Author Archive for
Haider Ala Hamoudi

It’s the Economy, Stupid (even in Iraq)

by Haider Ala Hamoudi

Legal Change and Iraq

by Haider Ala Hamoudi

Shi’ism and the Viability of the New Iraq

by Haider Ala Hamoudi

The Rule of Law and Lawless Contractors

by Haider Ala Hamoudi

Life and Law in Iraq

by Haider Ala Hamoudi

A Reply to Professor Mallat

by Haider Ala Hamoudi

I have very little add to Professor Mallat’s enlightening comments. To the extent that I have a criticism, it is that he is perhaps too quick to dismiss his own work, upon which my scholarship is based. To be sure, Professor Mallat has focused on Sadr’s reactions to Marxism, and the role he played within the Najaf seminaries to resist its encroachment. This was indeed the thrust of much of Sadr’s work, and as Professor Mallat shows, he was largely successful in these efforts. Professor Mallat’s exposure of precisely what Sadr had aimed to do, and the effects of his efforts on the seminaries, not to mention a broader Shi’i lay population that grew increasingly hostile to Marxism after him, was no easy feat. This is particularly so given how the premier Iraq historian of the period, Hanna Batatu, was so enamored of communist influence that he minimizes profoundly the effect of the Islamic movement and suggests that Saddam’s supposed efforts (I have my doubts that any such efforts were made) to incorporate the Shi’a more meaningfully in the Iraqi regime had largely succeeded. Mallat fills in where Batatu’s largest shortcoming lies, in examining the Islamic resurgence, the seminary structure in which it took root, and the influence it has had and continues to have on Iraq. This is not to disparage Batatu’s efforts, none have described the rise of the social classes prior to the 1958 Revolution or the Communist Party after it better than he has, only to point out a shortcoming that is too infrequently discussed and that, if more thoroughly examined, would give Professor Mallat his due as one of the premier Iraq scholars of the period.

Nevertheless, the question that remains these many years later, now that Batatu’s notions, at least concerning Shi’i integration into Ba’ath Iraq, have been proven so profoundly wrong, is why Sadr still retains such broad popularity among Shi’is. If the communists are no longer with us, and nobody is really interested in hearing Sadr’s theories on Islam’s incompatibility with Dialectic Materialism, why does virtually any bookstore in any Shi’i mosque I have seen in the United States carry a copy of Iqtisaduna alongside a collection of material from others concerning how to pray, the unassailable historical claims of Shi’ism concerning Apostolic succession, and similar works that are, for lack of a better word, considerably more down market? Why would it be the picture of Muhammad Baqir al-Sadr that sprang up in communities of the Iraqi Shi’i faithful days after Saddam had fallen, carried aloft by young men whose knowledge of Marxism is entirely from works of history? Why would Basra’s girls’ school be named for his sister? If it is not antipathy to communism, which had grown so irrelevant in Iraq that the Islamist parties bearing Sadr’s mantle did not even bother to protest the appointment of communists to Iraq’s Governing Council, then what, exactly is it that so animates Iraq’s Shi’a?

This, unfortunately, has been little discussed in much contemporary literature. Scholars from the leftist Hanna Batatu to Juan Cole have at various times dismissed Sadr’s ideas as being either hackneyed or naïve, attributable more to some incomprehensible loyalty than to anything original or interesting that Sadr may have said. What I have attempted to show in my work, and my earlier entry, is that this is quite far from the truth. Sadr’s work is not only original, it is also deeply, profoundly resonant with the sensibilities of so many modern Muslims in its calls for functional jurisprudence, and economic and political resistance to a global order with which so many Muslims are dissatisfied.

As for Professor Mallat’s comments on Islamic finance, I am perhaps less enthused by the substance of Sadr’s work Al Bank Al La Ribawi fil Islam (The Interest Free Bank in Islam), mostly because it seems that by considering borrower and lender as part of a single economic transaction, it minimizes the fundamental importance of the financial institution in aggregating and pooling risks and liquidity demands. The bank does more than connect one customer to another, after all, it provides its depositors with immediate liquidity over their relatively small deposits and its lenders considerably larger long term loans (aggregated from the depositor funds) whose repayment takes place over a period of years. This aggregation and pooling is the core of the bank’s service.

Nevertheless, Professor Mallat and I agree entirely on the substance of Islamic finance, and he is certainly right that Sadr’s approach is quite interesting and indicative of his functional style. If, Sadr wonders, the bank is using the capital of one group of people to fund another, why not simply consider transactions across the financial intermediary to be one collective whole, disregarding as a result the formal existence of the intermediary? While that particular idea may not be attractive, the approach, of seeking to attach an Islamic substance to a shar’ia form, is more satisfying than the deceptive nonsense that dominates the practice of Islamic finance, as Professor Mallat properly points out.

