rahn" or mortgage/secured loan. Of course, it isn't actually benevolent, because principal is not all the borrower pays, he also pays rent for the benevolently lending pawn broker to hold on to the gold, and naturally the contracts jigger a way to adjust things appropriately to take account of wildly swinging prices in gold should they occur.

So what's the net interest rate, oops I mean the cost of leasing your stuff to another guy to hold on to, or let's just be neutral and call it the cost of borrowing? Half of what a conventional pawn broker charges, it is said. In keeping with the goals of the shari'a, it is said. A mechanism for the poor to finally get access to meaningful credit, it is said.

Or do you want an actual number, and less bullshit? ELEVEN PERCENT PER ANNUM. That's the low end, it rises to 15% at the high end. You drop off your gold, you pay an 11-15% percent per annum markup when you come back for it in three months. The BNM interest rate in Malaysia is about 3%. You want to tell me this is better than conventional pawn brokers, I believe you. You want to tell me it beats loan sharks, I'll believe that too. It's even better than credit cards, somewhat marginally at the higher end, though maybe not I don't think the pawn brokers charge random fees. Let's just say it's better.

But I'm sorry, you charge 5 times the amount of the prevailing interest rate for a guy to give you a bunch of his wife's gold to pawn to pay a hospital bill, you are screwing the poor. You're exploiting a person in hard times and desperate need of cash, and you're screwing him. And if he wasn't in hard times, and he was poor, he wouldn't give you all the gold in his house. Your supposedly "Islamic" way might be better than the mafia, but that's about all it's better than.

If you actually cared about your fellow Muslim world poor, you'd find a way to get them better access to the credit markets that are priced more competitively. You wouldn't pretend interest was inherently exploitative and then extol this. That's just shameful cant.

HAH

Shi'ism's Theological Tensions with Sunnism

Haider Ala Hamoudi — Fri, 10 Aug 2012 17:21:45 GMT

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

الكافي ج 2, كتاب الإيمان والكفر, باب دعائم الإسلام, ح 5: علي بن إبراهيم ، عن أبيه وعبد الله بن الصلت جميعا ، عن حماد بن عيسى ، عنحريز بن عبد الله، عن زرارة ،

عن أبي جعفر ( عليه السلام ) ... قال : ثم قال (أبو جعفر): ذروة الامر وسنامه ومفتاحه وباب الأشياء ورضا الرحمن الطاعة للإمام بعد معرفته ، إن الله عز وجل يقول : ((من يطع الرسول فقد أطاع الله ومن تولى فما أرسلناك عليهم حفيظا))[1] أما لو أن رجلا قام ليله وصام نهاره وتصدق بجميع ماله وحج جميع دهره ولم يعرف ولاية ولي الله فيواليه ويكون جميع أعماله بدلالته إليه ، ما كان له على الله عز وجل حق في ثوابه ولا كان من أهل الايمان ،

ثم قال : أولئك المحسن منهم يدخله الله الجنة بفضل رحمته.

[1] النساء : 80

For the non-Arabic speakers, it reads in the part most relevant for our purposes as:

Then [Abu Ja'far] said, the essence of the matter, its climax, its key, the door to things and the pleasure of God is obedience to the Imam after he is known. And God the Mighty and Momentous has said "Who obeys the Apostle obeys God, and who turns away, We have not sent you as a protector." (Nisa:81) But as for a man who stands his nights [in prayer] and fasts his days and has given all of his wealth in charity, and has done the Hajj in all periods, and he did not know the sovereignty of the one near to God [i.e. the Imam], to follow him and have all of his deeds be through his guidance, there is no right to him for repentance from God the Mighty and Momentous, and he is not of the people of faith.

Then he said, He is a good person among them, and Allah shall enter him into Paradise by the grace of His Mercy.
-----
The reason I find this so fascinating is that it explores one of the central historic tensions in Shi'ism that is very much around today. On the one hand, it is quite important to render the very notion of the Imamate central to Shi'i theology--that after the Prophet Muhammad there came a sequential group of twelve male lineal descendants known as the Imams, that the Imams have an ability to understand the secret meanings of the Qur'an, that to them is owed the same temporal and spiritual obedience as to the Prophet himself, and that the last of these remains hidden among us and will make himself known one day. This really is the pith and pit of Shi'i theology, what makes it the most distinctive, or to use the phrase of the Fifth Imam, the essence, the climax, the key.

