Islamic Law In Our Times

Craig Baxam, the Secret Convert

2012-01-31T03:40:27Z

There is something quite fascinating, in a disturbing way to be clear, about the entire Craig Baxam affair. For those who don't know (article available about it here), Baxam is a former US soldier who secretly converted to Islam in July and was arrested by December trying to get himself into Somalia to join the Shebab.

We already knew that there is a certain viral strain of Islam out there that is proving itself remarkably resilient and attractive to all too many Muslims. It is an Islam that is divorced from Islam's methodological and doctrinal traditions (that for another day), but real and particularly attractive to Muslims who are themselves divorced from these traditions because this strain does draw on them just enough, barely, to be credible to those looking for the message. European Muslims, for example, who learn Islam but don't have the same sort of context that their parents might have and cannot seem to develop their own context of their own society, in the way that more North American Muslims have, and for that see the show All American Muslim. Or even Arab Muslims who don't have an authority they much regard as legitimate in a world they find frustrating and difficult. But in any event, there is a strain of violent Islam, it is dangerous and corrupting, and a problem that I think many of us Muslims recognize, and frankly more of us need to if we are to retain broader credibility.

But Baxam shows something even more disturbing. This isn't a violent Islam that is drawing (sort of) on Islamic resources in a manner that proves enticing to Islam's youth. It's actually that strain proving itself appealing to nonMuslims. When Baxam converts, he converts secretly, and based on material in extremist websites. Admittedly one does not know precisely what his motivations are, but we do know the short time between conversion and deployment in the field, the fact that it was secret, which is unusual for most converts and very importantly, we know the source material for his conversion (the site talked about Judgment Day, which moved him, the indictment says. Is that the virgins? Did he convert for the virgins? What else is it about Judgment Day that's so appealing in extremist websites, and different from more mainstream Islam outlets, or even Christian outlets for that matter?) Seems like a particular predisposition toward the kind of extremist violence the website may have been advancing. And so he reads it, and converts, and immediately goes to help a group of similarly violently predisposed thugs whose idea of Islam, which they say they got from the Qur'an, involves starving tens of thousands of innocent people (Muslims, which you'd think might mean something to them) and terrorizing others. The violent join the violent and somewhere underneath it all, some sort of strain is running which is very hard to figure out (starve Muslims to death is what you got from the Qur'an?) but very appealing in some sick way.

Probably not terribly new as a phenomenon. There are a fair number of leftist groups whose commitment to ideology seemed subordinate to or at least coequal with a preference to engage in violence wherever and whenever possible for means only casually related to the ideological ends. And they attracted some number of American converts who weren't even particularly strong leftists before joining them in the jungles of Bolivia or Peru or wherever. Still, for a committed leftist then, or a committed Muslim now, all of this is deeply unsettling, as the terror seems to have eclipsed the message and has proven seductive enough not only to delude some of the committed, but actually entice those who otherwise have no interest in the intricacies and complexities of our faith.

HAH

Islamists and Super-Islamists, and the Incoherence of Each of Them

2012-01-25T23:26:04Z

There was a fairly interesting article in Sunday's New York Times by Robert F. Worth on a rising star within the Egyptian Muslim Brotherhood, Mohamed Beltagy, and what it might portend for the future of Islamist movements as well as the Middle East after the Arab Spring. Some of it, namely the divisions within the Brotherhood as between a cautious older guard and a newer, younger, flashier set of leaders, was of less immediate concern to me, though it was quite interesting. What really got my attention was the division described, here and elsewhere, as between the mainstream Islamist Muslim Brotherhood, which won 49% of the seats in the lower house of Parliament, and the more hardline Salafists, who won about a quarter of the seats. (To be clear, "Islamist" under my working definition is a person who seeks for the shari'a a prominent role in the law and constitution of the nation state. An itinerant preacher who runs around trying to convince women to wear headscarves is not an Islamist. A legislator who seeks to increase the number of hours of required religious training in public schools is. I think that works well enough at least for these purposes.)

As this is portrayed in the article, I think largely accurately, the division between the two, inasmuch as legal change is concerned, is as follows. Those groups described as Salafist want a greater recognition of the shari’a within the law and constitution of the nation state while the Brotherhood is less interested in all of that. Again, interesting and accurate, but on deeper inspection, drawing on my own scholarship, neither faction I think works in any sort of coherent fashion as the basis for an Islamist political movement.

So taking the Salafists, and largely repeating some of the claims I’ve made in the Death of Islamic Law, there is no real coherent explanation offered for precisely why they are insistent on the Islamization of some areas of the law and not others. Why the opposition toward the creation of marital communal property, let us say, which the shari’a nowhere recognizes as existing, but not opposition to legal personality on the part of corporations, a communal form of property ownership really which the shari’a also does not recognize? Or the opposition to alimony (a wealth transfer not authorized by shari’a) or a financial consequence for a husband initiating divorce as in Iran (another wealth transfer not contemplated by shari’a), but not to rules of tort which are not Islamic in origin (thereby authorizing wealth transfers not contemplated by shari’a) or rules of bankruptcy which make a mockery of the shari’a rules through obligatory debt discharge (another wealth transfer, also unauthorized).

I could go on, but I won’t. There is no coherent methodology that is being applied theoretically to recreate the Islamic state on the basis of shari'a. Nothing can really explain these contorting conflicting positions on how law is evaluated relative to its conformity to shari’a. The Iraqi Supreme Court sweeps centuries of doctrine under its feet by quoting one Qur’anic verse respecting writings and contract, without objection from anyone, and I suspect the supposedly hardline Salafists would not find this troublesome. Can they apply that methodology (quote the Qur’an, ignore contrary juristic interpretations of it) in other contexts, say respecting a woman’s right to divorce? It’s rather easy to come upon the answer. Whatever the running theory, it won’t fit the facts as they exist.

So we then turn to the Brotherhood, which as the article notes is really trying to pull away from offering any suggestions for massive legal changes. They aren’t secular, let’s be clear, they do want the shari’a to play a role in the state. They would walk before agreeing to a constitution that did not, for example, declare that all law that is enacted and that is repugnant to the shari’a is invalid and void. But they don’t want to talk about punishing fornication, or rolling back family law reforms, and there is really no suggestion it is anywhere at the top of their agenda. They are happy to settle into the incoherence that is the application of Islamic law in the modern nation state today and focus instead on more pressing issues for the population, such as anti-corruption, economic reform, wage stagnation, and the like. The Islamizing, to the extent it exists, is not legislated, but rather conducted through social programs offered by the Brotherhood, from women only busses to medical clinics, programs that don’t need the state, or legal authority, but rather operate independently of it.

The real problem with this, in the end, is that it isn’t really much of an Islamist political agenda and so hardly portends for a long term successful political movement. There’s no religious vision there. If all the Brotherhood is going to do is leave things the way they are and push an economic agenda, then it really does not need to be the Muslim Brotherhood as political movement. A secular movement that promised not to reverse the hold of the shari’a on family and inheritance law (the secular nationalist Iraqiya for example, in Iraq) would do just as well. That’s more like the Republican party, with a core religious base and some random sporadic efforts here and there to fight a culture war, but really not organized or driven by a comprehensive agenda based on “Christian law”. That’s fine, though note it does quite well in a secular state with quite a few nonbelievers in it.

So you can play down shari’afication of law, but then you’re sort of losing the very purpose of your movement qua political movement rather than apolitical civic organization sporadically motivated into politics. Or you can actually call for what media outlets always call the “full implementation of shari’a law”, except as I said above, it’s nothing of the sort, and what shari’a they insist on and what shari’a they do not follow no coherent methodology. Either way, it ends in a muddle.

HAH

Revisiting Same Sex Marriage as a Muslim Legal Realist

2012-01-11T23:21:47Z

My previous post took on the question of same sex marriage using an approach I might describe as a form of intellectual defense/advocacy. Let me, however, don my beloved Legal Realist hat and look at this from a more detached, academic perspective.

I expect that while some American Muslims might well support the call for recognition of same sex marriage on the basis of the aman, others will not. I further suspect that the older the Muslims in question are, and the less rooted they are in the United States, the less likely they are to be in support. In some ways, this I suppose is obvious, in that tolerance of homosexuality is less likely to be found among those born elsewhere, or older, after all.

But of course this is a legal question, one deriving from an interpretation of religious doctrine, it's not supposed to be a question of preference. I did not suggest that Muslims have to like homosexuality, or even find it permissible in Islam. I specifically said I wouldn't address that, and Muslims can draw their own conclusions on this. I am suggesting that we already believe in a social contract wherein specifically marriages are permitted under American law and yet deemed void by the same shari'a sources you would turn to in order to find homosexuality deemed a great sin, and specifically the interfaith marriages of Muslim women. And we view that social contract as one we are ethically obligated to uphold. All last post.

Yet the difference in practice as between broad Muslim acceptance of interfaith marriages involving Muslim women as being legal by secular law (if not necessarily permissible under religious law, according to traditionalists) and same sex marriage is striking. One is broadly okay as legal under some other country's secular law, the other deeply contested, despised by many and considered an affront to Islam. Thus, as illustration, I have an Iraqi friend who is quite pious and came to the U.S. specifically to attend the marriage of a Muslim woman to a non-Muslim man whom he regards as a friend. Ask him if he finds the marriage acceptable Islamically, I think he'd be forced to say no. Ask him if that means he won't attend, he'll shrug his shoulders and say something to the effect of not my daughter or family member, what business is it of mine? Yet he'd never attend a same sex wedding I am sure, the idea would be horrifying to him. Perhaps I am unfair, I never asked, I can say with confidence it would be horrifying to most Iraqis, including large numbers who would attend a marriage of a Muslim woman to a nonMuslim man.

In any event, even as to those who wouldn't attend either, they don't think it's wrong to live in a nation that permits the marriage of Muslim women to non Muslim men. Yet by the very same sources to which they choose to turn, those marriages are void and those people engaging in it are committing the sin of fornication, which is certainly the very most you could say of a gay couple (and even then more by analogy than direct application). Again, the liberals can question the sources if they want to, that's fine, but for these purposes I'm simply pointing out that if one takes the traditional sources seriously, they condemn sex out of marriage, and neither same sex marriages nor interfaith marriages involving Muslim women would be recognized as marriage. In fact, I think I could develop a pretty good argument under ultra conservative classical text on why a same sex marriage between two non Muslims shouldn't concern Muslims living under an aman at all as it doesn't involve the community, it involves outsiders in a non-Muslim state doing their own thing. Whereas the claim as concerns the interfaith marriage is a harder one to sustain.

