Redstate

There are parts of democratic countries under Shari'a at present.  Parts of northern Nigeria come to mind.  They still have the right to vote out the governors who enforce shari'a and in fact have been under increasing pressure as stories of honor killing make their way into non-Shari'a parts of the country.

In most of the Western world, we have voted in religious dogmas as secular laws including "Thou Shalt not Kill" and many others.  They could be voted out similarly.  But one does not usually say we have Democracy in spite of Christianity.

We wanted to make sure Iraqis have a say in their governance.  If they choose shari'a, so be it as long as they have the choose to stop using shari'a in the future.  The only case where there could be a problem is the conundrum of what happens when a democracy votes out democracy.  If a majority vote to appoint an Islamic cleric to run the country without any check or balance that is a problem.  I also doubt it will happen.

Allowing shari'a to become law should be acceptable to America if it is the will of the Iraqis.  We are not there to impose our democracy, but rather to let the Iraqis set up their own.

If true, that is troubling.  Why have we been hearing over and over from the MSM that Sistani had endorsed the idea of a secular government?

I have two observations, or comments, or maybe questions, about this.

1.  IMO, this is where the rubber meets the road in terms of what we are commiting ourselves to in Iraq, and more broadly, in the larger agenda of "transforming the middle east".  If a majority of Iraqis want to live in an Islamic state, do we let them?  If not, why not?  And, if not, how do we prevent it?
   
2.  There are a couple of folks here -- Aziz, jadedmara, probably others -- who have good insight into Islamic culture.  I would be interested in their opinion, and really any informed opinion, on the potential for a state that was both based on Islamic law, and which was, if not a democratic republic as we understand the term, at least basically respectful of the rights of its citizens, and not hostile to the West.

A final thought of my own.  My general impression has been that the Iraqi Shi'a are, in a basic and pragmatic way, open to good relations with the US.  If things go as described in Paul's post, does Iraq offer an opportunity to demonstrate that an Islamic state can exist that is not repressive, and which has friendly relations with us?  Is that something we would welcome, or resist?

Cheers -

of Nigeria is that the rights, electoral and otherwise, of the religious minorities, Christian and indigenous, are not respected.  Where is the sense in merely exchanging one form of oppression for another?  

But one does not usually say we have Democracy in spite of Christianity.

For good reason: Christianity separates church and state. Islam does not.

In most of the Western world, we have voted in religious dogmas as secular laws including "Thou Shalt not Kill" and many others.

"Thou shalt not kill" a religious dogma? Then you believe that the basis of all law is religious dogma? In Christianity we make a distinction between philosophy and theology. The former is discernible by man's natural reason alone; for the latter we must have the assistance of revelation. Thou shalt not kill is clearly in the former category.

We wanted to make sure Iraqis have a say in their governance.  If they choose shari'a, so be it as long as they have the choose to stop using shari'a in the future.

If the Iraqis choose theocracy, "so be it"? Speak for yourself. Shari'a is a totalitarian system. It is antithetical to freedom, (though it can be brought about by democracy); if our aim is to spread freedom, then we must resist the establishment of shari'a.

Allowing shari'a to become law should be acceptable to America if it is the will of the Iraqis.

No, I don't think it should. Should we look on with a dull half-smile if Iraq drifts toward Afghanistan under the Taliban, just so long as they have some theoretical right to replace their governors?

My general impression has been that the Iraqi Shi'a are, in a basic and pragmatic way, open to good relations with the US.  If things go as described in Paul's post, does Iraq offer an opportunity to demonstrate that an Islamic state can exist that is not repressive, and which has friendly relations with us?  Is that something we would welcome, or resist?

My own quasi-realism leans me toward saying that an Iraq that is pro-American (or at least not openly hostile) is all we are looking for. If, mirable dictu, a shari'a-governed (that is, very repressive) Iraq were to emerge that is also neutral or even friendly toward us, then I say we have accomplished something great -- despite the fact that the regime is repressive. We will have acquired a legitimately-Islamic government as an ally.

Yes, a majority imposing their will is better than a dictator imposing his will.  Respect of minority religions is a part of an ideal situations, but if it is not a plausible situation then it is irrelevant.

is an overriding value in politics or in the reconstruction of nations which have groaned under tyranny for decades.  The value of democracy does not outweigh the human rights of the Christian minorities of Iraq to live free from the disabilities imposed under Sharia as the conditions of their dhimmitude.  So, now the Shia will no longer be oppressed, but the Christians will be oppressed.  Trading evil for evil does not progress make.

Christianity does not separate church and state, our Constitution does.  The Vatican was quite happy to intermingle the two for centuries.  Our Constitutional separation has been enforced over the objections of many Christians.

Yes using the 10 Commandments as part of our law is using religious logic (which can be supported by secular logic) in our laws.  Imposing shari'a can be a decision that people make because they believe in its tenets.

Choosing theocracy and choosing shari'a are different arguments.  Your post is about shari'a.  As I stated, a democracy that votes out democracy is a real conundrum.  But a democracy that chooses shari'a as their only source for law and stays a democracy is not choosing theocracy.

The Taliban had no democratic roots which is different than what you are arguing now.  If Afghans voted the Taliban back into office, what should we do?  Taking power by force and being elected are different means.  If one is elected to enforce shari'a law and they can be defeated electorally in the future, then we ought to let them represent their people.

