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CFR/NYT Press Briefing with Noah Feldman and Gerald Marzorati

Speaker: Noah Feldman, Law Professor, Harvard University
Moderator: Gerald Marzorati, Editor, New York Times Magazine
March 19, 2008
Council on Foreign Relations

MODERATOR:  Hi.  Welcome to the Council on Foreign Relations.  Thank you all for coming.  I also want to, in particular, thank The New York Times, the Times Magazine in particular, for co-hosting this event.

I'm going to turn this over to Gerry Marzorati, the editor of The New York Times Magazine and the assistant managing editor of The New York Times more generally.  And he will talk to Noah, talk a little bit about the book.  Noah, as you know, is an adjunct senior fellow here at the Council.  He's written this new book, which is quite fabulous, "The Fall and Rise of the Islamic State," as well as an article that will be in this weekend's Sunday Magazine in the Times.

This is meant to be a conversation.  This is not meant to be just a push of information.  So we very much encourage all of you to -- (inaudible) -- the questions you have and -- (inaudible) -- we'd love to hear about it.

So Gerry, over to you.

GERALD MARZORATI:  Thanks.  I'm going to just start asking some questions, right, and then we'll -- (inaudible).

An overriding argument of your book and of the essay in the magazine this past week is that we in the West have a rather skewed and even cartoonish understanding of Shari'a -- the severe punishments, the regulation of sexual morality, the -- (inaudible) -- description of the lives of women.  I'm actually reminded -- I don't know that anybody here is old enough to remember John Belushi as the Shari'a judge in the traffic court in Iran.  (Scattered laughter.)  No?  Okay.

How did it -- why do you think it is that we have such a view?  Is it that we conflate Islamic extremism with Shari'a?  Is it that we just have a hard time getting our heads around a law that has divine revelation at its base?

NOAH FELDMAN:  That's a fantastic question.  I'm going to answer it in one second.  I first want to thank you for coming and doing this.  And I also want to thank Alex and Jamie and Scott, who are all superlative editors.  I'm really grateful for all you guys.

I think that there's two parts to the perception of Shari'a that we've got, and one is a historical part and one is one that's much more connected to the way things are operating in the world right now.

I think the historical part is that when the West has looked at Islam historically, we pretty much always have seen it as and defined it as a thing that's not us, as clearly not us as it could possibly be.  And that goes, you know, all the way back to people who wanted to write about early democracy saying that despotism is what you find in a Muslim world.

And I think that idea sort of sticks with us.  And for us in the West, probably the story of the last 200 years of law was getting rid of things that we think we see in the Muslim world; you know, getting rid of the oppression of women.  The Anglo-American common law denied women any property rights in marriage until 100 years ago, roughly.  So we want to say, "Well, we're not like that," because we've changed away from that.

The European legal system sanctioned torture as part of organized legal system.  I don't mean that torture was something that happened in back rooms.  I mean, they prescribed ways to torture, how you would torture people.  And you could weigh the value of testimony achieved under torture until around the time of the American Revolution.  So we want to say, "Well, extreme punishment, that's what we don't do."

So I think that's just part of it, just a habit of thought that says, "They're different than us."  And that then leads us to emphasize those things that seem most different.

The second part, which is the part that would have to do more with what's going on today, and really I would say since the Iranian revolution of 1979, is that as Islamic fundamentalists have actually grabbed power in various places, they were always looking for ways essentially to market themselves as radically different from the West.  And so they developed the story that they were the authentic tradition of Islam.  We like that story, because then we can say that Islam is different from us.  And there's this kind of agreement of the extremes, about the extreme things that Islam can do.

And in that context, they, the fundamentalists, have put a lot of emphasis on some of the most extreme elements of the Shari'a.  So take, for example, the veiling of women or the wearing of the head scarf, which historically was definitely a practice that was common in different parts of the Muslim world, though very different in different places.

For the first time in history, the Iranians said, "This is going to be a law, and the state's going to enforce this, and we're going to make people wear the head scarf and we're going to have special cops who go around and do this."  They were making it salient.

Now, they were doing that in part because in their country and in Turkey and other places, the government at one point had prohibited the head scarf.  They said, "We're going to be modern, so we're going to have laws saying no one can wear a head scarf."  So they said, "Oh, if you can use a law to make no head scarves, you can use the law to require the head scarves."  So then that becomes a powerful symbol for them.  So in a way, it's their marketing choice that is then read a certain way.

I'll just give you one last example of that.  When people adopt Shari'a without knowing what it really means -- and this happens a lot.  There's the Taliban, who were very uneducated.  There are parts of northern Nigeria where certain states of the Nigerian confederacy have adopted Shari'a where they really don't know anything about how it's done.

There, too, there's this emphasis on a couple of high-profile things, like in the case of Nigeria, trying to convict a woman of adultery.  And as it turns out, she's acquitted in the end because, by the time it got to a court that actually understood the Shari'a, they realized there was no evidence that they would accept to get away with this.

MARZORATI:  There was a lot of international pressure.

FELDMAN:  And there was also a huge amount of international pressure.  But the thing is, they chose that, and so we're partly not to blame, to that extent, for seeing Shari'a as characterized by these things.

MARZORATI:  In the book, which I recommend highly, you draw a distinction between the traditional Islamic state and the new state that you either -- the new types of state you either see coming into being or already in being.  You say the new states show or will show an affinity for democracy, which raises a few questions for me.

