August 25, 2005

Swapping Bullets for Ballots

Iraq’s draft constitution is absurdly contradictory. Just look at the following two sentences which appear right next to each other.

a. No law may contradict Islamic standards.

b. No law may contradict democratic standards.

Now, surely there are individual laws which contradict neither. But there is also no shortage of laws in the 21st century which are bound to contradict one or the other.

I suppose this sort of deadlock is a small-government libertarian’s dream scenario. And whatever the drawbacks of small-government libertarianism, it’s obviously preferable to Saddam Hussein’s full-bore totalitarianism.

In the real world, though, Iraq isn’t at all likely to become a libertarian’s paradise now or ever. Liberal secular democrats and conservative Islamists will just have to learn to accommodate each other within this legal framework if the Iraqi state is going to do anything but melt down or fly apart into pieces. Neither secularism nor Islamism at gun point are workable, acceptable, or defensible in the long run. So while most Westerners (not to mention many Iraqis) are unhappy with the Islamist line in Iraq’s constitution, it’s most likely an inevitable part of any workable package.

Anne-Marie Slaughter put it this way at TPM Café.
I never thought I would take this position, particularly given what could be at stake for the women of Iraq, but I’m going to come down on the getting it done side. Let’s just remember, the compromises that our founding fathers made to get to a constitution – mediating between slave states and free states – included one that left slavery intact and defined each slave as worth only 3/5 of a person. Fred Kaplan has pointed to the many differences between the 18th century U.S. process and the 21st century Iraqi process, but a stark similarity remains: by agreeing on a set of principles as the ground rules for a national political process you give everyone involved a stake in trying to advance their interests through that process rather than through violence or secession. That is precisely what ordinary Iraqis, of any religion or tribe, have not had. And the sudden claim of the insurgents that the "jihad of word" is akin to "jihad by sword" and thus that their supporters should vote in the October referendum means that they are beginning to recognize that there is another field to play on that they cannot afford ignore.

She’s right. Islamists do not need to be defeated utterly. They need to be brought into a democratic mainstream. They’re not our cup of tea, so to speak, and they never will be. But if they can be persuaded to swap bullets for ballots everyone wins.

Posted by Michael J. Totten at August 25, 2005 03:10 PM
Comments

I'm not sure the sentences you cite are contradictory, I'm not even sure what they mean. Are the terms "Islamic standard" and "democratic standards" ever defined in the document? If not, then these statements are simply meaningless platitudes.

Posted by: vanya at August 25, 2005 03:16 PM

As long as it's moving forward in such a way that they could decide to change it and start over if it isn't working (not unlike the U.S. did) without resorting to a civil war then I think it's probably going to be OK.

We've had ours for a while now and we still have disagreements about what those words mean or were supposed to mean. I expect the one in Iraq to be the same way.

Posted by: tommy at August 25, 2005 03:23 PM

Just to add that Turkey itself has been governed by Islamists of a sort led by Recep Tayyep Erdogan in the last couple of years. Granted, it's not exactly the same thing, as Turkey has the advantage (sort of) of having had secularism pretty much equated with Kemalism, who is revered AND backed by the very powerful Turkish Armed Forces. Still, just to say that Islamists do have the capacity to evolve and function within a relatively liberal democratic environment (by ME standards at any rate). What is mostly needed are good and powerful checks and balances within the system.

Posted by: Mike at August 25, 2005 03:40 PM

... defined each slave as worth only 3/5 of a person.

When I hear this sentence phrased that way, I want to reach for my revolver. It was the anti-slavery forces that didn't want to count slaves at all for population for the purposes of determining representation. The people who favored slavery wanted to count each slave as a full person. It's particularly blinkered to transform this into "defining each slave as worth only 3/5 of a person," since by that logic the people opposed to slavery wanted to define each slave as not being worth anything at all, whereas the people who favored slavery wanted to define each slave as being worth the same as any other person. If the antislavery people were more successful, then the Constitution would have "defined each slave as worth" even a smaller percentage of a person. The phrase, so glibly repeated everywhere, makes no logical sense.

