Why Shariah?

The title of Noah Feldman’s recent piece in the NyTimes. This is a very subtle essay, one to be read two, three times to really ingest it. Feldman whose book After Jihad: America and the Struggle for Islamic Democracy was very influential in the framing of the Iraqi Constitution. I wrote on this book elsewhere (here--way to the bottom of the post) and interestingly predicted that his book should have been titled Islamic Rule of Law.

Why is that interesting–because in this piece Feldman argues that one of the reasons the call for shariah grows in so much of the Islamic world is that it functions (or can function) as a way of the rule of law.

NF:

Much more after jump.

Shariah, properly understood, is not just a set of legal rules. To believing Muslims, it is something deeper and higher, infused with moral and metaphysical purpose. At its core, Shariah represents the idea that all human beings — and all human governments — are subject to justice under the law.

In fact, “Shariah” is not the word traditionally used in Arabic to refer to the processes of Islamic legal reasoning or the rulings produced through it: that word is fiqh, meaning something like Islamic jurisprudence. The word “Shariah” connotes a connection to the divine, a set of unchanging beliefs and principles that order life in accordance with God’s will. Westerners typically imagine that Shariah advocates simply want to use the Koran as their legal code. But the reality is much more complicated. Islamist politicians tend to be very vague about exactly what it would mean for Shariah to be the source for the law of the land — and with good reason, because just adopting such a principle would not determine how the legal system would actually operate.

Feldman also goes on to correctly point out that in the Islamic imperial age (roughly 700-1800 in the Western calendar) shariah and the clerical class (ulema in Arabic) acted as a buttress against total tyranny of the sultanate-caliphate order. Mosque and state were part of a organic system, not separated, with each supporting the other, but the mosque (really again the clerics) able at points to argue that the caliph was answerable to the divine law (shariah).

[For integralists out there, that is the blue imperial mythic order. This is the same in the Christian Eastern Orthodox Empire of Byzantium and Moscow, the Classical Chinese system, etc. So Islam is not essentially different in this regard. It’s a product of the stage.]

Now Feldman is absolutely correct that since the demise of the clerical class (again 19th century) shariah and the call for Islamism has been democratizing. On the other hand, without shariah/divine-rule of law, there is no check on power in the Muslim world which has lead to the absolute tyrannies and stultifying economic, material, cultural, and intellectual conditions throughout (sadly) too much of the Muslim world (esp. Southwestern Asia, Central Asia, North Africa, Muslim sub-saharan Africa, and the Middle East).

In the classical tradition, the clerics and judges were left to interpret with enormous degrees of latitude the meaning of shariah (and fiqh Islamic law). There were multiple schools of Islamic jurisprudence, which unfortunately by the 13th/14th century were reduced to four (and mostly one). In the modern Islamist movements–whether liberal or conservative relatively speaking–this role has been taken over by the people and legislatures/elected officials.

But with all those caveats and historical nuance in mind….still is this a good idea? Even Feldman is not entirely convinced:

But if Shariah is popular among many Muslims in large part because of its historical association with the rule of law, can it actually do the same work today? Here there is reason for caution and skepticism.

For among other reasons…

The Islamist movement, like other modern ideologies, seeks to capture the existing state and then transform society through the tools of modern government. Its vision for bringing Shariah to bear therefore incorporates two common features of modern government: the legislature and the constitution.

With the clerical class eliminated in power–except where they have taken the reins of government as in Iran or where they wield massive mostly negative influence (i.e. Saudi Arabia)–the people seek to take over the government and Islamicize it. Most Islamists seek this through political persuasion, elections, and constitutional politics. So not any real worry there. Others of course seek to attain power through violence and then a very very very very very slim minority (less than 1%) seek a trans-national caliphate (aka al-Qaeda and al-Qaeda affiliates).

Feldman’s point is that shariah (in this revived sense) would work as a constitutional order against which individual actors and groups are judged and that the day to day practical implementation and decision making be handled by the legislatures responsible to and elected by the people.