So why the visceral reaction against one as being horribly un-Islamic, why the vitriol against same sex marriage in particular when other forms of zina are winked at or ignored? I don't think it's doctrinal or could be defended as such. Simply stated, it's because homosexuality is viewed as particularly repulsive for reasons independent of doctrine. In the same way, I suppose, that some things I regard as sins (say, pork eating) make me sick while other things (say, heterosexual extramarital sex) which I of course abjure and regard as sinful do not repulse me. If I eat something and find out later it's pork, I want to vomit. If I see an attractive woman on television, I don't. Yet of course that's not doctrinal, it's not legal, it's merely preference.

And that same preference, I submit, drives American Muslim opposition to same sex marriage where it exists. Nothing more, nothing less. Where Muslims are more exposed to homosexuals, they are less likely to regard gay marriage with such abhorrence and more willing to shrug their shoulders and point out that other US marriages are not Islamic either. Where they are less exposed and come from less tolerant environments, the reverse is true. Preference, ideological preference stripped of doctrinal significance of any kind, is all that drives this debate. The rest is just mask.

HAH

Why American Muslims Should Support Same Sex Marriage

2012-01-10T00:10:57Z

Before you shoot me, fellow American Muslims, let's make one thing clear. No matter how the same sex debate turns out, nobody is going to be requiring you to deem same sex marriages as Islamically legitimate. Within the broad spectrum of religious discourse, some may urge you to do that (Irshad Manji), some may view such a notion as ridiculous, abhorrent or both (the vast majority of traditionalist clerics, as any liberal Muslim would concede), but I will not address any of that here. I am not a cleric, I make no religious argument. Instead, I maintain that you can be a traditionalist Muslim and support same sex marriage as being legal in America, even if Islamically unacceptable. In fact, I think you should do it.

How is it possible, if one is a traditionalist unwilling to recognize a homosexual relationship as licit or legitimate? Well, traditionalists do something like this already. They do a great deal of it, specifically in the area of marriage. The state explicitly recognizes particular forms of marital union that the shari'a, as understood traditionally, unequivocally condemns. Traditionalist approaches to Islam have always deemed the marriage of a Muslim woman to a non-Muslim man to be invalid. The matter is laid out no less clearly in the manuals of the classical jurists than the condemnation of homosexuality is. The marriage of the Muslim woman to the non-Muslim man is not a marriage and as such, the sex between them is illicit, a form of zina, and criminal, at least as criminal as homosexual acts would be in the classical manuals.

Yet it would be something akin to insanity to suggest that the United States criminalize the marriage of Muslim women to non Muslim men. I know the "shari'a creep" elements worry about this, but no American Muslim I know has ever gone about suggesting they want the state to render such marriages illegal irrespective of the wishes of that Muslim woman. Even if someone does suggest it (probably an idiot, we have them too), no state code that did such a thing would be close to constitutional, it violates equal protection of genders, free exercise, establishment, equal protection of individuals by religion, due process and right to marry--it's hard in fact to think of something else that violates this many rights at once. Again, we know this, we've internalized this, we're happy in the United States even if its rules might afford state recognition of marriages the religion doesn't.

(Just so some Islamophobe does not get it in his head to copy the paragraph above to demonstrate the absolute incompatibility of Islam with American values, let me just point out the same conflict exists as between canon law and the state recognition of marriages of previously divorced couples. To the Catholic church, those are not marriages. Under American law, they are. No Catholic I know wants the law to strip recognition of these marriages, just like no Muslim does respecting interfaith marriages of Muslim women. And even if some Catholic did, it would violate a lot of constitutional provisions, as it would in the Muslim case vis a vis the marriages discussed above. And so forth. Which perhaps is why several decades ago it was the Catholics and not us who were supposedly "creeping" up on the US and threatening a takeover according to the xenophobes of their day. We'll make it in eventually, and you'll know it when a few decades from now when some American Muslim xenophobe starts complaining about some other religion or ethnic group creeping into America and threatening it. It'll come, this I believe.)

Why do we accept such rules despite their condemnation? What justifies it, assuming that is that one finds the traditional approaches to shari'a the more valid? Simply stated, borrowing from the work of others (Andrew March, Mohammad Fadel, etc.), though extending it further to be clear, it is the aman, a form of a social contract. We are free here to practice our religion, to proclaim it, to spread it even if we want to, and in return the deal is the adherence to and upholding of enshrined constitutional principles respecting human liberty and equality, across all religions. So a woman may convert to Islam and marry a Muslim man, or she may convert from Islam and marry a non-Muslim man. For many of us, me included, these principles of individual liberty and religious equality, from free speech to free exercise to equal protection, too broad a subject to be broached here in detail, have been deeply internalized and we believe in them as core constitutive civic values, even seeking to export them. For others, they might be ethical obligation by way of accommodation, followed just like a believer follows the rules of a contract, an obligation to pay their iphone bill every month. You do it as an ethical matter, not because you like it, not because you'll be sued if you don't (then it would not be an ethical obligation, purely a legal one), but because you like the service, you agreed to this and you are a Muslim, and the Qur'an requires the believers to uphold their contracts. But either way, you live up to the deal as ethical obligation, as a deal.

So as Muslims what should we be afraid of? Not that the state is going to allow marriages that are unIslamic, we've signed on to that and it is an acceptable piece of the aman we've made. No, it's the breaking of the aman we should fear, effectively a ripping up of the social contract. How does that happen? If the rules change and we are no longer free to practice our religion. Now one group of people would argue that happens with the rise of same sex marriage. Because once one allows same sex marriage, then it spreads, and then every religious institution has to recognize it, and if they don't, then I don't know, maybe the police come? They stand in the back with their radio speakers and their guns and drag the Imam off in handcuffs for refusing to marry a gay couple under the Qur'an and the tradition of the Apostle? Or something?

As you can tell, I cannot imagine such a thing happening. But if it did, it would be a ripping up of the social contract, the one ensured by the constitution, and make a mockery of free exercise of religion. Few things are more violative of religious freedom to my mind than to compel a religious institution to perform a wedding it did not believe was valid under its religious tradition. Again, I don't worry about this. If the US doesn't do it for divorced Catholics now, it isn't going to do it for same sex marriages.

So what am I afraid of, how do I see the contract ripping up? By the folks currently threatening to rip it up, the ones who talk of shari'a as if it was a contagion, by the ones who want to deny our right to build our own houses of worship, by the ones threatening to pass laws that say that two people who meet to practice shari'a (that's prayer; prayer rules are part of shari'a) are engaged in an act of terrorism, by presidential contenders who won't hire us (Herman Cain), or who equate us with Nazis (Newt Gingrich), and by supposedly small government conservatives who are focused in getting the government into our lives on the theory that we are not a religion but a cult (which so far as I can tell means to them a religion that they do not particularly like). They're still a fringe, but they're real people, they exist while the folks who supposedly will force mosques to hold same sex marriage ceremonies do not. I think we'll overcome this as I said above, I think we'll win this war, not because I believe in Islam (I do, let me be clear, I do, but believing in Islam doesn't mean it has to be tolerated here, and now, it's been extinguished in limited places at limited times before) but because I believe in America and its ideals and think history is on our side. But those who threaten us are real, and present, and a danger, and they are promising to rip up our social contract if they ever get a chance.

And not a one of them is gay. Because it isn't only our social contract they're looking to rip up, not only our freedoms they seek to infringe, not only us to whom they'd seek to deny equality.

So I say support same sex marriage and uphold the contract. Uphold it because you believe in it, or uphold it because you've signed on to it and it is your Islamic, ethical obligation to do so even if it recognizes behavior you find sinful and illicit. But either way, uphold it. Because there, and only there, will we ever find our place in this country.

HAH

Random Thoughts on Slavery and the Shari'a

2011-12-19T02:01:54Z

If you talk to most Muslims today, they are scarcely aware of the centrality that slavery played in the development of the shari'a, because most Muslims today abhor the very institution of slavery in perfect keeping with the consensus of civilized peoples everywhere. Yet the matter is in fact important, and worth greater introspection on the part of Muslims, because I think it reveals much respecting the authority of the classical scholars, or lack thereof, that currently slips below the radar because of the inattention given to the subject.

If I had to summarize modern views on slavery in Islam among modern Muslims who know something of the subject, it would go something like this:

Slavery was a deeply abhorrent practice, a repulsive one fundamentally at odds with basic principles of justice and fairness brought by the Divine. But it is also a practice that predominated in human civilizations prior to modernity, and its prevalence caused Islam not to ban the practice outright, but to regard it with deep distaste, to mitigate its effects and humanize it to the extent possible, and most importantly of all to set the seeds of its own destruction, so that it would not last in the Muslim world. We did all of that, and so not only is slavery gone, but even when it existed, it was better than Western slavery.

Now let's be clear before proceeding to the important parts worth discussing. Some of this is apologetic nonsense, and should be dispensed as such quickly. The Arab slave trade killed about as many Africans as the Western slave trade, and we are talking in the tens of millions. Nothing "better" about that as a historical matter.   Besides, the notion of reforming an institution and seeking to end an institution lie at some tension with one another. If you, as I do, tend to regard slavery as abhorrent and repulsive and you pray for its end, you don't seek to reform it, and you don't seek to trumpet how much better you've made it than some other culture did. You have reduced a human being to the status of livestock, you have claimed a right to buy and sell her, and when you do so, you steal her humanity. You want to reform drug laws, fine, but you can't reform slavery.

So I want to leave aside that piece of it and concentrate on the other piece. Effectively, this Islamic argument indicates you have to accept Lincoln's bargain. You may as a modern Muslim say slavery is a wrong, a deep and fundamental one. You can say not only is it and should it be criminal, but it should be prosecuted severely. But when and where it is prevalent and widespread as it was in Lincoln's South and in Muhammad's Medina, you won't quite ban it. You won't encourage it, you won't even be neutral towards it, you'll hate it and discourgage so much that you won't even say it is sanctioned. (Qur'an never does, all is implication). But what you'll do is neutralize its effect as much as you can through liberal manumission rules, stop its spread (Islamic rules on enslavement are restrictive, as was the American ban on the slave trade) completely and totally, and wait for it to  die out.

To some, that's a small step, to me a gargantuan one, one that is hard to take. It's one thing to say that in a different place and time people got married at 15 and that was normal, or even polygamy in 9th century Abyssinia was what it was who are you to judge, or whatever, but slavery? Even this small step, just some sort of recognition that in some place and some time, it has to be, not encouraged, in fact discouraged, but tolerated is tough.  That said, it was Lincoln's position before the War. Still, my heart lies more with John Brown.

In any event, there it is, but is it compatible with Islamic doctrine? Yes, with one important caveat. You can claim the Qur'an regards slavery as Lincoln did in 1858 as per above, you can make that argument quite plausibly, but you have to piss all over the classical law to do it. because the fiqh of the classical jurists does no such thing. I don't mean to suggest that a ban on slavery is incompatible with classical doctrine, you can make it compatible. But the meta ethical position that this is an abhorrent, repulsive, disgusting practice and we're going to make it die is not a even close to a fair reflection of the fiqh. Perhaps the classical jurists would never have countenanced the tributary relationships that did develop in the Arab slave trade over East Africa, actually surely they didn't. Freamon says the rules were "spectacularly" ignored. They were. But could you buy a slave girl and condition her virginity, because you want to rape a virgin?  For the most part, yes, and you don't see much by way of concern by the classical doctors respecting this.

