Shi’ism and the Viability of the New Iraq

Hours before the execution of Saddam Hussein, there was a flurry of debate on both the Iraqi and the American sides concerning its legality. One of the primary American concerns was that the Iraqi law permitting executions clearly barred their being carried out on Islamic holidays, and the proposed execution was at least arguably (depending on when you start the day) on just such a day. The Iraqis retorted that in fact that law had been suspended by Ambassador Bremer and the Coalition Provisional Authority. When reinstated by the National Assembly upon the re-establishment of Iraqi sovereignty, the exception concerning Islamic holidays was nowhere mentioned. To this the Americans took a skeptical view, and asked for the intervention of the Supreme Federal Court of Iraq, or at least its Chief Justice, Midhat Mahmoud. The Iraqis complied with the request, but Justice Mahmoud demurred from issuing any opinion on the subject. The Iraqis, however, hardly stopped with the American request. Instead, they sent their own emissary to Najaf, and obtained an opinion from the clerical authorities that the execution of a man on an Islamic holiday was not a violation of Islamic law.

I think we all know how any American lawyer unfamiliar with the ways of the Iraqi Shi’a might respond upon hearing this. What do I care, the lawyer might say, what Islamic law or some bearded fellow in Najaf has to say about this? I am not concerned with religious permissibility, only legality. What is or is not a sin has nothing to do with whether or not Iraqi law allows this execution to proceed. Why is the judge not saying anything and the cleric offering an opinion?

The answer is important, because I think it helps to shed light on how Shi’ism operates in Iraq today, and provides a legal dimension to the distinctions between the Shi’a and the Sunnis that is barely understood (sadly, even by the most prominent members of our own academy in US law schools supposedly expert in Iraq and/or Islam), let alone adequately discussed. This also provides, I hope, a bit of an answer to Chris’ fine post regarding whether or not Iraq might hold together as a nation.

Within Shi’i Islam, Islamic law is determined, and can only be determined, by the clerical authorities, generally operating in Najaf. Period. I want to stress this because so much thought and work and effort has gone into understanding Sunni Islam, where this is not true (more on this later), that this central point, obvious to every reasonably devout Shi’i eight year old, is almost universally missed, by many legal scholars let me emphasize, not just by US political figures who cannot tell the difference between the Shi’a and the Sunnis. To expect any judge in a Shi’a dominated country to conduct his own independent interpretation of Islam’s sacred texts to come to an answer on Islamic law to the derogation of the Najaf scholars is preposterous, as preposterous as an American federal judge determining Catholic doctrine by looking to the Bible and ignoring the Pope.

For a time in the Sunni world, in the so-called classical era, much the same was true. But scholars in the Sunni world have suffered a catastrophic loss of legitimacy from the dawn of modernity, and as a result courts in the Sunni world interpreting Islamic law do not hesitate to conduct their own independent investigations into foundational texts to come up with answers to questions before them. Thus, while the Shi’a and the Sunnis might well agree (certainly they do in Iraq) on the need to constrain Iraqi law with Islamic law, how Islamic law is determined is quite different. This is bound to create difficulties as Iraq’s legal system evolves.

To demonstrate the distinction, one need go no further than comparing the interim constitution, the so-called Transitional Administrative Law (TAL), drafted by the Iraq Governing Council with the support of liberal, secular expatriate Iraqis Salim Chalabi and Feisal Istrabadi, with the permanent constitution, which was effectively controlled by the Shi’a Islamic parties, at least as concerned these types of provisions. The TAL sought to limit the influence of Islam and the clerical authorities, though they could not entirely as Islamists also participated. Laws could be passed so long as they did not violate the “certainties” of Islam “on which there is consensus.” The last word is important, “consensus” is a source of law within Islamic jurisprudence signifying the universal agreement of the relevant schools of thought. The idea was that if all of the scholars within all of the established schools (four within Sunnism, and then probably one within Shi’ism, at least according to Iraqis) agreed on an interpretation, then it was certain to be the correct one because the Prophet Muhammad had indicated that his people would never agree on an error.