The competing tension, however, is that you do have to be careful not to go too far in the alienation of Sunnis who of course do not share the belief in the Imam. If you render the Imamate as like the Prophethood, in all theological respects, then you are effectively saying that he who denies it is equivalent to one who denies the Prophethood of Muhammad. That at best renders a Sunni a 'person of the Book', equivalent to Christians or Jews, and at worst a heretic as a Baha'i is often regarded. It's not strategically wise for a minority to hold to such a position, and it does, in modernity, tend to cut as against core normative judgments of most Shi'a respecting the status of Sunnis.

So there needs to be a balance, a careful one. Emphasize the absolute equivalence of belief in Imamate to belief in Prophethood, to deny either is an equal theological deviance, then you have a real problem with relations with Sunnis and how to treat Sunnis. Render this whole distinction of little moment, that really we do believe in the same Qur'an, and our substantive Islamic rules are so similar, and we both pray and the like and let's just call the Shi'a a fifth school of Islamic thought, etc. Sounds nice, but to the committed theologian, all of a sudden, you've made belief in the Imamate rather trivial, akin to Shafi'i's acceptance of some commercial practices shunned by Ahmed, which most Muslims don't even think about. So what to do?

A few things. First, legally, by rule, you have to declare the Sunni a "Muslim", as Shi'a jurists do, if there is to be any hope of getting along in this world. So for all temporal purposes (who one can marry, for example, or to or from whom one can inherit) there is no distinction drawn. Again, it has to come out that way. If you start saying that Sunnis cannot inherit from Shi'a, even as Christians cannot inherit from Muslims (I am describing these clear rules, not defending them let's be clear), then it's pretty hard to see how anything but permanent hostility will result so long as traditional rules are heeded.

But then, as the passage indicates, you must describe them as somehow deficient in belief, or what is the whole Imamate about? How can belief in the Imamate be so central on the one hand, and not somehow an impediment to true faith on the other? So here it pulls necessarily the other direction. A Muslim, but not a Believer, meaning not one whose faith is really complete, it's lacking something important.

But then you have to ask if not a believer, then why a Muslim? What is it that renders someone whose faith is missing one key component of what the Shi'i jurist would consider true Islam into a person his daughter can marry when she cannot marry a Christian (again, describing rules, not defending them). And here, of course, we can turn and take refuge in one of God's greatest and most extolled attributes, Mercy. Ok you're missing something, something important, something that renders you not one of the "People of Faith". But God is Merciful, he knows your deeds, he sees you have prayed and fasted and made the pligrimage to Mecca and so because you are good, to Paradise you go. And why on earth couldn't my child marry a man to heaven bound?

So it works out decently well, or as well as it could under the circumstances.

HAH

Triple Divorces and Totems in Islamic Law

Haider Ala Hamoudi — Tue, 07 Aug 2012 00:46:46 GMT

While I tend to spend most of my working days reading modern court cases from the Middle East rather than classical texts on Islamic law, being more interested in modern manifestations of shari'a than whatever the classical jurists intended, of course one cannot show the evolution or manipulation of whatever it is of doctrine unless one begins with its starting point, and so due attention must be paid. Moreover, every once in a while, something appears that I sort of know but is brought centrally to my attention, and that is so bizarro that I sort of feel I have to dig up the dusty books and go through them. Such a moment occurred to me just a few days ago, as I was digging through Kubaisi's commentary on Iraq's Personal Status Code, and its cases decided thereunder, when he recited a matter that many others have as well--that the Hanafis did not think that duress was a sufficient reason to invalidate a divorce, that if the man merely said "inti taliq", or "you are divorced", that was enough, even if stated under duress. Again, I've heard it before, but not paid much attention, mainly because the other schools don't hold to that position, and so most modern Arab laws don't adopt it (easy to do when one school has the weird rule), and so there wasn't much a point. But this time, I thought, I just have to figure this out. Why in the world, how in the world, could duress not be a defense to the entering into of a marriage contract of all things.

