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.