Post by Bozur on Mar 13, 2005 18:37:00 GMT -5
A World of Ways to Say 'Islamic Law'
By DAVID ROHDE
Published: March 13, 2005
Kieran Doherty/Reuters
In Iraq, which is debating the place Islam will have in its laws, liquor stores have been attacked.
Syed Zargham/Getty Images
In Pakistan, the Coast Guard destroyed smuggled cans of beer
'Women of Iran'
Marjane Satrapi
IRAQ'S new government will have a fateful question to address when it begins meeting later this month. What role will Islam have in the constitution? The answer could shape how well the country holds together.
The Shiite religious parties that won big in the January elections have called for strict Islamic laws to govern marriage, divorce and inheritance. Secular Sunni Arabs and Kurds oppose those efforts. And the Bush administration has made it clear that its goal is not an Islamic Republic of Iraq.
But the choices may not be that stark, if experience in the broad Islamic world is any guide. Islamic law - Shariah - is a widely used label. But in a surprisingly dynamic process, many systems have emerged under it that try to strike a middle ground between Islamists, who want to stone adulterers to death, and secularists, who want a pure separation of law and religion.
At one end of this spectrum is Saudi Arabia, where only Muslims can worship. At the other is Turkey, where the law decrees secularism, and Islamist parties have to worry that the army will step in to enforce it. In between, most other nations have found ways to straddle the demands of Islamists and secularists. In fact, most of the world's 1.3 billion Muslims live in countries whose constitutions do not declare Islam the state religion. Indonesia, with more than 250 million Muslims, is the most prominent example.
One way to defuse the issue was demonstrated when Afghanistan adopted a new constitution last year. Islamic hard-liners demanded strong religious wording, notably a declaration that "no law can be contrary to the sacred religion of Islam." American officials and Muslim moderates, including President Hamid Karzai, agreed, acknowledging that it would be politically impossible to adopt a purely secular constitution because Islam is central to the culture.
But Mr. Karzai's government has made virtually no effort to enforce the wording. And language was also included to guarantee the rights of religious minorities.
After it was adopted, Zalmay Khalilzad, the American ambassador to Afghanistan (and now the administration's choice to be the ambassador to Iraq), called the document "one of the most enlightened constitutions in the Islamic world."
But some skeptics say American officials made an enormous mistake when they allowed the strongly religious language, because future Afghan governments could revive the practices of the Taliban, like the stoning to death of adulterers.
Paul Marshall, a senior fellow at Freedom House, a human rights group, praised Afghan leaders for not allowing a strict form of Islam. But he added: "What is actually in the constitution worries me. It can open the door to a very repressive state."
In Iraq, too, the argument for Islam's cultural influence is strong, and experts expect to see a reference to Islam's influence in the new constitution. The wording, however, is important to Iraqi Kurds, who are more secular than the Shiites and jealously guard their autonomy. Last week Shiite and Kurdish leaders were pursuing a compromise that would declare Islam a source of Iraq's law, but not the only source.
Mr. Marshall said declaring Islam the principal inspiration for Iraq's laws, as the Shiites might prefer, could be dangerous. "Islam undefined," he said, would then be "the constitution behind the constitution."
Other experts argue that this fear is an over-reaction. In many Muslim lands, they say, a declaration of Islam's pre-eminence amounts to a declaration of national identity. If Americans push for their preferences, in this view, a nationalist backlash might strengthen the link to Islam.
"It's very much an identity factor in most Muslim countries," said John Esposito, an Islamic studies professor at Georgetown. "The issue is that it has to be defined."
A world of definitions are available.
Saudi Arabia and Iran aspire to be purely Islamic. Criminal laws specify ancient punishments, like stoning for adultery and chopping off a hand for theft. The Saudi constitution does not even declare itself a constitution, but rather a "basic law." It declares the Koran and Sunna, Islam's holy texts, the constitution.
In other countries, the system is mixed. Many apply Islamic punishments only to Muslims. Others apply Islamic law only in matters like marriage, divorce and inheritance. Indonesia recognizes five religions but allows Shariah as a local option.