At least "left slavery intact" is better than "condoned slavery." (Though she leaves out that it did explicitly permit banning the slave trade after 1808, which is not precisely leaving it intact, but is a rather complicated compromise to explain.)

Posted by: John Thacker at August 25, 2005 03:48 PM

a. No law may contradict Islamic standards..
b. No law may contradict democratic standards.

I guess one conclusion we could draw from this is that if Islam and democracy ARE inherently incompatible, then Iraq will be a lawless society :-)

Actually, this is all over my head. I’m not a constitutional lawyer. Hell, I wasn’t even a poli sci major. I don’t really know what all this means. I do wonder about some things though. For example, the democracy bit in there. Democracy isn’t really defined but if it is taken to mean majority rule, then obviously the majority could choose even the strictest Islamic standards and that wouldn't be a good thing (especially if the Islamists get the bright idea of systematically assassinating the more liberal members of society, which they appear to have had a good head start at). On the other hand, the implication would appear to be that the majority could push pretty far in a liberal direction UNTIL it hit the wall of “Islamic standards.” Where is that wall? How liberal can a law be and still be within “Islamic standards.” Given the latter, it would seem that this constitution could set the stage for a fierce debate about Islam and its liberal limits and THAT certainly has the potential to get interesting.

Unless, of course, “Islamic standards” means, BY DEFINITION, Shariah law. Then the liberal limits would appear to be fixed. Does the actual constitution specifically define Islamic standards as equivalent to Shariah law? (sorry to have to ask such a basic question...)

Posted by: Caroline at August 25, 2005 04:36 PM

Considering what the Republic went through from 1861 to 1865, I would say that maybe the 3/5 Compromise wasn't such a good idea. After 1800, the Compromise all but insured the election of the backers of slavery, or slaveholders, in every Presidential election before Lincoln. I would pray the people of Iraq have better luck in the future....

Posted by: Steve Smith at August 25, 2005 05:18 PM

Not contradicting democratic standards is nothing but a platitude. So long as they have elections, like Iran has elections, that standard is met.

Not contradicting Islamic standards however, demands that there be some authority, akin to our Supreme Court, that can compare proposed legislation to the standards of Islam and then rule on whether they are compatable. The only way to implement that is to have a body of clerics with veto power over legislation.

Posted by: Observer at August 25, 2005 05:46 PM

Caroline: Does the actual constitution specifically define Islamic standards as equivalent to Shariah law?

Nope. The whole thing is very short and all told pretty liberal. It only takes a minute or two to read.

The "Islam" parts are few and vague, which means they'll just have to argue it all out point by point, law by law. That's democracy, if they can keep it.

Posted by: Michael J. Totten at August 25, 2005 05:52 PM

Observer: "Not contradicting democratic standards is nothing but a platitude."

Agreed.

"So long as they have elections, like Iran has elections, that standard is met."

That puts the onus on "elections". I haven't gotten the impression, even recently, that Iran has fair elections. So the democratic standard, in this case, obviously depends on the assurance of free and fair elections. That certainly sets the bar pretty high but its not theoretically insurmountable, is it?.

"Not contradicting Islamic standards however, demands that there be some authority, akin to our Supreme Court, that can compare proposed legislation to the standards of Islam and then rule on whether they are compatable"

Can anyone shed any light on the (new Iraqi) constitutional grounds governing the selection of that body?

"The only way to implement that is to have a body of clerics with veto power over legislation."

Why is a body of clerics the only way to implement a judicial branch? Does the constitution itself call for a body of clerics? That would be bad indeed. But seriously. I don't know. At this point I would welcome anyone who could shed some light on these issues.

Posted by: Caroline at August 25, 2005 06:05 PM

Michael - I am a lousy googler and I keep coming up with commentaries on the constitution rather than the thing itself. Do you have a link to a good translation of the actual text?