Democracy does not have to be secular and if we demand it to be, then many Islamic countries will never embrace democracy.  In fact, that would make liberals correct in arguing that democracy and Islam are incompatible.  You must be allowed to choose religious government or we are tempting the accusation that we are imposing our views on Iraq.

would only serve to undermine our long-term objective for the reconstruction of the Middle East by establishing a linkage between liberation and the enactment of Islamic law, this latter being one of the principle inspirations for the efforts of those Muslims now waging jihad against us.  

Please see http://www.iraqthemodel.com for more on this. They show reason for skepticism with these kinds of assertions.

If this statement is accurate, it is a major change in theology for Ayatollah al-Sistani. Sistani descends from the Najaf School of Shi'a Islam which specifically does believe in the separation of mosque and state.

The Najaf School of Shi'a Islam does not believe  that the Velayat-e-Faqih (the authority of Islamic clerics to oversee secular life) means that clerics have the obligation to run the government. The Qom School, which is the school of Shi'a thought that produced Ayatollah Khomeini in Iran believes that the Velayat-e-Faqih specifically requires shari'a and theocracy.

In some ways, the Najaf School of Shi'a Islam is close to the Augustinian notion of the City of God and the City of Man - that secular affairs should be informed by religious teachings, but not controlled by them.

For Sistani to suddenly embrace doctrines that go against years of his own jurisprudence seems quite unlikely, which is why I'd greet this story with great skepticism.

Here's the link

Christianity does not separate church and state, our Constitution does.

You got it exactly backward. Mt 22:21, "Therefore render to Caesar the things that are Caesar's, and to God the things that are God's." Meanwhile, the Constitution merely forbids Congress to make laws "respecting an establishment of religion." Since six states had established religions at the time of the Ratification, the Constitution actually forbade the separation of church and state. It wasn't until the 20th century that the Supreme Court mangled this. The totemic phrase "separation of church and state" appears in a private letter of Jefferson's.

Yes using the 10 Commandments as part of our law is using religious logic

It is fascinating to me that you seem to think there is no logical way to outlaw murder without relying on religious dogma.

Choosing theocracy and choosing shari'a are different arguments.  Your post is about shari'a. . . . But a democracy that chooses shari'a as their only source for law and stays a democracy is not choosing theocracy.

Shari'a is theocracy. It's that simple. A democracy that chooses shari'a has chosen theocracy.

The Taliban had no democratic roots which is different than what you are arguing now.

I did not argue that the Taliban had democratic roots. I argued that a country (say, Iraq) could come to resemble Afghanistan under the Taliban through democratic means.

Democracy does not have to be secular and if we demand it to be, then many Islamic countries will never embrace democracy.

Now your are starting to catch on.

I agree that skepticism is warranted -- about both the accuracy of these reports, and the efforts of Westerners to tease out of Shi'a Islam a church-state distinction.

[By the way, Australia's ABC is carrying the same story.]

"In fact, that would make liberals correct in arguing that democracy and Islam are incompatible."

Sorry, I can't let the "liberals say democracy and Islam are incompatible" statement pass without challenge.

Who said they were incompatible?  Can you provide a citation for this?

Thanks -

It's usually right-wingers like me who have made this suggestion.

If it does come to pass that the Iraqi government imposes Sharia, what do we do?  We will be in the very uncomfortable position of using our troops to prop up a government with human rights beliefs antithetical to our own.

And we need to think hard about what our response in that case should be. Our spreading democracy rhetoric hampers us: how could we sudden move against an authentically democratic (read majoritarian) movement, having talked so fulsomely about the greatness of democracy.

On the other hand, the slipperiness of the term democracy could help us: We could insist that a theocracy chosen by plebescite is nothing but a caricature of democracy -- which we won't stand for. This would of course require taking a stand that would be instantly denounced as imperialistic, but it would have the advantage of being true.

is the best example that comes to mind.

The major flaw in the alarmism over Sistani's statement of the obvious is that "democracy" is seen as an end, not a means.

Democracy is not the end. Constitutional Liberalism is the end. Democracy is just ONE of the means by which America has attained it. No one denounce the American constitution for being two-thirds undemocratic, but the simple fact is that the Executive Branch is selected by the Electoral College and the Judicial appointed by the Executive. The key is the checks and balances.

Fareed Zakaria's book "The Future of Freedom: Illiberal Democracy at Home and Abroad" is essential reading if we are to have this discussion. Democracy  for its own sake, without constitutional liberalism, is as much a mark of future failure as it is of success.

fact that we would have been better served, once our current course of action had been decided upon, to emphasize the creation of a form of government that would afford protections of basic human rights, as opposed to the empty abstraction of majoritarian democracy.  The former would, at least, have constituted a more direct challenge to the Sharia dreams of the lunatics fighting us.

If we reject the will of the majority, it begs the question as to how we would ever impose a friendlier government, much less one with any degree of democratic legitimacy.  Rejecting the Shiites' will would make them enemies, and we really can't afford to have everyone but the Kurds fighting us.  Militarily it would be a mess, and politically there would be very little American support for a policy lacking a path to a positive result.