First, what will it mean to be a citizen?  Will it be citizenship as we understand it?  Second thing, how will democracy express itself beyond elections?  How do you imagine civic institutions or civil society developing in these states?  And then, finally, can a public, even through its elected representatives, be in a position to actually interpret and evolve what we think of as divine law?

FELDMAN:  On the citizenship question, that's been hotly debated among the Islamists.  And there's a handful of books that have gotten a lot of play, written mostly by Egyptians, for some reason, saying things like, "Well, we want the non-Muslim citizens of the Islamic state to actually be citizens, not just to be protected persons or -- (inaudible)" -- as was the case in classical Islamic thought.

But those are books.  And how much buy-in they have at the popular level is kind of hard to gauge.  Legally, because of international pressure, an Islamic state of the modern kind will have a provision on the books saying that everyone, Muslim and non-Muslim, man and woman, is an equal citizen.  That will be on the books everywhere.

What it will mean in practice, though, is probably that if you're not a Muslim, you're not going to feel like a fully equal citizen.  You could be sort of like, I don't know, an African-American in the United States.  It's on the books that you're a full citizen, but your history isn't that of full citizenship, and it's a little hard to feel fully a citizen sometimes.  That's a topic that's on everybody's mind because of Obama's speech yesterday, but, you know, he was calling that precisely into question as part of what he was saying.  And that's sort of how I picture it.

The other thing is, it will be hard to convert away from Islam to another religion.  There's a case going on about this in Malaysia right now.  It was actually recently decided.  A woman said she wanted to convert to Christianity.  She was a Muslim.  And Malaysia has one of these systems where personal-status law is decided by the Islamic law courts.  And the supreme court, essentially, the highest court in Malaysia to hear a case, said, "Well you have to get a certificate of apostasy from an Islamic court, and then you can become a Christian."

I mean, in several of those states, apostasy is a crime.  So you basically have to walk in and announce, "Hi, I'm a criminal.  Can I have a piece of paper?"  I mean, some people believe enough in their religion that they would do that, but that's hardly what we would think of as full and equal citizenship.


FELDMAN:  On the beyond-elections front -- oddly, elections are the thing that the Islamists in some ways are least focused on mostly because in a lot of countries, and especially in the Arabic-speaking world, they don't get to run that often in them.  So they do focus a lot on civil society, and they do focus a lot on these political parties, really, which have many different components as aspects of civil society.  And the Muslim Brotherhood, which is almost a hundred years old now, is the most lively civil society institution in most Arabic-speaking countries, full stop.  I mean, I'm not saying that's a good thing.

MARZORATI:  Right, right.

FELDMAN:  I would prefer if there were a lot of others -- and there are secular civil society institutions that are usually clamped down on.  But the Brotherhood is transnational; they have a lot of members; they're thought of as sort of social and religious and political all in one.  And people do go to meetings and hang out with their peers and they deliver social services in some famous cases.  So they are focused on the development of civil society, but it's an Islamically-oriented civil society.

Now, on the last point, the -- which was in some ways the hardest -- how does the public collectively interpret divine law?  I mean, I think the short answer is it does it by pretending it's not interpreting it.  You know, the public interprets divine law by the legislature passing laws that the legislators assert are consistent with the spirit of Islamic law.

You know, the best analogy I can think of is, you know, if you really take seriously the teachings of, say, the moral majority circa 1980 or some of the language from the Christian Coalition, which is a little more explicit about this, the view is, it's not that we're trying to make this into a Christian nation legally, but we want all of our political decisions to be informed by values drawn from the Judeo-Christian tradition.  So substitute "Islamic tradition" for that, and now you're pretty close to what they're picturing.

Now, when you figure out what counts as the Islamic tradition at that point, it's kind of up for grabs.  People will argue about it, people will talk about it, and some view will emerge based on probably who's got the most juice within the political parties that are running the election.  So it's a pretty vague process.

MARZORATI:  But changeability itself will be perceived as okay?

FELDMAN:  No.  I think everyone will talk as though it's unchanging.


FELDMAN:  I think it's a little bit like our Constitution.  You know, when we -- the Supreme Court announces a right in the Constitution, it never says, "We find this brand new right."  When they come to close to saying that, as in Roe v. Wade, you get, you know, 30 years of backlash of people saying, "How could you find this new right?"  The most effective decisions are the ones where they say, "Oh, this right has always been there."  Right?  So, you know, that's just a good way of doing the game.

MARZORATI:  Okay.  In the Muslim world and in particular in the Arab world, modern states have been pretty good at preserving political order and rather awful at delivering political justice.  And you cite this, actually, in the book.  But what I didn't get I guess from the book is how you imagine that deliverance of political justice will be more vibrant under Shari'a than it is today.

FELDMAN:  Yeah.  It's a very fair question.  I mean, because partly it raises this issue of, can you have both?  Right?  I mean, and this comes out very much of my own experiences sort of watching Iraq and being a little bit involved there.  You know, the Saddam regime did only one thing well:  It held the Iraqis together.  You know?  I mean, it was premised on the idea that no one was going to get a fair shake.  They were all equally going to be screwed, essentially.  And through that vector, everyone knew they couldn't mess with the system.

The -- in a system where the rule of law -- or the rule of Shari'a, let's say, to be less contentious -- is actually operating, where the law comes first, some of the laws may disadvantage some people.  I mean, they will, probably.  That's the way laws tend to work.  But the fact that there's a legal system that you have to follow and that can be defined as a divine system, which is a plus in telling people why they have to follow it, should mean at least in theory that no individual person should be able to emerge as controlling everything in the society.

