Islamic Law In Our Times

Facts and Abstractions

Haider Ala Hamoudi — Fri, 18 May 2012 20:53:29 GMT

I am always rather bemused by those who tend to ascribe particular policies to particular places in the Muslim world on the basis of the fact that the populations in those places ostensibly support a strong role for Islam. We see this most commonly in Egypt these days on the eve of its presidential election, where something like two thirds of the Egyptian public indicated they wanted Islam to play a strong role in the state's new government, and three fifths said they wanted the state to strictly follow the Qur'an in setting the nation's laws. From this, I've heard all sorts of things, from the fact that hand amputations are imminent, to veils are about to become required by law, to interest will be banned, to whatever else marches next in the familiar parade of horribles. You'd think if all of this was imminent, some presidential candidate would be arguing for it. Instead you have Amr Moussa trying to shake the stink of Mubarak off of him by accusing everyone else of it, while they all deny it. Hardly seems consistent. But more pertinently, I keep thinking over and over in my head:

If you actually want to know whether or not people think it's a good idea to chop other people's hands off if they steal something, why don't you just run a poll asking them that?

Leave aside the Qur'an, leave aside juristic rules and exceptions, leave aside whether or not this is a proper, justified, applicable in our times Islamic punishment and just ask them what they think of amputation for theft, and see what they say. Instead you say "Qur'an", vast majorities of people express support, then you start drawing conclusions based on that on amputations, which you never mentioned in the question.

If you asked the same question respecting the relationship of law to the ten commandments in the United States right now, what answer do you imagine you might get? I suspect in some parts of the country you will have overwhelming support in favor of America being ruled by the ten commandments as a matter of law. May we on the basis of this begin to prognosticate as to what the effect of nursing homes will be, given that vast majorities now wish to have laws that enforce the dictate that we honor our father and mother? Should we predict that come November, there might be laws (as there are in many countries) establishing a financial obligation on individuals to care for their parents, even as they are under obligation to care for their children?

Or might we perhaps draw other conclusions, among them that lots of people support the ten commandments without knowing even half of them, that what they mean by being ruled by them, even strictly by them, isn't all that strict, that some feel that the moral injunctions contained in them aren't actually intended to be legal, or they feel that the commandments shouldn't be interpreted in the manner that would favor a massive change in policy and that to do so is a perversion of the commandments themselves.

The problem, it seems to me, to borrow from one of my favorite critics, Lionel Trilling, is a broad media commitment to the abstraction rather than the fact. (Trilling's memorable line from "George Orwell and the Politics of Truth"--read it if you haven't). "Do you want a government whose laws are based strictly on the Qur'an?" is an abstraction. To concretize it, you would have to know precisely the person's understanding of what the Qur'an requires, and how the law will go about achieving it. Otherwise, it sounds suspiciously like "Qur'an, what's your view, good or bad?" And much like if you asked the same question respecting the Ten Commandments (a question which would be another abstraction) to someone in a Christian society, a question like that to anyone devout has an obvious answer.

Of course, rather than the ten commandments analogy, the better one would be perhaps to asking Americans whether they wanted a smaller government. Overwhelmingly, they'll say yes. Anyone who takes that to mean that Americans want to cut social security and medicare is confusing the abstraction for the facts. The facts are that whatever Americans mean when they commit themselves to the abstraction of smaller government, they are not referring to those parts of the government that are by overwhelming margin its biggest.

So if you really want to know what's going to happen after the Arab spring, if you really want to know if criminal laws will change, or laws of public dress, or whatever, or more precisely if you want to know if the public wants these things, ask about them. That gets you facts. Asking the public of its commitment to religious law, or even whether or not the religion in some vague sense should play a role in the state, is all just abstraction.

HAH

A Visit to the Suleymania Court House

Haider Ala Hamoudi — Fri, 11 May 2012 14:57:13 GMT

First guest blog post on muslimlawprof, by Sara Burhan Abdullah, who isn't really a guest since she's my wife. But she took the time to write this, I think it is a valuable reflection on the general conditions under which state law is applied in Iraq, which is deeply relevant to this blog, and hence it makes sense to publish it. That, and I think I'd be in trouble if I didn't. Anyway . . . .

On my last visit back to Iraqi Kurdistan, I made a special trip to the new courthouse in Sulaymania. I have been visiting the Sulaymania courthouse ever since my graduation from law school in 2003 in order to meet with colleagues and observe court proceedings. The visit was always trying. Until recently, the courthouse was in the middle of the most crowded place in the city. It was dirty and small, unbearably hot in the summer and uncomfortably cold in the winter. My visits reminded me of my summer clerkships in that courthouse during law school and the long hot days trying to pay attention to the proceedings in the difficult conditions. Still, I looked forward to these visits each time to keep up with the administration of justice in my home country.

A little more than a year ago, I first passed by the planned new courthouse (it was not finished yet), and immediately realized it was going to be quite different from the existing courthouse. It was outside the city, much larger and at least from the exterior it seemed quite impressive. So when I went back to Iraq this March, I was very excited to hear that the new courthouse was functioning, with all personnel and casework having been transferred to it from the old courthouse. I then contacted one of my friends and asked her if I could watch her in her active cases and also observe other pending matters taking place there. She was delighted to help.

As the taxi stopped in front of the courthouse, I saw two check points before walking in to the building. One was for men, and the other for women. As I was waiting for my turn I observed the male line where my husband was standing. There was another person ahead of him smoking. The first thing the guard told him was that he is not allowed to smoke in the building and must throw away his cigarette. As per usual practice in Iraq, the man just threw his cigarette on the ground. The guard reacted angrily asking him to pick it up and put it in the garbage can out of respect for the environment and the courthouse.

This made me reconsider my previous articles on anti-smoking laws and the protection of environment in Iraq, where I criticized the laws for being entirely unenforced. These laws are not properly enforced by the government in all respects, but clearly there have been important steps that have been taken. I have never before seen anyone seek to enforce a littering law anywhere in Iraq. The efforts showed; the courthouse was visibly cleaner than most establishments in Iraq.

Walking to the new building was a new experience for me in Iraq. Not only was it clean, but it was organized and resembled a courthouse almost anywhere. The judges hold hearings in courtrooms that are designed purely for court proceedings. (In the old courthouse, the judge’s chambers were the courtroom). There is ample, comfortable seating for the public in the back, and in the front a wide, large judge’s bench, a court reporter’s desk with a computer in front of it, and separate tables for the plaintiff and the defendant. Behind the judge’s bench were two large flags, one on each side of the judge. The flag on the judge’s left was the Iraqi flag, and on the right was the flag of the Kurdish region.

One thing that still needs work is efforts at computerization. Despite the fact that the court reporter has a computer on their desk, it goes unused. The reporters still write out everything in longhand, and file all papers in file cabinets rather than electronically. Thus, there is no actual court transcript of the proceedings. Instead, the judge summarizes testimony before the witness and lawyers, and the court reporter transcribes the summary. It is also very hard to search for cases and decisions, because they are only filed in hard copy chronologically, which is not how anyone usually searches for useful precedent.

The first case I witnessed involved an effort by a husband to obtain a judicially ordered dissolution of his marriage from his wife. Though husbands are permitted to divorce their wives in Iraq and under Islamic law unilaterally through a process known as talaq, there are financial ramifications for doing so. The part of the proceedings I witnessed involved testimony from the husband’s father, who indicated that his wife had told him that the son's wife was particularly harsh with her, shouting at her frequently and dismissive of her concerns. The questioning was conducted entirely by the judge, who as is the case generally in civilian jurisdictions involved himself extensively in the proceedings. After he was finished, he informed each counsel that they could ask any clarifying questions if they wished, but nothing further than this. He also allowed the wife’s attorney to place on record the fact that the testimony was hearsay and therefore should be given lighter weight by the court. (Iraq does not have a prohibition against the use of hearsay testimony, but it is under the Law of Evidence supposed to be discounted).

The second case was a felony case that involved a very serious car accident, with the charge being something akin to reckless homicide. We did not have an opportunity to see a great deal of this case. The case was in its early stages, and as is typical in Iraq, relatives of the victim were sworn in to testify as to whether they were seeking compensation. (Under Iraqi law, criminal cases are often combined with tort cases, and thus claimants are given an opportunity to demand compensation during the criminal trial. If they decline, they are always free to initiate a civil claim later, though the findings of the criminal court will be binding on the subsequent court). The relatives were asked to swear on the Qur’an, and when the judge announced this, the entire room stood, as is custom in Iraq, when the Qur’an was presented for them to swear on. They then stated they would not seek compensation, and by the time this process was completed, we were forced to leave.