But then, the question arises, if you're willing to declare the classical doctors engaged in profound and fundamental error on this point, if you're willing to argue that this was a fundamental and total breach of their function as interpreters of the Word, as betrayal of their human instincts, a gutting of deep and fundamental principle, a figurative spitting in the eye of the very purposes for which God broke the veil separating humanity from the Divine, well if you'll do that for slavery, the central example often used throughout the rules on sale under classical Islamic doctrine, then just how much deference should you afford the jurists on other questions. It's worth a thought anyway.

HAH

Michele Bachmann's Obsessions With the Caliphate

2011-12-16T19:27:55Z

There's quite a few dumb quotes by Michele Bachmann that have gathered up over the years, but last night's is not likely to gain attention, given how few Americans understand the Shi'a-Sunni divide. So I'll raise it. Here it is, in response to Ron Paul's concern of overreaction and invasion of Iran:

Look no further than the Iranian constitution, which states unequivocally that their mission is to extend jihad across the world and eventually to set up a worldwide caliphate.

Right, Michele, right. Because if you think about it, what else could a Shi'a state want to do than resurrect the greatest Shi'a killing institution in world history, namely the caliphate? In the Shi'i community, "caliph" comes in right around "contract killer" and "mafia boss" in terms of respected professions. Umayyads, Abbasids, Ottomans, Mua'wiya ibn Abi Sufyan forward, we hate them almost without exception. You might as well accuse some militant Protestant regime of being in league with Rome.

The clause to which she refers is in the quite lengthy preamble to the Constitution, which does refer to the creation of an army to fulfill the "ideological mission of jihad", though it also references Qur'anic verse which relates to violence and it is an army after all, making it seem odd to make the matter of jihad ideological in that context. I'd describe the section as deeply disconcerting, but not "unequivocal". In fact if anything it's deliberately equivocal. "Ideological" jihad by an army is better described as potentially dishonest dissembling rather than unequivocal. No caliphate though.

So at long last, I ask, again, if we're going to have candidates for President advocating invading another Muslim country, can't we ask that they at least figure out, once and for all, the basic, core differences between Shi'i and Sunni. They're really not that hard.

HAH

Tim Tebow as Muslim: A Hypothetical

2011-12-15T14:51:54Z

First I'd like to start out by thanking Allah, the Lord of the Worlds, and asking that peace and blessing be descended upon the Seal of the Prophets, Father of Qasim, Muhammad, and upon the pristine People of his Household.

I should start a radio interview like that next time, for fun. I say "Good Morning" and I get questions about what "shari'a law" has to say about cutting off people's noses when you don't like what they say (actual question once not long ago), it would be interesting to see the reaction in this case.

What spurred these musings was a program yesterday on the local NPR radio station here in Pittsburgh, on a national show called The Takeaway, where the question was posed as to America's likely reaction if Denver Broncos quarterback star Tim Tebow was a committed Muslim as he is a committed evangelist. For those who don't know, he routinely opens interviews by thanking his lord and savior Jesus Christ, and is known for this kneeling prayerful stance he takes quite often after scoring a touchdown and the like. He's also led his team to an improbable six wins in a row, one more improbable than the last, causing some fascination among evangelists. (Though careful, my friends in faith, careful. We were told by the imam at our mosque growing up that Muhammad Ali had two angels fighting with him. You can imagine our reaction as little children when Ali lost to Larry Holmes, it was as if the devil himself had come to kill the Prophet. I love Ali, but surely one's faith must run deeper than the performance of any mortal on a sporting field).

In any event, I was amused by the program, asking a question that anyone with sense would know the answer to, though it did to me raise the matter that should cause the most consternation. Taken as a bare and naked expressions of faith, it is difficult to see the problem with what Tebow might do. I don't agree with Frank Bruni who I think said what Tebow does isn't as bad as others have done, Michael Vick and Ben Roethlisburger among them. True, but irrelevant. They did what they did, everyone regarded it as bad, and if they hadn't expressed contrition they wouldn't be revered. The revernce is on the basis of their having moved beyond it, that's the assumption. By contrast, Tebow isn't exactly contrite. But then it is fair to ask why should he be, being a person of faith is not bad, any other person of faith me included would agree.

And as a committed believer in the First Amendment, I don't think there is any possible way one could sensibly legally restrict what a private individual wishes to say when given a forum on national television. To do so would be to grant the state authority over particular expressions that should trouble anyone.

Yet if we concede no legal issue is raised, and we concede that in the end he isn't seeking to alienate, only to testify, are we done? To me, no, because all of that ignores the deeper concern.  As one commentator put it, "America isn't ready" for a Muslim who would do the same thing. First, we once were (I could love Ali in the 70's at least), and are no longer, which suggests serious slipping, a problem on its own. Though Ali compared to Tebow is positively ecumenical come to think of it. Second, I hate that phrasing, though it demonstrates something as well. Like "America isn't ready for a woman president", this is supposed to be the nice way to put "there's a lot of bigots in our country and those jackasses would never vote for a woman for no reason than their own bigotry." That you cannot say this in this fashion, as it is considered rude, demonstrates some level of license for sexism, or Islamophobia, as the case may be. It is legitimate not to be "ready" for something (I'm not ready for lunch, for example, as it's only 9:30 in the morning), it is not legitimate to be a racist, sexist or bigot . So we put it the former way, which to my mind legitimizes it.

So because of such lack of readiness, in a world in which a television show about Muslims being normal Muslims is considered offensive because the Muslims don't actually speak about jihad at the coffee shop (we don't, we truly honestly don't. We talk about college football), you can imagine the reaction if a player began every interview as I started this post. I just don't think it would be an option for a player wishing to remain in the league. The distraction for a team would be so immense I cannot imagine it could work. The only choice for a Muslim player would be not to hide their faith so much as make absolutely no issue of it at any time during actual playing, interviewing, etc.  They could do interviews with magazines for the faith community (Olajuan did that as a committed Muslim) and of course participate and lend their name to faith activities elsewhere (again, Olajuan did that) but the times I remember him talking about his religion are when it was brought up, in particular in defense, as in "do you stand when the national anthem is played?" (The answer was yes.) And that's pre 9/11 and Victory Mosques and Obama is a Muslim and all the rest of it that's only gotten worse with time.

Now to me those rules are fine, and defensible, when applied to everyone. I am perfectly comfortable knowing I do not and should not open a Contracts class by offering all praise to Allah, Lord of the Worlds, and peace and blessings to Muhammad, the Seal of the Prophets and Apostles.  My class isn't Muslim, it's a liberal society, faith is faith and Contracts is Contracts. Likewise, I know when I sit in a Contracts class, I am not going to be subject to someone else opening by thanking their Lord and Savior Jesus Christ. These are rules I not only live by but internalize as normatively proper as an American. Naturally, in a religious sermon, the matter is altogether different but I fervently believe religion has no place in my Contracts class.

My concern, as a Muslim, is that when particular public displays of faith are rendered normatively acceptable (they are and must be clearly legally protected, again that's obvious), and when the faiths of some may be professed while the faiths of others may not be so professed unless one wants to become a social pariah, that necessarily will lead to alienation and frustration on the part of excluded communities, and the only normatively proper way to handle this would be to ask all to limit particularist expressions of faith in settings where general audiences are targeted, because the field isn't exactly level and otherwise the airwaves will be filled solely with appeals solely to Christianity, and that, to me, is decidedly illiberal.

So yes, in the end, I'd like to see Tim Tebow tone it down.

HAH

My Latest Scholarship on Islamic Bankruptcy

2011-12-11T04:41:43Z

Time I suppose to move on from the foaming of the camel's mouth of my last post, particularly now that I've witnessed a Republican debate that appears to be between those who believe that there is no such thing as a Palestinian and others who think that's probably true, but not a wise thing to say. It seems to me someone ought to be apologizing to the Turks for their previous insistence that the Kurds were not a people but merely "mountain Turks". Our guys aren't much better. Krugman said it best, Gingrich is what stupid people think a smart person should sound like. Whereas in fact, when he speaks as "a historian", he sounds more like an idiot. His note respecting the Palestinians being "invented" is an excellent case in point. To the extent he means there was no such thing as Palestinian sentiment prior to the end of the Ottoman Empire, then precisely that same point can be made respecting American national sentiment on behalf of North America's white inhabitants in, say, the start of the 18th century. Or has this "historian's" research led him to conclude in fact God dropped the white people onto North America as his own modern version of the Chosen People? Idiocy in any event deserves no longer than this paragraph.

My latest paper, on why I think the shari'a rules on bankruptcy are obsolete, and are likely to stay that way notwithstanding the rise of Islamic finance, is available here. Happy reading and many thanks to Abed Awad, Bob Michael and Jason Kilborn for excellent research on Islamic bankruptcy that helped pave my way. Errors and omissions all mine.

HAH

A Shi'i's Lament

2011-12-06T19:44:12Z

It could be that I’m just too tired and jet lagged. Or it could be the sheer exhaustion of having to deal, yet again, with the same exclusionary and alienating anti-Shiism that seems to flow almost naturally from the lips of all too many of my Arab brethren. Or it could be that I have to listen to all of it during our holiest times, when you’d think there would be an extra effort made at mutual respect and tolerance, rather than the reverse. But whatever it is, I’ve had it. As an “other” in the Arab world (a Shi’i Arab) married to a different other (a Kurdish Iraqi) in that same world, I feel alienated and abandoned, and I have decided to give my frustrations voice. There remains to us no place for the “others”, with or without an Arab spring.

When I was in college, I knew three Egyptian fellows—Hisham, Yusuf and Amr. I entered as a freshman, and as a Shi’i somewhat wary of associating too closely with the main Islamic center. But these three fellows went out of their way, really, truly went out of their ways to attract and bring the Shi’a, invited Shi’a to lead the Friday prayers, visited us in our homes, really worked to bring forward a more open and inclusive center. And of course I reciprocated, many of the Shi’a did, we confronted Shi’a who were wont to say something that our Sunni friends found offensive, to our fellow Shi’a, in a manner that caused some hurt feelings. I’d take credit for that, but really Hisham Yusuf and Amr had each taken ten steps before I or any of the other Shi'a took one took one. I think of my senior year at MIT, when Hisham was President of the Muslim Students’ Association and I was vice president, when we had purged the place of all extremism and particularism, as one brief shining moment, our own college Camelot. It may not have lasted long, but it was there. I mention this because those three Sunni Arab Egyptians surprised me, and over two decades later, I’m still waiting for a second surprise. Instead, it’s continual disappointment.