So when something is actually written down as a right or when something is discussed as a right by a court or by a legislature, no one should be able to stand up the way Saddam could stand up and say, "Look, I don't care whether it's in the constitution:  This is the law."  And that's supposed to be the way of delivering -- the mechanism for the delivery of political justice.

And the idea here is that the rule of law basically just (stands for ?) the proposition that if it's on the books, it actually will be applied, and -- number one.  And number two, under circumstances where you can predict how the rule of law will be applied, you're more likely to make investments, to develop the economy, to take those kind of risks.  And here, that's a very standard kind of World Bank-ish, neo-liberal-ish thing to say, and that's okay with me.  I mean, I'm okay with saying that.  I think historically places with the rule of law have done a lot better with respect to economic development and social stability.

MARZORATI:  Okay.  Staying with the Arab world in particular for a moment, it is a region where we see states built on oil economies.  Oil economies have been terrible at doing some of the things that we associate with building broader democratic societies -- you know, creating a vibrant middle class, doing away with corruption.  How do you see Shari'a speaking to the economic realities of these states?

FELDMAN:  Not very well, I have to say, because I don't know of any legal system, frankly, that can speak very well to arrangements where one political group -- a family, let's say, in Saudi Arabia, for example -- is just in ownership of an enormous amount of resources -- an unimaginably great set of resources.  Because if you have that much access to resources, you can pretty much buy off most of your critics and you can use the extra money to build an intelligence service that puts down the people you really can't buy off.

And so you see this in Saudi Arabia, for example, where nominally the Shari'a is the constitution, and yet it doesn't work the way it traditionally worked.  The scholars can sort of stand in the way of progress, all right.  They can discuss and try to block women from driving, for example, but they are that -- they have that much weight in society, but when it comes to telling the rulers to follow the rule of law, nobody listens to them.  And the reason for that is they're not backed by the public.  In the classical system, the government needed the public because the government needed the taxes that the public paid and they needed somebody -- namely the scholars -- to say, you know, that the system was just.

So the first thing I just want to say is just honestly to own up to it, that the oil is so distorting that it's not like Shari'a can magic -- like magic bullet, fix it.  I don't think it can.  Any aspiration of the Islamists -- and this is one of the reasons people vote for the Islamists -- they look at these deeply corrupt systems and they say, "We want there to be accountability."  Right?  "We want the rulers to have to use the funds that come from the oil wealth not in their personal pockets but in the, you know, official -- you know, in the official treasury.  And historically, that's what existed in these countries.  There was an official treasury.  There wasn't the personal prerogative of the leaders --

MARZORATI:  -- of a family, yeah.

FELDMAN:  -- to just dip in and take it away.  And on the books it's still that way in Saudi, for example, but it doesn't really work that way.

Stupid, unsatisfying answer.  That is an unsatisfying answer.  (Laughter.)

MARZORATI:  How do you see even a relatively successful democratic Shari'a based state speaking globally, interacting on everything from contract law based, you know, on international business to international human rights pressures to all the things that we sort of assume are now the reigning order?

FELDMAN:  I think when it comes to treaties, to treaty regimes to WTO, for example, I think they're likely to be pretty good players in the international system because they recognize the legal system, and as long as it's designed in such a way that they think up front that it's compatible with their legal norms, they have stronger reason to adhere to the rules than does an autocratic regime, which does it selectively based on whether it's in its interests to do it.

I think when it comes to human rights pressures, it's a little different.  I think there the -- and you see this already in the Muslim world -- the governments will want to design their commitment to international treaty regimes in such a way that they don't think that international law will trump their religious approach.  Right?

Now, there's honestly only one other part of the world where we worry about that a lot, and it's the United States.  Right?  So we don't sign treaties like the Convention on the Elimination of Discrimination against Women because we think it would mess with our Constitution, because that treaty says, for example, that the signers of the treaty agree that they will use all forms of pressure available to limit discriminatory and stereotypical attitudes towards women.  So people say here, "Well, what about the First Amendment?  You know, the government shouldn't be trying to eliminate those kinds of attitudes."  Right?  So we don't sign it.

You'll see, and you already have seen in the Muslim world, lots of similar kinds of reservations to treaties like that.  But again, once there is buy-in to a treaty, the likelihood of compliance, probably in a system in which law plays a greater role, is probably somewhat higher.

MARZORATI:  One of the things that struck me, on finishing the book, was you made very little mention of the Arab Emirates, which I think, to an average lay person in America, is kind of what they imagine a modern Muslim society, anyway; in other words, a place where there's a relatively freer flow of information.  They're more inflected by modernity and the West.  It seems to be a place I feel more comfortable in when I travel on a business trip, et cetera, et cetera.

FELDMAN:  Right.

MARZORATI:  How do you -- and, okay, they're tiny and kind of non-consequential in a kind of scholarly and historic way.  So --

FELDMAN:  Why didn't I talk about that?


FELDMAN:  I think it's because I think they're very weird.  I mean, you know, it's not that I don't -- I mean, everyone sort of who -- besides the average American, who, you know, stays in the Burj Al Arab, but, you know, these are countries where the actual population of the country will be a few hundred thousand.  And then the other, you know, half a million or million people are male Bangladeshi laborers and female Filipina domestic workers.  And then there are these, like weird sub-worlds where they marry each other, and so you have these children who mostly speak English, don't even know how to speak Arabic, who are Bangladeshi.

You know, these are strange places.  They're global.  They're cosmopolitan in certain sectors of the business community.  And they -- you know, what they show is that you can have a nominally Shari'a regime and play in the international business community with no problems at all.  They've gotten no trouble.  They're seeking investment of all kinds.  They're able -- you know, they're not worried about lending at interest.  You know, they'll find a sophisticated Islamic legal way around that problem, as indeed they have.

