One Law To Rule Them All
I see once again Leon Wieseltier has beaten me to the punch; I started writing a response last week to Noah Feldman’s piece in the New York Times Magazine about Sharia but got sidetracked, and now Wieseltier has published his response before I did. And, while I have a job, I don’t have an editor. Pooh.
Well, at least this gives me the opportunity to respond to Wieseltier as well as Feldman.
I take Wieseltier’s point, particularly about the difference between how Feldman, raised an Orthodox Jew, interacts with traditionalists of his ancestral faith versus how he interacts with those of a foreign faith that he has made his career studying. But Wieseltier makes far too much of a habit of arguments of this sort. Maybe Feldman thinks Islam is beautiful and Judaism is ugly. If he does, does that make his argument go away.
Myself, I am instinctively inclined towards a position that says: some kind of “moderate” or non-violent Islamic politics is the hopeful future for the heartland of the Islamic world. So I came to Feldman’s article with a fairly open mind. But I was rather disappointed, and for reasons that have nothing to do with Wieseltier’s point. My principal complaint is that Feldman’s article promises something in its first paragraphs almost entirely unrelated to what it delivers.
Feldman makes two conflations that mask what, I think, are the real concerns among those who adhere to a liberal small-“r” republican vision about the proposed place of Sharia in the state tht he outlines.
First, and most importantly, he conflates the situation of Muslim minorities in non-Muslim societies with the situation of Muslims in majority-Muslim societies.
Second, he conflates the role of Sharia in an aristocratic/monarchical system with its possible roles in a democratic/republican system.
The former is the easier to see. Feldman starts his piece talking about the Archbishop of Canterbury’s speech, which was about whether Britain should give Islamic courts a formal role in matters of personal status. But much of the piece discusses why majorities in many Muslim nations would like to see Sharia have a greater – or the leading – role in their own political systems. How much do these questions have to do with one another?
My quick answer would be: very little. The very real grievances that people in Jordan, Morocco, Turkey or Pakistan have about their government’s non-responsiveness to popular needs, and more specifically the rampant abuse of power and abrogation of legal norms, have no parallel in Britain, or Canada, or Australia, or anywhere else in the Anglo-Saxon world. Grant for the sake of argument that a greater role for Sharia, and for Islamic jurisprudence, is the way forward for many Muslim countries. Grant for the sake of argument that a Sharia-based political system would be less corrupt, more constrained by law, and, most important, perceived as more legitimate than the systems that exist now – or, grant further, than some new attempt to ape Western institutions and norms. What follows for Muslim minorities in the West? The grievances pretty much by definition do not obtain. So, in the West, granting a greater formal role for Islamic courts in personal status matters (marriage, divorce, child custody, etc.) is not a response to the failure of some other model of governance of the ‘umma. It’s a response to the alienation of Muslim minorities from the secular (or Christian) government – a response that validates and codifies that alienation.
I want to be clear here: there is a legitimate analogy to be made between Islamic courts and Orthodox Jewish courts. And many members of the most insular Orthodox Jewish communities strongly prefer recourse to those courts over recourse to the secular law, for settling personal disputes of a variety of kinds. And I have absolutely no problem with private systems of law of this sort, even though I’m well aware that they are voluntary only in the nominal sense that someone from one of these communities can refuse to abide by such a court by leaving the community, and no one can force them to stay; the social pressures within the community would be such that participation in the private law system is not really optional. Moreover, in both Britain and Canada, there is a history of what one might call “plural establishment” which lends itself to an argument for some formal Muslim body to handle the “ecclesiastical” aspects of Muslim life, much as the Catholic church has a formal establishment in Quebec and the Presbyterian Church has a formal establishment in Scotland. I can argue another time whether either of these analogies are or are not adequate to justify some kind of Islamic establishment in Britain, or in Canada (I do not think that they are). For the purposes of this post, all I’m pointing out is that Feldman starts off talking about the Archbishop, who was talking about Muslims in Britain, and winds up making an argument about Muslims in Muslim countries, suggesting that they are the same thing when there may be very good reasons to be sanguine about some form of Islamism in Turkey or Morocco but nervous about the same phenomenon in Leeds.