Other proceedings we had even less of an opportunity to witness. We did sit in on a complex commercial litigation, and just as we were beginning to understand the contours of the case, which involved the valuation of a business, the judge suspended the proceedings to appoint an expert to assist. We also saw a misdemeanors proceeding where a judge berated a defendant who insisted that he was not selling weapons but only had them for his own protection. The judge angrily gestured at the evidence, which was a fair amount of weaponry, and asked why anyone would need several automatic weapons to defend themselves. Unfortunately, the day and the court sessions ended, just after noon, before any final determination was made in the misdemeanors case.

Overall, I was encouraged. I am more optimistic that rule of law will have a better place in Iraq over time, and that Iraq will get over the obstacles that it faces every day if it continues on this course.

Sara Burhan Abdullah

What the House of Islam Might Learn From Europe

Haider Ala Hamoudi — Wed, 02 May 2012 21:30:38 GMT

If you follow much commentary on Islam in the modern nation state, then you've probably seen an argument along these lines:

We equate a secular state with modernity, but this is a Eurocentric vision, based on the fact that Europe found itself decimated by endless religious wars over heresy and orthodoxy. The Muslim world is different, and has a different history. Therefore, the lessons applicable to Europe are not applicable as to the Muslim world and we should stop trying to insist that they are. Not every place needs to develop its state model on European lines.

It's a fairly common theme, by no means a ubiquitous one, but something like it is commonly expressed in defense of the religious nation state. Personally, I'm not as concerned about the House of Islam historically, though we've spilled a fair amount of blood over religious questions too. More, less, who knows, the historians can tell me.

My own incredulity relates to how anyone living in our times could credibly come to this conclusion. Are you watching the news? The Arab world rises in democratic fervor, demands are made related to national citizenship, to government reform, to democratic participation, and do you want to know where they falter? I can tell you. They end where the sectarian fault lines begin. It is there where the dictators survive, their hegemony unaltered absent the extraordinary act of American invasion as in Iraq. For however appealing the demand of the "people" to alter the government, however romantic the attachment to democratic and popular rule, however emotional the sights and smells of Tahrir Square, they don't hold a candle in a raging debate over whether Omar or Ali was the better caliph 1500 years ago.

Am I wrong? Find me a Sunni mosque, even a progressive one, even in America, where the right of the Bahraini people to demand the fall of the regime is mentioned. You'll hear Syria, you'll hear Libya, you'll hear Egypt, but you won't hear Bahrain. In fact, you might even hear as I have in social gatherings that we have to intervene in Syria or we will lose it to Iran "just like the mistake we made in Iraq." In Iraq, America intervened to create democratic rule. In Syria, it refrains from doing so. The only way that the failure to intervene in Syria can be understood to be a mistake "like we made in Iraq" is in sectarian terms--both the intervention in the one and the lack of intervention in the other are prejudicial against Sunni interests. National citizenship and democratic participation founder on the shoals of deeply rooted sectarian animus, which rules wherever it rises. The person making the comparison probably didn't even realize he had reverted from democratic ideals into sectarian commitments, how easy the slide is for us.

And it works both directions, let's be clear. Find me a Shi'i mosque where the right of the Syrian people to change their regime is extolled. There you'll hear Bahrain and all about Sunni double standards, never mind that Hafez the butcher gets a pass despite human rights violations that are starting to make Qaddafi look a bit soft hearted.

I'm told that the Arab revolt succeeds where the army stands with the people and it founders where the army is willing to turn its guns on them. True, but look deeper. Why would a military composed of national citizens wish to turn their fire on their fellow citizens demanding and asserting their right to rule themselves? What causes them to think of such people as, to use Qaddafi's term, "rats" who deserve to be exterminated?

Easy, they don't see them as fellow citizens, they seem them as sectarian rivals. That woman isn't my fellow national aspiring to democratic participation, she's a Persian leaning Shi'i who wants Iran to take over my country, an Ali worshiping traitor. Shoot her, or rape her, or do whatever you want, the similarity of her passport to mine is of no moment. That 14 year old young man over there isn't part of the rising youth of my nation, its hope and its future, aspiring to great achievements. No he's a Sunni supremacist who is going to import Saudi type Wahhabism to repress us and deny us the ability to visit the graves of our Imams and their families. Put a bayonet through his filthy neck. The multisect societies that do exist democratically (Lebanon, Iraq) are better, yet they are racked by continual political crises and unable to form strong governments because of the perduring tensions.

We escaped Europe's dilemma? We are living Europe's nightmare. There's one way out, and that is to begin to realize that the state and affiliated political loyalties cannot and should not be defined in religious and sectarian terms, that to attempt to do it fails. (And, to be clear, the softer version of the Islamic state popular nowadays--declaring that a state should be governed by the "goals" of the shari'a? All my other well publicized problems with it aside, in the states that are composed of the two sects, that's just a nice way of demanding Sunni supremacy. It's judicial review based on amorphous Sunni medieval theories--just how do you think that goes down among the Shi'a?) If we dropped the religious affiliation, if we allowed that people will have their religious loyalties and they may be embraced, even with fervor, but as a form of political affiliation and as a means to project values onto the state, they will only lead to intolerance and bloodshed--if we did all that, then we might just take that next vital step toward successful, peaceful, economically prosperous societies.

But to do that, we'd have to learn from Europe's mistakes.

HAH

The Iraq Federal Supreme Court and "Islamic" Legislation

Haider Ala Hamoudi — Fri, 27 Apr 2012 00:50:43 GMT

Just wanted to let everyone know about my latest post on Jurist, which isn't so much about the Iraqi Federal Supreme Court avoiding shari'a, as what it does when it's faced with Islamic legislation, meaning an area of law that is either codification of shari'a or at least draws significant influence from Islamic rules. If you think what they do is actually interpret shari'a, or subject the legislation to review to ensure compliance with shari'a, rest assured they don't. Article 2 of the Iraq constitution remains as ornamental as it has always been. For details, read the article.

HAH

The Iraq Federal Supreme Court Avoids Interpreting Shari'a--Again

Haider Ala Hamoudi — Tue, 24 Apr 2012 20:12:40 GMT

Loyal readers of the blog know my longstanding contention (see link for a shorter scholarly article on the subject) that the Iraqi Federal Supreme Court will turn over heaven and earth to avoid the undertaking the interpretation of shari'a. The reason is that the court's position is from a legal standpoint somewhat precarious--technically it is a "caretaker" court, composed on the basis of a law that was enacted prior to the current Constitution, and the current Constitution clearly envisions the enactment of a new law in Article 92 pursuant to which a new court will come into being. Hence when it makes a decision that one faction does not like, as when it decided that Maliki could form the 2010 government post election rather than Allawi, this is pointed out to it, thereby translating that legal precariousness into one with political implications.

For the most part, the Court has managed to do a fairly good job burnishing its credentials despite these vulnerabilities--the above referenced complaint by Allawi ally Tariq Al Hashimi was easily brushed away given that Hashimi himself had come to the court not long before to demand his presidential council salary on the basis of his participation in an institution that preceded the constitution (and pursuant to a law that set the salary that likewise preceded the constitution). Other institutions that are far more controversial, for example the Accountability and Justice Commission (fancy ne official name for the de-Baathification Commission) have a harder time justifying their caretaker status. Still, the Court is aware of this.

In addition, there is Najaf. A famous commentator on the Egyptian Supreme Constitutional Court once told me that the Court when it interprets Islamic law always gets a view from the Azhar in Cairo, that pinnacle of Sunni learning, and always throws it away. Well if that's what they do in Egypt, it's certainly not what they do in Iraq. The Court doesn't need Grand Ayatollah Sistani as an enemy, it knows that, and it's not likely to provoke him by interpreting shari'a differently than he does. (One exception provided in the linked article).

But this post isn't about that, I say three paragraphs in burying my lead. It is instead a response to those, including not a few lawyers, who object and tell me the Court simply cannot avoid Article 2 questions on Islamicity and law because its jurisdiction is mandatory, unlike that of the U.S. Supreme Court, whose jurisdiction is basically discretionary. The Supreme Court decides to hear a case through a process known as issuing a writ of certiorari--the Iraq Federal Supreme Court is obligated to hear particular matters. There you go, they say, the procedure proves you wrong, they say.