Unfortunately, using the threat of pulling out (and risking chaos) may not have much leverage to prevent or even forestall the imposition of Shari'a.  To a great many in Iraq, having the imposition of Shari'a bring about American departure would be killing two birds with one stone.

protection of human rights (obviously, this will admit of variations region to region, but there is surely a minimum threshold....) must be the goal, assuming the continuation of our current policy emphasis.  Liberty must precede democracy, in the order of logic and the order of time.

our current strategy for the war than anything else.  It is, in effect, an argument for calling the spade of Sharia a spade, part of the problem, not a solution.

What do you mean by "Sistani's statement of the obvious"?

I definitely think that there is a possibility of democracy ushering in a state based on Islamic law that is not horribly anti-west. I think that if that's what the citizens of a country want, then to deny that goes against the point of a democracy.  Islam isn't as repressive in all instances as many make it out to be; from what I understand of an Islamic state, the ruler seeks out the clerics for interpretations of law. A more moderate ruler will install more moderate clerics/judges.

Unfortunately, I can't remember a lot of my education on the construction of the Islamic state during the golden age of Islam. However, I do know that there are different levels of offense commitable under the shariah and in the most moderate/liberal Islamic states one is not forced to keep the faith, in terms of prayer or dress. Islamic law would most likely be enforced in a broader sense - the day to day runnings of the government. If the government makes its own rules regarding such stuff, even administrative, it has committed shirk - putting itself above God.  Therefore, shariah would dictate stuff like family law (divorces, etc) and not allowing usury - all that good stuff.  In the ideal scenario, a person would  not be killed for eating pork or stoned for committing adultry. But who knows.

Pakistan's history has changed so much that I don't know if it's a valid modern example (of course I mean pre-Musharraf) of an Islamic democracy - but it is the ISLAMIC republic of Pakistan.  I'm also not as familiar as I should be of the day to day workings of Israel - but from what I understand (primary knowledge coming from Freidman's book here) - it IS a Jewish state, and although people have the right to be secular, many of its laws are informed by the laws of the Torah.  Someone else may be able to tell me, for example, if there is a standing LAW that requires the sabbatical year in which Jewish farmers allow their fields to fallow.

Finally, in the IDEAL Islamic state, non Muslims living under the state are not required to follow the Shariah.  They are judged in separate courts, in the old days based on their religion.  Islam allows for the concept of dhimmi -People of the Book - who can live side by side with Muslims. Technically, dhimmi are Jews and Christians, but, for example, during the rule of Akbar the Great in India, dhimmi were also Hindus.

democracy = rule of majority

what, are they going to look at teh Torah for their foundation of law?

Whats the difference between adopting Shari'a as the foundation of law for an Islamic republic, and acknowledging the 10 Commandments in our courts? Last I looked, no one has been executed for eating shellfish. So it seems that religion serves as a reasonable foundation upon which a constitutionally liberal government can be consructed.

That I think I agree with you and I suspect I disagree in part with Paul.

I suspect the four Horsemen are limbering up.

Qur'an, ayat 2:256

though in a Shi'a state, one might imagine this will also be an important foundational text. Especially this and this.

ATTN Paul, I highly recommend those links BTW. You'll find them very relevant to your concerns.

Whats the difference between adopting Shari'a as the foundation of law for an Islamic republic, and acknowledging the 10 Commandments in our courts?

This Ten Commandments comparison is quite specious. Do we outlaw adultery? No, we do not. Adultery is not even grounds for questioning a witness's credibility on the stand. Much less do we outlaw "coveting thy neighbors wife." In fact, the courts have interpreted the First Amendment to protect in law pornography. Do we legislate honoring they father and mother? Do we legislate against graven images?

Moreover, the articles talk about Islam as the "sole source" of law, not the "foundation."

Moula Ali AS said:

Do not say: " I am your overlord and dictator, and that you should, therefore, bow to my commands", as that will corrupt your heart, weaken your faith in religion and create disorder in the state. Should you be elated by power, ever feel in your mind the slightest symptoms of pride and arrogance, then look at the power and majesty of the Divine governance of the Universe over which you have absolutely no control. It will restore the sense of balance to your wayward intelligence and give you the sense of calmness and affability. Beware! Never put yourself against the majesty and grandeur of God and never imitate His omnipotence; for God has brought low every rebel of God and every tyrant of man.

read the rest - it's long, but a window into the perspective I am trying to convey, and of course doing so poorly compared to the eloquence of Amir ul-Mumineen AS.

Malik al Ashtar was in fact murdered before he ever got to Egypt.

My point is that there are serious tensions in our concept of democracy. I personally have no problem with an Islamic state that is pro-American, even if it proves repressive. But the way we have carried on lately suggests this possibility is unacceptable to many.

" I personally have no problem with an Islamic state that is pro-American, even if it proves repressive."

I have precisely the reverse opinion. My faith in non-repressive, constitutionally liberal states is such that I think that worrying about whether such a state is "pro" American or not is a moot issue.

. . . at your link, but let me just say, if "sole source of law" and "foundation of law" are synonymous, then I'm a donut.

The Ten Commandments may have been the foundation of American law, but they are not, not by a long shot, the sole source.