Ohers have, to be clear, discussed the notion of intent under Hanafi doctrine, and found that the Hanafis were reluctant to permit marriage contracts to be avoided because one party claims they didn't intend the contract. Baber Johansson did work on that, even the renowned Schact claims sharia in this area is infected with this--a desire for certainty and clarity. Paul Powers took issue, boy are these scholarly debates fun, but my point is, intention has to be regarded differently from duress. Even in US law, there is some reluctance to allow a party to escape a contract when every indication is they intended to enter it, even if they could prove, subjectively, that they had no such intent. Holmes and Hand were big proponents of the objective theory, that if a reasonable person would think you intended it, then you are bound, even if you didn't mean it, even if you thought you were joking. The goal is certainty, you don't want folks wandering arond claiming that contracts that all reasonable people thought were concluded were not because one of the parties wants to claim it was one big joke.   So all this stuff about intent and Islamic law is interesting, but to a lawyer, quite familiar. There are perfectly good and sound reasons to determine that if a man tells to his wife in what appears to be complete sincerity "you are divorced", he cannot come back six months later and say "What? That? I was kidding! Why do you take everything so seriously?" Even if he didn't mean what he said, even if Learned Hand's forty imams (I am paraphrasing) came to testify that he told them he was joking, there are sound reasons to bind him by his words.

Duress, however, is a much different matter. It's just a bad rule to suggest that you can force a man to issue a divorce he does not want to issue.   I'm perfectly happy to stand here and say I don't particularly care much for the Hanafi rules that seem to make it easy for a man to divorce because he doesn't like the flavor of his wife's hummus, but a woman cannot  seem to get a divorce for anything other than a husband's impotence, but surely the solution cannot be to tell women to put a gun to their husband's heads and force them to pronounce a divorce formula. Involve a third person, who for spite or jealousy, or to get the husband to marry someone else, invokes the duress and the incentives are not only perverse, but they also make a mockery of the institution of marriage as some sort of sacred bond. Marriage isn't a sacrament in Islamic law, you say, but a contract? Fine, what sort of contract is one bound to that is not in the slightest bit voluntary, but imposed. And I haven't even begun to discuss fairness, how it could be fair to allow one with means to use force (ie the powerful) to impose divorces on recalcitrant husbands is beyond me.

Add in the triple divorce, and the result is more absurd. You say "divorce" in Islamic law, and you are divorced (most don't know that, but it is the preferred formula). You say "divorce divorce divorce", then the marriage is not only over, it cannot be resumed unless the woman marries another man, and that second marriage is consummated.   How convenient if you're the powerful noble seeking to have sex with an attractive woman married to a peasant who works for you. Use duress, and you can be that second man. Then he can marry her again, and all is well.

So what explains this oddity of the Hanafis, or at least some Hanafis? Droit de seigneur? No, I made that up, no evidence of this in Islamic history that I know of. Some odd bit of Revelation, it's just God's Will and so follow it? Not that I can see. According to the Maliki Averroes, it's because divorce is according to the hanafis, to use Averroes' term, mughalladh مغلظ a sacred oath. My modern sensibilities as a modern lawyer took me in two directions. The first was to read this word, as one could in Arabic as part of the root Arabic as "crude" or "vulgar". Divorce is vulgar and therefore even when pronounced under duress it's binding? No, besides the root is manifested wrong, should be غليظ Then I remembered the rather unused now phrase to take a sacred oath as using the same verb (nowadays you take an oath, it's halafa, not ghalladha) from an old Arabic play, and it became clear.

But then my modern sensibilities took me in another direction, which is "so what?" If you make me take an oath, and that oath was rendered under duress, modern biases would lead you to conclude you aren't bound. It doesn't count when you're forced into it. Really, oath or contract, duress should not affect it.

There's something else going on here, something almost totemic in its quality, a form of sacralization of the pronouncement of a word over all else. It isn't merely "strict formalism" as one commentator has indicated, it's exaltation of this word, as Sacred Oath, and therefore inviolable almost no matter the circumstances in which uttered.

Understood this way, the whole notion of the triple divorce can be rendered more comprehensible, albeit not defensible. Usually the jurist tells you it is detestable to so utter divorce. It is an innovation, and as the Sunni Imam always says in the Friday prayer, every innovation is a straying and every straying is in the Fire. Yet if you do it, if you say "divorce divorce divorce" then broadly the jurists agreed with limited exceptions (Ibn Taymiyya etc being the exceptions among the Sunnis, the Shi'a generally rejecting triple divorces) then it was valid and binding. No remarriage to that woman unless another man has sex with her first.