And I say, oh, how cute, formalists! (Too smarmy? Maybe, sorry.) Anyway, the fact that a court doesn't have discretion to turn down a case doesn't mean it will decide it, it just makes it a little bit harder to avoid. But it still can be done, it is done with some regularity, in fact, everywhere. To illustrate, let us take a closer look at the Iraq Supreme Court in operation:

Decision 54 of 2010

Parents of a soldier killed in war want his apartment. It was given to his widow I think and the decree giving it to her (issued by the Ba'ath era Revolutionary Command Council, or RCC) stipulated it could not be inherited, it would go back to the state when she died. Allegation is this violates shari'a inheritance rules.

Decision: The parents took a sum certain pursuant to the same RCC decree. You can't take with one hand and then insist the decree violates Islam on the other. It's what those of us familiar with the common law and the equity courts would refer to as "unclean hands". Shari'a avoided.

Decision 39 of 2011

Husband divorces his wife unilaterally through the Islamic procedure available to husbands known as talaq. But he does so arbitrarily a lower court finds, and therefore holds him liable for alimony for two years after his divorce. He claims the relevant provision permitting this alimony violates shari'a because the jurists never suggested such a result, or any financial consequences for issuing a divorce like this for a good or bad reason.

Decision: The wife isn't the person who can defend the constitutional claim, it's not her claim, it's the state's claim to defend. Dismissed. Shari'a avoided.

[This actually isn't as crazy as it seems to Americans. In the U.S., it would be insane because the Supreme Court is the highest appeals court, so if you are challenging a statute, say a defamation statute as in New York Times v. Sullivan or Flynt v. Falwell, effectively you have to do it as a defense to the defamation claim against you, and take it up. The other side is a private party, that's who raises these claims. Naturally there's probably an amicus brief filed by the sovereign with the law, but they aren't really part of the case. But when you have a constitutional tribunal, the way it is supposed to work is the question usually gets certified by a lower court or maybe raised by a litigant, and it isn't unusual for the constitutional tribunal, which really only deals with that one issue, to hear it separately and involve the state. The French Constitutional Council for example did get the PM's view on its own defamation statute before ruling in 2011 that its existing defamation law was unconstitutional because it did not permit truth to be a defense more than ten years after whatever is being reported occurred.

Still, you'd think the court could have sought the state's view, rather than merely see it wasn't present and then dismiss the case because of that. Still, as I said, not crazy, in fact depending on unpublished procedural details respecting how it got there quite plausible.]

Decision 99 of 2011

The Basra Appeals Court certifies the following question to the Iraq Federal Supreme Court. Does the Liquor License Law, No. 3 of 1931, violate the settled rulings of Islam as per Article 2 of the Iraq Constitution?

Decision: There's no pending reported case about this, so the Basra Court acted out of order and beyond protocol by asking this question. Dismissed, with costs to that court.

[Ouch.  I honestly don't know what happened here. If I was in Basra right now, I'd find out. But since I'm not, I'll speculate. Iraqi judges have their foibles like all of us, but they are professional, serious, hardworking people I cannot believe three appeals judges sat around Basra drinking tea and eating baklava and thought to themselves, "Hey here's a question! Let's go ask the Federal Supreme Court about it, just for kicks." If they did, they deserved the Court's smackdown.

More likely, they just didn't include reference to the underlying case because they didn't think it important, or they were pressured by some Sadrist notable down there to issue the question despite there being no pending case, or they did mention it somewhere but it helpfully got "lost" on the way to Baghdad and hence the Federal Supreme Court ignored it. Something in the nitty gritty happened here, something not relayed in the facts, that made it helpfully easy to get rid of.]

Avoided, avoided, avoided. In each case, on plausible grounds. In each case, an alternative result was not impossible to reach. And that's how you do it when you don't have the power of cert.

HAH

The Early Elections Debate in Iraq

Haider Ala Hamoudi — Thu, 19 Apr 2012 19:15:55 GMT

Honestly whenever I hear my fellow Iraqis demand early elections to heal the current political crisis, I am reminded of Einstein's famous adage respecting the definition of insanity--to do the same thing over and over again and expect different results.

For those unaware, while the nation's business does move on slowly and fitfully (Iraq is never quite as bad as the pessimists say, its government and legislature do function), the state is insecure on any global measure, desperately needed legal reforms, particularly market related reforms, proceed at a snail's pace in the best of times, the government remains woefully unresponsive and inefficient and most importantly, we're in the middle of a political crisis, with Sunni leader and Vice President Tariq Al Hashimi in hiding in the Kurdish region because of allegations of terrorism, a dispute over the largely failed attempt by the PM to remove Sunni Deputy PM Saleh Mutlaq, and traded accusations of who has failed to implement the famed Erbil accords that are supposed to create some ground rules for the existing government and its operation. Given this, there has been talk of a national conference to address the outstanding issues (more particularly President Talabani has called for such a meeting, and everyone else agreed in principle), but they cannot seem to get beyond arguing over the agenda for the meeting, and so it has sat for months. Hence the popular frustration. It's not incipient dictatorship (a dictator who can't even manage to get his own deputy Mutlaq fired? You think Saddam had that problem?), but it is hardly a paragon of good governance.

But another damn election to settle the matter? How is that going to happen? Let me inform you of the results from now. Some number will vote for Maliki, accusing Mutlaq and Hashimi of treason, and insist the solution is to give him greater control. Some almost equal number will vote for Hashimi and Mutlaq supporters, and demand more accountability from Baghdad vis a vis the Sunni population in particular. Some more hardline Shi'a will vote for the Sadrists, who won't find either side appealing and the Kurds will have their representatives running around mediating. Know what that looks like? The current parliament.

I think Iraqis have managed to dupe themselves into thinking we are less divided than we are. You take your average Baghdad bread seller, he figures he sells to Sunnis, he sells to Shi'a, a few Kurds buy from him too, and so he has no difficulties with these guys. They cannot manage to get along in the government, he thinks, because they're just being unreasonable. We'll replace them, bring in some more reasonable people, and they'll do what we want, which is come together and solve these problems that have left everyone divided. (Come to think of it, maybe Iraqis aren't all that different than Americans in this regard).

Except we tried that, it doesn't work. The reason the bread seller gets along with the different Iraqis is because he doesn't talk politics with them, and has no control over those issues of dispute. If he was forced to sit down with someone of the opposite group and discuss, say, the Hashimi matter, they'd be just as divided as the people in the legislature. Which is why a new election won't change a thing, it'll just bring back the same divisions, perhaps with new personalities occupying the roles, but the same divisions, all over again. There's no new result from doing it over again, because the problem isn't the representatives, it's a problem in the nature of the society they represent, and the deep divisions that society has respecting the state they envision Iraq being.

HAH

Is PM Maliki Growing Assertive Against the US: Reflections on a Recent Speech

Haider Ala Hamoudi — Wed, 11 Apr 2012 01:51:33 GMT

Maliki has said some rather surprising things recently that ought to raise eyebrows, but they require sufficient context that it is perhaps unsurprising they did not. As a blogging law professor who doesn't need to worry about word limits and burying leads, I will lay out that context in a few paragraphs because the lead doesn't work without them, and then I will explain why it is that I think Maliki's recent comments are worth paying attention to in light of that.

-----

To the extent that Americans think of this time of year as it concerns Iraq, they probably think of it as the anniversary of the fall of Saddam Hussein's statue in Firdous Square, nine years ago yesterday. But Iraqi Shi'a don't think of that first. They might well think of it, the fall of Saddam will reverberate among the Shi'a long after it fades from the American memory, but to the Shi'a, early April commemorates Saddam's murder of Muhammad Baqir al Sadr on April 5, 1980. I've written on Sadr fairly extensively in scholarly articles and in a   memorable exchange with the incomparable Chibli Mallat, whose work The Renewal of Islamic Law remains to this day the authoritative work on Sadr. Suffice it to say, Sadr was to me one of the few jurists who really, truly sought to render shari'a relevant to modernity in a fashion that was self-consciously ideologically driven, with the ideology including a concern for the downtrodden that seems to have evaded all too many reform movements in the region. The ideas are too radical to have been practical (he couldnt have been expected to know that), and his trust in the juristic institutions almost naive (I expect he would have realized this had he lived to see the Islamic Revolution truly unfold), but overall I've found his work quite refreshing relative to so much of the nonsense one sees spouted by most Islamist movements today with conceptions of the shari'a that are not just primitive, but positively incoherent,

In any event, Sadr's murder effectively began Saddam's reign of tyranny and extreme repression over Najaf (hence he is colloquially dubbed the First Martyr), and Sadr has since been lionized among the Shi'a for his bold ideas. Except, of course, the radicalism of his thoughts never quite took hold, Islamist movements grew largely coopted into Western economic theory with the end of the Cold War, and the turn toward pragmatism, which was probably inevitable, and even sensible, was never accompanied by the same sort of introspective self conscious theoretical set of underpinnings that defined Sadr's work. I get how Sadr justifies his approach to shari'a, but I don't even know what shari'a is when the Brotherhood speaks.

