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Lady Liberty

Give me your tired, your poor,
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Send these, the homeless, tempest-tossed, to me
I lift my lamp beside the golden door.

Monday, August 22, 2005

The New Iraqi Constitution: The Impetus to an Islamic Reformation?
posted by Bathus

If breaking reports are correct (here, here, and here), the draft of the new Iraqi constitution will be unveiled today. In the Western press, that event will unleash unending spin, much of which for all intents and purposes had already been prepared in advance and will now be slightly modified so as to appear to respond to the actual contents of the document itself.

Among the more pervasive lines of spin will be the allegation that the draft constitution does not sufficiently protect the values we in the West hold most dear (or claim to hold most dear), particularly religious freedom, which the critics will disingenuously define more specifically as "separation of church and state." Interestingly, critics who have spent the last four years complaining what a mistake it is to attempt to "impose" (to use terms they prefer) "Western-style democracy" and "Western values" on Muslim countries will now complain that the new Iraqi constitution is a failure because it does not create a "Western-style democracy" enshrining every Western value.

Much will be made of the fact that the new Iraqi constitution cites Islam as "the main source" or "a main source" of law. As of this moment the final draft has not been released, so it is not clear which, if either, of those formulations will be present in the final document. Not sharing the critics' (soon to be abandoned) concern about "imposing" Western values on Muslim countries, I would have much preferred that neither formulation exist in the Iraqi constitution. But there is a world of difference between a statement that Islam is "a main source" and "the main source" of law. In either case, I also recognize that the Iraqi constitution is ultimately for the Iraqis themselves to write, to accept or to reject, and presumably to amend or to replace, if they discover that relying on Islamic religious law does not enhance their well-being.

One should also note that any statement citing Islam as a source of law most certainly will be counter-balanced and moderated by other constitutional provisions that guarantee such things as due process, freedom of worship, and freedom of speech and of the press. (Perhaps this is a good place to remind ourselves that our founding documents, indeed our human rights, rely implicitly on the religious concept of a "creator" who endows us with "certain unalienable rights.")

Once the critics have exhausted themselves decrying what they assume will be the pernicious influence of Islam on Iraqi law, perhaps they should allow themselves a moment of optimism to discern the opposite possibility, that the influence will operate in the opposite direction in the opposite way, that the inclusion of the principle that Islam is "a source," but not the only source, of Iraqi law will have the effect of purging from Islamic theory the worst and most extreme interpretations of Islamic religious law, that the "mixture" of Islamic legal theory with humanistic politics and secular law will ultimately have the effect of advancing the status of more moderate strains of Islamic theory.

According to early reports the new constitution will provide that:
[N]o laws would be adopted that contradict the principles of Islam. In addition, no law shall be adopted that contradicts human rights and democratic principles.
The drafters of the Iraqi constitutions appear to believe that these two sources of fundamental principles, Islamic legal theory and secular political theory based on human rights and the consent of the governed, can be reconciled. The presence of these two potentially conflicting bodies of fundamental principles will necessitate debate in the public square and argument among and between Iraq's political and religious elites as to what is required by Islamic religious principles and what is required by secular humanistic principles. It almost goes without saying that extreme interpretations of Islam cannot exist side by side with genuine human rights and a truly democratic form of government. Therefore, reconciliation of these two sources of fundamental principles (and it would be a mistake to presume these two cannot be reconciled) will necessitate the establishment in Iraq of a moderate interpretation of the requirements of Islamic religious law. By placing Islamic principles and secular humanistic principles side by side in their founding document, the drafters of the Iraqi constitution, whether or not they intended to do so, will have inspired a debate (not a theoretical debate, but a debate with immediate real world consequences) the results of which hold the promise of a "reformation" of Islam that is the necessary precondition to peace in the Muslim world.