Posted by: Caroline at August 25, 2005 06:12 PM

John Thacker,
I'm not sure why you leave out the rationale behind the "3/5ths" issue in your comments. The SOuth wanted to get the benefit of additional congressman in the House of Representatives, for people who would never be able to vote. That is why they wanted a slave to count fully. Of course the anti-slavery people fought that, as they should have.

Posted by: exhelodrvr at August 25, 2005 06:36 PM

Caroline,

The constitution draft is here. I also linked it in the first sentence of the main post above. It is very very short.

Posted by: Michael J. Totten at August 25, 2005 06:48 PM

Caroline,

Actually use this link. And, whoa, it's much longer now than it was when I first looked at it.

Posted by: Michael J. Totten at August 25, 2005 06:50 PM

That is why they wanted a slave to count fully. Of course the anti-slavery people fought that, as they should have.

Absolutely, and I agree. Sorry, I thought that was evident from the post already. I guess I should have made it explicit. That was my point-- counting slaves as 3/5ths was BETTER from an antislavery point of view than counting them fully. The cheap rhetorical point reverses the logic for, well, a cheap rhetorical point.

Posted by: John Thacker at August 25, 2005 07:03 PM

Michael - whoops sorry! Must have been a long day to have missed that (dunce cap on). Gracias! Will focus on the second link and while studying it, channel my inner constitutional lawyer.

"Ohm"...

(Believe it or not I actually googled that spelling... :-))

Posted by: Caroline at August 25, 2005 07:12 PM

I just figured that the lawyers would be busy for a long time. By the way, your translation is not quite the same as the ones I have seen:

(a) No law can be passed that contradicts the undisputed rules of Islam.

(b) No law can be passed that contradicts the principles of democracy

Big difference, I think. For one thing, I believe there are at least two major schools of Islamic jurisprudence among the Sunni, and I assume at least one among the Shia, maybe two if we consider Najaf and Qom as competing schools. So while I suspect the government could not pass a law requiring all restaurants to serve pork, it is not clear that they could forbid serving pork. But since we are all so concerned about nuance the translation becomes important and we really need a native guide and careful explanation of the language.

By the way, I was amused to see members of the assembly refering to sections of the TAL as justification for various actions. I think this is progress in itself. Iraq just might turn out to be a nation of lawyers.

Posted by: chuck at August 25, 2005 07:29 PM

well, i'm a german lawyer and historian of German law, and i can assure you that at least in Germany there has never been a constitution agreed upon democratically which did not contain, and in prominent places, so called "formelkompromisse", or formula compromises (that means compromises just in words, but evidently not in understanding between the main parties). both in 1919 and 1948 the founding fathers of democratic Germany (i am, however, not a democrat and not a fan of Germany but one of those anti-german communists you mentioned some time earlier) left disputes unresolved and included in the constitution both secular state and a leading role for christianity, or both market economy and socialization, leaving it up to the democratic process which one would prevail. and this may be not the worst way of making constitutions.

Posted by: j.b. at August 25, 2005 08:01 PM

j.b.,

Just curious. If you are not a democrat, what form of government do you espouse?

Posted by: chuck at August 25, 2005 08:14 PM

This is the problem:

"The minority Sunnis, who were the masters under Saddam Hussein, are implacably opposed to the federal nature of the constitution. They fear that it will place oil wealth in the hands of the Kurds in the north and the Shia in the south."

http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2005/08/24/wirq24.xml

Posted by: spaniard at August 25, 2005 08:17 PM

The Iraqi constitution makes perfect sense. All it means is that the areas controlled by islamists(shia) will be able to impose their brand of Sharia and the secularists(kurds) will impose their own laws. Only the worst kind of "pollyanna" would believe that the parliament would produce a documant that would immediately achieve a democratic unified Iraq.

Posted by: Frydek-Mistek at August 25, 2005 08:46 PM

Ob: "So long as they have elections, like Iran has elections, that standard is met."