That's always struck me as silly, how can it be both sin and yet achieve what you want? Isn't that just obfuscation, pretending someone cannot do something and then allowing them to do it? Yes it is, in the modern setting, but regard the Word as Totem, as Sacred Oath, as effective in and of its own, and it makes sense. You pronounce the Word, it does the Deed. Ask me, is it okay to kill innocent people in a Sikh temple, I will tell you, of course not, get shot by the police in this life, burn in hell in the next one. You ask me, but if I do it and shoot an 84 year old man whose sin is opening a temple to worship, will he still die. Well, of course he'll die, he dies from bullets just like everyone else, you're doing a bad thing and yet it achieves its intended aim, not because I want it to , but because that's the paln of living in this world. I wouldn't think the same thing of a triple divorce, as a Realist I'd say it only has the effect we choose to give it, but then I'm not much for totems or voodoo. not clear to me that this view of mine is shared by the classicists. I don't mean they were obsessed with totems, only maybe, perhaps, sometimes, some of them as this example maybe perhaps demonstrates they took them more seriously than we do?

Maybe? And if so, yet another way our sensibilities and biases are so much different from those who invested Muslim legal doctrine.

HAH

Women in the Kuwaiti Parliament

Haider Ala Hamoudi — Sat, 21 Jul 2012 14:43:26 GMT

I was watching the Arabic satellite channel Al Hurra a few days ago, and specifically a show called Musawat, or equality, which I watch rather regularly. (Actually my wife watches it regularly and I end up dragged into it.) But it is a nice talk show, focusing largely on women’s issues, and this one was with a Kuwaiti women’s rights activist who was discussing mostly the rather distressing electoral results for women in the recent Kuwaiti elections. By way of background, per the decision discussed in my previous post, women managed to earn four seats in the Kuwaiti parliament in 2009, only to lose every single one in the elections held this year. She was largely there to answer the question “what happened?”

I gleaned three answers to the question, each in its own way interesting. First, she accused the regime of largely not caring about women’s participation, seeking to lift worldwide criticism and scrutiny over previous formal prohibitions to vote, and to be elected, and that having been achieved, to return to its substantive indifference. Probably true, though as much an indictment of the international community as the Kuwaiti emir. The fact is that in a great number of these legal reform initiatives, a great deal of focus in put on formal bars and formal legal enactments, and as soon as those are completed, the interest of the international community tends to wane. How many people even know, for example, that there are currently no women in the Kuwaiti parliament? Not as many as knew in 2009, when the prohibition against their appearing was put in place.

The same idea might be transposed elsewhere, the current burning issue is whether Saudi women should be able to participate in the Olympics. I wouldn’t be surprised if this worked out as the Kuwaiti situation did—a formal prohibition is lifted, some small number of Saudi women participate, and then it all stops a few years later, with attention having long moved elsewhere. To get substantive change, as in, say racial integration in the American south, you need strong, continued, persistent effort, and even then it is progress that is halting and incomplete over a period of decades. There’s simply not the same push, at least not now, domestically or internationally.

The second point the activist made was of general liberal indifference as well, in the sense that of course the liberal groups formally supported greater women’s involvement, but when push came to shove, when the decisions had to be made, and the sacrifices had to be delivered, they always seem to come down against women’s interests. This also is interesting and consistent with what I’ve seen elsewhere. I was rather shocked actually in Iraqi constitutional negotiations how often women’s groups ended up isolated, abandoned by their liberal supporters, Arab and Kurd alike, and even the US Embassy.

I don’t mean the latter groups didn’t profess to oppose, say, a repeal of Iraq’s Personal Status Code and its replacement with highly traditionalized forms of sharia, they did, sincerely, to the end. But what I do mean is that if you took a Kurd leading constitutional negotiations, and the issue came down to greater federal power for the region of Kurdistan on the one hand, and a repeal of the Personal Status Code in exchange, he’ll take the deal. And all will end up going along, to the rising frustration of women’s groups. And that continues, to the very formation of Iraq’s current government, where the wrangling was between the more secular and nationalist Iraqiya, and Maliki’s more Islamist Shi’a coalition. Guess how many women ended up in the Cabinet after all that? Give you a hint, your guess is either correct or too high. Iraqiya is looking to maximize its influence, women’s participation is very much secondary after that. “What can you do, there are these groups, and they are so powerful, and it’s a negotiation, and you can’t just force things down people’s throats,” you might hear from a constitutional negotiator, an outside adviser, or a government forming coalition representative.