Of course if you coopt the message, you have to coopt the messenger as well, and hence Sadr has been reinvented virtually every anniversary of his death by Iraq's Islamist Shi'i elite. This year is no exception. The reinventions are quite interesting to those few of us who have actually looked at Sadr's work in a great deal of detail, but probably not for everyone else. For everyone else, what is interesting is what the reinvention betrays about the person engaging in the practice, and it is here where Maliki's recent remarks in Kerbala commemmorating Sadr's death prove quite fascinating. (Shout out to my buddy Muayyad who pointed this in my direction and recognized its signicance).

      The first and most reflection Maliki offers is that a "foreign power ordered Saddam to execute Sadr the martyr when an airplane from a foreign side landed in Baghdad airport and ordered Saddam to kill Sadr."

This is important, someone, Maliki is suggesting, is out to get the Shi'a. (It's not important because it's true to be clear, I'm more or less assuming he made it up.) In fact, this someone is so out to get the Shi'a, that Maliki is willing effectively to shift some blame away from his favorite bogeymen, the Ba'ath, onto them for the greatest assassination conducted against the Shi'a in a century. Who does he mean?  Does he obliquely refer to The United States of America? That seems to be the likely culprit right? Landing secret planes in Baghdad airport and ordering the murder of the beloved Shi'i jurist? Is Maliki turning away from the U.S., getting ready to paint them in a bad light if they follow through on attacks against Iran. Consider this gem in the same remarks:

Among the reasons that hastened his execution was his support for the Islamic Republic in Iran.

That's actually true, interesting that Maliki pointed it out, at the same time he indicates that Sadr was actually killed by a foreign power. So the foreign power, seeing Sadr supporting Iran, sent a plane to Baghdad airport and ordered him killed. And who had hostages in Iran back then?

OK you might say, but he could surely be referring to Kuwait perhaps, or Saudi, couldn't he? Avowed enemies of Iran, a demonstration of the evil Sunni neighbors prying into Iraqi affairs to suppress the Shi'a. Couldn't this be a disguised play at sectarianism? Probably not, given this, from the remarks:

The ideas of Sadr do not resort to terms of sectarianism. He used to call the Shi'a and the Sunnis the children of Ali and Umar.

Partly true. Certainly true in the writing of his remarkably ecumenical Iqtisaduna.  But later in life clearly he turned more to Shi'i models and Shi'i ideas. Still, the point here is Sadr as national figure for all. Maliki goes on.

We see in the ideas of Sadr the means to build a state. There are answers to many of the questions posed respecting state building.

So he doesn't seem to be trying to stoke sectarianism, it's not his style anyway. He's all about the state of law and the like. When he wants to crush an opposition he calls them extralegal bandits and terrorists, not heretics. Here's more turning against the West suggested:

Whoever looks at the world today, and sees socialism having gone extinct, and observes capitalism on the way to extinction, he will see that Sadr's vision, of combined economics, is the correct view.

Actually, Sadr went out of his way to argue that while Islamic economics had elements in common with socialism and capitalism, it was not a combination of the two of them, but rather its own, independent way. He'd probably turn in his grave at the combination reference. But again, that's more interesting to the Sadr nerds than anyone else. More relevant to everyone else, what's this about capitalism on its way out? He's sounding like Ahmedinijad. And finally, consider the following, at the start of the remarks:

The ideas of Sadr contributed to the confrontation of the challenges that the 'umma (the Muslim community) faced in the last century, and that were represented by Marxism, and secularism. We were able to defeat these challenges with the grace of books by Sadr, including Our Economics . . . .

It's one speech, political leaders say things and retract them all the time. And the PM may well have figured nobody was going to pick up on it in the West, where few know who Muhammad Baqir al Sadr even is. But still, the equating of Marxism with liberal democracy, of capitalism with socialism, of building a national project that resists hegemons, and above all else, of hanging the murder of Iraqi Shi'ism's most beloved figure on a mysterious all powerful foreign entity that landed a plane in Baghdad airport and sped his execution up because of his support for the Islamic Republic of Iran, at a time when Iran had US hostages?

There's something happening here. What it is aint exactly clear. There's a plane with an order over there, telling Saddam he's got to beware. . ..

HAH

Islamic Finance and Housing Projects in Malaysia

Haider Ala Hamoudi — Thu, 05 Apr 2012 15:02:12 GMT

I just read about this interesting new practice in housing developments in Malaysia that is based in Islamic finance, and the historic credit sale permissibility tied thereto. For those unaware, Islamic law has always permitted credit sales (I sell you X now, and you agree to pay me over time), which makes for an easy interest evasion. At times, the contortions to achieve this are amusing, particularly for a practice that spends so much time defending a ban on interest as furtherance of a principle of profit and loss sharing.

Take this Malaysian example. You have housing developers in Malaysia, and they're seeking to sell the property in advance, as yet undeveloped. So normally what one does to evade interest in Islamic finance (or one way to do it, in any event) with completed property is for the bank to buy the property, immediately sell it to the purchaser at credit sale at a markup, or to use a form of rent to own, where the purchaser pays a lease price (corresponding to the interest payment), along with the purchase of an ownership stake that grows over time (corresponding to the principal payment). Yet the problem with this approach in this context is that legal regulators don't much like the idea of banks having some sort of interest in undeveloped property, which is risky, and so the relevant regulatory rules require the purchase and sale, from developer to final purchaser, to be on the books first, and then one can go get a loan for the money from the Islamic bank.

But of course interest bearing loans aren't allowed, so what to do? Follow closely now. Developer sells it to the person who is ultimately going to purchase it,for a given price, which the purchaser has yet to pay. The purchaser, instead of getting a loan, sells the interest immediately to the Islamic bank, which meets necessary regulatory requirements it seems if the bank then immediately sells it back to him at a higher price (bay al ina it's called, sale and repurchase of the same item at markup, controversial in many areas of the Muslims world) which is then paid over time, with the Bank retaining a security interest throughout. So the sale was already on the books, and then the "loan" through sale and repurchase. Several problems.

Did the purchaser, when selling the property in the first place, even own the damn thing? It isn't in existence (property hasn't been developed yet), which is one problem under speculation prohibitions, but aside from that, the purchaser hasn't paid for it beyond an initial deposit and as such the seller isn't putting the buyer's name on the title until the seller gets its cash which only happens after the purchaser sells the property to the bank for cash, to give to the developer. So the purchaser is selling something to the bank and then buying it back, in circumstances where it's not even clear the purchaser owns it. Certainly it has no legal title, no seller in their right mind would ever concede that.

Then there's the even weirder part that the bank doesn't even agree to this purchase and sale bit, given that it's buying it from a purchaser who sort of doesn't own it and certainly hasn't paid for it, unless it can take a security interest in the property as against the seller upon purchase. That way, if anything happens, it can always foreclose. But it buys and then sells the damn property to the samy guy. You cannot take out security on something you just bought, it makes no sense. If you don't pay, do you foreclose on yourself?

So a purchaser who might not own something sells it to a bank who claims it does and then takes a security interest in it, to sell it back to the person who still might not own it but has money for it now to pay a developer who then gives him ownership of property he's bought and sold, which, again, has had a lien taken out by someone who owned it when they took out the lien.

Friends, seriously. Stop. Just stop. Take out an interest bearing loan and be done with it. Honestly.

HAH

Shari'a, Good Governance and the Rule of Law

Haider Ala Hamoudi — Tue, 03 Apr 2012 18:07:18 GMT

Noah Feldman and I had a most pleasant dinner and conversation at West Point's historic Mess Hall last week. (We spoke at the same conference. He opened the conference with the evening lecture, I gave the keynote luncheon address the next day. Click the link, and the conference program and speakers is on that page somewhere to review).