Caroline: "That puts the onus on "elections". I haven't gotten the impression, even recently, that Iran has fair elections."

Yes, I was being snarky. There will be elections, and they may be as corrupted, or more, than Irans. Nonetheless, those elected will claim that, by virtue of their election, everything they do meets the democratic standard.

"Why is a body of clerics the only way to implement a judicial branch?'

Its not the only way to implement a judicial branch, it is the only way to implement a standard of adherence to Islamic law. Who is qualified to rule if something is in accord with Islamic principles? If it isnt a clerical body, and if someone like Sistani chimes in from the sidelines to disagree, then the non-clerical judgement would be unsustainable. So long as you have a standard like this, it will be the clerics who will have the final say.

Posted by: Observer at August 25, 2005 11:54 PM

everyone wins

Like in Iran?

Posted by: Jack Bog at August 26, 2005 12:46 AM

"As corrupt as the Iranian elections?" Dude. Please.

The Iranian government is ruled by an oligarchic set of Mullahs who determine unilaterally who is allowed to run for office and who is not. That is not figurative, it's embedded in their Constitution. You need their permission just to run for office, and they decide based on how religious you are AND your positions on the issues whether you'll be allowed to run for office at all. Then once elected the legislature and the president can be completely overruled on any matter of substance by the non-elected, non-appointed, dictator-ayatollahs. They also allow for no true opposition parties.

Iran's elections are not just corrupt--although they are that, with a lot of phony balloting--but they're also complete shams. They have ZERO legitimacy, with only hand-picked candidates allowed to run at all, no true opposition parties allowed. Also no free speech, no free press. And no real authority for those who do get elected.

The comparison is ridiculous. It's theoretically possible that Iraq could turn into such a state, but only by completely ignoring practically everything in their proposed Constitution.

Posted by: Dean Esmay at August 26, 2005 02:12 AM

While I'm not exactly pleased with the draft, I wonder (and hope?) if this isn't as bad as it seems.

A lot of the worry around the line about laws not contradicting Islam stems from the belief that a lot of people have that Islam, unlike other religions, is both fixed and monolithic.

As someone has pointed out, there are multiple schools of thought within Sunni jurisprudence, not to mention the Shi'a and all the other minor sects.

It's also worth remembering that there are a number of European countries (and some others around the world) that are both democracies and, officially and legally, religious states. In Denmark, for example, everyone is born into the Danish Lutheran Church and must petition later to leave it. These states are able to enshrine their religion into their constitutions, yet do not require bodies of clerics to interpret the law. Islam in Iraq isn't exactly the same as Lutherism in Denmark, but it's important to remember that this sort of thing can be done without any real harm.

It's also important to remember that many Muslims feel they can live as good Muslims without following the complete, or any, of the Sharia code. Just as most Christians I know don't really feel too bad about violating any number of Biblical tenents on a daily basis (Catholics, I'm looking in your direction, you graven-image worshiping idolotrous Papists), most Muslims I know don't have problems violating Koranic commands against things like alcohol and usury.

The real problem isn't whether the Constitution enshrines Islam, but rather: will the people in power attempt to enshrine, and enforce, their version of Islam. The Koran, like the Bible, is an enormous mish-mash of stuff, a lot of it contradictory (Kill the infidel! No, wait, there's no compulsion in religion! Thou shalt not kill! Israelites, kill kill kill!). The best possible way of dealing with the problem, I think, in any country, would be to say: you can enshrine and enforce your religion in law when you and all of your co-religionists can agree on which version should be implemented. Get back to me when that's done.

You know the old joke about meeting the man on the bridge who's about to jump, telling him he has so much to live for, finding out he's a Christian, a Protestant, a Baptist, Baptist Church of God, Reformed Baptist Church of God, Reformed Baptist Church of God, reformation 1915, only to yell "die, pagan scum!" and push him off the bridge. Right, you guys know that one? Yeah.