Of course that’s true. The real question is if some powerful group came up and said “new provision. Only Arabs are permitted to get a passport on their own. If a Kurd wants one, an Arab has to sign on agreeing to it.” I cannot imagine you’d find people saying “oh well, what can we do”, I think you’d hear liberal groups, embassy folk, whoever going to the wall to block that. But make it men and women, and it’s running law in Iraq. What do liberal groups do to try to change it? Write nice letters to the Department of the Interior. Which doesn’t work.

But the most interesting thing that the Kuwaiti rep said was that it was an election that led to Islamist victory, and it was perfectly in keeping with Islamist priorities and preferences to exclude women to the extent possible, as they had tried to do in 2009. Now this to me was fascinating because on the one hand, it’s hard not to see it as being tied in one way or another to shari’a. I don’t mean by that a definitive conclusion that a woman’s participation is per se prohibited by some sort of interpretation of sacred text, though perhaps such an argument might be made, stranger fatwas have been issued. More likely, as with justifications for the prohibition of women driving in Saudi Arabia, it’s a form of sad dhara’i, or the closing of means to other sinful activity. Women driving on its own is one thing, the argument goes, but it’s going to lead to all sorts of female teenagers off and running and cavorting with men and next thing you know, there’s no virgins left in the whole country. Etc.

In any event, what’s so interesting is that this position on women’s participation is not nearly as much an issue among other Islamist groups anywhere. While the Muslim Brotherhood or the Supreme Islamic Council of Iraq or even the Sadrists who want to whip “emos” might view a quota for women in the legislature as a concession, it’s a concession they accept. And that’s a quota, something that I don’t think you’d get the US Republican party behind. I’ve never heard anyone suggest women should be banned from running for legislative office. (Chief executive you hear, though frankly the possibility is so remote it’s not much brought up, legislative office, it’s just not on the agenda at all). In fact, with the quota, Islamist groups have started to see advantages. They get popular women wearing veils to help organize and run the campaign and appear in parliament and they deflect criticism that their legislative agenda is anti-woman. Tell a Sadrist his positions on women’s issues are retrograde and I will tell you his almost automatic response. “Really? How come the top vote getter among all women in Iraq anywhere was Salama Khafaji, a Sadrist? How come she supports our electoral program?” I’d actually argue the liberals are the ones who drop the ball here, acting somewhat smug that they do a better job on women’s issues and so there is no need to actively push to garner women’s votes. But the point is, most of the mainstream Islamist groups do not think of women’s participation in electoral politics as a problem, and they’ve figured out how to accommodate it and use it to their advantage.

I guess what it means is that when it comes to recognizing and restoring shari’a values as Islamists seek to do, and to do so by transposing very old ideas into modern settings, there are quite a number of ways that this might be done, and rather similar groups with similar leanings come to massively different conclusions. And those disparate conclusions are often dependent on nothing more than the nation-state they happen to reside in. So much for the caliphate. . . .

HAH

Is the Shari'a Meant to Apply Only To Women?: A Look at a Kuwaiti Law

Haider Ala Hamoudi — Thu, 19 Jul 2012 22:12:35 GMT

The Kuwaiti Election Law (as amended as of 2005) was recently brought to my attention, and specifically Article 1 thereof. It reads as follows:

To each Kuwaiti who has fully reached 21 years of age is the right of election, and exempted from this is one naturalized for whom 20 years since his naturalization have not passed . . .[more stuff on the naturalized, not interesting], and it is a condition on the woman in her nomination and election that she hold to the bases and rules recognized in the shari'a

The law, and this article, became the basis of a lawsuit by some folks unhappy that a couple of Kuwaiti women not wearing a headscarf were attempting to be sworn into the legislature. For that, see Jill Goldenziel's really commendable new article in the AJCL here.  And the court runs off and interprets it and finds no violation, again, read the article if you want to know that particular story, it is fascinatng, but I won't steal Jill's thunder.