Pakistan's constitution declares the nation an "Islamic Republic," pronounces Islam the state religion and lets a federal Shariah court invalidate any law it deems "repugnant to the injunctions of Islam." Men can marry four wives. A woman's testimony in court carries half the weight of a man's. A woman must produce four male witnesses to prove she was raped. And in rural areas, hundreds die each year in "honor killings," in which relatives murder a young woman who has married without her parents' permission. The law lets the victim's parents pardon the perpetrator.
But Islamic law is also unevenly enforced, and much of Pakistan remains open in many ways. In the cities, educated upper-caste women hold high posts in government and business, and rarely wear head scarves. The government simply fails to carry out many rulings of the federal Shariah court.
Indonesia takes yet another approach. The constitution provides "all persons the right to worship according to his or her own religion or belief." But in 2003 the government allowed localities to begin enforcing a form of Shariah in some areas, like the religiously conservative Aceh province, which has a long-running separatist insurgency. Muslims who drink alcohol there can be given 40 lashes. In the provincial capital, Banda Aceh, the police have detained women for lectures on how to dress when they were deemed to be wearing un-Islamic attire.
Turkey has a constitution and laws that are strictly secular. But the steady emergence of Islamist parties and organizations there is leading more and more young people to adopt Islamic mores, like shunning alcohol and wearing head scarves.
In all these countries, one rule seems to apply: In practice, local politics and attitudes can trump what is written in a constitution. This could prove important in Iraq.
Noah Feldman, a law professor at New York University, expects fierce debate in Iraq's constitution-writing assembly over Shiite demands that men be allowed to have up to four wives, and that laws guaranteeing alimony and child support for women be repealed. But he predicted that Shiite leaders will compromise with Iraq's other groups in the end, to hold the country together.
Even after a constitution is adopted, years of court rulings to interpret it will follow, and this, too, can add flexibility.
Frank Vogel, a law professor at Harvard, argues that if Iraqis can peacefully debate the new constitution and keep their nerve, American leaders should do the same.
"If the mere mention of Shariah or Islam is enough to send us running for the bunkers, it's nonsense," he said. "There is no need for alarm when Islam is mentioned in the constitution context."
By DAVID ROHDE
Published: March 13, 2005
Kieran Doherty/Reuters
In Iraq, which is debating the place Islam will have in its laws, liquor stores have been attacked.
Syed Zargham/Getty Images
In Pakistan, the Coast Guard destroyed smuggled cans of beer
'Women of Iran'
Marjane Satrapi
IRAQ'S new government will have a fateful question to address when it begins meeting later this month. What role will Islam have in the constitution? The answer could shape how well the country holds together.
The Shiite religious parties that won big in the January elections have called for strict Islamic laws to govern marriage, divorce and inheritance. Secular Sunni Arabs and Kurds oppose those efforts. And the Bush administration has made it clear that its goal is not an Islamic Republic of Iraq.
But the choices may not be that stark, if experience in the broad Islamic world is any guide. Islamic law - Shariah - is a widely used label. But in a surprisingly dynamic process, many systems have emerged under it that try to strike a middle ground between Islamists, who want to stone adulterers to death, and secularists, who want a pure separation of law and religion.
At one end of this spectrum is Saudi Arabia, where only Muslims can worship. At the other is Turkey, where the law decrees secularism, and Islamist parties have to worry that the army will step in to enforce it. In between, most other nations have found ways to straddle the demands of Islamists and secularists. In fact, most of the world's 1.3 billion Muslims live in countries whose constitutions do not declare Islam the state religion. Indonesia, with more than 250 million Muslims, is the most prominent example.
One way to defuse the issue was demonstrated when Afghanistan adopted a new constitution last year. Islamic hard-liners demanded strong religious wording, notably a declaration that "no law can be contrary to the sacred religion of Islam." American officials and Muslim moderates, including President Hamid Karzai, agreed, acknowledging that it would be politically impossible to adopt a purely secular constitution because Islam is central to the culture.
But Mr. Karzai's government has made virtually no effort to enforce the wording. And language was also included to guarantee the rights of religious minorities.