. . . I would prefer a liberal regime. But if pressed I favor the interests of my country -- as do, I'll wager, most of my countrymen. The reason the rhetoric of democracy is persuasive, by and large, is the solid fact that liberal democracies do not often go to war with one another; thus, internationalist liberalism lines up with interest-based patriotism.

are dancing around is that most schools of Islamic jurisprudence either require, or are most commonly interpreted to require (I will not take a position as to which characterization is more accurate; the statement is true as it stands.), that the dhimmi status be accompanied by a variety of social, legal and financial disabilities intended to impress upon the minds and spirits of the dhimmi that they are second-class residents of the Islamic state.  The expedients utilized to attain this end may vary from time to time and place to place; but that they are used is constant.  This ideal of subjection or subordination is one of those that inspires the lunatics who are waging jihad, and its establishment in an ostensibly liberated Muslim nation would only, to that extent, legitimate the very grounds of the jihadists objections to our way of life, and their war against it.

favor a strongman in Iraq rather than a Shar'a-based but free republic, out of fear that the latter might not be "pro" America?

because thats what it is going to take to stop Shari'a from becoming law in Iraq. I am flummoxed that anyone is surprised by Sistani's statement.

BTW the part I find skeptical is the part where Sistani is alleged to want veto power over constituional drafting. The broader opinion that law in Iraq must be derived from Islam is the valid one, but the allegation about the constitution would be genuinely troubling.

of Shi'a jurisprudence, which you will gain a better appreciation for after reading the link.

ok, please reveal to me the respected Islamic source from which you are deriving your understanding of what dhimmi means. JihadWatch does not qualify.

the possibility of a "shari'a-based free republic." Shari'a is, in my reading, indistinguishable from theocracy.

So, yes, my guiding criterion is whether a state is or is not hostile toward my country.

out of fear that the latter might not be "pro" America?

I like those scare quotes. But I said above that I do not demand sycophancy or even open friendliness; just not hostility.

sources quoted in, for example, B'at Yeor's The Decline of Eastern Christianity Under Islam unrepresentative?  Are all of the historical particulars detailed in that work fabricated?  If I recall - I am at work, so I do not have the luxury of retreiving my copy from my library - the work contains an abundance of citations not only from Islamic codes but from the writings of those who had occasion to observe the conditions under which the dhimmi lived (and frankly, live today, if the indifference of the Egyptian government, for example, to certain opppressions is to be admitted...).  There is too much there to be dismissed as nothing more than fabrication, anomaly or "due to contingent circumstances".  I really tire of this tendentious solicitude for the integrity of some morally pristine Islamic past; we concede, to the point of tedium, all of the injustices wrought by Christians in the time of that religion's dominance in the West - and rightly so.  To ask us to believe that Islam qua Islam was never in any significant and meaningful way related to the suppression of Christians, Jews, Hindus, Zoroastrians and others under Muslim rule is to ask us to believe in a history that never was - a fable.

explain to me wher i pined for a golden age of some mythical Islam - or Christianity, for that matter?

Your statement was that that Islamic jurisprudence REQUIRES social, legal and financial disabilities intended to bestow second class status. You justify this by invoking.. Bat Yeor?!

Your refusal to take into account only polemical works on teh nature of dhiimitude is also tendentious and a fable, of opposite but morally equivalent to those who would paint all of Islamic history as some kind of utopian dreamland.

If you want to accuse the Ummaiyads of abusing the dhimmi concept, let me jostle with you to be first in line!

But if you will simply extrapolate the behavior of SOME eras of Islamic governance, and ignore the actual full context of Islamic jurisprudence (which you were so quick to invoke above), including the links which I've been contributing in this debate, then your question becomes nothing more than an extension of polemic. You insult history.

I challenge you again to reveal just how rigorous you were in your research into dhimmi by explaining to me a POSITIVE example of dhimmitude, with references from those such as Ali AS. If you cannot fathom such a purpose to the concept, then admit you have not tried.

I am genuinely interested in your assessment of the Letter to Malik al Ashtar.

I never once accused you of pining for some mythical golden age of Islam, much less Christianity.  You wish to absolve Islam qua Islam from any responsibility for the oppression of the dhimmi.  I consider this impossible, and regard any attempt to do so as dishonest.

I am not appealing to Bat Yeor, but to the historical record she discusses.  So far from constituting a mere fable, this is actual history of the type: in this place, at that time, such and such a disability was imposed on the dhimmi.  That such markers of second-class status were imposed on the dhimmi is a virtual constant of Islamic history.  Could you cite for me even one example of Islamic governance in which none of the following were imposed on the dhimmi:  jizya, reduction in the weight of legal testimony, abduction of male children, forced conversion, forced conversion by Muslim third parties with state indifference, special clothing requirements to indicate lowered status, restriction of religious ritual, denial of rights to rebuild religious sites, proscription of proselyzation....?  The presence of even one of these in an Islamic code is sufficient to establish that the dhimmi were subordinate, a second-class people apart from the mainstream of life in the given society.  And there is never anything positive about that.

therein lies our disagreement. Its really the same argument over and over again, with jihad, with dhimmi, with this or that. Theres no point in repeating myself, give you the obvious couunter examples, and then watch the goal posts move to "yes but what about MAJORITY of Islamic states" just as it inevitably does with the other topics.

Bat Yeor and I would agree on a lot however when it comes to specific Islamic dynasties. But not on the one I mentioned earlier.

of Ali AS, then I do not grasp its pertinence to the question of whether dhimmitude must be injurious to the dhimmi, as the dhimmi are only mentioned (Zimmi) without any explication of their status and role in the Islamic state.