But what I immediately thought upon reading the law is how on earth it could ever pass constitutional muster under any constitution which requires gender equality, as all Arab constitutions do.  A constitution might say equality "in conformity with shari'a" or some such qualification (not Iraq, no qualification there), but it still says equality. And whatever the heck "in conformity with shari'a" as qualification is supposed to mean, usually a pretty much limitation on equality is intended, such that equality becomes almost unrecognizable, but the point is however big the limitation, it cannot possibly apply in a case like this. Because there is no Islamic principle in the world that says that Islamic principles don't apply to men.

At least not in theory. In practice, happens all the time. When Arab men leave their home countries to study for a few years, it's pretty understood that a fair number of them are going to be sleeping around, what in the shari'a is called committing zina. And when families sit around a cafe on Abi Nuwas street in Baghdad or in Sirchanar in Kurdistan, the men are often found to be partaking in some whiskey, another one of the clear violations of the shari'a's hudud. The women will be sipping cokes as the men getting progressively drunk, only the most secular women will touch so much as a glass of wine, and only the rarest will come abroad to study, and heaven help them if they go back and try to marry after already having had sex. Surgery will be necessary.  And, of course, if you ask why it is everyone seems so obsessed about an intact hymen, they'll look at you in shock and ask you if you've never read the Quran? Don't you know the laws Allah has laid down? How can you ask such a monstrous question? You'll even get that if you show some lenience on the effects of triple divorce. From a guy (this literally happened to me) who is asking me to help him cheat on a takehome exam, nursing a hangover while there is a stripper, or a prostitute, or I don't know who in his luxury apartment cracking jokes, I find as he has summoned me early in the morning because the exam is due that afternoon. (Of course I turned him down on the cheating thing and returned home, and I'd take credit for my sterling character, but it wasn't exactly tempting to help this dude.)

Now of course if you asked him if cheating, or drinking, or casual sex was not also a violation of shari'a, naturally he'd smile and shrug his shoulders and admit it was. But to him, that's no different than if you ask me if jaywalking is illegal. It is. But if you then asked me why I think Jerry Sandusky is so awful, I'd be shocked and ask what's jaywalking got to do with Sandusky deserving the rest of his life in prison for raping kids? Because obviously there's rules, and then there's RULES. And the distinction between rules and RULES isn't really based on doctrine, though it could theoretically be. It's more based on what any particular culture views as being particularly offensive to a core sensibility.

So doctrinally under shari'a, it's hard to explain why it is that a person who appears publicly drunk shouldn't be whipped, or someone who in front of a dozen witnesses steals something under guard not entrusted to him over a particular value shouldn't have their hand amuptated. These are God's rules, and only God can forgive them, under the core doctrinal principles. (Tariq Ramadan has called for moratorium, about as far as I've seen anyone who really takes the tradition seriously be willing to go.)  And in some places, that spectacle does take place.  But you go walking around Kuwait, or Iraq, or Egypt, you don't find many folks thinking of this as being particularly core and quite a few are repelled. Which is why the Islamist movements tend to play that stuff down, despite its doctrinal centrality. It's rules, easily ignored.

RULES are women wearing miniskirts. Is there doctrinal support rendering that sinful? Surely there is. Is it as close to the prohibitions on drunkenness or theft or fornincation? Surely not. But there's more support to scream about how the society has lost its way when women are running around in miniskirts than when a bunch of Arab men take a sex tour to Thailand.

The irony here is the cultural distinction as between rules and RULES unwittingly, seemingly without anyone paying attention, made its way into a formal law in Kuwait. It just slipped through, nobody noticed, how easy the slide was. Everyone can be elected, but women, only if you adhere to the shari'a. Boys can be boys. And even a court asked to rule on the interpretation of the law doesn't seem to have noticed. These aren't dumb people, the drafters of the law, the lawyers arguing the case, the litigants raising the objections, the judges interpreting it. They're smart, but they're people, with ordinary cultural biases, just different biases than you'd see in the West. So, leaving aside it's a religious rule made into law, even without that problem, that law wouldn't go five minutes before someone pointing out the obvious gender discrimination, and if it did the first thing an American judge reading it would notice would be the gender discrimination and easily avoid any problem of interpreting it by just saying it's no good, it clearly does not treat the genders equally and there's no basis to subject one gender to a rule, whatever the rule, and not the other. It's the first thing I thought reading it with my US legal education.  But in our parts of the world, we subject women to shari'a and not men all the time. And even if that's a rule that breaks the constitution, it's not one that got picked up, because it's so much easier for that not to be noticed when it seems to utterly natural in the Arab world.