However, Feldman downplays I think the role that in many Islamist movements (again influenced by this shariah view) that a judiciary be set up that can over rule the legislatures if the laws are considered antithetical to the shariah (are “un-Islamic” in other words). The most recent platform of the Muslim Brotherhood in Egypt had such an element in it. Moqtada al Sadr is studying to become an Ayatollah under a guide who favors Khomenei’s vision of the clerical rule.

This is what Ali Eteraz calls right-wing Islamism. Eteraz calls instead for a movement to separate mosque and state.

Feldman says that these judges are not clerics but bound to the constitutional order, but that to me is putting the cart before the horse. If the Muslim Brotherhood platform calls for dhimmi-like status for Jews and Christians and women, then it doesn’t matter (in my mind) whether the judges are clerics or not, so long as they support a pre-modern order and morality, are non-transparent in the dealings and unaccountable in their jurisprudence (because they can claim an untouchable Qu’ranic principle say).

So I’m of two minds on this issue. I’m sold (in essentials) on the notion of a liberal order, separation of the religious authority from the governing one.

On the other hand, I think realistically at least for large swaths of the world in the interim, Feldman is onto something. (So-called) Islamic Revolution as he says has failed–see Iran. And democratic revolution, particularly imposed at the barrel of a US gun/tank and imperial occupation, has also failed–see Iraq, Lebanon, Palestine for examples.

He calls this third group “gradualists”, mixing in some fashion Islamism, calls for shariah, and the democratic forms of governance. The ruling party in Turkey (the AKP) is the most obvious and best example. And gradualists argues Feldman offer the best of what he sees as bad options going forward. Time will tell I suppose.

 

 

 

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Published in: on March 22, 2008 at 9:23 pm  Comments (4)  
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  1. One point that is immensely important that Noah Feldman alluded to is that the Ulema or religious scholars were the checks and balances to the unlimited, unanswerable power of the state or the Islamic equivalent to the braches of government in the U.S.

    The collapsed of the Ulema had lead to tyrannical governance around the Muslim world and it to be blamed for the contemporary mess we see today.

    Every government in the annals of history has established law to preserve rights and protect the integrity of society, Islamic law differs from contemporary government as it is not limited to the corporal but also protect the moral and spiritual integrity of society as well. A main component is, it protects man from his own corruption.

    So-called Islamist are hard pressed to really describe how their government would look, because Islamic laws allow for so much latitude and discretion to create one and there is definitely no one binding way, which goes against the general portrayal of it here in the U.S..

    As far as Ali Eterez, how can this be called right-wing Islamism, when this has been the “middle way” in the Muslim World for centuries until and even with the foreign interference, particularly the British creation of tyrannical rule of monarchs and despotic dictators. This is precisely why, when giving the choice, Muslims have chosen the so-called Islamist rather than their secular counterpoint. This is what explains Hezbollah, Hamas, and the FIS in Algeria. These co-called Islamist groups gain street cred because before governmental aspirations, they were social service organizations that protected and assisted the people in the grassroots, going back to promoting the moral and spiritual integrity of society. This is why Husni Mubarak has to lock up the Muslim Brotherhood for no reason for the coming elections

    I would argue that this is the mainstream Muslim World and Ali Eterez is in the minority. The minority that Ali finds himself in, are of those Muslims with western education who find it easier to copy-cat or implant traditions that are foreign to the history and culture of a region, rather than the hard task of developing the numerous resources already present in that society to bring about the desired change. Iraq comes to mind as being part and parcel with Ali’s vision. It is only right-wing, when looked at with leftist or western glasses. I will simplify it with a question, is it more consistent with the traditions and customs of Muslim people to ensure that Allah has a say in government or strip him of all power?