Aside from that matter, the letter is quite impressive, and could be made to serve as the basis for an Islamic model of consensual government.  I assume that it has nothing to do with ravings about the necessity of the caliphate that one can find on the net.  I would be interested in reading more along the lines of that letter, although I do not see that it addresses the dhimmitude question.

lays out a fundamental set of principles, which are not specific to the faith of the subjects that the ruler oversees. It renders the point moot. In other texts and letters, the concept of dhimmi was formulated as a means of protecting what we would today consider "civil rights" of the non-muslim population. Those dhimmi laws functioned as an umbrella of protection - and the Jizya tax was levied upon them partly as a recognition of the extrra effort that the state had to make to perform that protection role. The fact that Jews fled Christendom for the relative safety of the Islamic world is evidence that the dhimmi laws were adminstered (in certain dynasties, assureddly NOT in others) according to this ideal.

BTW, If you doubt that last assertion, note that Daniel Pipes himself does not dispute it:

That said, I view premodern Islam by the standards of its time, not ours and so am less judgmental than is Auster. Further, I subscribe to the wide scholarly consensus that during the first half of Islam's history, its adherents were less "aggressive, collectivist, genocidal, and tyrannical" than their Christian counterparts in Europe. The consistent pattern of Jews fleeing Christendom for Islamdom provides one indication of this reality.

I think he gives the Ottomans short shrift, but thats ok.

I suspect my official pessimist badge may be revoked, but I don't see that this upsets me as much as a Sunni saying the same thing. I caveat this with the note that my knowledge of Islam is pretty lousy, my knowledge of Shi'i Islam only slightly more advanced than my knowledge of Sunni Islam. But I see nothing on its face objectionable with using shr'ia as the sole foundation of the law. Nothing guarantees identity of interpretation of shr'ia, and certainly nothing guarantees another Iran.

the people of Iraq not to fall back on their religious tradition for laws is suspect. While I find extraordinarily little to like about Islam as it is practiced today, I think moving the goalposts as Fareed Zakaria, and Larry Kaplan of The New Republic, have tried to do is little short of noxious. Looking at the West, I can easily see how any group of rational thinkers, Islamic or no, would look askance at the amoral morass we have created in the name of liberal democracy.

I also see a tendency to advocate a return to the foreign policy that got us here to begin with: supporting non-elected tyrants because they are pro-American. We only need to look next door to the Iran and get a glimpse of how successful that policy has been.

I'll freely admit I don't know enough about the finer points of shari'a to criticize it beyond the fact that treating women as virtual slaves, lopping of limbs, and treating apostasy as a capital offense seems somewhat counterintuitive means to creating a civil much less just society. Again, I only know what I read in the papers by way of Pakistan, Iran, Saudi Arabia, and Nigeria. There may very well be places were a kinder, gentler shari'a is practiced.

I certainly do not have a close enough relationship with Sistani to decipher this rather runic statement.

Having said that, Iraq is not our country. They are neither our serfs nor our wards. If a majority of people in 14 of 18 provinces vote in favor we need to stand aside. We have a much better chance of moderating the practice of shari'a by being friends and mentors rather than by hectoring.

And I don't think I am terribly alone in this view, from the State of the Union Address:

The United States has no right, no desire, and no intention to impose our form of government on anyone else. That is one of the main differences between us and our enemies. They seek to impose and expand an empire of oppression, in which a tiny group of brutal, self-appointed rulers control every aspect of every life. Our aim is to build and preserve a community of free and independent nations, with governments that answer to their citizens, and reflect their own cultures. And because democracies respect their own people and their neighbors, the advance of freedom will lead to peace.

concerning the actual life conditions of the dhimmi in the context of which you speak before accepting your gloss on the letter - that it counsels against discrimination on the basis of religious faith.  That could well be one of those things that simply passed by without having substantively impacted the practice of the rulers, or may not have been the intent of Ali in the first place.

I have no problem acknowledging that Jews often felt more secure under Islamic than Christian rule; the real question is whether the dhimmi possessed the same rights, in both law and actuality, as the Muslim majority.  

Your explanation of the jizya is one that is not universally accepted; I seem to recall many translations which mandate that the jizya be imposed so that the dhimmi may feel themselves subdued.

I think that Pipes gets the Ottomans, especially later in the history of their empire, right.  They seem to have become more aggressive towards their dhimmi as their own power diminished.

it was not my intention to promote sectarian approach to Islamic governance. Your statement about being bothered more by a Sunni Sharia' troubles me. If you were to say "neo-Salafist" on the other hand...

falling back on their religious traditions generally.  Why would I want them to replicate the decadence that I myself loathe in my own culture?  No, I only object to what could well be the enforced second-class status of religious minorities.

I agree with everything here.  

Regarding Bush's SOTU remarks, I am more than happy to give him the full benefit of the doubt and take him at his word unless and until such time as he fails to live up to it.  My sense, personally, is that his words on this topic are sincere.

I haven't read Sistani's letter, I look forward to doing so.

Cheers -

agreement, streiff. on all points.

but second class religious status is the norm in much of the world. Let's look, for instance, to Great Britain where the heir to the throne is disqualified from succession if married to a Catholic. A minor convenience to most of us, to be sure. But Catholics suffered under penal laws in Britain until 1829.