It's important to remember that while Sharia is considered Islamic, so is itjihad, field of Islamic jurisprudence; that is, the democratic interpretation of the Koran and Islamic tradition to fit the problems of the modern world. Like I said, I'm not too enthusiastic about the Constitution, but saying "Islam is important" is as meaningful as being born into the Danish Lutheran Church, unless, of course, the people in charge of the government have a specific and nasty idea of what Islam is. They key will be: who gets power, and who holds on to power? And will elections have any real effect on this?

Posted by: The Commenter at August 26, 2005 05:49 AM

One of the two biggest mistakes of Bush & Bremer in Iraq was accepting Party List voting, instead of district based voting. The Interim gov't should have used ration-cards PLUS additional registration; but the main issue is that Iraq should have been split into geographic estimated population districts. See my Will Iraq become a bloodbath. Bremer refused local budgetary authority -- and without cash, there won't be responsibility.

Written over a year ago; still true, now more clear.

The Sunnis should let the Shia-Kurd constitution go to a vote, should vote NO (like France and the Euro Constitution!), and go for new elections. That, too, would be democracy.

I wish the Sunnis would demand 2 things: 1) districts for reps, so every rep has local constituency. 2) Oil trust fund for all Iraqi citizens/ voters, so oil money goes to the people. With less need for poverty reduction programs. I wish all secular/ modern oriented Iraqis would do this.

Ability to ammend is very important; selection of the judiciary is very important.

Compatibility of Islam & democracy -- can be worked out.

Posted by: Tom Grey - Liberty Dad at August 26, 2005 08:33 AM

"Iraq’s draft constitution is absurdly contradictory".

That's putting it mildly.

This dog won't hunt.

Posted by: Diana at August 26, 2005 08:35 AM

While I argue the Sunnis should vote "no" -- I suspect strongly that if there is a vote, it will be wildly accepted by Shia & Kurds, and narrowly accepted/ not rejected by Sunnis. Getting 2/3s to vote NO will be tough for Sunnis or anybody.

Posted by: Tom Grey - Liberty Dad at August 26, 2005 08:38 AM

Dean Emsay writes,

"As corrupt as the Iranian elections?" Dude. Please.

Dude,
I was (I thought obviously) using the word "corrupt" in the context of the democratic standard - i.e. a corruption of the principle of democracy, not just a claim that money is passed under the table.

You seem to have some touching faith that the words of the constitution, even if they werent as ambiguous as they are, would somehow have the power to override the underlying political dynamic. We do fairly well at that here in the US - at the other extreme, read the old soviet constitution and compare it to the real world they created. So what is about the real-world political situation in Iraq that makes you think that they will be closer to our experience than the other extreme. What force has the power and ocmmittment to uphold a strict interpretation of the words if those contradict the wishes of the most politically powerful forces? It doesnt happen by magic.

Posted by: Observer at August 26, 2005 08:49 AM

From wikipedia on the Soviet Constituion:

A democratic constitution, the Soviet Constitution included a series of civic and political rights. Among these were the rights to freedom of speech, freedom of press, and freedom of assembly and the right to religious belief and worship. In addition, the Constitution provided for freedom of artistic work, protection of the family, inviolability of the person and home, and the right to privacy.."

We know how that worked out.

Secular Muslims and Non-secular muslims discuss why Islamic law is incompatible with democracy.

Posted by: mary at August 26, 2005 02:13 PM

FWIW - I found the following sections of the constitution interesting:

Article (7):

1st -- Entities or trends that advocate, instigate, justify or propagate racism, terrorism, "takfir" (declaring someone an infidel), sectarian cleansing, are banned

Article (9):

(b) Forming military militias outside the framework of the armed forces is banned.

e) The Iraqi government shall respect and implement Iraq's international commitments regarding the nonproliferation, non-development, non-production, and non-use of nuclear, chemical, and biological weapons. Associated equipment, material, technologies, and communications systems for use in the development, manufacture, production, and use of such weapons shall be banned.