HAH

On siyasa as policy and politics

Haider Ala Hamoudi — Wed, 18 Jul 2012 02:12:32 GMT

A familar refrain among those seeking to infuse Islamic law with meaning in modernity is this consistent notion that the positive law of the nation state is not itself infirm under the Islamic conception, nor has it ever been. That is to say, it has never been the case that the only rules of order that existed in the Islamic polity were the juristic derivations of holy text, which are the fiqh, but rather that the shari'a encompassed both this fiqh, and something known as siyasa , which was effectively policy based rules issued by the sultan. The limitations on that exercise of siyasa lay in the theory of siyasa shar'iyya, Ibn Taymiyya being a premier but by no means exclusive proponent of this notion. If Muslims could only figure out how to reinvigorate that fiqh-siyasa distinction, the theory goes, or at least understand it, they'd be well on their way to establishing an Islamic state with some pedigree.

Now I've never bought that as readers of a fairly recent article of mine know (Death of Islamic Law), mainly because I don't see much of the fiqh side of things. Judges applied fiqh in Islamic polities, maybe the rules of one school, maybe simultaneously all four working side by side, but they applied it. As did the whip wielding fellow known as the muhtasib (and for that see Kristen Stilt's really splendid book Islamic Law in Action). And the fact is that broadly in the Muslim world today there is a general acknowledgment that the only law that exists is that enacted by the state, a judge simply has no jurisdiction to apply any rules beyond it and unless you want to provoke a national crisis as an Islamist party, you don't call for the return of the muhtasib to take on this role. (I'll leave aside exceptions that prove the rule for now, while acknowledging they exist.) So it's sort of empty to say you resurrect the Islamic state without any sort of role for the state enforcement of fiqh.

But that's old news, what about siyasa?  Surely I must acknowledge that just as the sultan positively made rules, so legislatures do now, and hence so long as that legislation is not somehow transgressive of shari'a (and let's leave aside what that's supposed to mean), it's valid as a positive state enactment.  What's so different about a legislature and a sultan?

Here's what's so different: let's start with the word, siyasa. Look, the Islamic studies people tell me siyasa once meant positive command of caliph, or sultan, or amir, fine. I got no cause to question it, based on my own readings of classical texts. But it certainly doesn't mean that now, not on Arab media channels, not in chatrooms and not among Arab lawyers or politicians. What it means now is simply "politics", almost precisely what the English word means in all its multifarious uses. Office politics, university politics, etc.. And so if you want to go around saying to premier members of the Arab legal community that they just need to start thinking about law as siyasa, you're effectively saying they should think of law as politics. And trust me, I think I've probably given more talks in the Arab world than anyone(Qatar, Baghdad, UAE, Amman, Suleymania, Basra) on Legal Realism, and the idea that the interpretation of law is inevitably subject to political influence is not one that goes down well in this very formalist part of the world. I tried to translate Legal Realism once sort of literally as the title of a talk in Doha, but it didn't work out well, and so I changed my title to "social, political and economic influences on the interpretation of law"  I couldn't get past the title in my talk there was so much resistance.

Oh so what, you say? That's nomenclature, so the meaning of that word changed, who cares?  I say that's too reductive. What changed wasn't just a meaning of a word, what changed was a basic understanding on the means by which law is understood to be created and interpreted, and who is responsible for these respective functions, and that itself caused the changed meanings. Siyasa is as I say poltics, in all its various forms, but here it refers to the mechanism by which law is created. It refers to competition among interest groups working within a legislature to hammer something out in a manner that resembles sausage making and is assumed in every polity to be a dirty, messy, corrupting business. What comes out, though, is qanun, and that product is then severed from the means of its creation, it's central to the conception of a balance of power that it is so severed, and that qanun, and only it and other qanuns like it, are what the state bureaucracy known as the judiciary is supposed to interpret.