Looking north of Iraq to Turkey we find there that discrimination against religious minorities is codified into law:

Under the law, religious services may take place only in designated places of worship. Under municipal codes, only the State can designate a place of worship, and if a religion has no legal standing in the country it may not be eligible for a designated site. Non-Muslim religious services, especially for religious groups that do not own property recognized by the Vakiflar, often take place in diplomatic property or private apartments. Police occasionally bar Christians from holding services in private apartments.

I share many, if not all, your concerns about the institution of Shari'a rule and I find religious discrimination odious. But that is not the issue. The issue is whether the Iraqi people have the right to institute a government that is pleasing to them rather than to us.

agree with me, I mean. I thought there was a clause in your contract that brought down sanctions of some type if you did that.

can be made that the Iraqis have a right to the sort of government that pleases them.  No, it is not the case that the nature of that government is of no proper concern to us.  One of the very reasons the lunatics are waging their jihad is for the establishment of a world order, and regimes within that order, in which non-Muslims are second-class citizens.  Giving them some of what they want in this department seems to me to be a step or two backwards in the effort to liberalize the backward Middle East.

its because either the leftists, the salafis, or both got to me.

I'm admittedly speaking from limited knowledge (though I suspect you're not upset at sectarianism per se -- I doubt you'd take as much umbrage to a Quaker theocracy as you would a millenarian, apocalyptic Christian sect). From my scant knowledge, it would appear that Sunni Islam is much more comfortable with a direct involvement between prince and priest, with the priest unfortunately taking an ultimately more subservient role, than Shi'i Islam is. It's again my limited understanding that there's a healthy mistrust of the state built into Shi'i Islam from the start.

This is their call. They make their judgment. If they remain our friends, we have no quibbles. If not, I couldn't care whether they're Rostafarians or Shi'i or Communist or True Catholics. We bring the thunder then. Otherwise, their country, their call.

Sistani's statement, or what we understand of it, to a fear of mullahocracy.

Everything I have read on the subject says Sistani is believes that direct involvement of the clergy in government has brought discredit on the clergy in Iran and would do the same in Iraq.

Of course, that was before his sanctioned list won last weekend.

Belmont Club has a good roundup on the argument.

I see where you're coming from, being more interested in a pro-America regime than a liberal regime although you hope for both. However, keep in mind that having a repressive pro-America regime would probably prove in the long run to be disastrous.  Bin Ladin's views emerged from anger at the repressive House of Saud; Ayman al-Zawahiri's from anger at the Egyptians.  From there emerged their only way to fight, in their view - assymetric assault.  For both Bin Ladin and al-Zawahiri, that anger in many ways got redirected at the United States for supporting those repressive regimes and here we have the present situation of al-Qaida vs. the United States.

Or: see Iran.

If we were huge supporters of Indonesia during its more illiberal period (not to say it's all that good now), we'd probably see more Jemaah Islamiyah focus on us too. As we have it, JI's anti-western attacks in my opinion are a byproduct of its AQ association and we've been lucky(-er) in that regard.

Just a few words of clarification.  We need to know much more about the genesis of Ali's formulations in that letter, their reception, and their relationship to the writings of other Islamic jurists.  In other words, it is entirely and logically possible that the letter may be amenable to a "liberal" reading when approached from within the intellectual presuppositions of the modern West, yet have a completely different meaning within its original, Islamic context.  For example, we might wish to read the reference to the dhimmi in the text of the letter as including them in the body politic as non-Muslims, yet without distinction as to rights and responsibilities; however, it is still possible that the reference to the dhimmi simply presupposes everything that was ordinarily entailed by the concept of dhimmitude, customarily assumed, or what happened to obtain at a particular place and time.  Hence, in this latter set of cases, the ruler to whom the letter was originally addressed, as well as any later rulers who might want to look to it for counsel, might be advised to consider the dhimmi in the station prescribed for them under Sharia, with all its attendant disabilities, as part of his

responsibility of governance.  

In any event, however remarkable the letter could be interpreted to be, it, of itself, does not suffice to overcome the weight of historical testimony concerning maltreatment of the dhimmi.

Hey Aziz -

I very much appreciate your insights on Islamic history, doctrine, and culture.  Ditto to jadedmara.

Can you point me (or us) to a good starting point for a history of Islam?  To date, I've read Karen Armstrong's short history, and also the Koran in English translation.  I'd like, to the degree possible, to understand what's going on.

This invitation is open to anyone on RS, actually, who has some insight to offer here.  For the record, my preference is for authors who do not have a particular axe to grind.

Thanks -

is the Oxford Encyclopedia of Islam, and also teh excellent documentary on PBS titled "Empire of Faith". The early history of Islam is very contentious with respect to the divergence of Shiha Sunni interpretations. Obviously I am biased so i would prefer not to recommend in that regard.

If they remain our friends, we have no quibbles.

That's essentially my position as well, but Streiff seems to think it entails going back to the policies that got us in this mess.

My main point here, however, is that the introduction of shari'a law (which is at least hinted at by the article I cited) seems to me to be a clear step (1) away from democracy in the broader sense of decent government and society and (2) away from friendliness toward the U.S.

Neither of these is inevitable, of course, but prudence demands that we anticipate, and I'll be damned if all the happy talk around here is enough to persuade me that shari'a law's approach is a matter of easy indifference for us.

because it is simply not our business if they decide to do this. And I would remind you that most of the countries that use shari'a are not hostile to us so I don't see how you can draw a causality necessary to arrive at 2).