MARZORATI:  Yeah, they have.

FELDMAN:  But I don't think they show you what a society that would actually, in some broader sense, be governed by Shari'a would look like, because, first of all, most of the people in those countries aren't really under the Shari'a, and the citizens are kind of coddled by the state to a certain extent.  They just get such huge resources from the state that these places just don't function like most other places.  So I think that's probably the reason I didn't focus on them.  But I think they're fascinating.  I mean, they're worthy of their own attention, no question about it.

MARZORATI:  Iraq.  Will it be a modern Shari'a-based state?  And what will it look like?  And how will the Shi'a and Sunni coexist within it, under what kind of constitution?

FELDMAN:  That's so obviously a big, hard question.  I'll just take one crack at what I think is a viable picture for what a non-disastrous outcome looks like in Iraq.  My view is what we've got right now going on -- I'll be interested to hear what all of you think about this -- I think what we have now, as a result of the surge, is a pause.  It's a pause when various groups within Iraq, Shi'a and Sunni, are consolidating their power.  They're taking what we can give them.

That's the biggest change in the last nine months, that Sunnis -- we're offering stuff to the Sunnis and they're taking it.  And everyone is gearing up for the next stage, which they themselves are unsure what it will consist of.  They are unsure whether it will be some kind of a cobbled-together negotiated solution, which is an option that I'm going to talk about, or whether it's going to be an all-out civil war.

And either way, they're better off, they think, at this moment -- and I think the surge has something to do with this -- they're better off at this moment consolidating, not fighting with each other quite as much.  And obviously, at the margins, there are still al Qaeda and Mesopotamia and other types who would like to see a civil war come, and come faster, who are doing the bombings and doing everything they can to try to disrupt the pause, because the pause is the only possibility for a negotiated settlement.

So I'm going to talk now just about what the world would look like in that negotiated settlement.  We all know what it will look like in a civil war.  It'll be horrifying and brutal and last a long time.

In that negotiated settlement, you're going to have localism.  And I don't mean localism purely in the sense that federalism was imagined as a good solution for Iraq two or three years ago.  What I mean is that, in fact, in the places where some sort of peace and quiet has been cobbled together, especially in Sunni areas, but this is in Shi'a areas too, it's been cobbled together based on recognizing that local or semi-local people, like tribal sheikhs, like local strongmen, are able to deliver the peace, and so therefore should be acknowledged de facto as in charge.

Sometimes the tribal sheikh will send off one of his, quote-unquote, "technocrats," meaning not his son but the son of someone he sort of respects, to go be the nominal representative in the local council.  But we know where the real power is going to be.  And on the Shi'a side, it could be a local militia leader.

Now, collecting what's basically a huge checkerboard of different random local players being in charge into a functioning larger government is an incredibly difficult and challenging undertaking.  And if it's going to be successful, which I'm modestly skeptical about, it'll have to be under the rubric of some things that everyone can buy into.

The Iraqi identity might be that.  But at least in the Shi'a areas, I'm a little skeptical that it can do the check.  It certainly can't in the Kurdish areas.  But in the Shi'a areas, I'm skeptical it can do the trick.  People just are so alienated at this point from this idea of Iraqiness.

Now, maybe Muqtada al-Sadr can say, "We have to have a new Iraqiness" and pull it off.  I don't want to say that's impossible, but he's not someone who's very sophisticated.  I mean, he's got -- he's good at staying alive and he's gained a lot of power, but I wouldn't say he's done it from a place of sophistication.

So that means that people are going to be looking for what language can unify Iraqis, and they're going to hit on Islam right away.  And they're not going to say specific rules of Islam, because the Shi'a and the Sunni are going to disagree in at least some cases.  And the Iraqi constitution reflects that.  It basically says in family law you can choose if you want Sunni or Shi'a family law, or neither, actually.

But what you will see, I think, is a kind of getting together of leaders who profess that Islam is important to them.  And the tribal sheikhs, by the way, are not very religious.  It's not like they care about it.  But they're willing to use any symbol that will unify.

Now, historically, Islam has actually been pretty good at this.  I mean, one of the things that even the prophet Muhammad made -- what made him so successful is that he faced countries of totally disparate tribal groupings and he said to them, "Hey, we can be organized around this principle of Islam."  So I think Islam is not the worst possible tool for at least talking that talk.

And then the constitutional structure will be one where, as I've been describing, where the legislature will sort of vote on things in the spirit of Islam.  The supreme court would, in theory, have the power to strike laws down as not Islamic enough, but it's unlikely that any such laws would be passed.  And then people would pretty much go about their business, you know, except on matters of personal-status law.

This is going to be a messy situation that I'm describing.  It's not going to be a smoothly running government.  It's going to have great economic cost to run things this way.  But in the medium term, it's the best we can hope for.

MARZORATI:  Let me just ask one more question and then we'll open it up.

Maybe the most striking thing to me, having finished your book, as a secular humanist liberal reader, is that you ultimately see, in this yearning for Shari'a, no revanchist urge at all, or that I could read, that it's not, in essence, a recoil from a failed encounter with the modernist West.  It's not an urge to build a cultural defensiveness.  It's not about anxiety.  It's not about resentment.  It's not about humiliation.  You see nothing of that in this?

FELDMAN:  I think probably part of what's going on here is that I'm reacting against those stories and being just a little bit polemical.  You know, maybe my experiences writing for the magazine have made me a little more seeking after a fight than I would have been before.