As he was speaking, I thought the distinctions between our two positions became somewhat clearer to me as mine has evolved over the course of a few years. He's done a very good job convincing me that shari'a in our times has transformed itself to some extent away from any attempt to implement specific (if selective) shari'a rules that have some historical pedigree (whether that's the application of the strict traditional hudud punishments, historic family law rules or obsessions over women's dress) and more in favor of what I think of as good governance (anti-corruption, open elections, no abuses of authority, etc.). I think we'd both agree neither the Taliban nor Boko Haram in Nigeria fit this model particularly well, but it is something of note that people like me aren't in a panic and actually do not think much bad will arise if the Muslim Brotherhood assumes control in Egypt, or that much bad came about from Iraq's Islamist party rise because of how fundamentally they have moderated the Islamist message. Except for the rather cacophonous Sadrists, whose more extreme elements scare the hell out of me, I see little problem with the balance of the parties in Iraq's mix. Whatever Iraq's problems are, Islamism as threat is not one of them and in fact given my spiritual affinity to them relative to Iraq's secularists, I sort of like these folks even if I don't agree with them much politically. At least they don't offend me.  Where before it was uncontroversial among Islamic parties that the state had to enforce the veil, now the trend is very much in the opposite direction. Iraq, Tunisia, Egypt, the Islamists win, the veil remains legally voluntary. There's all sorts of civic pressure (more on that another time), but not state enforcement.

Noah and I no doubt disagree about precisely when this change took place. (Based on his remarks, he seems to think FIS would have been in Algeria in 1991 something like what Ennahda is now in Tunisia, I think you were looking straight into the teeth of a second Iran). And I think he'd phrase it "rule of law" and limits on executive authority and I really think it's more broadly matters relating to good governance. But these might well be quibbles, the kinds of things law professors write back and forth in law reviews to each other all the time, but in the end are not of great importance.

No, the real difference is that Noah works hard. very hard, to grant some historical pedigree to the Islamist claim, and I do not. He seems to find this good governance/rule of law stuff in Islamic history, and I think that's like finding shapes of Greek gods in the clouds (look hard enough, you'll find 'em. Unless you want to find flying squirrels up there, in which case you'll find them). His approach is to earnestly search for that which explains the Islamist change as having pedigree, mine is to dismiss all of that as hindsight driven justificatory exercise and focus on the actual political and social reasons it came about.

Both approaches have their insights and to be fair, he's concrete and sensible about it cynical as I might be. Unlike others in our academy (I'll leave my powder dry and not name them now), who believe in shari'a as the best basis for organization of the Muslim state, and who describe it on the basis of the "goals" of the shari'a (protection of life, mind, honor, football, family, religion, headscarves, property, beards, something else), Feldman isn't peddling voodoo, this random highly abstract and effectively meaningless nonsense that couldn't get you to a concrete legal decision on anything. He is talking about rule of law in a much more definite fashion in history and in modernity (which of course makes it easier to challenge as a matter of history, but that's a task for others).

I just don't think that what happened was Islamists looked back at Islamic history and thought they had rule of law and so what we really should be doing is engaging in rule of law. Or they didn't have corruption so what our program should be is reducing corruption.

What happened, I think, is that shari'a, as a means of legal organization, failed. It failed to provide sensible rules of commercial organization through "Islamic economics" that could function in modernity, and so it compromised itself. It failed to provide peasants with better lives by making sure that urban educated women couldn't walk around in short skirts, and so it toned that down. It failed to create societies that proved more morally pure through stoning and amputation, and it dialled those back too. Failure and retreat is the story, over two decades until the parties got the message--drop shari'a, or die.  And so they dropped shari'a.

They of course couldn't say that. They could I suppose have said that they believed in a secular state with a religious people in it--that shari'a is a means by which an individual believer might live a good life, has rules that can constrain individual behavor in a manner that when done on an individual, voluntary level leads to social betterment (nothing calms me more than the noontime prayer, like looking at the Milky Way, it helps to remind me that whatever is stressing me at that particular moment in fact is not important at all). But even that is difficult for organizations that spent their careers defending a more public, social, legal, political role for Islam.

So they changed what they expected sharia to do into something (rule of law, good governance, call it what you will) that you really don't need shari'a to explain, defend or justify at all.  And I just don't think it's got legs in the long run, though in the short run the history of these groups will help of course.  But over time, I think once you've taken this step, then eventually you'll be down in the muck with the rest of us. If the Islamists can deliver, on good governance, on economic betterment on the rule of law, then sure whatever it's our history, caliphs, jurists, all the rest of it. If they cannot,well the other dude that says rule of law, that doesn't tie it to Islam, that actually can deliver, maybe he'll not look so bad. After all, it's hard to describe the secularist as "unIslamic". He's got the same program the Brotherhood does.  He's just missing the rhetoric.

HAH

The Origins of Repugnancy

Haider Ala Hamoudi — Fri, 23 Mar 2012 17:05:17 GMT

Those loyal readers who know my work know that I have spent some amount of time thinking about the so-called "repugnancy clauses" in the modern constitutions of the Muslim world. At one point not long ago, as I was sort of waffling around, I decided to figure out where the term "repugnancy" comes from. One does not hear it in legal discourse among Arab lawyers I know, such that I don't even really know how I would translate it. Just seems like an odd phrase for Western academics to come up with.

My original theory was that it was merely based on the language of Pakistan's constitutional provision, which prohibits the enactment of law "repugnant" to Islam, and the name sort of just transported itself. Which may be sort of true, but there's more depth to it than that. (Some of you who are more practiced in English colonial law might well be shaking their heads in disbelief at this point, but forgive me, my field is Islamic and Middle Eastern law in the modern era, as practiced by modern courts. In the primarily Arab jurisdictions in which I work, this phrasing is odd enough that I've more or less replicated the academic terminology without ever having even thought about where it came from).

"Repugnancy" is a longstanding English colonial doctrine pursuant to which local law could not be repugnant to English law if it was to stand. There's much criticism of it in the African context (some discussed here) but it actually applied in places like New Zealand and the United States as well. But again, it's local law applies, and then when and if that law seems not to be to the English liking because it makes them, to use Santorum's phrasing, "want to throw up", then it is deemed void. One can certainly see why any local population would find this principle somewhat offensive.

Yet what is ironic, to my mind, is how precisely in modern Muslim law, as the Islamists would have it, the principle of repugnancy is flipped on its head. Before, it was the LOCAL law that was acceptable unless repugnant. Now it is the TRANSPLANT that is acceptable unless deemed offensive to Islam.  In other words, we're not even trying to apply shari'a as a meaningful part of a legal system, we're retreating to allow the foreign inspired legal system to operate, so long as not repugnant.

The foreign is now local, the imported thoroughly domesticated. What's left to be foreign, outsider, colonial, irrelevant as constraint on positive, secular, state legislation unless its vomit reflex is induced?  Shari'a. Rather ironic, isn't it?

HAH

Sectarian Divisions and Sectarian Hatreds

Haider Ala Hamoudi — Wed, 21 Mar 2012 15:57:30 GMT

It does not take a particularly perceptive person to realize that Iraq is divided, severely, among its constituent factions. Yet sectarian division is not quite sectarian hatred, and I think it is quite important to draw a distinction as between the two, which I think is a qualitative one, based on category, rather than merely extent.

Hence, for example, it is not difficult for an ordinary Arab to walk the streets of Kurdish Suleymania, nor is it particularly difficult for an ordinary Kurd to walk the streets of Arab Basra. Sunnis can go to Najaf, Shi'a can go to Falluja. All of those cities are--relatively, in the context of these turbulent times in Iraq--peaceful, and low on violence. The real difficulty is thus not a visceral sort of radicalized hatred that leads one to kill members of a different group wherever found that one sees elsewhere.

Rather, it is a complete lack of trust in the other group, a belief that they will, given the opportunity, marginalize one's one group. This leads to significant division of the political sort, and violence where there is genuine contestation over particular geographic areas. Baghdad, with its mixed Sunni and Shi'i populations, is an example. A Shi'i moving into a Sunni neighborhood is dangerous--the assumption might well be that it's part of a wave coming into take over. An Arab on contract working in Kurdish Suleymania? There no such fear exists, quite clearly that city won't be Arab because of that. But an Arab moving into a Kurdish area of Kirkuk is a cause for considerably more tension. And so forth.

Of course, tensions can turn into hatreds quickly, and political contestation of this sort leads to quite troublesome political stagnation that is hardly conducive to economic growth, which itself leads to rising frustrations and potentially ethnosectarian tensions.. Still, I think for those who imagine that a horrifying genocidal civil war in Iraq is imminent, the nature of the division is a point that deserves some consideration.