After it was adopted, Zalmay Khalilzad, the American ambassador to Afghanistan (and now the administration's choice to be the ambassador to Iraq), called the document "one of the most enlightened constitutions in the Islamic world."
But some skeptics say American officials made an enormous mistake when they allowed the strongly religious language, because future Afghan governments could revive the practices of the Taliban, like the stoning to death of adulterers.
Paul Marshall, a senior fellow at Freedom House, a human rights group, praised Afghan leaders for not allowing a strict form of Islam. But he added: "What is actually in the constitution worries me. It can open the door to a very repressive state."
In Iraq, too, the argument for Islam's cultural influence is strong, and experts expect to see a reference to Islam's influence in the new constitution. The wording, however, is important to Iraqi Kurds, who are more secular than the Shiites and jealously guard their autonomy. Last week Shiite and Kurdish leaders were pursuing a compromise that would declare Islam a source of Iraq's law, but not the only source.
Mr. Marshall said declaring Islam the principal inspiration for Iraq's laws, as the Shiites might prefer, could be dangerous. "Islam undefined," he said, would then be "the constitution behind the constitution."
Other experts argue that this fear is an over-reaction. In many Muslim lands, they say, a declaration of Islam's pre-eminence amounts to a declaration of national identity. If Americans push for their preferences, in this view, a nationalist backlash might strengthen the link to Islam.
"It's very much an identity factor in most Muslim countries," said John Esposito, an Islamic studies professor at Georgetown. "The issue is that it has to be defined."
A world of definitions are available.
Saudi Arabia and Iran aspire to be purely Islamic. Criminal laws specify ancient punishments, like stoning for adultery and chopping off a hand for theft. The Saudi constitution does not even declare itself a constitution, but rather a "basic law." It declares the Koran and Sunna, Islam's holy texts, the constitution.
In other countries, the system is mixed. Many apply Islamic punishments only to Muslims. Others apply Islamic law only in matters like marriage, divorce and inheritance. Indonesia recognizes five religions but allows Shariah as a local option.
Pakistan's constitution declares the nation an "Islamic Republic," pronounces Islam the state religion and lets a federal Shariah court invalidate any law it deems "repugnant to the injunctions of Islam." Men can marry four wives. A woman's testimony in court carries half the weight of a man's. A woman must produce four male witnesses to prove she was raped. And in rural areas, hundreds die each year in "honor killings," in which relatives murder a young woman who has married without her parents' permission. The law lets the victim's parents pardon the perpetrator.
But Islamic law is also unevenly enforced, and much of Pakistan remains open in many ways. In the cities, educated upper-caste women hold high posts in government and business, and rarely wear head scarves. The government simply fails to carry out many rulings of the federal Shariah court.
Indonesia takes yet another approach. The constitution provides "all persons the right to worship according to his or her own religion or belief." But in 2003 the government allowed localities to begin enforcing a form of Shariah in some areas, like the religiously conservative Aceh province, which has a long-running separatist insurgency. Muslims who drink alcohol there can be given 40 lashes. In the provincial capital, Banda Aceh, the police have detained women for lectures on how to dress when they were deemed to be wearing un-Islamic attire.
Turkey has a constitution and laws that are strictly secular. But the steady emergence of Islamist parties and organizations there is leading more and more young people to adopt Islamic mores, like shunning alcohol and wearing head scarves.
In all these countries, one rule seems to apply: In practice, local politics and attitudes can trump what is written in a constitution. This could prove important in Iraq.
Noah Feldman, a law professor at New York University, expects fierce debate in Iraq's constitution-writing assembly over Shiite demands that men be allowed to have up to four wives, and that laws guaranteeing alimony and child support for women be repealed. But he predicted that Shiite leaders will compromise with Iraq's other groups in the end, to hold the country together.
Even after a constitution is adopted, years of court rulings to interpret it will follow, and this, too, can add flexibility.
Frank Vogel, a law professor at Harvard, argues that if Iraqis can peacefully debate the new constitution and keep their nerve, American leaders should do the same.
"If the mere mention of Shariah or Islam is enough to send us running for the bunkers, it's nonsense," he said. "There is no need for alarm when Islam is mentioned in the constitution context."