I mean, I think, in the first book that I wrote about Islamic democracy, where I was too sanguine about the prospects for it all kind of working out, I did talk about more of those features.  And they're there.  I mean, there's a nostalgia for a world that worked.  There's a sense that the West has brought nothing but disaster.

There's a sense that liberalization of the rights of women has actually not improved the situation of women in society.  And, by the way, I think this is quite significant, because one of the reasons that so many women support Shari'a in a general way in these Islamic political parties is they think that they haven't been liberated by the nominal liberation of Western (thought ?).

I mean, this is -- when I first gave a draft of the first paper that became the book at Harvard Law School, where I'm teaching now, Catharine McKinnon was visiting at the law school at the time.  You know, and she is sort of, you know, this -- as you all know, she's this leading figure of feminism.  And she was just outraged.  And, you know, she raised her hand.  She said, "You've got this totally wrong.  People like Shari'a because it's about putting down women and reversing the advances of feminism."  And I said to her, "Well, look, there's a lot of women who are supporting these things, and I think that's a piece of data that has to be considered relevant."  And she said, "Well, no, it doesn't, because people can be self-deluded; women can be self-deluded."

MARZORATI:  (Inaudible.)

FELDMAN:  Yeah.  And the other -- and so then I went back and I said, "The other thing you have to ask yourself is, where exactly in the Arabic-speaking world is the role of women so great?  Where is it in the, quote-unquote, "secular" Arab world where women have actually risen to positions of influence or prominence in society?  It just hasn't happened."

And I think there maybe I had a little bit -- I mean, she didn't agree with me still, but maybe a little bit more buy-in.  So look at the position of women on this subject, for example.  I don't think that they are feeling that the West is evil.  They're just thinking that the promises that it offered were empty.  They're just thinking, like, "Okay, I can wear a mini-skirt.  Now what?  It doesn't get me a job.  It doesn't get me a role of respect in society, in a society that's still pervasively sexist.  You know, I'm going to be subjected to enormous abuse for wearing a mini-skirt and I'll be treated like a sexual object."

You know, it might not be true in the West, but the question --

MARZORATI:  (Inaudible) -- driving or something.

FELDMAN:  Well, I mean, in Saudi Arabia, I don't think there's any doubt about that.  But that's only Saudi.  I mean, you know, that's not -- so what I'm describing is -- and I think the Islamist women that they talk to, they're some of the strongest advocates of being able to drive in Saudi.  They think it's absurd.  It's not from the Shari'a.  They will be the first ones to tell you that it's not justified.

So I think partly what I'm trying to do here is just draw attention away a little bit from some of those impulses which are definitely there, and also which are there for the bin Ladens of the world.  Right?  So the bin Ladens of the world, that is the story.  There's no question that that's the story.  But the bin Ladens of the world are not the ones who are getting 60 (percent), 70 percent of the population right now to support them.

And that might have been true back when, you know, people were in that initial thrust of anger at the United States, but now actually I would argue that support for violent jihadism is actually beginning to decline -- and that's not because people don't like us anymore.  I think they still would be happy to see violent jihadism attacking us.  What actually has happened to violent jihadism is that it's now primarily killing other Muslims.  That's the new trend of the last 18 months or two years, that the number of people who are -- the largest number of people who are being killed by suicide bombers are other Sunni Muslims.  It's Sunni Muslims killing Sunni Muslims.  There's a story about how this happened -- but as that happens, I think that side of the violent jihadism is less popular.

But this Shari'a thing has not gotten at all less popular.  It's just continuing to rise, and these Islamist political parties are doing better than ever.  There's some room for debate in Pakistan, where I think the Islamist party suffered by the -- because of the assassination of Benazir Bhutto.  It led I think in part to the pulling back from them, but that's a separate thing to discuss.  So I think part of it is that I'm being a little polemical, and part of it is I'm trying to hit on something, especially from women's perspectives, more about "let's try something different" than "we hate the people who gave us the thing that doesn't work."

QUESTIONER:  (Off mike.)

QUESTIONER:  Hi, Noah.  I'm Trudy Rubin.  I just want to challenge a premise here that -- we're talking about Shari'a bringing rule of law to the region, and the alternative is dictatorship or total lack of justice in any sphere, and I want to link that up to the Archbishop of Canterbury here in family status.  So specifically on Iraq under Saddam, there was a family status law that combined the most liberal principles from the different schools of Islamic law.  So women had a fair range of possibilities for divorce, for child custody, that would not have been there if they were under strict Shari'a law, especially in the Sunni schools of law.

Now that has been pushed back, and educated women are extremely bitter about this.  The situation now is that women can choose between religious courts -- if you're Sunni, you can go to Sunni court for family status; if you're Shi'a, go to a Shi'a.  If you're intermarried, you know, tough luck.  And for many women, that means simply going where their father makes them go.

Now, as for women being excited about this, yes, I've talked to women who are happy with this situation, and they're mostly religious women who are affiliated with Shi'ite religious parties.  And this is a political thing that is going on in Iraq more than a religious thing.  And so what's happening is that women's rights are being rolled back under the guise of choice, and even educated women understand you have to have an element of religiosity here because a lot of the seculars have left Iraq.  The secular culture that predominated under Saddam has been broken.  The (lump ?) in Shi'a have come up and want their own power.  However, educated women say, "Under family status law before we had rights; those rights are being taken away," and most women do not choose -- they are pushed to do what their male relatives say they should do.