The second conflation is a bit subtler, and maybe I’m overstating things to say that he’s conflating two things that he does try to separate. But nonetheless, it does seem to me that the premise of an Islamic jurisprudential check on authority is one that sits uneasily with republican thought. In a republic, sovereignty belongs to the people, whose consent provides the legitimacy for the political system. In a monarchy or an aristocracy, the right to rule is inherited, and is a species of property. A contest between a meritocratic elite – such as the Islamic juristocracy – and an aristocratic elite could be the basis of a political system with enough “play” in it to allow for a certain amount of freedom and development; this would represent a kind of balance and power, or a system of checks and balances. Those who argue that the flowering of the West since the Renaissance is actually the fruit of a tree planted and watered in the Middle Ages usually make an argument along the lines that the independence of the Church, and its conflicts and uneasy peaces with the secular power, was a key ingredient to the development of the unique political culture of the West, and of our consequent mundane success. Whether or not that story is true, perhaps it has some kind of analogy in the kind of ideal medieval Islamic polity Feldman sketches.
But in a republic, it’s not clear what is the rationale for having a clerical class with the moral or formal authority to overrule the duly constituted authority. And that, really, is what Feldman’s model requires. The analogy, in a Western society, would be not to having Parliament intervene in matters related to the established Church (which is the case in Britain), but to granting the established Church the authority to void a decision of Parliament. American liberals have from time to time raised a hue and cry over the slight advance of “natural law” jurisprudence in our courts, but the judges are still appointed by politicians who are accountable to the people.
Actually, as Feldman himself recognizes, that’s not where Islamism is going in the Muslim world either. Rather, Islamist parties are interested in capturing elected power – capturing legislatures, and forming governments. Now, I don’t see anything particularly wrong with that; as I said above, I can respect an argument that a kind of moderate Islamism would be the counterpart to Christian Democratic parties in the West. But that’s not the argument Feldman is making; he’s making an analogy to the role of Sharia in a medieval Muslim polity. And the analogy just doesn’t hold, because there was no analogy then to a popularly-elected legislative body.
More to the point, Islamism in the Muslim world is a populist and reactionary movement. And populist reaction does not lead to his ideals of an enlightened clerisy that “checks” abuses of power. Literalism, obscurantism and pedantry are endemic features of populist, reactionary religion which is best understood as a feature of modernism rather than of traditionalism. One of the ways that fundamentalism, a reactionary response to modernism, absorbs modernism is by subverting traditional meritocratic authority – thus, preachers will appeal to the lowest-common-denominator believer by appeals to prejudice and simplistic interpretations, and authority is increasingly derived not from expertise (evaluated by other experts) but by authenticity (as perceived by the crowd). Again, I’m surprised that Feldman doesn’t address this “horizontal” comparison across religions today, when fundamentalist ructions are affecting not only Islam but also Christianity, Judaism and Hinduism, preferring to stick with his “vertical” comparison with medieval Islam. This might be an instance of romanticizing the other, or it might be an instance of scholarly myopia (Feldman knows an awful lot about Islamic sources and history, but he’s not a sociologist); I don’t know. But it’s a serious problem with the essay.
What does all this add up to? It means that whether or not Feldman is right about how medieval Islamic jurisprudence worked, that’s not what you’re going to get from Islamist movements and parties today. That doesn’t mean there’s nothing to hope for, and only much to fear, from the rise of Islamic politics in the Muslim world; it just means that if it helps bring stability, it won’t be because Islamic jurisprudence is “equivalent” to Anglo-Saxon constitutionalism but because Islamic politics will be perceived as more legitimate by Muslims because more native. But if that is the hopeful case for “moderate” Islamism abroad, it’s equally the case for caution in advancing formal recognition of Islamic law within the West – the opposite of what Feldman counsels.
You can’t have “some” Sharia any more than be a “little bit pregnant.” It’s stupid. Sharia means: polygamy, death for apostates, death for blasphemy, female genital mutilation, honor killings, death for adultery, divorce by proclamation, forced/arranged marriages, forced burquas, and the like.