So one could take the pessimistic view and assume that a constitution that seeks to mix Islamic legal theory and human rights necessarily renders human rights a nullity. One could as easily assume that the same mixture will render Islamic legal theory a nullity. But perhaps the most likely prospect is that the mixture will lead to a modification and a moderation of both Islamic theory and secular humanistic political theory. As a citizen of the West, who--though immensely proud of the heritage we have built for ourselves--often gazes sadly upon the crudity and debasement that has lately come to dominate so much of our own culture, I cannot yet judge that the Iraqi version of the never-ending democratic experiment will turn out so badly as the pessimists will hasten now to predict.

UPDATE 8/22/2005 at 7:30 P.M.: According to a U.S. State Deparment press release, the draft text of the constitution has been submitted to the Iraqi National Assembly, which apparently has been given three days to make amendments before voting on the final text. New York Times writer Dexter Filkins calls the submission with the three day period for amendments a "legal sleight of hand" designed to allow the drafters to claim that they met today's deadline even though the document remains subject to revision. Sleight of hand or not, by exposing the draft to further discussion and revision in the National Assembly, the drafters will have broadened the legitimacy of the document that finally emerges. Of course, the whole process remains fragile and could descend into anarchy at any moment, but I remain optimistic and am encouraged that the descriptions of guaranteed rights are rather more specific than the rather vague references to Islam as a "main source for legislation." As of now, the proposed text provides, inter alia, statements of guaranteed rights that counter-balance and moderate the statement that Islam is a "main source for legislation":
Article 2

The political system is republican, parliamentary, democratic and federal.

1. Islam is a main source for legislation.

- a. No law may contradict Islamic standards.

- b. No law may contradict democratic standards.

- c. No law may contradict the essential rights and freedoms mentioned in this constitution.

2. This constitution guarantees the Islamic identity of the Iraqi people and guarantees all religious rights; all persons are free within their ideology and the practice of their ideological practices.

* * * *

Article 36

The State guarantees:

1. Freedom of expression by all means.

2. Freedom of the press, printing, advertising and publishing.

Article 37

Freedom to establish political groups and organizations.

* * * *

Article 39

Iraqis are free to abide in their personal lives according to their religion, sects, beliefs or choice. This should be organized by law.

UPDATE 8/23/2005:

From the debate NRO has going in The Corner:

Ramesh Ponnuru agrees that the mutual influences of secular rights and an Islamic tradition upon each other is not necessarily a one way street, that the statement of rights in
[the Iraqi] constitution can influence a culture for the better.
Michael Ledeen has similar thoughts about reasons for optimism:
First, there is hardly a country in the region without some language acknowledging Sharia as either "the" or "a major" basis for national legislation. But Iran, for example, says that Allah is the sole source of authority, while the Iraqi constitution says that the people are the only legitimate source of authority. This in itself is a revolutionary event.
And even Andy McCarthy, who said he was getting "off the bus" if the Iraqi constitution established "supremacy of Islam" in legislation, appears to be willing to hang on for the ride at least a little longer:
[M]uch of my trepidation may be based on the version of the draft constitution reported in the mainstream media, which your last post indicates is way overblown in its description of how firmly Islam is installed as the law of Iraq. There is a world of difference between "a" and "the," and a bill of rights that actually guarantees equality and civil rights would assuage many concerns.

posted by Bathus | 8/22/2005 02:12:00 PM
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Blogger Jan Bear said...

(Twice I've posted this comment with a link and embarrassingly botched the html. This time, I'll skip the hotling and just give the url.)

Thanks for your optimism. I've read comments by well-informed people, such as the Saudi blogger The Religious Policeman (, Aug. 22), who aren't so sanguine. Democracy is dangerous, isn't it? Let people decide how they want to rule themselves and you never know what they're going to do. Makes one understand the appeal of someone else's dictator.

Anyway, since it's realistically going to take decades to see if this Iraqi experiment will work, I'm glad to have someone looking on the sunny side.

11:08 AM, August 23, 2005  

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