Iraqi constitution, Islamic law, etc.

[James R Stoner]

Having been a part of the conference in Erbil a few weeks back that Brad
Wilson mentioned in a posting a few days ago, I have some thoughts on the
Iraqi constitution to add to the mix.

First, I think the US can hardly be indifferent to the extent of reference
to Islam and Islamic law in the draft constitution, especially given the
apparent connection between religious factions and violence in the south of
Iraq, noted by commentators as disparate as the late Steven Vincent --
widely known and read in conservative circles and murdered Tuesday
apparently in retaliation for a piece in Sunday's NYTimes exposing a police
assassination ring in Basra tied to religious factions (see
http://www.nationalreview.com/lopez/lopez200508030843.asp)-- and Peter
Galbraith, whose piece in the current NY Review of Books has been noted
here.  I don't see that the disparity in schools of interpretation of
Islamic law is necessarily a problem in this regard, however, and may even
be an advantage, at least if the judges and other governing authorities
infer from this fact -- surely known to the Iraqi drafters -- that no
particular religious tribunal can command that the secular courts defer to
them.  Without assuming that religious liberty means the same thing in a
largely Islamic society that it does in a largely Christian one, given the
differences in the religions, still I think it can be said that it was an
unwritten understanding at the time of our Founding that no statute could
contradict the law of nature or the law of God -- but that our religious
diversity ensured that there would be no High Commission apart from the
secular courts to sit as censor on the laws.

By the way, the draft constitution has been the subject of criticism for
its provisions concerning religious law by the US Commission on
International Religious Freedom, not least for its threat to non-Islamic
minorities; see http://www.uscirf.gov/.

Secondly, in response to Earl Maltz's invitation, I think it is not quite
correct to say that all political power is in the hands of men in Iraq; at
least at our conference, there were several women members of the National
Assembly or the Kurdistan parliament who played an active role in the
debates, ranging from one Kurd who spoke of Islam as thoroughly oppressive
to women, to Miriam Al-Raees, a Shiite in full cover who was the most
eloquent spokesperson at the entire conference for a united Iraq (in
response to defiant statements in favor of Kurdish independence, especially
from Kurdish academics living abroad) -- and who was referred to by our
host, the president of the University of Salahaddin, more fondly than
jokingly, as the future president of Iraq.  (By the way, the extent and
frankness of debate was the greatest source of hope for democracy I saw in
my few days in Iraq; for the moment, at any rate, these are people tasting
freedom and putting it to use.)

Finally, if the analogy to our own Founding can be indulged again, I think
it is important to realize that the Iraqis are, so to speak, in 1777,
writing the Articles of Confederation -- in Paine's famous "times that try
men's souls" -- not in 1787, which Hamilton called in FEDERALIST 85 a "time
of profound peace."  We should not expect of them now (or in six months,
for that matter) a perfect settlement of their whole political future but a
working arrangement of institutions that will allow them to build their
experience of self-government -- and should use our influence to prevent
irreversible wrong turns that hamper rather than encourage political
growth, recognizing that under warlike conditions political necessity
imposes many constraints.

Jim Stoner
Louisiana State University
poston at lsu.edu