Shari'a law, whether as a radical corruption of Islam or a natural element of it (I leave that question for another time), is an integral part of the matrix that produces our enemies. We cannot be indifferent to its development and implementation -- anywhere.

To use the example of Communism, your position would be akin to saying that the development and implementation of Marxism is a matter of indifference vis-a-vis our policy toward Communism. Men might legitimately argue about whether moving toward Marxism necessarily means moving toward an anti-American Communist state, but they will certainly not argue -- not if they have their wits about them -- that the development of Marxism is a matter of difference.

The U.S. interfered all over the world during the Cold War -- and she was right to do so, even though, this being a fallen world, many of those instances of interference were ill-conceived.

So yes, I submit that the U.S. reserves the right to interfere in Iraqi politics if necessary, even against popular aspirations. We don't want to do that, of course; we would like nothing better than to watch as Iraq comes into its own as a stable and decent state. But shari'a law, if it comes is, is an ominous step indeed.

I don't believe that a western, liberal democracy - as practiced today - is necessarily the best form of government for Iraq or for us.

[I don't advocate a Levitican approach to our governance but I believe consciously divorcing our jurisprudence from the faith tradition of about 79% of the citizens is ill conceived at the least.]

And I do believe that the degree to which Islam and shari'a are intertwined with their governance is a matter for them to decide.

Our legal system doesn't derive from Biblical laws, though there have been a few laws that were introduced because of the influence of Christianity in America. Many of those laws have also been repealed.

so what point are you making?

Your statement just flies in the face of the history of our laws. Murder? Theft? Adultery? Usury? Prostitution? Public drunkeness? Perjury?

Our core laws imported from Britain are formed based on the Bible.

I don't believe that a western, liberal democracy - as practiced today - is necessarily the best form of government for Iraq or for us.

Neither do I! But I do believe that an anti-American Iraq is quite unacceptable. And I do believe that the shari'a law would bring Iraq closer to being anti-American.

And I do believe that the degree to which Islam and shari'a are intertwined with their governance is a matter for them to decide.

I appreciate your sentiment, and my inclination is to share it; but I fear that we do not have that luxury.

I am equally sure that we don't agree on the correct course of action. Time will tell.

You claimed that it would be a poor idea to divorce American law from the law found in the Bible. I am pointing out that America's legal system owes little or nothing to the Bible.

The crimes that are identified in the Bible were identified in legal codes before the Bible was written. The code found in the Bible is not particularly enlightened, sensible or comprehensive. It did not influence Roman law until late in the Empire and that influence was limited primarily to religious matters. It may be that the Romans were inspired in part by Mesopotamian laws just as the writers of the Bible were, but those laws came through Greece to Rome, not through the Bible. The Common Law was at root a Germanic law with very strong influences from Rome. The Bible had little to do with it.

Never read old common law decisions, huh?

I'm not aware of any case where the Common Law took and kept a Biblical precept over prior common law. The fact that a judge might consider it acceptable to quote Scripture when deciding a case that would have been decided that way anyway doesn't provide evidence that our legal system was influenced by the Bible.

You're factually incorrect. But don't take my word for it, or here. You really won't like this one either.

English common law is not based in German law, really hard as there wasn't a Germany until 1871. Likewise, no one agrees that Roman civil law had any impact on England. The degree to which Roman law made its way into England was in the form of canon law.

First, you begin with an a priori circularity. Common law cannot cite common law at its origin, by definition. In this, you're forgetting that the Germans who developed the system had been thoroughly Christianized.

Second, common law works by "makeweight." It accretes and lends legitimacy to the sources and ideas cited. This, incidentally, is why citing foreign decisions as persuasive (or more than persuasive, but not entirely binding) in interpreting our Constitution is so very bad.

"I don't believe that a western, liberal democracy - as practiced today - is necessarily the best form of government for Iraq or for us"

I feel a little bit like I've fallen down the rabbit hole, but I'm genuinely interested to see what's on the other end.

Do you think the government outlined in the Constitution is a western liberal democracy, or something else?  

If something else, what?

In either case, what do you think would be a better fit for us?

I'm not trolling and this isn't a setup, and I don't think you're advocating anything weird or evil.  I think this may a case of me needing to recalibrate my terms of reference.  In any case, I'm very curious to understand what you mean.

Thanks -

No, the government outlined by the Constitution is very far from liberal democracy as it is understood today. Here are, off the top of my head, some ways in which it diverges from the ideal model of today's liberals:

(1) It does not protect "free expression." The early Republic was full of all manner of loyalty oaths and suchlike. Many of the same people who write it also wrote the Alien and Sedition Acts. The First Amendment was, after all, an amendment; and it bound only Congress, not the states.

(2) It was deliberately, emphatically, undemocratic in many important ways. Senators were appointed by the state legislators; the franchise was much more limited; etc, etc.

(3) The legislature was supreme; there was no real legislative power yet in the judiciary, as we have today, and the executive was much weaker.

(4) ACLU-style church-state separationism was then but a sparkle in the eye of the embryonic "freethinkers," as they were soon to be called. Many states had established churches, and the First Amendment forbade Congress from doing anything about it.