Article (14): Iraqis are equal before the law without discrimination because of sex, ethnicity, nationality, origin, color, religion, sect, belief, opinion or social or economic status.

Article (35):

© All forms of torture, mental or physical, and inhuman treatment are forbidden. There is no recognition of any confession extracted by force or threats or torture, and the injured party may seek compensation for any physical or mental injury that is inflicted.

2nd -- The state is committed to protecting the individual from coercion in thought, religion or politics, and no one may be imprisoned on these bases.

3rd -- Forced labor, slavery and the commerce in slaves is forbidden, as is the trading in women or children or the sex trade.

Article (36): The state guarantees, as long as it does not violate public order and morality:

1st -- the freedom of expressing opinion by all means.

2nd -- the freedom of press, publishing, media and distribution.

3rd -- freedom of assembly and peaceful protest will be organized by law.

Article (37):

Article (39): Iraqis are free in their adherence to their personal status according to their own religion, sect, belief and choice, and that will be organized by law.

Article (43):

2nd -- The state is keen to advance Iraqi tribes and clans and it cares about their affairs in accordance with religion, law and honorable human values and in a way that contributes to developing society and it forbids tribal customs that run contrary to human rights.

Article (44): All individuals have the right to enjoy the rights stated in international human rights agreements and treaties endorsed by Iraq that don't run contrary to the principles and rules of this constitution.

Article (90):

2nd -- The Supreme Federal Court will be made up of a number of judges and experts in Sharia (Islamic Law) and law, whose number and manner of selection will be defined by a law that should be passed by two-thirds of the parliament members.

Obviously of the greatest interest is

Article (2)

(a) No law can be passed that contradicts the undisputed rules of Islam.

Michael correctly notes that Sharia law is not explicity noted except in article 90 which refers to the Judiciary being composed of "experts" in Sharia law. It would seem to behoove securalists to bone up on their Sharia law in order to rival the expertise of the clerics.

That word "Undisputed" also appears to be rather salient, leaving the door open to debate which rules of Islam are "disputed" and which are not (A double dispute, as it were).

Hopefully Chuck will prove prescient in suggesting that "Iraq just might turn out to be a nation of lawyers" but only if, as Michael noted, they can manage to keep their fragile hold on democracy.

(I did channel my inner constitutional lawyer to slog through the thing but it's broader implications are still over my head..:-))

Posted by: Caroline at August 26, 2005 05:19 PM

According to all Muslim scholars, Sharia law, in its most benevolent form, is an apartheid system.

In its most extreme form, it's totalitarian and genocidal.

Islamists in Iraq are advertising democracy, but they only have Sharia in stock. It's classic bait and switch, a con they've been practicing for years.

From the The Cairo Declaration on Human Rights in Islam, 1990

Article 2

(a) Life is a God-given gift and the right to life is guaranteed to every human being. It is the duty of individuals, societies and states to protect this right from any violation, and it is prohibited to take away life except for a Shari’ah-prescribed reason

© The preservation of human life throughout the term of time willed by God is a duty prescribed by Shari’ah.

(d) Safety from bodily harm is a guaranteed right. It is the duty of the state to safeguard it, and it is prohibited to breach it without a Shari’ah-prescribed reason..

Article 10
Islam is the religion of unspoiled nature. It is prohibited to exercise any form of compulsion on man or to exploit his poverty or ignorance in order to convert him to another religion or to atheism.

....

Basically, they're saying that they respect human rights, except when those human rights come into conflict with Sharia. As an apartheid system, Sharia automatically negates all human rights.

If we fall for this classic con, we only have ourselves to blame.

Posted by: mary at August 26, 2005 06:05 PM

Mary - believe me, you don't have to sell me on the downside of Sharia law. (and BTW, I did notice in your link to the secular humanism site that they make no distinction between Islam and fundamentalist Islam.)

Pertinent to your point re the Cairo Declaration is Article (44) of the Iraqi constitution:

"All individuals have the right to enjoy the rights stated in international human rights agreements and treaties endorsed by Iraq that don't run contrary to the principles and rules of this constitution."