    Now, one can argue whether a religious government is right or wrong, especially in the West, however, my point is people tend to establish societal norms and laws that are consistent with their traditions and they have the best grasp of their situation. This is to be commended especially if this system preserves the individual and communal rights of its people in a just manner. It is not for foreign power, especially democratic-elected foreign powers to manipulate the will of the people. This is why Iraq is a complete and utter failure because the West measured success in foreign terms. They didn’t take into account the religions situation Sunni and Shiite and than mistakenly add an ethnic group in the religious equations Sunni/Shiite/Kurds, but the Kurds are overwhelmingly Sunni. Didn’t take it account the ethnic situation Arabs/Persians/Kurds, didn’t take into account the tribalism within those respective communities. Haven’t established a government that preserve and protects the rights of its individuals irrespective of affiliations, haven’t established justice, its citizens are under occupation and hundreds of its citizens get killed every day. However the western implanted mock elections were cheered as a historical success, what a joke. For Ali and others the biggest lesson this has taught the world, that a country will not simple throw away it century long traditions, customs, understandings and grudges even if it mean their lives. Conventional wisdom would be to work in a context that is consistent with the on the on the ground realities rather than implanted western ideals, and I say this as a western-educated Muslim like Ali.

  2. Sorry for being so long-winded above and to actually add more.

    However it made me think about the time of Jesus (pbuh) and particularly, the verse in my opinion, in which western civilization has used to justify secularism and dress it some divine inspired judgment.

    “Give onto Caesar that which is Caesar and give onto God that which is God”

    For me context is everything. Israel was under foreign occupation by the Romans. Let’s not also forget, that although the Jews were known in history as the chosen people at that time, God has used nations rooted in Pagan traditions to teach them lesson. It had nothing to do with the belief system of those nations i.e. Assyrians, Babylonians, and Romans but had everything to do with the disobedience of the Children of Israel. God sought to punish, humiliate and debased them of their arrogance and heedlessness towards him.

    It is in this context Jesus (pbuh) comes. This injunction by Jesus (pbuh) was about an external enemy, who does not share their history or traditions but nonetheless has occupied them. The Romans were only interested in material exploitations and allowed the Jews to maintain most of their religious practices. As it related to taxes give them what they want, as far as their traditions also give God what he wants.

    Did Jesus (pbuh) tell the Children of Israel to discard their traditions or implant foreign traditions within their traditions? No, in fact he is a staunch traditionalist and tells them to fulfill the traditions, prophets and law.

    Minus the occupations, the above mentioned verse is not recited, as it relates to factors external to their traditions, whereas in this contemporary era it is explained as if it is a Christian principle by some.

    CJ, please provide your insights and correct me where I am wrong.

    The same contemporary western powers that celebrate Jesus today and read history and take pride in the fact that Jesus didn’t capitulate to the Romans and the High Priest and stayed loyal to God are the same, who are playing the same classical western occupier role killing and paying off tribes in Iraq to get them to capitulate.

    History is no more than the repetitive re-cycling of themes, events, scripts, and roles the only thing changes are the names of the characters.

  3. e,

    I think you’re right. The view Feldman describes is much more the mainstream one and Eteraz is in the minority.

    I think there is an argument to be made that (given Iran) that to echo Madison it’s better for governments and just as importantly it’s better for the religions if they have some differentiation of spheres.

    When monarchs in the Middle East get to choose who is the Iman at a major mosque, who are they going to pick? Somebody pliable and pro-the government no doubt.

    In the Arab world particularly this has a disastrous effect I think because they can’t criticize the government so Israel or the US gets blamed for everything. Or now perhaps in Sunni countries, the Shia.

    But practically in the interim term–which who knows how long that is–something like what Feldman offers is more realistic.

    The key for the US will be to learn that an anti-US government in that part of the world doesn’t automatically mean a threat. In fact an anti-US government but one that wants to hold power is much more likely to eradicate it seems to me, elements that would threaten their government by directly threatening the US. A smart US administration could make some back room deals on this point.

    peace. cj

  4. […] new book The Rise and Fall of the Islamic State. I’ve discussed Feldman’s work before (here for […]


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