And Muslims not being Jews will not restrict Sharia to merely Muslim victims. But rather all Westerners in the West as well, should it be implemented in Britain and Canada and so forth.
I understand the desire in the West among Liberals to surrender to someone, anyone, Western Freedom and Liberty which they hate. And the feeling if not the USSR why not Islam?
But you will guarantee a civil war in the West over imposition of Sharia in the West.
Among Muslims themselves of course it will simply formalize the victimization of women and non-Muslims that characterize the oppression and darkness of Islam from the very beginning. Every Muslim nation would look somewhere between the Taliban’s Afghanistan and Khomeni’s Iran (the two nations that implemented Sharia to it’s fullest).
But already Osama threatens terror in Europe over Danish Cartoons and something the Pope said. So in that sense Sharia has already arrived, and the fight has begun. Sides will be chosen, and the vanquished eventually treated … well not particularly well I’m afraid.
— Jim Rockford · Mar 25, 02:34 AM · #
I think you’re missing one of Feldman’s central points. Feldman writes:
“The mainstream Sunni Islamist position, found, for example, in the electoral platforms of the Muslim Brotherhood in Egypt and the Justice and Development Party in Morocco, is that an elected legislature should draft and pass laws that are consistent with the spirit of Islamic law. On questions where Islamic law does not provide clear direction, the democratically chosen legislature is supposed to use its discretion to adopt laws infused by Islamic values.”
The scholars are still scholars, in a sense, though they are now elected and serve as what we would call legislators. Thus, the clerical class morphs into a legislature, and Sharia law is to some extent democratized.
— berger · Mar 25, 03:11 PM · #
Berger: your conclusion doesn’t follow from Feldman’s premise. The Islamist parties are trying to win legislative power to bring the law of the land into line with their understanding of Sharia (among other things). That doesn’t mean that they would accept the notion that the legislature determines what Sharia law is. The latter would be a “democratization” of Sharia, but so far as I know nobody is proposing that (and it’s hard for me to imagine anyone proposing it).
— Noah Millman · Mar 25, 03:59 PM · #
Well, as I quote above, Feldman points to the Muslim Brothers…so there’s one example (whether you accept his characterization of them or not is a different, though certainly important, matter).
I’m not sure I follow you when you refer to “Feldman’s Premise”, but it seems to me that one of his central contentions is that sharia is not a given at all – it isn’t something that simply “is” but is something that is derived from interpretation. You seem to note this in your post above (“their understanding of sharia”) but then omit it in your next sentence (“what Sharia law is”).
Now it’s obvious that many terrorists are convinced that sharia is clear and unambiguous, but that doesn’t mean that there aren’t others who want to promote sharia and, at the same time, challenge the terrorist’s interpretation of it.
Doesn’t it make some sense to try to engage and foster more acceptable conceptions of Sharia, rather than dismiss out of hand anyone who wants to be grounded in it? I’m certainly not sure if Feldman’s approach will work, but it makes a certain amount of sense theoretically at least.
— berger · Mar 25, 04:57 PM · #
Berger: I think you are just misreading what Feldman is saying. When he says that the platform of the Brotherhood is that the legislature should pass laws consistent with the spirit of Islamic law, he is not saying and they are not saying that the legislature should determine what Islamic law is. That is structurally the responsibility of Islamic jurists, and nobody has suggested otherwise.
The point is not whether Sharia is fixed or changing, nor whether it is clear or requires interpretation. The point is that by its nature, it is not legislated. That is why it is wrong to talk about “democratizing Sharia” – because nobody, not the Brotherhood and not Feldman, is talking about giving the legislature the formal power within the Islamic religion to decide what is a binding interpretation of Islamic law, and that is what democratizing Sharia would mean.
When Feldman says Sharia ensures “the rule of law” or is analogous to Anglo-Saxon constitutionalism, he is pretty explicitly saying that it would function in a counter-majoritarian fashion as a check on other powers. He himself admits that actual Islamist parties are not seeking to establish checks and balances against other authorities; they are trying to win legislative power. But he doesn’t seem to realize that this makes his whole discussion of the historic political function of Sharia somewhat beside the point. That’s what I mean by your conclusions not following from Feldman’s premises.