Muhammad Baqir al-Sadr and the Origins of Islamic Finance

by Haider Ala Hamoudi

First, an obligatory and entirely deserved thanks to Chris Ripple and the editors of the Virginia Journal of International Law for giving me an opportunity to discuss my work on this blog, and to Chibli Mallat, the premier Sadr scholar of our time, for agreeing to comment thereon.

Sadr’s work Iqtisaduna is so multifaceted and complex that any depiction of it is necessarily reductive, and what I attempt here is not so much a depiction, as a summary of a depiction. I therefore beg the reader’s indulgence if what I present strikes him or her as a shallow rendition of the depths of Sadr’s thoughts on the subject of law, economics and jurisprudence, as it is nearly impossible to do justice to Sadr in this limited space.

It seems to me that the central jurisprudential paradox that Sadr was attempting to deal with is a universal one, discussed often in our own post-Realist academy. If the law is to be functional, that is, if it is to work as a tool in the maintenance of social order, then it necessarily must be responsive to the social, political and economic circumstances it seeks to control, and yet if the law is to be autonomous, that is, if it is to be independent of social, political and economic movements, then just as surely it must be insulated to some extent from those very circumstances. To particularize this to the Islamic experience, if the jurist were to sit in his seminary in entire isolation from the society in which he finds himself, and pronounce on subjects as arcane as the ritual purity of sweat of a man engaged in intercourse during the holy month of Ramadan (an actual example from the ruminations of a current Shi’i jurist), he might soon find himself marginalized and disregarded in favor of other movements whose message appear to the believers to be of more contemporary relevance. Such is precisely what Sadr saw as occurring in his native Iraq, as the work of Professor Mallat so ably demonstrates, the growing disenchantment among the Shi’a faithful with the clergy in the mid-20th century and an inexorable drift towards economic theories of the radical left, which appeared far more pertinent to the lives of the economically and politically marginalized Iraqi Shi’a.

Yet by the same token, as one of the most brilliant people of his generation, Sadr realized that if any jurist were merely to invent an economic system to his own liking, revising and revisiting doctrine as often as he saw fit to ensure a fair, functional and efficient economic system, then at some point the system, as a means of ensuring Islamicity in matters of commerce, would lose its credibility and appear to be little more than an endorsement of current, fashionable ideological conviction, bearing little to no connection to God’s Will as expressed in foundational text, such as the Qur’an and Muhammad’s statements, utterances and actions, collectively known as the Sunna.

Sadr expresses this paradox as a conflict between “subjectivity” (dhatiyya) and “principled interpretive effort” (ijtihad). He acknowledges that in selecting doctrine from the rules of the past, subjective, ideological choice is made but is careful not to endorse wholesale interpretations that might deviate from acceptable boundaries. Yet where are such boundaries to be found, one may ask?

In Sadr’s context, the answer lay in the institutional structure of Iraqi Shi’ism. Unlike Sunnism, whose doctrinal schools have largely disappeared (or lost nearly all their credibility due to state interference to the extent that they remain intact), Shi’ism has a highly coherent system of rulemaking. Independent seminaries are organized in Najaf, headed by some limited number of Grand Ayatollahs. As the Grand Ayatollahs pass on, others rise to replace them from the seminaries, determined partly by their reputation within the religious community and partly through the respect accorded them in the lay community, who tithe 20% of their earnings to the Grand Ayatollah whom they have selected as their own source of rules. (Each lay person must select a Grand Ayatollah, and independent interpretation is strictly forbidden by those who have not trained in the seminaries). Each Grand Ayatollah is independent of the other, in the sense that each makes his own rules through the exercise of his own interpretive effort from foundational text, and yet, given that they operate in the same location, with significant intermingling of seminary students, an interpretive community is formed. That interpretive community, believes Sadr, can be the basis of the law, insulated to be sure from “ordinary” politics, yet sensitive to it. No one jurist could shift rules rapidly, and yet all jurists should be sufficiently attuned to the social circumstances to allow them to play a role collectively in their reading of foundational text. Sadr is thus entirely unconcerned with faithful application of verse and chapter, not only is he not a textualist but through his dismissal of the notion that all of the Sunna are to be literally followed quite clearly he finds textualism unworkable. What Muhammad may have prohibited in his role as a judge between two economic actors of his time cannot be the basis of a modern rule in a different context, Sadr argues. It will not work. Functionality, and religious integrity, are the twin values Sadr seeks to achieve.