Shari'a is not bringing liberation to women in Iraq.  It is rolling back rights which some women may never have had but other women did have.  Iraq is a society where lots of women worked, where half the students in university were female, where there are enormous numbers of women engineers who are being pushed out of government jobs by Islamic parties that now control ministries.

And I don't -- I'll just go on with one more sentence.  My question is, why would you make a blanket statement that Shari'a would bring more rights, especially in Iraq?  And if you carried that to family status and what the Archbishop of Canterbury said, why in a country where women do have the right to divorce would you want to subject women to the possibility that their immigrant fathers would force them to adjudicate divorce -- or their husbands to adjudicate divorce in a religious court, and therefore they wouldn't have options?  There was just a case in Germany where a judge tried to refuse a divorce asked for a Moroccan Jewish -- sorry, a Moroccan German woman because she said that Moroccan tradition meant that you should handle this in a religious fashion, and after all, in that tradition, the Koran allowed you to beat your wife.  Well, you can interpret whichever way you want and which provision you want, but why would you set up a situation where women might be forced into Shari'a court when you are in a country that has rule of law?

FELDMAN:  The first thing I want to say -- I agree with a lot of the description of what you said, but I wouldn't want to -- the question is, why would I want to have that situation?  I wouldn't want to set that situation, and nowhere in the article or in the book am I saying that I, Noah Feldman, am advocating for Shari'a.  That would be a strange thing for me to do.

What I'm doing is I'm talking about a social movement -- the most powerful and effective social movement anywhere in the Arabic-speaking world and arguably in the whole of the Muslim world now.  I'm trying to explain where it's coming from in as fair-minded a way as I can so that we can then ask the question of what secular people in the Arab or Muslim world or people in the West should or can do about it.

One thing that we can't do about it -- and I can't make this clear enough -- if I've learned only one thing in Iraq, it was this -- that we can't tell anybody how they're going to run their lives.  It might have been nice if we could have done, but it doesn't work that way.

So the first thing I would say is --

QUESTIONER:  But we set up a system that brought in religious parties.  I don't mean to interrupt, but we had a role here.

FELDMAN:  I'm sorry.  I'm not denying that we had an enormous role in Iraq -- some of it for the good and much of it not.  But what I am saying is that if you think that democratic government -- i.e., government through the lens of elections -- has a role, and if you think that elected representatives do things like write constitutions, and if you further think that we can't limit every single constitutional provision to exactly the way we'd like it to be -- let me tell you from personal experience, we can't -- then you have to be open at least to figuring out why things are happening the way they are.

And so I am concerned that the way you're formulating it makes it sound as though -- and this has happened to me a lot, and it's happened to me actually regularly within the government when I was briefly in government -- you try to describe a movement, try to explain why people want the things they want, you try to contextualize, and people come back at you with, "Why are you arguing for that?"  You know?  And I keep on trying to say I'm not arguing for it.  I'm trying to give you an account of why people want to achieve it.

So let me be -- let me give you some specifics here.

QUESTIONER:  Right.  But also you have to be frank about what the consequences are for the people.

FELDMAN:  Absolutely.  You have to --

QUESTIONER:  And it's not necessarily because they want it.

FELDMAN:  You do have to be very frank about it.

And so let's talk, for example, about the personal status code in Iraq.  Right?  So the 1959 Personal Status Code that you're describing was a kind of hodge-podgey thing which was the height of stylishness in secularizing Arab states in the -- from the '20s through the '60s.  And the idea was, you find the best rules from Shari'a -- the most liberal rules from Shari'a, and you stick them together and you put them in a code.

Sounds like a great idea.  The problem was, no one really bought into it.  The educated women who are happy with it are just happy with it insofar as it had some more liberalizing provisions, and they're -- naturally they, like me, would like to live under the most liberal and fair-minded provisions that you could possibly have.  But the Shi'a community was deeply opposed to this code, and one of the very first things that the governing council of Iraq did when they didn't even have any power was issue a big public statement to the effect that they were going to repeal this personal status code.  It caused Bremer a huge headache and he had to point out to them that they didn't have the power to revoke the personal status code.  And the reason was that for the Shi'a religious leaders, this had been sticking in their craw since 1959.  I mean, it's sort of amazing.  This was for a lot of the Shi'a religious leaders the thing they were most upset about.  And they were most upset about it because they saw it as taking their authority away and handing it over to the state.

Now, there's no question that in taking their authority away and handing it over to the state, some women were benefited.  I don't think there's any doubt about that, Trudy, and I don't want to disagree with you about that.  But one of the costs of that shift is that when the time then came for people to have a say -- and by people, I mean lots and lots of people, men and women -- to have a say in what the government should look like, it turned out that there was a lot of political pressure for a change.

Now, I don't think that every single woman wants that change.  Of course that's not true.  And you're quite right that when you talk to Iraqi women who say this is a good development, they tend to be supporters of Shi'a religious parties.  It's just that in the election the supporters of Shi'a religious parties got more votes than everybody else.  Right?  I mean, that's, like, a painful fact that has to be confronted, not something to hide our heads in the sand about the way that, frankly, a lot of people in our government wanted to hide their heads from that reality.

MARZORATI:  But these can't always be majoritarian --

FELDMAN:  No, they can't.

QUESTIONER:  And it wasn't the majority.


FELDMAN:  And so let me mention the Archbishop of Canterbury in that context then.  I mean, if you read what he had to say -- and I'm not saying I support this in England -- but you know, if you read his speech fairly, what he actually said was, "strict principles of equality of the sexes must be preserved.  If there's any provision of the Shari'a that makes women less well off than men, it should be rejected."

