decisionmaking under time pressure

Wed Aug 3 10:47:26 PDT 2005

Earl and Kim both make good points in their postings.

But if this conversation is to continue on this list, it might also help to 
talk a bit about what we mean by the term "Shari'a."  So far, it seems to be 
a shorthand for an oppressive theocratic legal system that has as its prime 
goal the subjugation of women.  I don't doubt that some versions of Shari'a 
and maybe even some aspects of it generally have that effect and perhaps 
even that purpose.  In that sense, Shari's differs how much from US or 
European law, especially if one goes back to, say, 1960?

But at a general level, that is a false description.  Shari'a is a complex 
and dynamic legal system -- just like the common law.  See Bassiouni and 
Badr, "The Shari'ah: Sources, Interpretations, and Rule Making," 1 UCLA J. 
Islamic & Near Eastern L. 135 (2002).  As I understand it -- and I am no 
expert on this -- the so-called fundamentalist versions of Shari'a that we 
hear much about today are not "traditional," in the sense of being linked to 
the various classical schools of Islamic legal thought.  Rather, they are as 
modern as modern can be (just as, for example, President Bush's endorsement 
of "intelligent design" is part of a deliberate response to modernity).  Cf. 
Lawrence Friedman, The Republic of Choice 206 (1990) (noting that 
fundamentalism and nationalism "are, in a real sense, deep passions that 
modernity makes possible").

Take the example of abortion in the classic schools of Islamic law.  The 
majority view allowed it up to 120 days.  Another allowed it before 40 days. 
A fourth was split -- some argued for 80 days and some for 120 days.  A 
relatively small group held that it should be banned altogether.  See Bowen, 
"Abortion, Islam, and the 1994 Cairo Population Conference," 29 Intl. J. 
Middle East Studies 161 (1997).  How does this compare to the "classic," 
pre-Roe American view or to European law today?  Or take the recent 
controversy over the proposal in Turkey to reinstate an adultery law.  This 
was seen be European commentators as "Islamic" (and therefore bad)-- and 
that was true in the sense that it was supported by Islamic parties -- but 
the law itself would have reenacted a statute that Turkey adopted as part of 
the Italian Rocco Code (aka Mussolini's criminal code), which supplanted a 
law taken from the Napoleonic Code.  In other words, these older statutes 
were part of modern, nationbuilding regulations of sexuality, not religious 
traditionalism.  I'm told that "traditional" Islamic approaches to adultery, 
which are gender neutral, make it very hard to prove, with the result that 
it was rarely invoked.  So, was the proposed statute in Turkey "really" 
Islamic, or was it "really" fascist (and thus quite European and modern 
indeed)?  Or was it in the American tradition, given that many states retain 
adultery statutes on the books?

I am not claiming Shari'a is desirable (or undesirable) in some general, 
vague sense.  I also don't doubt that a significant number of the folks in 
Iraq mean to impose a modern, fundmentalist version of Shari'a, and that the 
results of such an imposition could be quite bad indeed in my view.  But the 
mere inclusion of Shari'a in the Iraqi constitution by itself does not 
require that result, because "Shari'a" as a general concept does not require 
it.  (By the way, I could be wrong, but I think Ran Hirschl had a recent 
article that discussed the way Egyptian courts have dealt with this issue.)

********************************************
John T. Parry
Visiting Professor, Lewis & Clark Law School
Associate Professor, University of Pittsburgh School of Law
503-768-6888
parry at lclark.edu
*********************************************

----- Original Message ----- 
From: "Earl Maltz" <emaltz at camden.rutgers.edu>
To: <conlawprof at lists.ucla.edu>
Sent: Wednesday, August 03, 2005 7:36 AM
Subject: Re: decisionmaking under time pressure

> To follow up, I'd be interested in the impressions of Kim Schepple 
> like-minded members of the list  regarding the accuracy of the following 
> observations
>
> 1.  The operation of the process so far clear demonstrates that many of 
> the important domestic political stakeholders in Iraq are strongly 
> committed to the establishment of a political regime in which Shari'a 
> plays a dominant role.
>
> 2. Given this reality, only heavy-handed American pressure can prevent the 
> drafting of a Constitution which does not recognize the importance of 
> Shari'a.
>
> 3. Such a constitution would likely not survive the ratification process. 
> Even if such a constitution was somehow adopted, the government 
> established under the constitution would likely face strong opposition 
> from many of the religious authorities in Iraq, leading to continued 
> instability or outright civil war.
>
> 4.  Even assuming that a purely secular government could somehow create 
> and maintain a semblance of stability and order in Iraq, the United States 
> authorities would have done the impossible--they would have made us even 
> more unpopular in the Muslim world by providing tangible evidence that the 
> government of the United States is in fact the enemy of Islam.
>
> The situation in Iraq is horrible enough.  Lets not make it worse by 
> trying to superimpose our values on an alien culture.
>
> At 08:03 AM 8/2/2005 -0400, you wrote:
>>The insistence by America's elites (both left and right) on the 
>>establishment of a regime based on Western values smacks of the philosophy 
>>of the "white man's burden" that provided the justification for 
>>colonialism in an earlier era, with secular government and democracy in 
>>general and women's rights in particular replacing Christianity as the 
>>ideologies that we seek to impose upon political elites in other countries 
>>"for their own good."
>>
>>The invasion of Iraq was a fool's errand to begin with--with or without 
>>weapons of mass destruction (for the record, I am not a Johnny come lately 
>>to that position--I refused to vote for Bush largely because of the 
>>invasion.  Oh, well, there goes my appointment to the Supreme Court.  Our 
>>priority in the constitution-writing process should be to provide the 
>>foundation for getting our troops OUT--no more and no less.  If that means 
>>accepting a document that some Americans find offensive, that is 
>>unfortunate, but, oh well.
>>
>>
>>
>>At 01:02 AM 8/2/2005 -0500, Kim Schepple wrote:
>>
>>
>>
>>>Plus, it seems to that the present draft has many dangerous tendencies. 
>>>For example:
>>>
>>>
>>>-- the constitution seems to put Shari'a above the constitution
>>>-- women's rights are restricted
>>>-- the constitutional court is given the power of judicial review, but 
>>>then four out of the nine judges on the constitutional court are required 
>>>to have their primary education in Shari'a instead of secular law.
>>>
>>>
>>><http://balkin.blogspot.com/2005/08/potemkin-constitution-for-iraq.html>
>>>
>>>
>>>
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>>
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>
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