A common critique of Iqtisaduna, and Islamic economics generally, is that it is hopelessly naïve, entirely unworkable in the modern world. There is some truth to this, ironic as it may seem given Sadr’s inherently functional aproach. Sadr’s stubborn insistence on profit sharing rather than inequitable divisions of risk, in a manner that not only prohibits money interest but also salaried labor in particular industries (for there is no profit or loss sharing in a standard salary contract), seems wholly impossible. The notion that money interest forces loans to unprofitable industries because the lender cares not about the success of the business when his return is assured ignores bankruptcy risks and the possibility of limited liability, something Sadr does not even deign to discuss. Money interest does not, as Sadr argues, lead to disparities in wealth; in fact, quite the opposite is true because those individuals and enterprises that have the least access to capital are generally the most reliant on debt given the unwillingness of financiers to “share” profits with them.

So it is fair to ask what happened between theory and application to Islam’s most prominent voice in favor of a jurisprudence that is more sensible, if not entirely developed (undeveloped because of his premature murder by the Saddam Hussein regime in 1980). Why didn’t Sadr see the economic realities of our times and embrace more wholeheartedly American capitalism, leavening it perhaps with a healthy Islamic dose of social justice, another concept near and dear to Sadr’s heart. Why such an economic muddle?

A variety of explanations might be offered. Sadr is not an economist, it might be argued, and so his economic abilities and forecasting do not match his jurisprudence. Professor Mallat provides a far more charitable criticism, namely that Sadr’s work suffers from some anachronism—Sadr’s primary preoccupation was with Marxism, to which the Shi’a faithful were drifting, and not capitalism. Professor Mallat indicates properly that Sadr considered Zionism and Marxism to be Islam’s existential threats, the United States is at most a side player through its support of Zionism. Moreover, it was reasonable for developing nations to believe in the late 1950’s and early 1960’s, as Sadr was developing his economic theories, that the Soviet Union was as likely, if not more likely, to emerge victorious from the Cold War given the popularity of Marxist ideas. And indeed most of Sadr’s work on logic and philosophy as well as economics goes through great efforts to discredit Marxist theories that few take very seriously any longer.

I’d like to offer another explanation for Sadr’s approach, one intended to supplement rather than supplant Professor Mallat’s worthy considerations, and one developed with the perspective of the fifteen additional years that have passed since the publication of Professor Mallat’s book so shaped our understanding of Sadr’s influence on our times. Sadr’s disinclination to adopt more of contemporary capitalism, it might be said, stems not only from his preoccupation with Marxism, but also from his deep dissatisfaction with modern economic order. Sadr is purposefully rejecting as inimical to Islam and Muslims both American capitalism and Soviet communism, he seeks to create an independent form of economics, hence the title Iqtisaduna, or Our Economics, that will serve the interests of the Muslim community more effectively. By implication, then, neither the East nor the West was the appropriate model, and if Sadr’s focus was on the East, it was only because it was viewed as the more immediate threat. Something is rotten, however, in both systems, to Sadr’s mind, if they have led to such high levels of Muslim marginalization and discontent.

Going one step further, this does much to explain why the Muslim world continues to repeat, long after Marxism’s star has dimmed, Sadr’s call for an independent Islamic economic system. This rhetoric is repeated not only by comparative radicals such as President Ahmedinijad of Iran, but also by the considerably more moderate Mohammad Taqi Usmani, advisor to HSBC’s Shari’ah Banking division. Muslims are deeply dissatisfied with the modern economic system, they find it fundamentally troublesome, they fail to see how it might bring them peace and prosperity, and thus do so many of them reject it wholesale, resist it in favor of an alternative that has to date failed to bring very much success.

The point of these later ruminations is not at all to suggest that there is a hopeless divide between the Muslim civilizations and those of the West, such “clash of civilizations” rhetoric seems counterproductive and silly. Rather, I merely wish to suggest that the problems that exist with Muslim law to my mind at the present time are less that Islam needs to reform to reconcile itself with modernity (the still immensely popular Sadr provided the jurisprudential tools for that decades ago), and more that modernity must prove itself, to the satisfaction of contemporary Muslims, to be responsive to the needs, aspirations and expectations of the modern Muslim world. In a Muslim polity where, in large part, capitalism is synonymous with cronyism, corruption and astonishing disparities of wealth, secularism involves the wholesale killing of clerics and liberal democracy is an elaborate, theatrical sham, it is no surprise that this has yet to occur in large part. But if it could, and if Muslims could be convinced that there was something to globalization, private enterprise and secular, liberal democracy that responded to their very real aspirations, then Islam, and its law, will follow, in a manner that retains both its functional quality and its religious integrity. Sadr has already shown us the way.