That’s not to say some random Arab will not tell me we are all Muslims or mouth other pieties, surely they would. I don't doubt a substantial number are sincere, and it’s not fair to demand every one of them demonstrate, to me, that they mean it by confronting the near ubiquitous bigotry in their own midst. For all I know they do, it’s not to little single me they owe a duty anyway. So to say I am continually disappointed, and never surprised, is not to say every Sunni has a problem showing respect and tolerance to Shi’a. It is to say it is something of a broad, serious trend throughout the Arab world respecting the lack of a place for the others, and to suggest, quite frankly, there are far, far too few voices among the dominants to challenge the narrative and stand with the others. That I raise this now, and on this day, the day of the martyrdom of the Prophet’s Grandson, is mere happenstance caused by a confluence of events. The feelings, however, are real and I think broadly shared within our community.

On the plane ride back to the US today, a couple of Jordanians were lamenting Iraq’s state of affairs. “They call it a democracy, the Americans. The Prime Minister is a Shi’i. The President is a Kurd. What kind of democracy is this?” That’s a quote. Apparently in democracy you aren’t supposed to count 70% of the population. Last night, the discussion at my dinner table for a personal meal with a few folks I knew casually was why precisely it was that the Shi’a in Iraq were so weird as to go around walking to Kerbala from Baghdad at this time, with a few attempts at lame humor in the midst of it mimicking limping pilgrims. This, to be clear, is in response to news of a bombing, undoubtedly by a Muslim, in Iraq of Shi’a pilgrims on their way to Kerbala. Because, really, what could be a more appropriate Muslim response when one Muslim kills seven others than to make fun of those killed for being so odd? So much for the brotherhood of believers.

Yesterday, with a different group, at a table at a conference abroad not far away, it was how the “Iranians” insult the Prophet’s Companions, and how Jafar al-Sadiq, one of our most revered figures, was actually a Sunni. I think the day before that, with an overlapping group, it was the ridiculous claim, from a well educated person who really should know better than to spout such absurdist nonsense, that Bahrain’s Shia were actually Persian. This follows a bit a different claim, made in a different setting a few weeks ago, by a different person, respecting how the Shi’a of Lebanon were in fact more loyal to Iran than their own country, though you’ll be happy to know as an Iraqi Shi’a she was quick to note that I was not to be lumped in with the balance of the so-called “Persians.” (“Persian” to be clear to those who are liberal and therefore unsure precisely why it should be so insulting, is this already bigoted crowd’s way of suggesting you are a traitor to your nation, loyal to another, and therefore thoroughly contemptible. Naturally, that’s yet another reason to be offended by the rhetoric, if you are in fact of Persian extract living in the Arab world curious as to precisely why your citizenship should not be equal to that of others in your country by virtue of your ethnicity. This is true, in fact mentioned in my upcoming book. But for now we stray. You just have to assume for these purposes that Israel is horrible because it is a Jewish state that discriminates against Arabs, which is different than an Arab state that regards vast numbers of its own citizens as Persians and Persians as unfit for equal citizenship in their societies. Make sense? Of course not, so let’s move on.)

But she said I’m not a Persian, in fact unbeknownst to me I’m not really a Shi’i. This is only became Shi’a a few hundred years ago, because our tribal leaders decided on that for political reasons. It was supposed to be a concession in my favor by a Syrian living in Beirut. It’s an interesting game as I see it. Can I play?

Hey Egyptians. You aren’t really Muslim, or that portion of you who claim you are Muslim aren’t. You only became Muslim when the Muslim Arab armies invaded. Hey Palestinians, go back to Byzantium. And don’t laugh you white Anglo-Saxons. Didn’t you know Charlemagne converted you, you guys are actually animists of some sort I think. Or maybe you’re Catholics but you certainly aren’t real Protestants, that was Henry VIII who did that. Fun! Now we must leave fantasy world where one’s commitments can be seriously evaluated on the basis of the reasons their forebears took particular actions and return to our regularly scheduled programming.

This, to be clear, passes for intelligent conversation among all too many of my Arab brethren, and again, it’s not as if I select as my own Sunni friends people likely to say such things, because I don’t. As Lebron says, they’re my friends. Still, set me at a dinner with a group of Sunnis who don’t know my sect, or who weren’t paying attention, and to me it’s more a gritting my teeth and hoping the subject does not come up. Because if it doesn’t, the dinner might have been pleasant, but if it does, it won’t end well with exceptions to that being marginal almost to the vanishing point. I’m too tired for the most part to keep arguing, besides which once they find out I am Shi’i they usually retreat and find a concession (like that we Iraqi Shi’a are Arabs and really aren’t as Shi’i as we think), which is even more exhausting to deal with.

Which of course explains remarkably well the abandonment of Bahrain’s Shia by vast majorities of Muslims, even those living in the United States. Either they’re actually Persians, and remember, it’s okay to kill Persians (see above) or the other one I’ve heard is that they are too “sectarian” because apparently a few protestors are caught on film beating up some random South Asian workers who appear as innocent as can be imagined, obviously a detestable deed. So to be clear a group of people who have lived their lives under pervasive, systematic and well documented discrimination on the basis of religious sect may not be supported because some small number are “sectarian”. It reminds me of some guy I heard once who pointed out how Nat Turner’s rebellion was suppressed not because of support for slavery but because of all the innocent white people, including women and children, his rebelling slaves killed. Because, see, that was the problem in the antebellum South. Too many racist slaves.

I suppose it is too much to expect much help from religious leaders when the general trends among educated and poorly educated, native and abroad alike, are so depressingly similarly bigoted. But in any case it isn’t there. Yusuf Qaradawi is more than happy to fan the flames of sectarian hatred for more television time, perfectly happy to abandon Bahrain’s Shi’a and talk seriously of democracy in Syria or Egypt. He lies unchallenged, Yusuf says what the masses want to hear, and it’s pretty clear they want to hear this. I used to regard his pronouncements with some detached bemusement, one day it’s okay to kill American soldiers in Iraq, the next it’s okay to be a Muslim American soldier in Afghanistan. What day of the week is it? I can tell you if it’s okay to kill Jewish children according to the Great Shaykh. It was a mistake to be so accommodating to Yusuf the shameless demagogue, his complete lack of scruples even as to human life deserved more criticism than I delivered. A prostitute exercises more discrimination than Yusuf Qaradawi, with due apologies to the prostitutes for comparing them to such a detestable man.

Are you a Palestinian Fatah supporter who wants to insult a member of Hamas? You call him a Shi’i. How about Hamas itself? They extol the virtues of a great Shi’a murderer of our times, Abu Mus’ab al Zarqawi. And Yasir Arafat of course was Saddam’s greatest friend, the greatest Shi’a murderer of our times. Yet I’m the one who has abandoned the “Arab cause” by not saying enough critical things about the Israeli occupation. I defend unlawful and immoral occupations of the sort in which Israel is engaged to nobody, but I do find it funny how having thoroughly been alienated, with murders against my brothers justified on the grounds that we are Persians, as if that’s possibly a reason to kill someone anyway, and told we are too stupid to know our revered Imam was in fact on their side, after all that, after Shi’is die on a holy day and it’s time to tell a joke about their dumb rites, then suddenly you say “Israel” and I’m supposed to snap like a loyal dog to attention because now it’s “our” cause and shouldn’t I be on “our” side. Ain’t gonna happen, and not just because I don’t believe in “sides” but rather demand independent thinking and judgment. In fact, it’s a good thing I demand independent thinking of myself, or otherwise who knows what “side” I’d be on, and who knows if I would characterize Israel’s occupation as illegal and immoral if I was supposed to be a side picking automaton who didn’t think. After all when it comes to picking sides, to paraphrase Muhammad Ali, I got no beef with the Jews. No Jew ever called me a traitor.

And I suppose one could argue that the Shi’a are “just as bad” which is probably true as far as it goes, but it doesn’t go very far as concerns the region. I’m perfectly happy to concede that within Iraq, it remains the obligation of the Shi’a majority to include the Sunni minority and they haven’t done enough. At times, at the height of anti Ba’ath hysteria, it’s been awful, miserable failure. If a Sunni Iraqi wishes to be more extreme, I can meet halfway, I can accept the validity of his claim and perhaps dispute its extent. But I can acknowledge, in my book, in my publications, elsewhere, that he has a point and that the Shi’a are overwhelmingly not as sympathetic as they should be and it is in the details where we differ. But by all means put the onus on us Shi’a and criticize. I do,publicly.

But in the region, it is the responsibility of the majority to make us feel included, and trust me when I say we do not. “Miserable failure” is to do too much justice to what occurs, because it implies effort, and I see none of significance. It isn’t as if the Sunnis of the Arab world, again with significant if very limited exception, think the Bahraini Shi’a have a point and deserve better treatment with the difference being a matter of how repressed they are, it is that they think of the Bahraini Shi’a, and let’s be charitable and stick to elites, are sectarian Persians who deserved to be crushed. I wish in this Iraq’s Shi’a could see the frustrations of Iraq’s Sunnis, and more broadly I wish all of the Shi’a could see the frustrations of all the “others” out there in the Arab world—not just the Kurds whose plight I know from my wife, but the Copts of Egypt and the Berbers of Algeria and Morocco, the Jews of Tunisia, the blacks of the Sudan and Libya, and develop a more liberal and cosmopolitan outlook. I wish we might ourselves defend churches, because we know what it is to be laughed at when we are bombed. (Though to be fair, laughed at is a rather extreme response, most Sunnis I know would never do such a thing for murders at Ashura. They’d just ignore it. Wouldn’t appear on the blogs or the databases, ho hum a few Shi’a died, how about those Steelers anyway? Now if a few Shi’a beat up a Pakistani custodian in Manama, an awful deed to be sure of course, THAT’s worth not only the blogs and databases, swamping the blogs in fact, but also provides a convenient basis to turn away again from the suffering of the Shi’a. That’s the general educated response, even the academics’ response. The street is usually worse.) In any event, we Shi’a don’t rise to that occasion, and that’s tragic too. I sense a betrayal of our Holy Imam Hussein on the anniversary of his death when we do not sacrifice for all the downtrodden, feel their plight as our own. Such is the way of things in the sad state they are today.

In any event, I’m sure after a while I’ll cool down and realize what unites me with my other Arab brethren is greater than what divides me, that change comes slowly, that the revolutions convulsing the Arab world will not alter anything overnight, and that all we can do is work persistently, evenly, patiently with the like minded of good will, of which of course there are many (even if a small minority,still a great many) in both sects, and across religions, ethnicities, genders to achieve a better and more prosperous Middle East. It is a time to hope and not despair. So my head has told me from the day a fruit seller brought a tyrant to his knees.