Obviously they could be referring to the Cairo Declaration there but then I wonder what they could mean by Article (14):

"Iraqis are equal before the law without discrimination because of sex, ethnicity, nationality, origin, color, religion, sect, belief, opinion or social or economic status."

Obviously it's all meaningless if "before the law" practically means Sharia or even the Cairo Declaration.

I was trying not to jump to conclusions yet. But speaking of classic cons - whatever happened to that great "moderate" Sistani, who thinks that infidels are naji (that presumably being the explanation for why he refused to ever meet personally with any members of the Transitional Authority). I wonder if he wasn't the con-man (taqiyyah-master) par excellence, selling the gullible westerners on his moderation while playing us like a fiddle? What's the dude been up to lately, anyway? Has he made any public statements recently?

Posted by: Caroline at August 26, 2005 07:01 PM

i don't know if the Iraqi constitution is referring to the Cairo Declaration, but they're both using the same bait and switch tactic. Cairo was pretending to be about human rights, the Iraqi constitution pretends to be about democracy, but both are trumped by Sharia.

I've always thought that Sistani was full of it. He's an Islamist, and all Islamists are in favor of apartheid. The "peaceful" ones use ballots and the violent ones use bullets; any arguments between the violent Islamists and the non-violent ones are only concerned with the methods used & the group that gains power - all Islamists share the same totalitarian goals.

Posted by: mary at August 26, 2005 08:12 PM

In the Quran there are hadiths and sunnah which are contradictory, the later ones replace and take precedence over the earlier ones. So Democracy is placed AFTER Islamic Standards?

Posted by: Dan Kauffman at August 26, 2005 08:29 PM

In the Quran there are hadiths and sunnah which are contradictory, the later ones replace and take precedence over the earlier ones. So Democracy is placed AFTER Islamic Standards?

I'm not sure what you mean. Sunnah is based on the teachings of Mohammed - how can there be later sunnah?

In any case, if the Iraqi constitution declares that Iraq is an Islamic state, and if Sharia criminal codes (hud) are used, then Iraq would probably become a "democratic" state like Pakistan.

In Pakistan, women can vote, and they have had two female prime ministers. But under sharia, being raped in Pakistan can be a capital crime. Under Islamic law, being raped is considered to be adultery.

It doesn't matter if an Islamic state calls itself a democracy, socialist, or a republic. All states that are ruled by Sharia law are apartheid states.

Posted by: mary at August 27, 2005 06:37 AM

Caroline and Mary,

I've been waiting to see the reaction of women who have supported the Iraq war to the Gerechtian dismissal of women's rights in the new Iraq.

Sistani may be "full of it" but he's the guy with the cards. If you want to know what he is "up to", read his website, www.sistani.org, which is most helpfully rendered in five languages, including English.

A con? Well yes, and who would be the con-artist-in-chief?

Snarking aside, there are two aspects to this "constitution", which by the way hasn't been ratified, and most likely will not be. The federalism issue, and the personal status issues. The treatment of personal status issues are a total horror. Sure, there is anodyne language paying token obeisance to the rhetoric of equality. All of this is utterly negated by the codified deference to Islam, which is, by definition, discrimatory against women (no matter what Islamic apologists say).

As disgusting as all that is (American soldiers dying for Sharia?), the personal status issues aren't the most important aspect to Iraqis. The true bone of contention is agreeing on the nature of the state.

Can't be done. The Kurds, the Sunni and the Shia have diametrically opposing conceptions of the nature of the state. The Kurds and the Shia are now in rough agreement so they are cooperating, sort of. The problem is, they agree on a blueprint for splitting up Iraq. The Sunni will never agree to that.

Stuck in the middle are 140,000 US troops.

That, as I see it, is the real picture.

For the life of me, I do not know how the US benefits from all this, except perhaps, the acquisition of permanent US bases somewhere or other, protecting the oil.

