Shariah backgrounder
Noah Feldman, a law professor at Harvard University and an adjunct senior fellow at the Council on Foreign Relations, has written a very helpful article for the New York Times about Islamic constitutionalism and law.There are only a few references to Iran (most of which point out how unusual that case is in the Islamic world), but I think this article would be very instructive for American students trying to grasp the details and subtle generalizations of Iranian government and politics.
Why Shariah?
"No legal system has ever had worse press. To many, the word 'Shariah' conjures horrors of hands cut off, adulterers stoned and women oppressed...
"In fact, for most of its history, Islamic law offered the most liberal and humane legal principles available anywhere in the world...
"How is it that what so many Westerners see as the most unappealing and premodern aspect of Islam is, to many Muslims, the vibrant, attractive core of a global movement of Islamic revival?...
"For many Muslims today, living in corrupt autocracies, the call for Shariah is not a call for sexism, obscurantism or savage punishment but for an Islamic version of what the West considers its most prized principle of political justice: the rule of law...
"[The] fourfold combination — the Koran, the path of the prophet as captured in the collections of reports, analogical reasoning and consensus — amounted to a basis for a legal system. But who would be able to say how these four factors fit together?... [A] self-appointed group came to be known as the scholars... got the caliphs to acknowledge them as the guardians of the law...
"The caliphs... still had plenty of power. They handled foreign affairs more or less at their discretion. And they could also issue what were effectively administrative regulations... As a result of these regulations, many legal matters (perhaps most) fell outside the rules given specifically by Shariah...
"[A] state under Shariah was... subject to a version of the rule of law. And as a rule-of-law government, the traditional Islamic state... was legitimate, in the dual sense that it generally respected the individual legal rights of its subjects and was seen by them as doing so. These individual legal rights... included basic entitlements to life, property and legal process — the protections from arbitrary government oppression sought by people all over the world for centuries...
"But if Shariah is popular among many Muslims in large part because of its historical association with the rule of law, can it actually do the same work today? Here there is reason for caution and skepticism...
"In only two important instances do scholars today exercise real power, and in both cases we can see a deviation from their traditional role. The first is Iran, where Ayatollah Khomeini, himself a distinguished scholar, assumed executive power and became supreme leader after the 1979 revolution. The result of this configuration, unique in the history of the Islamic world, is that the scholarly ruler had no counterbalance and so became as unjust as any secular ruler with no check on his authority. The other is Saudi Arabia, where the scholars retain a certain degree of power. The unfortunate outcome is that they can slow any government initiative for reform, however minor, but cannot do much to keep the government responsive to its citizens. The oil-rich state does not need to obtain tax revenues from its citizens to operate — and thus has little reason to keep their interests in mind..."
Labels: Iran, judiciary, rule-of-law
posted by Ken Wedding @ 9:56 AM
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