But today is the day of Ashura, our sacred holy day, the day of the martyrdom of the Prophet’s grandson, and after all that has occurred, and in great physical and psychic exhaustion, I wish to give license to my heart and not my head, for just this day, just this once, so you know how we,the others in the Arab midst, feel. Here’s what I think today, or feel rather, straight from the heart.

Tyranny or democracy, it’s always the same in the Arab world. You won’t accept us, you won’t even make an effort to see the world through our eyes. You demand loyalty and offer no tolerance. You ask for support, and abandon us or are silent when our children our killed. When you come to accept the others, and all the others, Jew and Christian, Shi’i and Druze, black and Berber, when you hear an insult as against a Shi’i on his holy day you take it as an insult to you, when you see a church bombed, you take it as a mosque bombed, when some modicum of mutual respect, honor and tolerance reaches or even just perceptibly registers somehow in civil discourse, penetrates even one tenth of a millimeter, give us all a call, we’d love to join in. Until then, go fuck yourselves.

Your faithful Persian,

HAH

Regulation and Risk Sharing in Islamic Finance

2011-12-01T03:33:32Z

I am contemplating a law review article, probably for March distribution, that centers itself around the following regulatory irony in Islamic finance.

Ask your average proponent of Islamic finance what it is about the practice that makes it conceptually distinctive from conventional finance, the answer is, invariably “profit sharing” or at times “risk sharing.” That is, when the Islamic bank engages in a murabaha transaction with a homeowner, it buys the house and sells it to the homeowner at a higher price. It is true that the markup reflects the prevailing interest rate, in fact it can be pegged to that rate. However, the home was owned by the bank and then sold to the homeowner, a purchase and sale of an asset was involved, and hence the transaction was fundamentally different. Some would say the mere formal process of purchase and sale was sufficient to make it different (that is how I read Frank Vogel’s work), but most proponents go further and say that it isn’t the mere formality, but also the fact that the bank took a risk, no matter how small, and but for this risk, there is no shari’a compliance. Certainly Usmani says this in his work Introduction to Islamic Finance. (I should note some say the profit must be commensurate with the risk taken to be compliant with Islamic finance, but I find this position so at odds with the realities of the practice, so absurdly fantastical as an expression of anything resembling actual human experience that is best discarded. Nevertheless, you find it in the books, and when you do, your eyes should roll.)

So far, so good. Or not really perhaps, as I’ve pointed out the risk is more hypothetical than real in huge numbers of sharia compliant transactions, but let’s not go there, let’s take this at its word, the transaction, we will posit for argument’s sake, is different because the bank takes a supposed and alleged risk by virtue of ownership.

Here’s the problem. Banks in the United States (really in keeping with banking everywhere, but I want to focus on the US regulatory environment) are not permitted to own real estate. They can lend money to someone else to enable them to own real estate (i.e. a mortgage) but the ownership of real property actually is risky and precisely the type of speculative investment we don’t want banks to make as the potential for loss becomes all too real, and the federal government backs those institutions.

Yet the Office of the Comptroller of the Currency does not want to prohibit Islamic finance, or regulate it out of existence, it’s a practice after all with real commercial value and it isn’t particularly harmful, except to the extent that mimicking conventional finance techniques and clothing them in Islamic garb is per se problematic. So the OCC in the US permits the murabaha transaction, precisely because it’s not really a risk of land ownership the bank is taking on, it’s just a formal hoop to jump through. In fact, let’s be more specific, the OCC permits the murabaha as a banking transaction on condition that both the risk of payment default and the risk by virtue of land ownership are zero, or more precisely stated are exactly what they would be for a conventional loan. In other words, Usmani’s distinction, that of additional risk by virtue of ownership cannot exist for a chartered bank to engage in the murabaha. It’s all there in the interpretive letter.

That’s the risk on the portfolio side. What about the depositor side, where again the argument is the relationship is that of a mudaraba, or silent partnership, where depositor and bank share in profits and losses? Again, it’s not actually what happens, but let’s go along with the proponents of Islamic finance and assume the possibility of a hypothetical loss, however small that possibility might be. Again, a problem, because depositors cannot lose money in bank deposits, again by regulation (they are federally insured remember), and so the hypothetical loss may not exist. So you have to guarantee the deposits against loss. As a result, upstream and downstream, for investment and depositor, the risk profile has to match conventional finance exactly, or the bank cannot be licensed. Profit sharing and risk sharing is not only a practice that is merely hypothetical in conception, it is also a violation of core regulatory practice.

You can see the tension, as between what regulation requires, and what Islamic finance demands of itself as core justificatory commitment. It’s worth exploring, and to see it explored, hang around and I’ll pull something together soon enough.

HAH

Interpretive Constraints and Interpretive Authorities

2011-11-11T00:11:59Z

As I am sure I have indicated many times on this blog, and elsewhere, Islamic law scholars can at times be obsessed with the tragedy of the destruction of the traditional schools of thought within Sunni Islam, the guilds to borrow Makdisi's phrase, as the moment when Sunni Islam went astray, and something of a methodological and exegetical free for all (to misapply the phrase of friend of the blog Andrew March) started to take its place. As a Shi'i and one who has spent some time focused on Iraqi Shi'ism, I have always been somewhat skeptical. Our schools of thought did not disappear, and yet many of the problems that Islamic liberals tend to find in Sunni Islam exist in Shi'i Islam as well. It is true that we do not have September 11 bombers and we have identifiable scholars who condemn such activity (run through the Najaf Grand Four and you get four condemnations), but we aren't exactly egalitarian on matters of gender, to take an example. It is true that recognized authorities constrain interpretation, but constraint works both ways, against nutcases, but also against progressives. The main benefit of the academy it seems to me is not that it constrains, but rather that it elevates the level of discourse. The reasoning behind such actions as 9/11 given the classical prohibitions against targetting noncombatants (largely, it's a democracy so their vote is combat) is so ludicrous it's hard to take religious reasoning seriously when that's the essence of the claim being made. In any event, a subject much discussed already.

What I thought I would raise in this post is the fact that while constraint is facilitated by recognized juristic authorities, it is not necessary for it. That is to say, one should not assume that in the absence of a juristic school, there can be no constraints on activity. Islamic finance provides the best example of coherence in the absence of authority.

There is no practice perhaps more diffuse in terms of its rule making than Islamic finance. Yes AAOIFI is a standard setting body, as is the IFSB, but the standards are voluntary, and frequently, as in synthetic murabaha, violated. The contracts within Islamic finance are governed by New York and English law more than sharia. The only authorities who ensure that any given transaction is shari'a compliant are the sharia review board, which is three people usually selected by those organizing the transaction. Under such standards, you might expect a devolution into entire incoherence, as random groups declare things acceptable, others challenge it, and the Islamic finance world divides into countless little islands of disputatious sectlike practices that are hard to consider unified under any sensible rubric.

Yet this is far from the truth. While some, such as Malaysia, may decry some practices such as tawarruq, while others, such as the GCC, embrace them, the practice overall displays remarkable levels of coherence. There is innovation, but when it extends too far, it gets shut down (as in the sukuk a few years back), and there is a general consensus about what is acceptable and what is not. There are some, like me, who find the entire exercise silly as it is merely a mimicry of conventional finance, yet for those who believe in it, the methods used within the industry are remarkably if not uniform generally unified.

Of course, there are strong and sound commercial reasons for this, the money benefits from having a practice that both is amenable to the legal and economic results demanded by conventional financial techniques while still paying sufficient adherence to sharia form and vernacular as to retain some minimum level of credibility, and banks and law firms work with each other across transactions to help ensure this. The money, that is, drives much of this, both in terms of being responsive to global requirements and Muslim consumer demand.

Yet what it demonstrates, to my mind, is that the reason that there is no coherence within the Muslim community over so many other matters is not so much because they have no authorities to whom to turn, or rather, it's not solely because of that. It's also because, unlike those involved in the game of Islamic finance, those Muslims don't agree on very much from whcih to derive a common interpretation. When you don't share the same basic ideological and normative presuppositions, there isn't an intepretive authority in the world that will unite you. When you share them with others entirely, there is no need for an authority, It's the in between where the authority is helpful. What that means for an increasing divided American polity as to the role that the Supreme Court can continue to play as unquestioned interpretive authority, that I leave for others to consider.

HAH

Islam's Capacity for Democracy: Readings from Reinhold Neibuhr

2011-10-07T16:52:59Z

It has been frequently said that a central problem respecting the rise of democracy in the Arab world to date has been a certain incapacity of Islam to embrace democratic norms. This may have lessened over time, certainly scholars from Khaled Abou El Fadl to Noah Feldman have made the refutation of the thesis something of a core scholarly project, but Arab spring nothwithstanding, and successful democratic experience in the non-Arab Muslim world notwithstanding (Indonesia, with more Muslims than all of the Arab Muslims combined, stands out along with Malaysia for immediate mention), the myth remains. It is in this context that I recite the following passage from the incomparable political philosopher of the twentieth century, Reinhold Niebuhr, in The Irony of American History

[D]emocracy in its most ideal formulation is not as immediately relevant to the ancient cultures of the East or to the primitive cultures of Africa as is generally supposed. Some of both the spiritual and socioeconomic presuppositions for it are lacking. Spiritually the Orient is informed by religions which are either mystic and pantheistic such as Buddhism and Hinduism; or humanistic and collectivist such as the Confucianism of China or the Shintoism of Japan. Pantheistic religions can find no significance for the individual in the integral unity of his spiritual and physical life. . . .

Thus there is no spiritual basis in the Orient for what we know as the 'dignity of the individual.' . . . The mystic religions of the Orient will hardly prove more capable of offering spiritual resistance to the demonic dynamism of the communist movement.

A democratic society requires some capacity of the individual both to defy social authority on occasion when the standards violate his conscience and to relate himself to larger and larger communities than the primary family group. The highly developed individual self-consciousness in the Western Christian tradition is supported by a long spiritual history.

The point, to be clear, is not to mock and ridicule Niebuhr, for if we were to dismiss him as a pedant with, once the pedantry is stripped away, subnormal intelligence, his generation's version of Newt Gingrich, then there would be no cause to regard his ruminations as being anything other than those of a pedantic idiot, and they could safely be dismissed. But Niebuhr is a wise and modest man, with a penetrating intellect and an incisive mind, capable of understanding the dilemmas facing America during the Cold War in a way few others could. Yet even the great Reinhold Niebuhr with all of his intellectual gifts is capable of broad overgeneralized misapprehensions, and from his remarks we can see that they arise most frequently when it comes to matters of faith.

In Niebuhr's time the demon was not extreme and nihilistic manifestations of political Islam but rather communism. Even as Christendom was deemed the natural home for democracy now, so it was deemed then. Yet because the Muslim nations were hardly a matter with which an anticommunist need be concerned (communism holding quite limited sway in most of them given its insistence on atheism), Niebuhr's antithesis to democratic thought is not found in Islam. In fact even the basis upon which he finds the religions of Asia so lacking in democratic capacity would be absent as concerns Islam, which certainly involves the relation of individual to a larger group than that of the family (the umma) and which certainly recognizes individual capacity to defy social authority, as indeed the tales of the Prophets in the Qur'an frequently revolve around one speaking Moses' truth to the Pharoah's power.