This clearly gives to courts a fair amount of flexibility in interpretation. To declare a rule permissible, the court may survey all schools of thought and try to find some strand of opinion, somewhere, that might lead to such a conclusion. That Najaf did or did not like a particular piece of legislation would hardly be dispositive of the matter, particularly since those ruling on the matter would be judges from different sects with different levels of religiosity.

Clearly, this was not going to be acceptable to the Shi’a Islamists, and changes were made. First of all, the constitution clearly contemplates jurists serving on the Supreme Federal Court for the express purpose of providing guidance on Islamic law issues, thereby diluting the judicial power. Secondly, the language of “consensus” has disappeared, and now no law may be passed that violates the “certain rulings of Islam” (emphasis supplied). Sunnis objected to this, suggesting that “rulings” might well mean the opinions of the clerical authorities of Najaf. Of course it does, yet they were unsuccessful at changing it, though they did manage to water down or eliminate other provisions that made express reference to the importance of the clerics of Najaf.

That clerical authorities consider it their duty to oversee the law of the state and ensure that the state respects Islamic boundaries seems, at this point, so obvious it would hardly deserve recounting, if so many did not continue to underestimate the role of Najaf in determining matters of Islamic, and indirectly Iraqi, law. When Ambassador Bremer sought to have a constitution drafted by a body selected through some sort of inane caucus system nobody could understand, it was Sistani who successfully rebuffed him, demanded elections, and got the constitutional body he wanted. When the United States and Iraq declared their interest in a long term security arrangement, it was Sistani who indicated that he would not accept it unless it respected Iraqi sovereignty. And when it came to executing Saddam, it was Sistani and not the Supreme Court who ultimately allowed the matter to proceed.

Yet of course in executing his wishes, Sistani has relied on his political allies in Parliament. He has not sought to join the Court, or to have another jurist under his direction join. Nor do I expect that Justice Mahmoud or his brethren would really want to see that. A common misconception among those unfamiliar with the Middle East is the depth and strength of its modern legal traditions, which developed separately from the state. The commendable scholarship of Lama Abu Odeh of Georgetown helps to reverse these misconceptions, but to summarize them, an Iraqi lawyer is proud of her legal tradition, proud of her Civil Code, belongs to a legal culture, and makes cases before judges on a daily basis, and yet might know nothing about Islamic law. Ask her to try a criminal case, and she can. Ask her how to do it under Islamic rules, and she is as lost as most of the readers of this post. This doesn’t make her irreligious, it simply means a legal culture has developed separately from the juristic culture, there is Baghdad and there is Najaf, and neither understands the other.

How then to negotiate this divide, given the disparate cultures? Well, quite simply, avoid the intersection. Justice Mahmoud and the Federal Supreme Court do not do Article 2 cases concerning Islamic law as a de facto matter (or at least I have yet to read one, and I’ve read almost everything issued in the past two years), and do not intervene when the matter appears to impinge on questions of Islamic law. Sistani announces such matters on his own and quite successfully implements it without the court, and then, in return, is content to let the Court do its own work separate from him. God and Mammon operate on their own planes, even if both are intimately involved in affairs of the state.

In a sense, it works, until we get back to Chris’s problem. Only the Shi’a recognize this. The Sunnis need a court, and probably prefer Sunni judges on it, and the Kurds, though Sunnis, generally don’t have much appetite for Islamic law at all. It is, in all seriousness, easier for someone who wants it to buy beer in Sulaymania than in Pittsburgh. These differences, these important legal differences, seem hard to bridge. The osolution that seems obvious is the one the Kurds essentially adopted—they do what they wish in their territory, and thus have no problem with much of what Sistani does. Is it a blueprint for the nation? I can’t say, but I can say it helps solve this particular problem.