July 9, 2008

BIG BLUE MOSQUE (via Mike Daley)

Islam, the Law, and The Sovereignty of God: Accommodating Qur’anic principles to the civil religion (Mark Gould, June/July 2008, Policy Review)

A central tenet of the Islamist position is that Shari’a (or sometimes the Qur’an and Sunna) can function as a constitution in Islamic states, promoting good and forbidding evil, ensuring, when embodied institutionally, that law is in accord with Muslim precepts. This viewpoint runs counter to post-Enlightenment legal positivism, where constitutional provisions are reduced to procedures and where parliaments, perhaps representing the people, may pass any law that is justified procedurally. I argue that the positivist position is misguided, that valid laws must be both procedurally justified and legitimated in light of constitutional values and where the procedures themselves are legitimate. If this argument is sensible, the Shari’a might well make up a set of substantive values and still be able to constitute constitutional principles. The substantive regulation of legislation does not, in itself, rule out an “Islamic constitution.”

This conclusion is not, however, dispositive of the question of the viability of a constitution rooted in the Shari’a. We have to ask whether there are structural constraints on the type of substantive regulation consistent with a constitutional system. If so, is Shari’a consistent with these structural constraints? To some degree, our answer to these questions depends on our characterization of constitutions and constitutionalism. If we associate the two and suggest that they require the construction of a limited government accountable to the people, we may be limiting “constitutionalism” to a form of governance found in the “West,” and we may preclude, by definition, the possibility of any other form of constitutionalism. This model of a “liberal constitution” appears to be “culture bound.” The regulation of political activities by Shari’a might entail a different form of “constitutionalism” from the one found in the West.
A constitutional regime makes the formulation of new laws that are accepted as procedurally valid both possible and legitimate.

In contrast to arguments for a robust model of liberal constitutionalism, this paper argues for a minimal notion of constitutionalism, one that is not culture bound. Constitutionalism minimally enables the “constitution”/construction of a procedural system where new law is accepted as valid. If the capacity to validate new law is a necessary attribute of a constitutional government, a Shari’a grounded in, even if not always manifesting, the sovereign and unalterable will of God is incapable of fulfilling this universal constitutional task. [...]

In the “west,” a standard but by no means universally accepted theory of constitutional adjudication argues that its goal is to support the democratic procedures that ground liberal constitutional states. This viewpoint may be explicated conveniently in a discussion of procedural justification (often labeled, erroneously, “legitimation”), which is paradigmatic of the view that constitutions and constitutionalism develop in tandem with, and are the public law manifestations of, formally rational legal procedures.

Max Weber’s discussion4 of “rational-legal legitimation” may be taken as paradigmatic. There laws are treated as “legitimate,” i.e., as justified, when they are the due-process outcome of formally rational procedures. This is a form of “legitimation” through procedures. Here the mechanism of “legitimation” differs completely from the one Weber adopted in his discussion of traditional legitimation, where laws are accepted as legitimate when consistent with traditional values that constitute tradition as sacred. Weber implicitly presumes that as traditional values wane in importance they are replaced by procedures that facilitate innovation, that allow for legislation that articulates new laws that are accepted as obligations.5

Instead of tracing the development of moral value-commitments and at the same time the development of the norms of procedural justification, Weber created a social theory that substitutes the one for the other, substitutes rational-legal procedures for traditional values. Thus, moral obligation appears to give way to procedural rationality, while rational values and non- or irrational procedures take a back place in his analysis. As important, the relationship between justification through procedures and legitimation through values is not analyzed. Consequently, Weber fails to recognize that the structure of legitimating values and justifying norms alters in the social development of societies, as does their interrelationship. Activities must be both legitimate and justified if they are to be accepted as valid and continually and effectively reproduced. If the system is to function smoothly, constitutive procedural norms must themselves be legitimate; if rational-legal procedures are to justify successfully, values must emerge that are compatible with those procedures. These values legitimate the procedures’ capacity to justify.

Why do these analytical distinctions matter? The importance of maintaining the analytical autonomy of legitimation and justification is manifest in the fact that they may be empirically independent. A norm may be justified procedurally while at the same time it may be incompatible with institutionalized societal values. Judicial review embodies this principle, recognizing that procedurally justified outcomes may be constitutionally illegitimate. For example, in procedurally correct ways, Congress could pass and the president could sign a law imprisoning all Muslim-Americans for the duration of the war on terror. Such a law would be unconstitutional, illegitimate, and, we may hope and expect, overturned in the courts. [...]

Islam is a multifarious religious tradition. Here I focus on the dominant Sunni tradition. I do not deal with variations in that tradition in the many social and cultural circumstances where it has been and is found. 6 I characterize the logic of religious commitments, the obligations that motivate and legitimate activities, not religious dogma.

Eschatology and soteriology. While soteriology, the theology of salvation, is of paramount importance in Christianity, eschatology, the theology of the last judgment, is of primary significance in Islam. Christians believe in original sin. No Christian, on her own, has the capacity to be saved. God sacrificed his Son to enable salvation; people are saved, or not, through God ’s grace.

In Islam, humans are created with a sound nature, a natural understanding of their obligations to God. They are, however, forgetful and subject to Satan ’s temptations. God’s messengers, and most especially his last and final messenger, Muhammad, remind them of their obligations. Thus God has informed believers how they must act to be saved. God has requested nothing that believers cannot do. If they follow his commandments, on the Day of Judgment God will judge them fairly, weighing the good against the bad, including them among the saved.