Fast forwarding 60 years from the date of Niebuhr's work, and the enemy is no longer communism, which lies in ashes. India's democratic experiment, which has now lasted several decades and seems as vibrant as ever, makes any claim that Hinduism and democracy are not easily compatible seem rather silly. The same might be said of Japan. In fact, I suspect that for any reader of this blog entry who has never read Reinhold Niebuhr before, I've done him a great disservice by quoting at length something which sounds not just offensively wrong, but so silly as not to be taken seriously. his thoughts elsewhere are far more relevant even today than the passage above suggests.

Yet now, the enemy to democracy is Al Qaeda and its lethal kin. And it thrives in the land of Islam, yet America remains safely in Christendom. So while Christendom again is the natural home of democracy, we will acknowledge that it might develop roots elsewhere, just not in the lands of Islam, where the more contemporary antidemocratic threat arises (from the margins I insist, and rapidly fading margins at that, but that is the subject of previous posts). Hence the resistance to democracy relates not to individuals and communities and the relationship of one to the other, but caliphates and divinely oriented rule systems that are purported to preclude the ability of a people to make its own laws (never mind that Judaism is at least as legalistic as we are).

So fifty years from now, will those who talk of Islam's inherent incapacity to embrace democracy look at least as silly as Niebuhr does ascribing all of this to tenets of faiths millenia old, all of which have found ways to thrive in a variety of political systems? I wonder.

HAH

"Religion is for God, and the Nation is for All" and Islam as Ornament

2011-10-04T01:10:36Z

Earlier today on Al Jazeera (the Arabic station), a strong secularist Syrian intellecual from Paris was engaged in a spirited but polite debate with a spokesperson for the Muslim Brotherhood of Syria, suggesting that the latter should be welcome with the Syrian opposition, so long as he accepted the mantra "Religion is for God, and the Nation is for all".   For you Arabic speakers الدين لله و الوطن للجميع This the spokesperson would not do.

But what he would accept, he said, and did accept repeatedly over the course of years, as did his organization, was the principle of absolute equality under the law for all, irrespective of ethnicity, sect, religion or gender. That legitimacy and authority (marja'iyya was the Arabic term he used) was determined by the ballot box and not granted to any particular ethnicity, religion or sect, that the state was required to have regular, free elections in which majorities would shift and in which each citizen had a perpetual right to participate irrespective of religion, sect, ethnicity and so forth. This did not satisfy the secularist.

Which when a person is a hardened legal realist might well leave them wondering what the heck that was all about. The Brotherhood fellow said precisely the same thing as what the secularist wanted, just differently, you might well think. He pretty much agreed to something that accords all of the people a voice and makes the state theirs, not God's, with rules that can be created and defined by the people, not God, so long as participation is on equal footing through some sort of fair process policing that sounds like it would be enshrined constitutionally, That's John Hart Ely, not Osama Bin Laden. So why the debate over the term?

Part of it is historical, in that the secular forces historically used this mantra from the time of Feisal I, naturally Islamists grew in opposition to that, and so it's sort of like asking a direct descendant of Robert E. Lee to sing about John Brown capturing Harper's Ferry with his nineteen men so true even if the descendant's view of race is far closer to that of John Brown than Robert E. Lee.

But there is something else here too. It is one thing for an Islamist party, or even your average devout Muslim, to accept some basic principles of secular rule. Full equality, equal access to ballot box, people decide who rules, etc. I think the "one man one vote one time" fear was real, back in the 1980's, but Islamists appear in elections nowadays, they even can win them, in Iraq for example, and yet they seem fairly democratic. Not liberal,but democratic. ISCI wins an election, then loses it, the Sadrists rise and fall, and their response when they fall is not to return to militia, but figure out how to expand the base. Primaries, social services and the like.  Anyone who reads my posts knows I'm not a Sadrist, but the idea that we have to suppress them because they constitute a threat to the democratic state is just at this point silly--secularist paranoia, crazy as (Herman) Cain, who apparently spends his nights worrying about sharia law in US courts.

Yet they can't quite SAY that God's place is whatever the people choose, and the people will afford Him greater or lesser weight based on electoral result even if that's what authority determined by ballot box and not religious sect means. They can't SAY they don't want the state to be Islamic even if they are describing a secular state. They can't SAY that shari'a is anything but the premier source of legislation when anyone who has spent ten minutes in a room with Arab commercial lawyers knows most of them couldn't tell you three things about shari'a and commerce (remember the prohibitions on interest and speculation are only two). They can't SAY that legislation that offends Islam is fine constitutionally, even if alcohol, money interest and premarital sex are all legal activities in most of these places and the courts find some way to find law as it exists quite fine. It's one thing to advance core secular political ideas, another not to clothe them in Islam as ornament. And even another to come out and state explicitly that God doesn't own something and has no business in it, only the people do, which is more or less what the "to God is religion and to the people is the state" means.   That they will never accept.

Yet in all of this is irony. What the Islamist now will accept and demand is precisely what the secular forces demanded of him decades ago. Islam as identity and Islam as ornament, but Islam as absent otherwise in constitutional structure, and absent even in law beyond family law and inheritance. It's a fairly unambiguous retreat. So roll over Awlaqi and tell Sayyid Qutb the news . . . .

HAH

Moammar Qaddafi, John Edwards, and the Inconsistent Application of Law

2011-09-30T21:11:39Z

So let us begin with the point that I think we must necessarily acknowledge to be obvious. NATO was not involved in Libya in order to protect civilians, at least beyond the initial stages of the conflict, but to impose democracy.

Some of this claim, the first part, to be precise, is so often acknowledged it barely requires defense. Most would agree that the claim that the sole goal of NATO's airstrikes was to protect civilians has descended into the realm of preposterous. The airstrikes continued long after whatever initial threat within Benghazi subsided, and lasted as long as the Transitional National Council has needed them in its effort to take Bani Walid and Surt from Qaddafi loyalists. Can any serious person claim that the latter strikes are about protecting the civilians of Benghazi from imminent slaughter? Gone are the days when NATO would insist that it is not the air wing of the rebel forces, for in its attacks on Qaddafi strongholds it is precisely that.

The second part of the claim, that NATO, and America, are involved to promote democracy, seems to me likewise compelling if not acknowledged quite as often. Usually the description of NATO's activity, even by sympathizers, is that it, and the United States, are intervening on one side in a civil war. True, in a sense, but no more true than that America's activity against Hitler was involving itself on one side of an intra-European conflict. If we are to make sense of precisely what led the Obama administration to take the actions it did, if we are to understand America's ideological and normative commitments (shared by its allies) as they concerned Libya, then we must acknowledge that NATO believed that the rebels were committed democrats, that they enjoyed popular legitimacy, and that democratic imposition was a positive normative goal, albeit one that required broad domestic support. To deny this and to hide behind the claim that the U.S. was only protecting civilians only provides fodder for the conspiratorially minded who, knowing this to be nonsensical, supply far less appealing reasons than the ones I have adduced.

But if one asks precisely why America is so sheepish about her democratic commitments, and why the President goes out of his way to deny that what he has done is impose, and I use the term deliberately, impose democracy (Qaddafi would have won that war in minutes if there was no intervention), then I think the answer must be partly that after the Bush administration's adventures in Iraq, there is decidedly no appetite for democratic interventions, and hence they must be disguised. But mostly I think it had to do with the fact that international support cannot be had for democracy imposition given so many nondemocratic states, only for genocide avoidance, and hence the fictions erupted. As a legal realist I find no value in the chicanery and the indirection, and would prefer that America simply announce what it did--with domestic support, it brought a brutal, bloody, ugly regime to its knees, and in this I find no shame. But I am not a politician.

The more pertinent question, however, is not so much what America did, but why America only acted in Libya, and not Syria or Bahrain, where again popular support has clearly drained away from thuggish and tyrannical regimes, and where again the tyrants have responded with bullets and fierce repression. And the answer, in a sense, is Qaddafi's funny hair.

Obviously not only his funny hair. It's also his ridiculous clothes. His almost comic diatribes. His bizarre state structure. His insane desire to sleep in tents everywhere. His penchant for offending virtually every other state leader on various occasions, in particular in his region. (And if you tell me it was in fact because of his state sponsorship of terrorism, I will tell you your timing is backwards. He sponsored terrorism, and THEN Condi and Clinton visited, not the reverse.)

What that meant was that when the piper came calling, following four decades of misrule, Qaddafi had no friends. Not in the Arab League, which voted in favor of air strikes. Not in the Security Council which unanimously agreed that the International Criminal Court could take action against his regime if it saw fit, and certainly not in NATO. Which meant that this time around, when it came to imposing democracy, as opposed to last time around in Iraq, the U.S. knew it had regional support, it knew it had domestic support, and it knew it had international support, which made democracy imposition easier. And it made it less controversial, because even tyrants were annoyed by their fellow tyrant Qaddafi. So long as the claim was not that democracy was being imposed (an obvious threat to other tyrants), democracy imposition could be tolerated. And so it was, yet in a manner unlikely to be replicated, at least as to world leaders who are not broadly despised or ridiculed. Meaning the lesson is to act and speak relatively normally, and make sure to have a few important friends, and your position as tyrant is relatively safe.

What does this have to do with John Edwards? Well that was international legal enforcement (partly of a criminal nature), and parallels exist in the domestic criminal setting. The fact is that the case against John Edwards strikes me as straining as against the edges of campaign finance law. A rich woman gave John Edwards a great deal of money to hide his affair from his wife. She has not objected to the use of the funds as such, and so the case is not grounded in fraud, for there is none. Rather, the argument is he should have disclosed such funds as a campaign contribution. Why, when it was to hide an affair? Because an affair if disclosed would hurt the campaign, and thus hiding it is in service of the campaign. Under such logic any single expenditure would be a campaign donation, seeing as how a gift from a friend of underwear helps a campaign because nobody votes for a person with smelly underwear. To say nothing of the astonishing obliteration of privacy that is then not just sad reality (which it is) but legal mandate. The entire matter would raise hackles and concerns I think if it were attempted more broadly, but it's not, any more than there is a universal attempt to impose democracy wherever and whenever it is sought by a people. Rather, it's being used against a person who is an admitted sleaze, a distasteful person given his personal failures, obviously not a Col. Qaddafi (nor is anyone suggesting he be prosecuted as such), but one for whom few have sympathy. Hence he faces this fate.

I could go on. Larry Craig seems a salient example as well. (Why did it not bother anyone on the left that the police were aggressively hunting down consensual gay sex hookups in bathrooms? Why did it not bother anyone who is a small government conservative that who knows how much tax money was being used to determine that asking for toilet paper is a solicitation for sex? Because Larry Craig was a hypocrite or a sleaze or both depending on your point of view.)