HAH

"Emo" Killing in the New Iraq

Haider Ala Hamoudi — Thu, 15 Mar 2012 18:28:43 GMT

Leaving Iraq today for a long trip back to Pittsburgh after observing much court and collecting dozens and dozens of cases for some upcoming work. So I'll be offline a few days as I return and catch up on old work. But did want to share my latest Jurist column on the killings of the so-called emos in the new Iraq.

http://jurist.org/forum/2012/03/haider-hamoudi-iraq-emos.php

One thing I did not mention in the column but did want to raise more as speculation than as legal analysis (which is why it isn't in the column) is precisely why there is what seems to be a studied effort on all sides not to describe the actions taken against the emos as set forth in the above column as being a form of violence against perceived homosexuals. We don't hear that in Arabic press, it's always the "emos" are "effeminate" men with excessively styled haircuts, tight jeans, and "deviant" ways. But nobody actually goes out and lays human beings out on the sidewalk and drops cinder blocks on their head for their haircuts. Obviously, given the above descriptions, it seems to me this is related to hostility against gayish men (meaning men acting suspiciously unmanly), and yet this isn't said. And it isn't because “emo” is code to disguise hostile sentiment, as there is nothing politically damaging in Iraq against expressing hostility against gay people. It's the reverse that carries a political cost.

So the reason for the denial? Well liberals find it easier to defend emos in Iraq than they would homosexuals, and so they see no advantage in making the connection. It seems to work, Najaf has come out very clearly against killing of emos, in favor of "advice" and "guidance" to emos. Easier to urge people to leave emos alone than gays. (And those who cry out that "advice" and "guidance" sounds like Marcus Bachmann need to reevaluate the context. In a world where young men are having cinder blocks dropped on their head, if you're a strong fervent liberal who advocates same sex marriage, still in that context you take "pray the gay away" as being a pretty significant step in the right direction).

As for the more extreme religious elements, more extreme than mainstream Najaf, meaning the Sadrists, well it's obvious for them too I think. Those guys don't want to admit there are significant incidences of homosexuality in Iraq, it seems to violate the core notion that same sex activity is so deviant that it is extraordinarily rare in Iraq. And thus they can direct their criticisms against the "cursed" emos for their "effeminate" ways, urging legal action taken against them while denying they are responsible for the killing. And they can do all this while still maintaining there are absolutely no gay people in Iraq. There are only emos.

HAH

The Arab League Summit

Haider Ala Hamoudi — Tue, 13 Mar 2012 13:59:01 GMT

I have to say, I'm rather taken aback by all the attention given to the upcoming Arab League Summit here in Baghdad. Some might dismiss the Arab League as largely irrelevant, relying on the issuance of anodyne and useless resolutions that historically criticize Israel for some military activity or other, and more recently criticize fellow Arab regimes for humanitarian nightmares (though those aren't quite useless--they give other states with more resolve the cover they need to actually do something). But here in Iraq, and in Baghdad in particular, the symbolic importance of hosting the conference is immense.

Just today the official insignia of the 2012 summit was released. Armored cars have been purchased. Much news centers on whether Iraq's President will be healthy enough to make it to the opening ceremonies. There will be a curfew in place at night in Baghdad during the time of the summit. There's even a national holiday declared for its opening day. Honestly it feels a bit like the Olympic Games in a host city with all the media attention and hype given to it. (And, like the Olympic Games, there are the grumblers too, who want to know precisely why it is that their roads are blocked, curfews are imposed, and state money is wasted on armored cars, for the supposed "privilege" of having all of these people come to Baghdad. A bit like me every single time the Pittsburgh hockey team plays a home game and I cannot get downtown to the theater).

The reasons are I suppose obvious enough, even if it is fascinating to see. It's being considered a step toward normalcy. Yes some of that is a facade, the participants will land in the airport, get shuttled straight into the Green Zone on one of Iraq's safest roads, the road to the airport and see little else of Baghdad. (Want to make a road safe in a country? Let it be one everyone uses, and allow it to develop into the most dangerous road, as Baghdad's airport road once was. That tends to focus minds.)

Still, the Arab League would not have met here several years ago. Nor would many states even open embassies. And needless to say we're probably not at the top of the list of Olympic cities I'm guessing, or Asian Games or anything else. But this is an international meeting, it is one of some regional standing and after years and years of instability and then finally some progress (frustrating, two steps forward and one back, and in the face of existential dangers, but progress nonetheless), we can host this. And that, it seems, means quite a bit.

HAH

Iraqi Protocol

Haider Ala Hamoudi — Mon, 12 Mar 2012 15:52:11 GMT

I thought I'd follow up on my last post, as there is an aspect of this whole political dispute thing I did not comment on quite as much but deserves some attention. This is a dispute within the Iraqi political factions respecting who will be responsible for opening, managing, hosting, and the like, the upcoming Arab League summit to be held in Baghdad.   Should it be the President of the Republic (Jalal Talabani, a Kurd), the Prime Minister (Nouri Al-Maliki, a Shi'i), or the Speaker of the House (Osama Nujaifi, a Sunni) and what are the roles of the others regardless of who is chosen? Should the meeting be hosted ceremonially by one, and then managed by another? Who represents the Iraq delegation beyond its Foreign Affairs people, and will it include a legislative contingent? One can read articles ad infinitum about this, it's all pretty silly.  After its temporary relevance in Libya (mainly by offering regional justification for the NATO campaign), the Arab League has settled back into its familiar complete irrelevance in Syria, failing even to make its human rights monitors particularly effective, and this hosting thing is about as far from important in terms of power sharing as one can imagine.

Still, it seems divisive. One reason for that, of course, is that the major identitarian groups are already divided and this is merely just a manifestation of a different set of fights.  But there is another aspect as well, which is the rather obsessive Iraqi attention to protocol. Part of the reason it's so important is because it actually matters to the leaders who "hosts" the conference.  The President of the Republic is the symbol of the state, surely, the Kurds argue, it must be him, and to fail to do this is to breach some sacred rule of protocol which causes the Protocol Jinns to rise up and smack you with a broomstick, maybe. Or something, given the rather extreme attention devoted to such matters among all groups (it's just the poor Kurds raising it the most in this instance). I spent 45 minutes once mediating a debate between bodyguards of rather senior Iraqi political figures invited to a conference I was helping organize on the rule of law. The issue was which set of bodyguards got to eat first, the dispute being centered on which one of them represented the political figure of higher rank. That some guarded judicial officials, others executive and others legislative made no difference, separation of powers cannot hold so much as an atom's weight in this confounding system of protocol. Each one of these guys has a rank on the totem pole, so figure out what it is, Hamoudi, or there might be shooting.

And this happens well beyond areas where it could be dismissed as misguided political division. Say you want to get a student out of class for a week to attend a moot court competition in DC. The President of the University must sign off. Except you can't go to the president, you don't even know him, so you talk to the professor you are working with. But he cannot go to the president either, remember the Protocol Jinns and what they might do to you. So you go to the professor, and he writes up something for the Dean, and you take it together to the Dean. Then he takes it and writes it up for the President and then you go to the President and get the President to sign off. And then if you need to change a date later on? Rinse, lather, repeat the process all over again. Which is better than if you need to, say, build a moot courtroom on campus. Because then you have one more step, to the Ministry of Higher Education. And do what you will, plead how you will, you do so much as change the length of the curtains, neither you, nor the professor, nor the Dean, will agree to inform the Minister of the change and leave it at that. They aren't allowed, not protocol. The info to the Minister comes from the President, who hears from the Dean, who hears from the professor, who hears from you.

Sounds like a diatribe? Fine, but extend that view across an entire administrative apparatus known as a socialist nation state, and you get a sense of the scale of the task of reforming it.

HAH

Armored Cars and Making Law in Post Saddam Iraq

Haider Ala Hamoudi — Fri, 09 Mar 2012 08:00:12 GMT

The latest scandal to erupt in the Iraqi legislature (known as the Council of Representatives) involved, of all things, armored cars. The affair demonstrates well some of the best and worst of Iraqi governance in the post Saddam era. On the one hand, it is commonly emphasized in popular media outlets that Iraq remains in some level of severe political division, and this is hard to contest. One of the major items of contention among the competing political factions concerns the fate of Sunni vice president Tariq Al-Hashimi. One major political faction, dominated by Iraq’s Shi’a, has demanded that he be brought to justice for alleged terrorist acts. Naturally, the Sunni dominated faction opposes this and claims the charges are politically motivated. To add complication, Hashimi is currently protected by virtue of being in the autonomous region of Iraqi Kurdistan and the Kurds, Iraq’s third major ethnopolitical faction, have to date refused to give him up. In the meantime, a national conference to be attended by all major political groups that was supposed to address this and other issues of division has been delayed, indefinitely, amid disputes over the agenda of the conference, its location and its date relative to the date of the upcoming Arab League Summit to be held in Baghdad. Even the preparatory committee for the conference seems to be stalled, with each faction blaming another for delay for supposed reasons of self-interest. This is for obvious reasons a significant source of concern for all.