(5) Federalism was alive and well -- indeed it may have been too strong. A much greater proportion of the business of American politics remained with the states or localities.

(6) The State was tiny. The vast preponderance of American life and business occurred outside the realm of government.

All of these things are no longer true. While the Constitution still governs us, it is simply not the same Constitution that governed us in 1795. And yes, if you're wondering, I favor the latter Constitution.

According to BBC:

A spokesman for Iraq's most influential Shia cleric has denied reports that the cleric is demanding that Islam be the country's sole source of law.

Hamed Khafaf said Ayatollah Ali Sistani believes Iraq's new constitution should respect what he described as the Islamic cultural identity of Iraqis.

Shia success in the election led to speculation that the ayatollah wanted a constitution based on Sharia law.

Mr Khafaf said the speculation was baseless.

He insisted that Ayatollah Sistani's position had not changed.

In Ayatollah Sistani's view, his spokesman went on to say, it was up to the elected representatives of the people in the new National Assembly to decide the details.

This brings Sistani back to his original intent months ago, and it means an Iraqi constitution that will be not too different from the Afghani one.  The real niggling issue is how strictly they will interpret the codicil that "no law contradicting Islamic tenets may be passed."

Although there is a similarity to the praetor peregrines in the common law judge.

Feel free to show me an example of a law that is part of common law that was clearly from the Bible.

They were Catholic. Biblical and traditional, you mean. Also, given what common law was at the start, it's not susceptible to "name a rule." There might be a rule of a case, but justice was in the judge's hand with only some guidance.

That said, the Golden Rule and its converse come to mind.

Not all of the Germanic tribes were Christian when they hit the British Isles, though I agree that many were. The question is not how much did the Christianity affect the laws that existed prior to Christianization, but whether the Common Law adopted Biblical laws. For the most part, it did not. Thbe laws came from other traditions.

I agree that a few laws were influenced by a particular reading of the Bible. Severe restrictions on divorce and blue laws come to mind, but the Golden Rule is neither unique to Judaism and Christianity nor specifically part of the Common Law. Aside from laws that are reflected in all legal traditions (proscriptions of murder, theft, and false witness) the Ten Commandments are conspicuously absent from our laws. At least most folks know what the Ten Commandments are, the rest of laws given in the Torah have almost no influence on current American jurisprudence.

The Golden Rule and the so called Negative Golden Rule are both part of the old common law. I presume that what you're looking for is something like res ipsa, but with due respect, that's silly: The only Rules we preserved are evidentiary and procedural. The rest were slowly sucked into other areas of jurisprudence.

And the idea that Christian law and Biblical law are at not congruent is, to say the least, a novel position.

And don't confuse Old Testament with Biblical. That does a disservice to Jews and Christians all at once, just depending on your angle. Exhortations from the New Testament were part of the system, too.

By the way: Sodomy and fornication laws.

I'm not certain that it was a Biblical law that Henry VIII was applying when he introduced a criminal sodomy statute to England, though it could be. Fornication laws don't seem to have a very clear Biblical inspiration, though they might, but Deut 22, which covers the Hebrew law on it, seems to be notably different than the law we had.

I didn't say they were not congruent. Basic criminal law is pretty much the same everywhere, whether or not the Bible had even been read by any of the lawgivers. I said that our legal system does not derive from Biblical laws, not that it was not developed by Christians.

You asked about the common law, not American common law, and not what we have now. Fornication was a crime at common law. Henry's sodomy law was the first codification, not the first time sodomy was criminalized at common law.

And you're either being dishonest, sophistic, or dense. I doubt it's the last. Your specific point deals with the origin of common law. Everything I've cited to date deals with the origins, not the later developments, not our current mode. No one said they were coextensive. What we are saying is that Biblical teaching directly went into the mix at creation. But every time we get to a common law that was inspired by or created from Biblical or Catholic canonical teaching, you move forward a few centuries and say, "Well, look at this." Stick to the right time period.

Assuredly, it derives from Biblical sources, as well as from Christian thought and tribal custom. But Beowulf's peeps weren't going to gaol for fornication.

While there is some overlap between Catholic canonical law and the laws found in the Bible, that overlap isn't that great. Canon law is not just a selection of laws from the Bible. I want to keep the distinction between laws from Bible and laws that came from The Church. As you note, Church laws came from a variety of sources, only one of which was the Bible.

Folks like Roy Moore are the reason that I am emphasizing such a distinction between Bible and Church. It is his erroneous claim that "the Bible is the source of America's laws" that I am unwilling to accept without a fight. Given that Christianity in the form of Catholicism was an indistinguishable part of Western culture for a millennium, it would be foolish for me to argue that these laws were irrelevant and I don't. Watching Moore and his attempt to create a theocracy may have made me overly sensitive to what others who do not share his prejudice might mean when they use his code words.

I was under the impression that sodomy laws were canonical not common law before Henry. If I am mistaken, my error.

I intend this to be my last comment on this old thread.

You're wrong, but that doesn't mean that he's right.

"While the Constitution still governs us, it is simply not the same Constitution that governed us in 1795. And yes, if you're wondering, I favor the latter Constitution."

Bummer about that whole slavery thing, tho, eh?

In the terms of someone earlier in the thread, down the rabbit hole indeed...

And that great doctrine of substantive due process. Thank Taney for that.