Maybe some of these folks deserve it, Qaddafi certainly deserves whatever comes to him. But the point is not that. The point, obvious stated generally, though obscured in individual cases, is that justice even when it comes is almost never even handed. You're much better off being well liked if you're in danger of facing it.

HAH

Rent Seeking and Legal and Economic Malaise in Iraq and the Middle East

2011-08-31T22:27:19Z

This afternoon I read a quite interesting 2005 symposium article by Jonathan Macey and Ian Ayres from the Yale Journal of International Law (those with Westlaw access can find it here) respecting precisely why it is that Middle Eastern systems have rules that make expansive private enterprise so difficult. Given my interest and scholarship in the field, I'm embarrassed I hadn't seen it earlier.

Taking the example of really absurd share capital requirements, the article posits the thesis that many of the Middle East's autocratic regimes do not want private enterprise to foster because it helps to create a strong and independent middle class over which the state will lose relative control. The authors think they are challenging my friend and colleague Timur Kuran's thesis that the shari'a is to blame, they say Islam could readily adapt, but I tend to think they might be talking past Timur than at him. Timur doesn't argue that Islam is incapable of adaptation or growth or that the path dependence that led to hesitation over the corporation was necessary because of Islamic teachings as opposed to historical social and political circumstance. In fact he offers adaptation respecting permissibility of coffee to demonstrate the ability of Islam to change precisely as Macey and Ayers suggest. More relevant, he discusses the liquid waqf to show how commercial adaptation should work. And certainly unless my recent presentation at Duke respecting the Death of Islamic Law was completely misunderstood by him (very unlikely), he doesn't dispute at all that Middle Eastern systems have adapted to accept the corporation by discarding the shari'a over such matters entirely. I think Timur is dealing with a particular historical phenomenon and an era that isn't quite that of Macey and Ayers, or possibly his ideas were less developed then than now.

In any event, in finding Macey and Ayers so interesting and scintillating, I don't find Kuran wrongheaded or misguided. And while I think Macey and Ayers are onto something, there might well be an element respecting the interests of the Middle Eastern autocrats they are in fact disregarding. After all, the share capital requirements, at least for domestic businesses, have been dramatically reduced over the past several years in any number of Middle Eastern states, once they became the object of focus by such esteemed individuals, and yet the central problem remains. It is very difficult to do business in the Middle East, one needs permits, licenses and stamps for everything, each takes time, energy and considerable money to obtain, and the ability to seek legal redress is difficult to come by. High share capital or no, the actual costs of opening a company are often prohibitive.

Again, some of this may well be to retard a middle class, but I'd like to offer an alternative, or perhaps accompanying and much more powerful, political and economic incentive for the rulemakers to keep things as they are, and this relates to rent seeking. In Alaa Aswani's first novel, the brilliant Yacoubian Building, a parliament member who bought his position from his activities in business is shaken down by higher ups in the government, who demand a fourth of his profits. Seeking to reduce this somewhat, the businessman seeks an audience with the "Big Man" to whom the profits are owed. Pardon the melodrama, but the meeting ends up being in a room where the Big Man is not present but his voice booms over a sound system and he cackles in laughter and threatens doom if the businessman challenges him (there was almost a Wizard of Oz quality to this). But one thing the Big Man does say is that the quarter profits are earned, because with them no ministries will interfere in the business by demanding permits, necessary licenses will be obtained, redress can be organized through courts or otherwise, and the like. In other words, rent, as none of this is actually productive, merely avoiding administrative hurdles that should not be there in the first place.

In my experience in Iraq, and particularly the northern Kurdish region, this is precisely what happens. Why does anyone cut Hero Xan, Jalal Talabani's wife, in on profits, or Barazani's son in law, or Koshret or whoever? Because in so doing, all of the daunting requirements that make private enterprise can be immediately removed. (To be clear, it's not that the Arab rulers of the south of Iraq are more honest, it's that power is more diffuse in Baghdad and so there are more people to pay off less). Share capital even if it was a problem could be dealt with by the higher ups, company licenses obtained, court dates sped, labor rules ignored, and the like.

So maybe Hero Xan does not want to see a middle class challenge her. I tend to doubt it, the woman can handle criticism, she's pilloried in the papers regularly and at times, like her husband Iraq's president, plays along in good fun. Of course if the middle class threatened her position it might be different and so, as I say, I think Macey and Ayers are onto something. But rather than the three steps ahead, of middle class might develop, they might challenge, I might fall, I wonder if it might just be the one more obvious step that is more powerful.

Namely, you make it easier, more transparent, and less costly to open up a company, then the amount to pay the Big Man has to go down, ultimately to nothing. And it's hard to imagine the Big Men who run the place being much interested in that.

HAH

"The PEOPLE Want the Fall of the Regime"

2011-07-26T18:37:05Z

My travels through the Middle East and the Muslim world over the next few weeks will mean a drop in posts for about the next month or so, but when the fall starts, the torrent will resume.

Last Friday was a rather active one on the naming front in the various regimes of the Arab world where the inspiring Arab spring has melted into hot summer. Just as I was scanning a Beirut newspaper stand Saturday, I found in Syria the "Friday of the descendants of Khaled", in Jordan it was the "Friday of Dignity and the Free Press", in Yemen the "Friday to Refuse Collective Punishment", and in Egypt the "Friday of Resolution". We've had Jerusalem Day (last Friday of Ramadan) since the Iranian Revolution, and during the heady days of the Spring we had the Friday of Wrath and the Friday of Departure in Egypt, but when the names start to proliferate like this, doom on the Friday nomenclature is near. It's hard to even remember whose Friday is what at this point.

But if that phraseology is different, there is other strong similarity. Uniting these various tumults is the common refrain heard everywhere from Yemen to Egypt, Syria to Bahrain--the people want the fall of the regime. This one is nearly universal. We've heard it countless times, but we haven't internalized it. It's worth thinking carefully and more seriously about what it means.

The significance of the phrasing shouldn't be discounted, as the implication respecting popular sovereignty is absolutely clear. The reason the regime must fall, the reason it lacks legitimacy, the basis for its moral right to rule is not God, or the shari'a, or Islam, but the people. The notion is a profoundly secular one, that if a regime crosses its people, to quote Jefferson (or really the Declaration of Independence, "it is the right of the people to alter or abolish it."

Secular means here, to be clear, the notion that a government is established not necessarily on the basis of what a religion might require but something else. I certainly make no assertion of any kind respecting the personal piety of the demonstrator, which varies I am sure from the deeply devout to the casual believer to those almost contemptuous of religion. Far be it from me to say anything about the relationship of a person to their Creator. Nor am I even suggesting that the state that emerges will be one that establishes some sort of eternal barrier as between church and state--it could well be that the people want not only the fall of the regime, but some role for the shari'a in the state. But I do mean that the touchstone of the state's legitimacy is not, at all, whether or not it is deviating from the Will of God, but rather from the will of the people. This is a far contrast from the call from Hassan Banna of the Brotherhood, who described the king as a modern day pharaoh, Sayyid Qutb, who described Arab regimes as akin to the rulers in the pre Islamic Days of Ignorance, or Ayatollah Khomeini, who only agreed to a referendum on an Islamic state as "confirmation" of the revolution's aims rather than validation of Islam's legitimacy to be the basis of state organization. The people never got another referendum on the matter. The idea using these metaphors (Days of Ignorance, Enemies of Islam, Pharaoh as to Moses) was that what made the regime illegitimate was its lack of Islamicity--the people were merely the instrument, not the end.

Not so anymore. I'm sorry, but I cannot begin to understand the continuing fixation with the notion that in the Muslim world, we have to start with shari'a, because if we don't, then the people won't accept it, when you have a bunch of demonstrators getting shot while chanting "the people want the fall of the regime." They aren't complaining that you have violated shari'a, they've told you they don't want you, and if they don't want you, then that's what makes you have to leave. How can anyone take seriously the argument that there aren't deep, important, nationalistic and secular political ideas that have taken strong hold in the body politic in light of this?

What my colleague and friend Lama Abu Odeh would call the (mis)recognition is amply demonstrated by the continuing concern that all of these Arab states have large numbers of young unemployed youth with higher levels of education, that this is a catalyst for terrorism and that without the existing authoritarian regimes in place, it could well be that these youth will finally "explode" and join terrorist units en masse because Islam is where the legitimacy is, and violent extremist versions of Islam are where the rage is, so that's the logical home.

Yeah, except for one problem.These angry young people DID explode, they ARE exploding, they went out into the streets and got themselves shot trying to overthrow the regimes that repressed them. Who in the world is on the streets more than unemployed, educated youth? Their anger led them to call for a popular democracy, not terrorism. The fixation of these angry people wasn't to find the solution in Islam, it was to find it in democratic rule, validated by the will of the people. Again, I don't mean they aren't believers, no doubt many are, it's that what they wanted in the revolution was a fall of a regime demanded by the people.

Isn't it ironic, the force, and the rage, that we thought would lead to suicide bombers led to irresistible and inspiring demands for democratic rule? And, to add to the irony, in one of the West's most advanced democracies, a frustrated, angry young man found no hope in democracy, or in the will of the people, which he felt betrayed the nation, and turned his rage into terroristic violence?

Do we need to give up on the Arab youth quite yet? Might they still believe democracy will work out for them? Should we be more concerned about the disaffected on the right, here and in Europe, who live in democracies and are finding that's not quite working out for them as they hoped? Just wondering.

HAH

Najaf and American Academia

2011-07-15T19:29:22Z

Part of the reason I am always fascinated with the workings of Najaf is that in many ways they remind me a great deal of American academia. I realize most political scientists aren't accustomed to thinking of the institutions that way, but are more focused on their actual political impact or their societal influence, yet it should be noted that Najaf is more than anything a series of seminaries, and what seminarians do more than anything is at its root scholastic.

In fact, many of the same tensions that roil academia tend to be relevant as concerns Najaf as well. Baqir al-Sadr's primary frustration with Najaf was that it was not addressing issues of concern to the Shi'a laity, focused as it was on the study of arcane, esoteric and highly abstract ideas as set forth in works centuries old, concerning everything from logic to grammar, as well as thoughts about the methodologies from which rules were developed which were expressed in language so opaque and so inscrutable that they can scarcely even be translated sensibly, and are barely understood except by those working in the rarefied atmosphere. This didn't do anything for anybody, concluded Sadr, much as Chief Justice John Roberts has chosen to ridicule law professors for writing articles that relate to Kant and 18th century Bulgarian agriculture laws (or something like that) but are of no use to the bar. Sadr's concern was that the clerics would lose the laity to Marxism, that of Roberts is that the professoriate has lost the interest of the bar and the bench and is too distant from it to be relevant. The reply from the institutions, of course, is obvious enough as well. First, they do involve themselves in matters of public concern (examples may be had, Najaf and its demand for democratic elections, American academia and Supreme Court amicus briefs in a large number of cases), and second, if we don't study Immanuel Kant/16th century logic and rhetoric, then who will and excuse us anyway for devoting ourselves to the life of the mind which last time we checked was what the university/seminary was supposed to be about.