QUESTIONER:  Duh.  (Laughter.)

FELDMAN:  Well, you say, "duh," but you just said that he was -- if I understood you correctly, you said that he was advocating the return to a system where women would be forced into a disadvantageous system by their fathers.

QUESTIONER:  But you can't have Shari'a family status law and not roll back rights for women who were subject to Shari'a family --

FELDMAN:  He didn't talk about -- he wasn't talking about family status law.  He was talking about something much more circumscribed.

So look, I'm not here to defend the Archbishop of Canterbury particularly either.  I happen to think it's not the world's best suggestion for other reasons that have more to do with the status of Muslims living in the West and whether it's a good idea for them to have a separate set of mechanisms for resolution of issues.

Just a last thought.  I don't know if people want to jump in.  May main point here is that the Shari'a has these effects.  I don't want to deny these effects exist.  But there's another story here which is the reason that people are voting for Shari'a.  And it's not primarily they're trying to deny women the right to get divorced more easily.  They may -- that may be something they're willing to live with, but then you have to ask yourself, "So then why are they voting for this?"  And that's the question I'm trying to answer.

MODERATOR:  I think Masoud had a question, then Joe.

QUESTIONER:  So -- first of all -- I mean, I'd like to say that the article that you wrote was a brilliant analysis --- (inaudible).  I'm going to talk about the Shari'a -- (inaudible) -- Pakistan,  especially in the last -- (inaudible) -- Pakistan -- (inaudible) -- we know the Islamists forces in Pakistan have always -- no there is no

(Cross talk.)

FELDMAN:  Could you just speak a little louder?  I think some of us are --

QUESTIONER:  -- that have always -- (inaudible) -- in Pakistan.  That was demonstrated again and again in the elections.  In the 1970 elections, which was -- one of the elections was -- (inaudible).  And then the election -- even in 1988 elections and the election -- and the subsequent election after that, always the secular party held all the -- (inaudible).  It was only in the -- (inaudible) -- isn't that where the selective Shari'a was being introduced in Pakistan society?  (Inaudible) -- in particular -- you know, the Shari'a code and Shari'a Council and all that.  And there was -- particularly for me as I saw it, although I was there and -- (inaudible).

Society was not really ready to accept the Shari'a that was being -- and this was the old Pakistani Council -- and were trying to institute in Pakistan.  The -- especially women in Pakistan were revolting, especially the women in Pakistan who were in black caps and working in the social sector -- the teachers or the lawyers and all that.  And there was like a -- a resistance to that.   And Dallaq (sp) and his mullahs basically tried to -- the Shari'a was basically directed towards women.  And for whatever reason, it was more sexual in orientation than anything else, which was most -- I mean, for me, it was very-- everything was how to control women's desires, after -- even if after she was (inaudible) -- from -- on behalf -- (inaudible).

FELDMAN:  I mean, I think --

QUESTIONER:  (Inaudible).

FELDMAN:  You know, I think -- I agree with you that the top-down Shari'a movement of Ziyah's period was not broadly accepted in society; it didn't have a basis in society and I think it was largely directed at controlling women.  That's, I think, very much -- appear -- that was characteristic of a certain period of time in a certain place.  There, I think though, what you're seeing is pretty different.  There you're seeing very much a bottom-up Shari'a movement, which I think is just -- is a little bit different in its politics.  It's different in its character because it is driven by the recognition of popular support.  And for that, you really needed the early '90s -- the elections in Algeria where the Islamists were amazed -- they were shocked to discover that they had voters behind them.

And I think that's changed the way they address these issues and it's changed the way Shari'a -- the economy, as it were, of Shari'a in the region.  The way it's -- the way it's --

QUESTIONER:  But -- just to give you an example, it's not necessarily all the time Shari'a.  In Pakistan, there are the tribal laws like in the case of -- (inaudible).  It was not the Shari'a which came into -- (inaudible).  It was the tribal law.  It was the tribal council which condemned her or whatever.  And then of course, the civil society rose against that.  So basically there are so many other layers and layers of society which -- you know.  So --


QUESTIONER:  -- either the Shari'a as interpreted by the -- by these tribal councils as it happens in the case of Pakistan and I'm sure it happens somewhere else, like in the case of Iraq, also like --


QUESTIONER:  -- as you were saying.  Basically it was the ruler who basically interpreted Shari'a also in the case of Pakistan and -- (inaudible) -- the same thing happened.  Even now, you know basically they're unable to repeal this -- supposedly this law -- this black law -- (inaudible) -- about the women  That is the process that is going on and I believe that in Pakistan in particular, we have clearly a liberal society which was -- (inaudible) -- now and if allowed -- we can -- progress will get better now, and particularly now.

MARZORATI:  Not to shock you, but as a liberal humanist -- (laughter) -- I forget the laundry list.  (Laughter.)

But Robin Wright came to same conclusion that Noah came to, and that is that you have the Middle East and Arab states moving in this direction not because they're repulsed by modernism, but because they've seen the failure of Arabism, nationalism, socialism.  And though it's counterintuitive to us and I'm still -- I'm trying to grapple through this myself -- it seems that Islamic law -- is it that Islamic law provides the cover -- the political party -- that gives a legitimacy that these new political parties are going to need moving forward as they move from corrupt, tyrannical Middle Eastern governments or monarchies to something that doesn't look like American democracy, but looks like democracy?