Still, it must be pointed out that in spite of the severe divisions, political life goes on. The Iraqi ministries are functioning, with an earlier boycott called off, and even the Council of Representatives managed to pass a $80 billion budget on February 23 in the midst of the ongoing crisis. Whatever this rather disturbing set of affairs is, and whatever danger it poses to the future of Iraq, it would be a mistake to describe it as a “stalemate”. Work is continuing, at a frustratingly slow and uneven pace to be sure, but perhaps in a manner that might compare favorably to our own currently more stalemated U.S. Congress.

The passage of the budget brings us to the curious and related scandal of the armored cars. Iraq’s Council of Representatives decided to devote by legislative fiat approximately $50 million of the budget to the providing of armored cars for the 325 members of the Council of Representatives, which works out to a rate of approximately $200,000 per automobile, assuming each member requests one. In fact, over two thirds of the Council of Representatives had requested such automobiles already, and the vote in favor of the armored cars was, in light of this, predictably lopsided.

Yet curiously, following a popular uproar, most of the major parliamentary leaders have suggested that their faction vehemently opposed it and the support must have come from other factions. Given the overwhelming vote in favor of the allocation, this surely cannot be true. Still, for a vote that was hardly controversial in the Council of Representatives when passed, there was very little said in defense of it. The most that could be mustered by way of justification (if it could be called that) was a statement by the well known Kurdish politician Mahmoud Othman that the vote was injudicious and enacted in a moment of near panic following a series of attacks throughout Iraq. Precisely what would be comforting about the idea of a legislature in a state like Iraq panicking at every terrorist attack is not entirely clear, yet at least Othman was responsible enough to offer something by way of a reason for the appropriation.

The reason few others felt the need to justify the vote was that Iraqi legislative processes are appallingly unaccountable. Nearly everything passes by consensus, and at most a quick showing of hands demonstrating (to the Speaker’s satisfaction) a significant majority in favor of a particular action. No record of votes is made, no tabulation kept, thereby enabling any legislative member to be persuaded to vote for an item while being able to effectively deny the same, unless the camera in the open legislative session happened to fall upon that member at the inopportune time that he was raising his hand in support of the measure. Only in such circumstances would a legislature even consider making an appropriation this large for an expense of this sort in a country with as pressing a set of needs as Iraq has.

And yet, accountability is not entirely lost in the new Iraq, for the political outcry was significant, sustained, and carried widely throughout enough media outlets. Moreover, after the highly revered Shi’a clergy of Najaf came to denounce the measure, followed by similar exhortations during Friday sermons throughout all of Iraq, Shi’a, Sunni and Kurdish, the Council of Representatives was forced to reconsider the measure. There followed on March 6 a chaotic session in which some defenses (finally) were made to the law as being necessary given the threats to the lives of parliamentary members, some denunciations were made of the media for igniting the issue (though Najaf’s involvement blunted the ferocity of those attacks to some degree) and a great deal of demagoguery and posturing was evident among representatives eager to restore their damaged reputations. In the end, the appropriation was withdrawn, and the money devoted to it was directed to other sources; namely, payment to victims of terrorist attacks and to bolster security. Even this may not end the matter, given that the vote withdrawing the appropriation did not go through all of the processes of ordinary lawmaking (including three full readings on the floor of the Council of Representatives), leading some to describe the attempted repeal as unconstitutional with some justification, on the grounds that only a law could amend a previous appropriation set by law. A claim may yet be made to the Federal Supreme Court, though its ruling on the formal rules of the legislative process is not likely to result in any parliamentary members getting armored cars given the outcry that has already erupted. At most, it would seem to prolong the determined appropriation for some period of time.

Thus, a government highly divided, seemingly perpetually on the verge of an existential crisis, yet functioning, and imperfectly accountable, in the end came to find its way in the most tortured, circuitous and inefficient manner possible using methods of lawmaking that are, at best, barely constitutional. And yet, in the end, it did find its way. Though a small and passing tale of little sustained interest on its own, the story of the armored car appropriation reflects well the methods of lawmaking and governance in the new Iraq.

HAH

Islamic Art and Islamic Law

Haider Ala Hamoudi — Thu, 08 Mar 2012 10:50:12 GMT

I recently saw an excellent article by Souren Melikian in the International Herald Tribune, which you can still buy in Baghdad, that was a devastating criticism of the Metropolitan Museum of Art’s Islamic Art section, and indeed a criticism of Islamic Art as a concept in most museums. I am hardly qualified to endorse much of the substance of the criticism, but I had some sympathy with the approach. The thrust of the complaint is that one is talking, when the discussion is “Islamic Art”, of a series of quite disparate civilizations spanning vast continents and over the course of millennia. Very few of the territories in question had much by way of civilizational continuity over the course of time (Iran is offered as an exception), leading to even greater disparity. To refer to something as being found in modern day Afghanistan when it comes from the 10^th century is therefore anachronistic and wrong, as wrong as describing Hemingway’s The Sun Also Rises as a French novel (imperfect analogy I realize).

In sum, what you have is a series of very different civilizations divided by culture, by vast swaths of space and time, with one single thing uniting them, Islam, with the suggestion being that this sole similarity makes up for the difference. Somehow I think if I opened up a museum in one of those oil emirates in the Persian Gulf and put a few paintings from the Hudson School next to a Picasso next to a Monet next to Raphael next to Rembrandt, and called the thing “Christian art”, I’d be laughed out of the room. Seemingly less so when one speaks of Islamic art. Islam is the overwhelming monolith, the standard against which all other standards are mentioned. If a seventh century community in Medina made art, that’s Islamic art, and justifies its being categorized as such, just as a 16^th century vase from Xingjian, China, or a 21^st century painting by an Indonesian. Because, see, they’re all Muslim, even if they couldn’t do so much as talk to each other, let alone consider their work to be from the same general tradition.

The article concludes with a description of an area dedicated to Mughal art, and another dedicated to Persian art, and shows how in the case of the Persian art, much of it calls upon a pre-Islamic past while the case of the Mughal art, some of it is explicitly Hindu and contains representations of Krishna. To place these various things into the same “Islamic” category not only renders the “Islamic” term so capacious as to be almost meaningless (a point the article makes at its end), but it also in my view distorts what is being done in these traditions. If Islam is the be-all and end-all, the worldview that changes everything and adherence to which necessitates great similarity in approach across time and space, then one misses, or at least underplays, or perhaps mischaracterizes, the influence of Hinduism on Mughal art, or pre-Islamic Iran on Persian art. Might make more sense to have a “Mughal art” section and a “Persian art” section and no Islamic art section, with Islam obviously playing its influence in each case, but in the context of those vast and rich civilizations. Seems less distorting, more coherent as a conception.

But of course that would be insane. It would be like talking about Egyptian law as a freestanding phenomenon, with the role of Islam, and shari’a, within that contained system a matter of importance, but understood in relation to the primary conception of Egyptian law and the Egyptian state. Then we wouldn’t have to talk for the damn 4 millionth time about how it is that the Egyptian state could be justified by Islam, as if somehow its laws, its courts, its officials, its bureaucrats are completely and totally nonexistent until so beatified.

Nah, too crazy. Who would do that? Other than Egyptian lawyers, Egyptian judges, Egyptian politicians, Egyptian law professors, ordinary Egyptians in need of legal assistance, and just about anyone else who might want to think of the practical effects of Egyptian law, I mean. HAH

The Iraq Flaq Count from Kurdistan

Haider Ala Hamoudi — Wed, 07 Mar 2012 12:12:52 GMT

So in my short jaunt up to Kurdistan Iraq to visit my inlaws, I decided to engage in my customary and entirely unscientific Iraq flag count, as I do each time I am in the autonomous region. Basically, I look around over a period of 48 hours and see how many Iraqi flags I see (Kurdistan flags are all over the place), as an indicator, albeit an anecdotal one (i.e. fun for a blog post), of the extent to which there is Arab-Kurd reconciliation.

Signs are good, I'm up to nine flags this trip. Even the secondary schools (including the one my wife attended many years ago) have the Iraqi flag flying next to the Kurdish one. A few houses and stores too, though not quite as much. The malls all have them (the Majdi Mall in Erbil has about five, and five Kurdish ones, though I counted that as one). Park Azadi in Sulaymania is still dominated by a single Kurdistan flag, a huge one, and no Iraqi flag in sight. Still, as compared with 2003, when you'd have to search for weeks and probably not find one, or even 2007 (I think that's the year), when an Arab Summit insisted on the appearance of some Iraqi flag if they were to meet in Erbil and they got some tiny one on one building, times have changed. Folks on both sides of the border are growing more accustomed to the new arrangement, seems to work pretty well for them. Arab Iraqis provide cheaper labor, great bread, good restaurants, vital medical services in Kurdistan, Kurdish lawyers benefit from being able to practice in Arab courts, and so on. Trends don't always last, but neither can they be ignored, and I view this one as generally positive.