There is an economic aspect to this as well--the Shi'i might want to know why he should tithe 20% of his profits, and the student wants to know why he should front a great deal of tuition costs, to an institution that doesn't seem much concerned with him, or not as concerned in his view as it should be. I pay $40,000 a year, one student at Columbia complained years back, and Professor X won't even leave his office to attend my graduation? Naturally those within the institutions are at times offended at the very suggestion they don't care about their laity. This economic aspect, however, is a more acute problem in academia than Najaf, given the more aggressive and questioning manner of Americans relative to most devout Shi'a, and just as importantly given the rapidly escalating costs of tuition while Najaf's revenue rate remains the same, at 20% of each believer's profits. That's why in the American context we have Rick Perry in Texas calling for a $10,000 bachelor's degree, saying schools should treat students as customers rather than endless funding sources, and should evaluate professors by student evaluations alone. Of course the retort to that is easy enough--my life and work would be easier if that's how you chose to evaluate me. Because how does Home Depot seek to deal with its customers? Make them happy! And what's the best way to make a student happy if you're a professor? Easy tests, light reading, lots of A+ grades (you really think a student is going to say something bad about a professor they expect an A+ from?). But if the Perry solution is extreme to the point of ridiculous, metaphor for modern Republicanism, the problem it seeks to address is perfectly legitimate.

In the end, the tensions in both places are similar. Devote too much effort to scholastic achievement and research glory, and the mission of the institution to its laity (student body in one case, devout believers in the other) can be unacceptably diluted. Devote oneself to satisfying the laity, and the core function of the institution as a place that is dedicated to a life of the mind/life spent in study of the Divine is cheapened. Navigating the balance becomes essential.

HAH

Arabic Transliteration and the Bluebook

2011-07-14T22:30:43Z

First, I hate transliteration of Arabic words into English. I find it pedantic, pretentious, bewildering, time consuming and most of all, deeply and fundamentally unnecessary--in short academic jargon at its worst. So the next bastard that puts a dot below the first letter of my first or last name, prepare for an ass kicking. You write it like that, and people who don't speak Arabic wonder what the heck is supposed to mean, and all of a sudden, they can't say my name any more. People who do speak Arabic but aren't familiar with transliteration get confused too with all the dots and the funny lines and the apostrophes in every direction, though they just ignore them and come to the right answer pretty quickly. People familiar with both Arabic and transliteration do not need them, so the only people left are hard core Islamic and Middle Eastern Studies academics, and only to the extent that their Arabic isn't good, or (more often) to the extent that they wish to show the world how brilliant they are via lettering that looks complex and sophisticated but really reveals almost nothing beyond what basic familiarity with Arabic would reveal anyway.

Honestly, if you don't know which "h" belongs in "jihad", then you don't know Arabic and there's no point to it. Except, of course, to get you to say the word in English in some reasonable fashion that isn't ridiculous (oh, and EYE-raq for Iraq is ridiculous), but that is easier done without dots and funny lines so as to satisfy the novice as well. And that goes equally well by the way as for words where the transliteration might be the same for different words under my simplified rules. I had an academic colleague once circle mihna sharifa when I wrote it--aha, she said, the perfect example of why I had better transliterate properly, which mihna did I mean? Caught! Except the sentence read "Ja'far al-Sadr though not a jurist himself still regarded the pursuit of juristic study to be a . . . . mihna sharifa, and said as much on several occasions recently. So really? You weren't sure whether I meant mihna as in "profession" or mihna as in "misfortune"? You thought it was "noble misfortune"? Besides which the three dots above were the words "noble profession." Because one of the few things more pretentious and insufferable in academic writing than transliteration is an insistence on not translating words, as if those who don't speak a language aren't entitled to learn from the piece. That I find so insufferable I won't allow publication in my name if a journal insists on it and have pulled nearly complete articles in protest. (To be clear, not in law reviews, which don't do this.) If my students cannot read it, I don't want to write it.

But if I hate transliteration as it exists, still clearly some form of reasonable moving of the word from Arabic to English is warranted, by which I mean it need not be rigid or formulaic, but a reasonable approximation of the word as properly written such that a novice might attempt a reasonable Anglification of it. And so with that we come to the Bluebook. How does it tell me to write the Constitution of Iraq, such that I've been forced to transliterate it in a decidedly preposterous fashion twice now in two different journals?

Doustour Joumhouriat al-Iraq

Now this is I have to say is so bad it does not meet my standard as expressed in the initial paragraph, the novice is almost certain to get it wrong. In fact, I'm quite confused as to how this could be the collective wisdom of our top law schools--who in heaven's name did they ask to get this? I'm guessing you'd read the above DOWSTOWER JOWMHOWRIYAT . . . . which to be clear wouldn't be close.

The first "ou" is the same sound as the u "mushy", or similar enough. Why ou is used for that is a mystery. Moushy? The second ou in the second word would be the u in gum. OU is even worse there. Would any sensible person pronounce gum close to properly if spelled goum? The final "ou" is I guess the closest, but it would be the vowel sound in zoom, which 'ou' doesn't too terribly well.

Why not just tell the Bluebook editors they messed up rather badly and they need to get it right? I could, I might before the next edition, but as noted I've been forced to transliterate with this horrible thing, I cannot for understandable reasons convince law review editors to depart from the Bluebook on the grounds that my Arabic is better than whoever they consulted, and I need it recorded that if that transliteration appears in my name, as it has, it's over my strong protest, so that I can credibly continue to despise transliteration without making it seem like I'm making a farce out of the words.

HAH

Hijab, Bicycles and the Need for Juristic Clarity

2011-07-12T20:36:39Z

Go to the first question on the tab entitled "Hijab" in Sistani's website in Arabic and you get a question about the permissibility of a woman riding a bicycle. The answer, to quote the Grand Ayatollah's office (fair to assume he didn't write this, because he probably doesn't deal with the easy questions):

It is permissible if she is able to keep her hijab about her entirely, yet that said, it is better to leave it aside.

یجوز اذا تمکنت من حفظ حجابها کاملا ومع ذلك فالافضل ترکه

The misplaced modifier at the end exists in English and Arabic by the way (i.e. leave the hijab aside? Or leave the riding of the bicycle aside?) In fact, in Arabic it's worse in fact it's written improperly since the question was about siyaqat al darraja (i.e. a feminine noun). So if he meant leave the bike aside, he should have said tarkuHA, ie used a feminine pronoun. He didn't, so grammatically the reference is to the hijab--leave the hijab aside. We know what he means,and it's not that, but the grammatical problem remains. Grammar is grammar.

The bigger issue is what in the world the latter part is supposed to mean. We can presume a Najaf cleric doesn't think women can ride bikes in the presence of men unless they're dressed in hijab (the issue there isn't the bike, it's the hijab, just as forbidden to chew gum and lose the hijab), but why is it "better" not to ride the bike, even with the hijab? Is it considered disfavored (makruh)? Is that what better means? Does it lead to lasvicious glances and incite sexual thoughts, so leaving it aside helps to avoid a potential wrong even if not itself wrong? Does the Grand Ayatollah think women aren't strong enough to control the bike and it's a potential public hazard? Is it that women shouldn't do this type of exercise but other things, say walks and yoga? What's "better" about not riding?

It really does matter. After all, if the third of these, then presumably with a stronger and more fit woman, the objection disappears. Or if not then certainly no objection to the stationary bike. If the second option, then perhaps riding as an older person is okay, or riding further from the presence of men. (At a Curves gym on a stationary bike). If the first or fourth, then one has to find other means of doing exercise. For a believing woman told she must exercise, all of this matters.

But we have nothing by way of explanation, just "better". By "explanation" to be clear I don't mean the textual basis of the conclusion reached, heaven forfend I ever suggest that I'm entitled to know why something is forbidden. I just mean a clear, concise and substantially complete directive that one can follow, rather than something vague, cryptic and open ended. "Better to leave aside" doesn't cut it.

As a lawyer, I have to ask. If I am supposed to follow, without question or complaint, the jurist's rules as he lays them down (not that I do, but anyway), is it too much to ask that those rules as laid down are sufficiently clear and complete to understand how to organize my life in response to them? "Better not to"? Really?

HAH

Hamas and Gaza

2011-07-12T02:30:10Z

One thing I've noticed recently listening to Hamas on BBC Arabic and Jazeera and following Gaza blogs is that they sort of find themselves between a bit of a rock and a hard place.

On the one hand, it is important for them to demonstrate the severity of the sanctions that Israel has imposed on the strip. It is most effective in helping bring about international condemnation of Israel, far more effective than those counterproductive rocket attacks and even worse the unconscionable suicide bombs. The Israelis sound a lot worse when justifying their blockade as against aid flotillas than they do justifying their much more severe poundings of Gazan cities and villages which have caused far higher civilian casualties than anything that happened on those damn boats. But the poundings respond to rockets and suicide bombs, and the flotillas, the same language sounds much worse. I mean you listen to the Israelis as against the flotillas, and they sound marvelously like the Assad regime. Every protestor is a terrorist, every form of opposition existential. That works when crazed nuts are suicide bombing your cities, as Hamas has done with some frequency. It doesn't with the boats. These folks on these boats are clearly not terrorists, they're middle aged hippies, same folks who in another cause run out and get in the way of the whaling boats, a pain in the ass but not a terrorist threat. Israel feels out of its element, its vocabulary out of date and not credible. So all of that is good for Hamas.

But the problem Hamas has is that a ruling party cannot just sit on top of territory, cry sanctions, and expect those it governs to continue supporting it, any more than Obama can just blame Bush forever, People in the territory want some semblance of normalcy and a decent life, and so that forces Hamas to go off and try to initiate projects however it can within the constraints it faces, and of course advertise those to show it is getting things done, much, again as Obama might in going to Michigan and showing hwo the stimulus kept a plant open. Or something.

So to that end, what's happening in Gaza right this moment? The second annual Women's Film Festival, to much fanfare. Hamas is showing Islamists have culture too, and it's frankly nice to see Gazans have an opportunity to see movies for a change. Hamas has much interest in showing it can deliver the goods to its people, just like Fatah.

The problem, of course, is that the two programs are at some tension to one another. It's hard to claim that you're being strangled in a serious humanitarian crisis, and that it's all Israel's fault, and that malnutrition and disease are serious, while also spending money on the 2nd Annual Women's Film Festival. It's a tight rope to navigate, interested to see how it plays out for them.

HAH