Your point seems to be: if the Islamists take legislative power, then by definition they will be making Islamic law when they pass laws. That is not the case. You could argue that democracy would be Islamicized, or you could argue that it was just becoming less democratic or less liberal; there is room for both positions. You could also make an argument that jurists would become more liberal under such a regime, and hence Sharia would become more liberal, though I haven’t heard the argument from you or Feldman why that should be the case. But it’s just a mis-characterization to say that Sharia would be democratized by electing Islamists.
Perhaps this analogy would make it clear: if someone in America – Ron Paul, say – ran on a “Constitutional Law” platform saying we need to bring the government back into line with the spirit of the Constitution, would you say that this party was “democratizing the Constitution”? I don’t think so. Someone who was looking to “democratize the Constitution” would be somebody who wanted to make the Constitution more subject to democratic change – by eliminating the requirement of approval of 3/4 of the state legislatures to amend, for example, or by allowing a 2/3 vote of the Senate to overturn Supreme Court rulings. Do you see what I’m getting at?
Finally: I don’t think either Feldman or I are debating the question of whether more “acceptable” conceptions of Sharia should be engaged or fostered, assuming that it is within our power in the first place to decide what is acceptable and to foster or engage it.
— Noah Millman · Mar 25, 07:05 PM · #
Thanks for your responses – I don’t want to tempt your good will any further, but let me say a couple of things in response.
Of course “we” wouldn’t think Ron Paul wants to democratize the constitution but that’s not the issue. It’s not about the particular democratic merits of a particular party but of national elections and political representation per se. If Paul won the election we would say that he was democratically elected, even if we thought his Presidency would mean the end of that democracy.
I follow (and endorse!) your ideas about democratizing the constitution, but I would add that “democratizing” (a verb, it would seem) depends on where you stand, We are in a much different position than, say, the Iraqis. Similarly, I can go running but I’m not going to go running as well as Carl Lewis is going to go running.
I’m not saying that Islamists will necessarily pass Islamic laws; they could pass laws which totally contradict many of the most predominant and traditional tenants and practices of Islam. But, if they are in fact elected, they will have some limited form of democratic legitimacy (think Hamas). This is not the end game in and of itself, of course, but it is something.
Further, there’s nothing to say that an Islamist clerical legislature would have to be anti-majoritarian. As we know all too well, legislative bodies often don’t oppose executive or judicial bodies at all. Such bodies are still distinct and, we hope, worthwhile even when they don’t check other powers as much as we might like. But, more to the point, majorities have political legitimacy in a democracy – though such legitimacy isn’t equatable with total power, at least in a true democracy.
So, I don’t see an Islamic legislature as preempting the need for clerics. But, if such a legislature is legislating in accordance with Sharia, then they are interpreting it and deciding to a larger extent what it is. Here, it’s important that there is no central ecclesiastical authority in Islam. What we understand to be the traditional divide between religious matters and political matters simply has no sense to the Islamist. Prompting such a person to severe religion from the administration of her society strikes me as a folly, and why I am attracted to Feldman’s approach.
Thanks for reading and responding – I love this blog.
— berger · Mar 26, 12:27 AM · #
berger, you write:
Prompting such a person to severe religion from the administration of her society strikes me as a folly
It is the very cornerstone of our constitution. You don’t get to let your religion decide the laws of the land, even if you REALLY, REALLY, feel strongly about it.
— Dennis Doubleday · Mar 26, 09:14 PM · #
Mr. Millman,
I think one of the broad points that Mr. Feldman is trying to make is that Islamism or the Call for Shariah is not only a reactionary movement (it may have elements of that, in some countries more than others) but it also has what might be considered ‘leftist’ (although such labels don’t really fit) elements as a type of liberation theology.