Or that's what my flag count tells me anyway.

HAH

The Dangers of Pop Linguistics: Arab Bluffs and Arab Compromise

Haider Ala Hamoudi — Tue, 06 Mar 2012 20:23:40 GMT

Second update to below post (dated March 20, 2012). MAC suggests an Iraqi slang alternative for bluff, which is makhidh ماخذ بوش or "he put it in neutral". Interesting, certainly closer than anything I can think of in proper Arabic, but I tend to think not entirely. Makidh bush mainly means "he's blowing smoke", i.e. he's released the brake and just letting it go. Oftentimes it works quite well as "bluff", certainly in the Obama context below it would have worked (though no self respecting Arab journalists would translate into slang like that). But the last time I heard it demonstrates how the meaning is different; to wit:

Sunni: You aren't giving us enough rights.

Shi'i: You've oppressed us for so long, since the Ottoman times.

Sunni: and you oppressed us before that, under the Safavids.

Shi'i: What do you know of the Safavids, you've put it in neutral now.

Blowing smoke, talking out of his ass, but not bluffing.

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Update to post below. It seems to have gotten a fair amount of traffic (shout out to friend of the blog Ted McClure for that), and I've been told in some commentary on it that I must hate Arabs because in fact there is a word for "bluff", which is mubaligh. Sorry, this Arab in the heart of Baghdad has to declare that wrong. بالغ the third form of the arab root بلغ means to exaggerate in modern Arabic. That's not to bluff. If I say ten million soldiers broke into my house yesterday when in fact thirteen did, that's "exaggerating", and مبالغة works just as well. It's not a bluff. Learn your Arabic before challenging me.

There seems to be a rather silly effort to find much meaning in the fact that there isn't really much of an Arabic word that functions as the equivalent of the English word, to compromise. We have tanazul, which really is more to concede, or taswiya, which is mediation, tafawudh is negotiation, but compromise, as opposed to concede or negotiate, is somewhat absent. I think that's supposed to tell us something about Arab culture according to some. Google it, you'll find various references to this.

But of course to find causation in that coincidence (i.e. we never developed the word because we never adhered to the concept) seems a little silly, more armchair linguistics, or fourth grade psychology (to use Said's term describing Tom Friedman, which I find unduly complimentary) than any sort of rigorous analysis. Even if you think Arabs don't compromise enough over Israel, and even if you think Islam never compromises in its quest to conquer the world (note the "even ifs", I'm taking the world according to the Islamophobes), surely you will admit Arabs sign contracts and have for centuries with each other? One party wants to buy the camel for $75, the other wants to sell it for $120, they "compromise" to let's say $100. The concept cannot be foreign to any people, and the absence of the word is not interesting as a means to investigate psychology.

I wouldn't spend time on something so silly except in reading the Arabic papers today I saw a rather striking set of translations of Barack Obama's interview in the Atlantic monthly with I think Jeffrey Goldberg, the substance of which I had already read in English. But Obama says in it something to the effect of "as President, I don't bluff" and in Arabic media reports I read and heard, two verbs were used. One was خدع which means to deceive, and one was مزح which means to joke around. So "I'm not deceiving you" or "I'm not joking."

Yet of course as with "compromise" neither is perfect, and as I thought about it, I cannot think of an Arabic equivalent to "bluff" that works particularly well. To bluster and threaten, that is, without much of an intent or an ability (only need one or the other) to carry forward on the threat. So, we don't have compromise so we cannot compromise the theory goes, but then again we don't have "bluff" either, so do we not bluff?

The Arabs by now should be smiling, because all we do is bluff. Saddam bluffed about his rivers of blood and chemical weapons, Qaddafi about his ability to bring forward tens of thousands of soldiers to repel the Libyan rebels, Syria about its strength now. Get into a car accident in Iraq, chances are someone will threaten to shoot you at some point, hardly something to get very excited about on its own. Try to buy a carpet, you'll be told it'll be gone in an hour to the next buyer if you don't act now. We're the bluffers, nobody bluffs more than us, though it's not hard to bluff better since at times we're bluffing about something that could not possibly be the case (the Ba'ath insisting it was repelling the US when there were sightings of tanks all around Baghdad).

But we have no word for it.

HAH

Muqtada al-Sadr and Sarah Palin

Haider Ala Hamoudi — Mon, 05 Mar 2012 18:35:09 GMT

I’ve been noticing for some time the striking parallels that exist between Muqtada al-Sadr and Sarah Palin. Both of them seem barely competent at speaking, and writing, in their own native tongues (refudiate says Palin, something akin to “sensinable” says Sadr). Both seem to engage in free style stream of consciousness forms of verbal diarrhea from which coherent thoughts are difficult to glean. Both are pilloried by so-called elitists like me, as if our problem with the Palins and Sadrs of the world is their milieu, their breeding or their ideological commitments, as opposed to the fact that we’ve seldom heard a single intelligent thing from their mouths and quite a lot of idiocy. And yet the more we say that, the deeper the power they wield, for both speak for some populist and angry mass that is convinced, I’d say perhaps for good reason, that politics is a game that has been rigged against them and that criticisms of their heroes is one manifestation of that (much less good reason to think that).

And, in the newest twist, the seeming lack of intelligence—street or book, as opposed to pure market savvy—on the part of either them might turn out to be their own undoing. Palin cannot form a thought beyond plain vanilla recitations of longstanding conservative commitments, and has to make up for her lack of imagination by pretending to run for President for as long as possible. But that gets old after a while. Yes, the media will indulge her, she will continue to be a source of fascination for the elite for some time after all, confirming as she does every single stereotype liberals would like to make of conservatives (Hayek or Burke don’t get HBO documentaries after all), but her media power isn’t at all what it once was and it’s not clear she has the wherewithal to turn it. I don’t mean she’ll disappear, just fade into yet another Fox commentator.

And Muqtada? The latest memo issued from his office speaks darkly of threats made against either his family or his followers (Aali Sadr in one spot, Ansar al-Sadr in another, like I said, verbal diarrhea) meant to marginalize the movement. Who is making such threats, according to the memo? The occupiers and the Ba’athists.

The guy cannot seem to come up with a new theme. Like Palin, he’s got an idea of how to get himself into the headlines, but no ideas to come with it other than those that brought him to the top. And the problem is, those ideas are going to fade if they haven’t already. What occupier? The Saudi owned Sharq al-Awsat seems to think he must mean the government, since it also said “those supported by the occupiers”, and that this might signal an intra-Shi’i split. I tend to think that’s a great deal to read into “the occupiers and those supported by them.” I think he’s got a pony, the occupation, and he’s riding the poor thing as far as it will go, except at this point, 60 days after the Americans have left, he doesn’t realize he’s sitting on a dead animal wondering how far it will take him. Ba’athists is somewhat easier to push, conspiracies of Ba’ath return among Shi’a are about as prevalent as conspiracies of Iranian takeovers among Sunnis, but in the end, this sort of thing is going to discredit him with his base, and I’d expect he’d lose at least some of his cache. Of course we’ll have to see, he might turn things yet. Signs, however are hardly good if this is what his press releases are going to look like.

HAH

On the Nature of Democratic Revolution

Haider Ala Hamoudi — Mon, 05 Mar 2012 18:30:19 GMT

Last shameless plug, and then on to blogging from Iraq now that I am here blogging as my last post demonstrates from a secret undisclosed location. . ..

This article was solicited as a commentary on a very interesting and provocative piece to appear in the Denver University Law Review on democratic revolutions, by Richard Albert. Abstract is as follows:

Richard Albert wants to know what happened to our commitment to the democratic revolution, and I share his frustrations and his befuddlement. Indeed, I might phrase the question more broadly than he has, and ask precisely what has become of our commitment to democratic rule, however brought about. Contemporary events in the Arab world leave one more confused than ever as to America’s understanding of its own role in supporting democratic orders. This is a matter that deserves more attention than it has been receiving. I consider Professor Albert’s contribution important, and helpful in advancing the discussion in a positive direction. I only hope in these few pages to expound upon the ideas he has presented, and extend them into directions which he may not have anticipated, indeed which he might disclaim, but which must command greater consideration. In particular, I want to explore a central irony in our times concerning the externally imposed democratic revolution.