Michael,

I know that this was not the war you supported. But it was the war that was. George Bush is President, and he calls the shots.

Posted by: Diana at August 27, 2005 08:26 AM

I see that Fred Kaplan at Slate addresses the importance of articles 90 and 91:

"Particularly pertinent are Articles 90 and 91, which deal with the Supreme Federal Court.

The Supreme Federal Court will consist of "a number of judges and experts in Sharia (Islamic law) and law." It will interpret the text of the constitution; it will "rule in disputes between the central government and regional or provincial administrations"; and it will rule on the constitutionality of all federal laws before they are issued. Moreover, the court's rulings "are binding for all authorities." In short, this seems like a recipe for rule by clerics.

Articles 90 and 91 are disturbing many secular Shiites and Kurds, as well as women's-rights activists, one of whom announced this week that she would have no choice but to emigrate if this constitution took hold. Most of the Kurdish delegates seem to have accepted them in exchange for the provisions on regional autonomy; perhaps they reasoned that, when the time comes, they can elude the enforcement of sharia in the areas they control.

From a Sunni point of view, this pre-eminence of Islamic law may not be so bad—depending on what kind of Islamic law it is. The articles are vague on how the Federal Supreme Court's judges are chosen. Perhaps a formula can be devised for an equal share of Shiite and Sunni judges, along with some number of secular judges. (Article 90 does contain the basis for some secular presence; it says judges are to consist of "experts in Sharia and law," the latter of which presumably means civil law; there is speculation that the Shiites and Kurds have already cut a deal on this issue.)

Posted by: Caroline at August 27, 2005 08:34 AM

Diana - I have stated my views on all this numerous times at this site and have taken some heat for them. Re the war and its outcome I would sum up my views this way:

Setting aside the issue of the justifications for overthrowing Saddam (which we could have done, then searched for WMD, and then taken a quick exit out) we set about "nation building" under the liberal assumption that people (read "the Muslim world") are pretty much the same everywhere and desire freedom, understood in the liberal way that we understand it. The assumption was that this similarity of Muslims to us was obscured by the status quo of our support for dictators in the ME. Obviously it was a gamble. We've lost about 2,000 of our soldiers testing this noble hypothesis in Iraq - (we could call it the 'Sharansky hypothesis'). If it is proven false, then obviously we will likely have to proceed to Plan B and I rather doubt that most people are going to like the implications of Plan B, which are most consistently articulated by Laurence Auster at his site amnation/vfr.com. This article of his is a must read (follow the links to Part II as well):

The Search for Moderate Islam

Posted by: Caroline at August 27, 2005 09:16 AM

Sorry - I gave the wrong link for Auster's site. It is amnation.com/vfr

Another article by Auster about the immigration problem:

How to defeat jihad in America

I think it is a reasonable question to ask whether Auster's position could possibly gather adherents if we HADN'T gone into Iraq, or whether it isn't the case that all the events that have unfolded in the past several years precisely as a result of Iraq haven't in fact contributed in a major way to uncovering the conclusions he draws about what we're confronting and what we're going to have to do to prevail (9/11 alone simply wasn't enough to drive the message home). So while Michael may not see a silver lining if Iraq becomes a Sharia state, I do - because maintaining the status quo in the ME would have left us largely blind re the biggest problem we face, which is the approximately 20 million Muslims now living in the west.

Posted by: Caroline at August 27, 2005 11:32 AM

Michael Totten hopes for a bright side to what is going on now in Iraq by suggesting that the theocrats over there are swapping bullets for ballots. But what if they have ballots and bullets, so that they can both outvote their enemies and shoot them? After all, what kind of government can you expect from political parties like "The Supreme Council for the Islamic Revolution in Iraq"?

Posted by: Greg Kuperberg at August 27, 2005 07:25 PM

Greg,

Stop being so logical and evidence-oriented. This war is a faith-based program from a faith-based administration.

Posted by: Diana at August 28, 2005 12:08 PM
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