Also, while you are right that Islamists are not calling explicitly for any ‘democratization of Shariah’ your comments at least seem to be missing the fundamental reality that Sunni Islam does have scholars, but it does not have a clergy. Islamists (and again in all of this there are country by country differences, but I am saying in general) are not calling for rule by some clergy class and if you look at Islamist leaders and politicians they are not usually religious scholars but they are professionals of all types who do take religion seriously. In fact, in many of their countries because the scholarly class is often patronized or in some other way seen as linked to the ruling regimes, the Islamists are often in tension with at least large segments of the professional Muslim (scholars, government paid imams and teachers) establishment.
So, as an Islamist myself I would not want to see Shari’ah democratized, to the extent that Islamists come to power or Shari’ah is implemented in these countries, something that could be called that would definitely be a result. It will be by definition become politicized, and if it does in a republican context, it will become in some fashion democratized. This, obviously is a tricky business, and one of the things that actually will give Islamists pause about actually taking power. It is much clearer that Islamism is an effective and morally sound response to the current unjust and tyrannical regimes and it is much more tricky how to handle it if Islamism ever actually got into power.
— Abu Noor Al-Irlandee · Mar 26, 11:26 PM · #
I should have mentioned also when I mentioned that Islamism contains pseudo-leftist liberation theology strands, it also contains just liberal rule of law strands…the point is, it is a complex phenomenon rooted in both the particularities of Islamic law, theology and history and of the current ruling structures in Muslim lands as well as the international reality….to simplify it as “reactionary” is misleading, as far as I can tell.
— Abu Noor Al-Irlandee · Mar 26, 11:31 PM · #
Abu Noor Al-Irlandee,
What does the historical development of the Islamic Republic of Iran tell you about the possible trajectory of future Sunni Islamist regimes?
What can we say would most likely be different?
What can we say would most likely be the same?
— Northern Observer · Mar 27, 06:12 PM · #
Northern Observer,
As we’ve mentioned, it would depend on the particular country. Let’s focus on a Muslim Brotherhood type movement like what we have in Egypt. This is the longest running and most established type of Islamist movement in the most populous Arab country.
As I’ve said, I think the Shi’a/Sunni difference is important…not so much because of theological differences, but because of the issue of clergy. Iran not only had a clerical class, but it was unusual in the extent to which the particular history of the Shi’a development created a Shi’a economic powerbase which was independent of the Iranian regime and could become a major focus along with leftist forces in creating a successful anti-Shah revolution. Although the revolution was popular at the time, it was still a revolution. So, if somehow Islamists were allowed to come to power in a Sunni State through elections this would also create a big difference. So far it has seemed clear that the ruling dictatorships/monarchies in the Arab world are not going to surrender power by any means at all. The widespread Sunni Islamist movements have also rejected the strategy of trying to come to power through violence or even to use any violent resistance against the current regimes. Except for the splinter Al-Qa’ida philosophy adopting/Sunni Jihadi groups, this has been a major stress of the Sunni Islamists, that they are not trying to come to power through violence. Sunni Islamists may still support jihad against external enemies/occupying forces but not against ruling regimes in Muslim countries, even if they consider those regimes illegitimate. Experience has taught them that the regimes will react with brutality without limits to any such threat and for a variety of reasons it is counterproductive. Hamas, of course, is based on violent resistance to Israel, it came to power through elections, and even its so-called “coup” in Gaza, as has been well-reported, was not an attempt to seize power by violence but simply an attempt to pre-empt a coup by U.S. backed Fatah goons.
So, to be honest, although the popularity of Sunni Islamists is growing, I don’t see any obvious path to which they will take power in any Muslim country because even in countries where they are the most popular opposition movement there is little reason to see those countries moving towards democracy. So, a lot would depend on what actually turns out to be the path towards power of those groups. Islamist participation in electoral politics tends to make them much more pragmatic and less ideological (as one would expect).
I think there is a great recognition amongst Islamists like the Muslim Brotherhood of the great potential for backlash if one tries to enforce any type of Islamist agenda on a population where it is not popular. So, the thinkers of these movements have been clear for some time (even back to the considered radical Sayyid Qutb) that their primary methodology is education and gaining support for the Islamist message. So, even though there is an ideological belief that non-Islamic regimes are illegitimate, there is also a belief that the way to power is only through convincing the people to realize this.