These rules are not easy to follow, but Muslims believe that God does not want to create hardship and asks nothing that cannot be accomplished by men and women endowed with a sound constitution, a fitra, which guides each person to God. Unlike in Christianity, where original sin precludes salvation without God ’s grace, here each person’s nature enables her to act in ways that merit God’s grace.

The concern with one’s eternal fate is as manifest in Islam as in Christianity, but its manifestation is different. The Early Meccan suras, those learned first by most Muslims, focus on the Day of Judgment, on God ’s judgment of people in light of his commandments (which are codified in the later suras to be revealed, in the Hadith and in the Shari’a). God is merciful, but believers are told to fear his wrath if they fail to conform to the duties he has revealed for them; thus Muslims are highly motivated to fulfill God ’s commandments, knowing that at the Last Judgment, “Whoever does an atom’s weight of good will see it, and whoever does an atom’s weight of evil will see it also” ( q 99, 8–9). The structure of their religious commitment is embedded in this eschatology. In Christianity, in contrast, a soteriology of grace is enunciated which requires deeds but which centers more concretely in faith. The incarnation of God in Jesus, not in a text articulating a set of rules and regulations, embodies men ’s hopes even as it increases their uncertainty.

It will be easy enough for Sunni Islam to adopt the sort of monkey-see/monkey-do constitutional democracy that so many other secular or non-monotheistic states have reformed into here at the End of History. But without being based, as the American Founding is, on the Fallen nature of Man and Messianism, it's going to be the sort of cheap imitation that is just making places like Europe more comfortable as their people die off.

Hope for Fools: Why the doctrine of original sin is 'curiously liberating.': a review of Alan Jacobs's Original Sin: A Cultural History (Jason Byassee, 7/08/2008, Christianity Today)

If the book were primarily a defense of the doctrine (which it is not), then its attack could be summarized as two-pronged. First, original sin makes sense of the empirical evidence. Like much of Christian teaching, original sin doesn't make sense in itself, but it makes sense of a lot of other things. Jacobs quotes Blaise Pascal to that effect: "But for this mystery, the most incomprehensible of all, we remain incomprehensible to ourselves."

Second, original sin has a deeply political function. In one of G. K. Chesterton's matchless aphorisms, only an understanding of sin can allow us to "pity the beggar and distrust the king." It makes for what philosopher Eugen Rosenstock-Huessy called "the Christian democracy of the dead," in which recognition of humanity's common plight undergirds positive social relations.

I find both of these tacks debatable. But neither should keep us from reveling in Jacobs's deep pool of wisdom and occasionally breathtaking prose. John Milton tried to imagine the unimaginable: What was it like to be unfallen? Or, in Jacobs's words: "How can we, the fallen and the fearful, even guess what it might be like to have the easy freedom of sinlessness, to go to one's bed at night anxious for nothing, never suspecting peril in any rustling of the leaves or of the mind?" Amid yeoman's work with historical and literary sources, Jacobs's prose often sings&#mdash;and as this sentence suggests, it's not because he's showing off.

His light-hearted defense of Augustine's fascination with men's inability to control their libidos rests on Dante's notion of contrapasso--as Adam rose up in proud disobedience, "every man knows" what part manifests our original disobedience and subsequent punishment. Jacobs positively exults in the story of St. Martin of Tours telling the Devil that he, too, could repent. Origen and others may have been anathematized for holding this hope, but Jacobs rests his case with, "Better to hope too much than too little."

These are just highlights of Jacobs's engagement with premodern sources. His dealings with modern utopian efforts to act as though original sin were not; his provocative description of America's original sin (racism really doesn't qualify for him); his criticism of Bill Buckley and friends for missing Edmund Burke's underdeveloped sense of original sin--they all delight. And this English professor is not too tweed-coated to dip into pop culture--the Hellboy films and George Thorogood's "Bad to the Bone" come in for sympathetic yet critical exegesis, too. Careful when you open this book--it could keep you up at nights.

Posted by Orrin Judd at July 9, 2008 7:56 AM

"his criticism of Bill Buckley and friends for missing Edmund Burke's underdeveloped sense of original sin"

This was worth the price of admission alone!

Made me realize why I never felt Burke was "American" or even particularly conservative when push came to shove...

Posted by: Benny at July 9, 2008 1:58 PM

There is another idea of law, a "third way," if one likes that construction, which is neither the arbitrariness of the spiritual jailhouse, nor the arbitrariness of so-called, self-proclained "legal positivism." The one is imposed by the violence of rulers, the other by the violence of our own rebellion against reason.

We can know law through reason and through experience, always imperfectly, but we can know it. Always we edge our way between Scylla and Charybdis.

It is well to study and to ponder the ways of the jailhouse, to understand it for the atavistic barbarism that it is. We must always keep before us, however that the choice is not between sharia and the antinomiam narcissism of "legal positivism." Right reason and the ways of the ancestors could guide us if we were the last human being on Earth to hold to them.

Posted by: Lou Gots at July 9, 2008 3:29 PM

You can't know law through reason, each would have his own.

Posted by: oj at July 9, 2008 6:40 PM
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