The balance between the two is such that the judge is limited in his capacity to interpreting that which the political process blessed as qanun, and the legislature is bound by that determination, effectively unable to change it or replace the judge making the determination or indeed do very much to influence the interpretations of jurists and judges alike of the law once created. They can make more law, but they can't interpret the law that's there. Or so goes the formalist legend, deeply embedded in Arab legal discourse. Don't believe me, go call the decision of the Egyptian Supreme Constitutional Court to disband the parliament as one that was influenced by siyasa and judge the reaction. nobody thinks you're talking about sultans. And all of these assumptions are transplanted from the West. The notion of a judge able to turn to juristic rules not created by the legislature's siyasa is nonexistent, and the ability of the legislature to exert the kind of control that the sultan had in the interpretation of his siyasa (a muhtasib he could replace at any time, or indeed whip if he didn't bring sufficient cash, a judge he could imprison if he didn't like the ruling) is not present. because that kind of siyasa no longer exists, hardly anyone even understands what it is anymore. All that's left is politics. HAH

A New Arab Word for "Secular"? Understanding the "Civil State"

Haider Ala Hamoudi — Thu, 12 Jul 2012 19:41:17 GMT

I was rather intrigued as I suppose previous posts have indicated with the surprising showing of Ahmed Shafiq in Egypt's election. Not only did he manage to sneak into the second round of voting, by itself not necessarily an achievement when the opposition is so divided, but the guy managed to get almost 49% of the vote in that runoff. That's really not shabby for a former Mubarak henchman.

And he did it through promising security and restoration of order, of course, but also through the repeated promise to stand by the "civil state." (Dawla Madaniyya) The phrasing has been around Arab media circles a fair amount over the past year (Amr Moussa used it a fair amount too), but Shafiq really brought it front and center, and secular intellectuals have embraced it. While on one level it might sound like "civil state" is meant to hint at civilian rule as opposed to continued rule by Egyptian military (and there is certainly some of that), the fact is he really isn't usually referring to the problem of military rule, an area where both he and Morsi tended to tread carefully. Instead, it was always the looming threat of Brotherhood religious extremism, but don't worry, says Shafiq, with me you get the "civil state." Naturally Morsi then denies he is against any such "civil state" and dismisses all of this as fear mongering. In fact, Morsi in his own inaugural speech makes reference to his commitment to preserve a "civil state".

What do I think is going on here? Well the traditional word for "secular", 'ilmani, is effectively retired. As in English, where the term is supposed to mean a commitment to establishing statehood in a manner that renders it religiously neutral, but has come to mean "irreligious", so in the Arab world it has gone, but to a much greater degree. 'Ilmani denotes a hostility to religion, a relegation of it to the private sphere where hopefully it will wither away and die, a pronouncement that God and His Dictates have no place in modernity. Those of us who think nothing of the sort, who have no problem with religious exercise, indeed who might well deem it healthy for a society and spiritually nourishing for a soul, but would like to see a state that is not defined by religion and indeed is indifferent to religious exercise are left a bit lost. "Civil state" starts to sound pretty good to us .

But there is something else as well--secularism is a rather strong claim respecting the role of religion in the public sphere, and while I do think and have long thought that the idea of a state defined by and organized under any recognizable version of shari'a is dead and gone, that's not quite the same as saying shari'a should have no place in the public order. For many Muslims, that's a step too far. Yes the state is organized under neutral principles not derived from shari'a and yes the constitutional arrangements are positively enacted and fundamentally secular. But still, family law remains religious, and quite a few like that. There are other areas where some vestige of shari'a might be important as well. The state might decide what in religion is worth keeping and what may be discarded, but still, it should be able to decide on religious rules in some areas, the theory goes.

And perhaps even more importantly, there's the romantic commitment. If you say "secular", you are saying the competition law should not derive from shari'a. If you think of a state where the laws derive primarily from juristic texts, which nobody does anymore (though they did once, they certainly did, everyone from Khomeini to Banna can be found saying it), then you are rejecting the legal transplant. By "civil state" you get it both ways. You don't actually derive the competition law from juristic rules, that's just crazy. You get it from some other non-Muslim country, it's as secular a piece of legislation as it comes. But by not saying "secular" you can still insert a constitutional requirement, unenforceable and unenforced but of enormous symbolic significance, that all law must have shari'a as its "primary source." Nice.

So "civil state" is where the two trends might come together. The Brotherhood and its ilk might be comforted because it is vague enough to allow shari'a some role in specific legislative areas if they want it, as it permits shari'a to continue its role as constitutional ornament. And yet any secularist likes it too because it plainly has been used to mean a state organized and run on a positivist basis, with a "civil" constitution and law made by elected representatives, and only elected representatives, not holy men. It's a muddle, but one that seems to work well enough.

HAH