So, important variables to think about include how such a group may have come to power, and then obvious ones like what are the current international framework at the time. Is there something like a U.S. invasion in Iraq/Afghanistan and this general overall War against Terror framework still in place..because although mainstream Sunni Islamist completely reject the tactics of Al-Qa’ida, they in no way can embrace the U.S. response and the U.S. seems to have the same hands off attitude towards them, at least at this point. So, no matter how moderate they may want to be, the continuing presence of such an overriding global framework would push them to be seen as a rogue or revolutionary state, because no Sunni Islamist regime can cooperate with something like the current American War on Terror in any way at all.
I know that was a lot of rambling and little answer to your question but those are some thoughts I have. I would really welcome additional people’s thoughts or challenges to what I’ve written.
— Abu Noor Al-Irlandee · Mar 27, 10:28 PM · #
By the way, I think the point about the issues being completely different for Muslims who are small minorities are indeed different, I kinda took it that Mr. Feldman was just trying to hang the topic of the book he had already been writing on a piece that had been in the news recently for his article.
I also would be interested to hear more about how Mr. Feldman’s view of Orthodox Judaism and Jewish law are influenced by or in relation to his study of the Islamic legal tradition or vice versa. (If that can be followed).
And I should mention that elsewhere Mr. Feldman has basically admitted that the argument he’s making about Shari’ah is somewhat deliberately slanted towards trying to see the positive aspects as a reaction against what he sees as general mainstream discussion that tends to be completely on the other side and is often based on little if any actual knowledge of Islamic legal theory in its history or its present.
I agree with this approach and something I’d also like to see happen is to get people to try to think about why many decent Muslim people are actually in favor of Shari’ah to one extent or another. Even if ultimately people want to come down still firmly against it, I think it would be beneficial to understand that thinking that the Muslims are all backward people who hate freedom is not helpful nor accurate.
— Abu Noor Al-Irlandee · Mar 28, 12:10 AM · #
A couple of other points about future trends. Traditionally, Shi’a clergy took the attitude of being withdrawn from government (at least until the return of the mahdi). Khomeini of course overturned this tradition with his concept of vilayat al-faqih (rule of the jurists) which became the principle which undergirded the Iranian Islamic regime. So far, the Shi’a leadership in Iraq (most notably Sistani) have stated that they reject this concept and follow the more traditional Shi’a stand. So they advocate for a kind of democracy or republic but of course they expect the Shi’a politicians to establish laws that respect the rulings of the Shi’a scholars. So this is one type of development to watch. Normally, one would be watching with great interest developments in Afghanistan and Iraq, because these are states that recently started grand constitutional projects, debated these issues, and set out to estalish some kind of system in each case that molded Islamic principles and democratic principles. Of course, each is marred by its association with foreign powers perceived to be hostile to Islam and with war that will last who knows how long. Similarly, I wouldn’t give much credence to examples some would cite, like Somalia under the Islamic Courts, Afghanistan under the Taliban, or Sudan because in each of these countries the Islamist regimes of one type or another never were allowed to have any situation of stability or peace at all and the ways in which those regimes ruled were always based more on the reality of the ongoing war than on principles that might hold for the long term.
— Abu Noor Al-Irlandee · Mar 28, 03:39 AM · #
Oh, I forgot the whole reason I started talking about wilayat ul-faqih. In Sunni scholarly circles, there is a concept called Maqasid ash-Shar’iah (The Aims or Purposes of the Shari’ah.) This is a classical concept, not a new one, but it is really being emphasized in our current time. The idea is that scholars of the past observed from the texts that there are five main purposes or aims of the Shari’ah and that these should be kept in mind when one is trying to determine the ruling on a new issue, or just interpreting some old rulings or when one is trying to determine what to give priority to among conflicting concerns. This is a concept which will probably figure heavily into the philosophical underpinning of a future Sunni Islamist regime that would come to power through the political process. That’s my prediction at least, and Allaah knows best.
— Abu Noor Al-Irlandee · Mar 28, 04:32 AM · #