or Foam From a Camel's Mouth, Spewing and Subsiding
Facts and Abstractions
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
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
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
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
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
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
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.
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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
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
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
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