It's -- not to be too crude in the analogy, but it's kind of like running for Congress in the south and saying, "To hell with the Christian Coalition."  It doesn't get you elected.  But if you're trying to go in the Middle East, in these Arab states from a tyrannical government to freedom, and you've tried Arabism, nationalism, socialism -- it seems that this is your best cover to get the most votes and gain the legitimacy you need to have a democracy -- an Arab-style democracy.

FELDMAN:  I basically agree with that.  The only part that I would maybe change the emphasis a little is -- you know, the thing about covers when they're called political platforms -- and maybe every political platform is a cover in some way -- is that sometimes you find yourself believing in them, right?

Now that's not always true and in a well-developed political system, you have politicians who can completely divorce what they say from what they believe and we call that sophistication.  But in places where there's still ideology -- you know, people who actually believe the things that they're saying and when they see that it gets them votes, it makes them believe it all the more.  And I think what makes this a striking case, both in a good way and in a risky way, is that I think a lot of the people who are joining together to fight against corruption actually do believe in the ideology of Islamism.  That can mean a bunch of different things to them, but I think they believe -- some of them -- let's just say some of them really believe in it strongly.

MARZORATI:  But -- and help me out here, too, though -- the ideology of Islamism that they believe in -- for the most part it's somewhere between what Khomeini believed in '79 or bin Laden believed in '96, and what the Arab Emirates believe right now, right?  Help us out here.  What does that mean --


MARZORATI:  It is not the --

FELDMAN:  It's much closer --

MARZORATI:  -- nihilistic belief -- that --

FELDMAN:  Right.

MARZORATI:  -- view of Islamism that we have in the West, right?

FELDMAN:  I think that's right.  It's not -- in fact, I think it's nothing like the bin Laden or the -- or even the Khomeini view.  It's much closer to the kind of pragmatic, "We can run a country pursuant to the rule of law.  God has these things that He requires of us.  The main thing He requires from us, though, is to do justice.  And yeah, there are some quirky areas like family law, where we have these rules in the Koran and we have to follow them.  And some of them are going to have unequal effects, at least you have to be honest about that and they're honest about it, too, often.  But the main thing is that we can run our society in a way that doesn't hand over all the wealth to the bad guys."

MODERATOR:  (Off mike.)

QUESTIONER:  No, I have a kind of a technical question rather than a point to make.  As I understand it, there are several different -- maybe like four schools of Sunni law and then Shi'a law is totally different.  How different are they?  In what ways are they different or are they different in the way code law is different from common law?  Or are they different in which Haditha accept or -- what -- and is there one we can get behind?  Is there one that if we have to have Islamic law --

FELDMAN:  Right.

QUESTIONER:  -- we should be in a -- a fan of?  Is it regional?  Just tell us a little bit more about that as far as --

FELDMAN:  Right.

So the four school aren't all that different, is the first thing I would say.  They all accept basically the same Haditha -- the same reports of the prophet, more or less, on the Sunni side now.  Where they differ is in the technical details of rulings on some issues.  And sometimes on those issues it's an important issue, like how easy it is to get a divorce under certain circumstances.  And on those, you might have a preference for the more liberal ones.  But generally it's more like -- you know, if you have a question of who's going to pay the damages after an accident, they might have a little bit of difference in sort of the way the different U.S. states might have slightly different laws on questions like that -- all within the same basic framework.  And those four schools always talked to each other over the years and always shared their views.

The Shi'a school of law, which is my fifth school, is actually also -- it's a little more different from the other four than they are from each other, but not by a large margin.  What they do in Shi'a legal schools is still very identifiably the same process.  And it -- the outcomes, again, are remarkably overlapping.  I don't think we need to get behind one and it would be a mistake to, probably.

MARZORATI:  Probably.  But I just thought it -- (inaudible.)

MODERATOR:  Evelyn has a question and then Catise (ph) --

QUESTIONER:  Right.  I'm wondering what you think of the theory that the lack of the secular opposition in many countries in the Middle East and elsewhere has given a lot more popularity to the Islamic parties -- extreme or not -- because the mosques seems to be the only place to vent your grievances.

And secondly for someone who until recently was -- (inaudible) -- to bureau chief at the U.N. for thousands of years, I've gone through a lot of treaties and conference documents, and this is where all the secular governments give their -- give a sop to their nutcases, including us, and so you get the most peculiar objections on -- for religious reasons, even from Pakistan which used to be moderate -- peculiar objections when it comes to any decision making for women, girls, different members -- different feminine members of the family gave, God forbid.  And I wish it were as sophisticated as your First Amendment example.

FELDMAN:  Right.

Well, thanks for both points.  I agree with both.  I mean, I, you know, there's no gain thing what an enormously negative effect on political life of Muslim countries has come from the systematic denial of secular opposition.  When there's nothing else to object to, what happens is that the way to run -- the story to tell that enables you to get support is the Islamic story.  And that's been wildly effective and somewhere along the line, people started to believe in it.  I think that's really -- really the tale of how it happened.

QUESTIONER:  Thank you.

No, I don't hold you accountable for the imperfections of the Shari'a --

FELDMAN:  (Laughs.)

QUESTIONER:  -- but you do profess, I think, exaggerated admiration at least in the Times piece which was very stimulating and a great antidote to most of the stuff I read on the subject -- but you profess I think an exaggerated admiration for the rule of law.

No system in modern history had more laws and a more beautifully-crafted constitution than the Soviet system.  And yet it was in the breach rather than in the practice that that system was implemented.

So I'm wondering what is it about Shari'a that provides a fig leaf for the bin Ladens and -- as well as the Saudis -- in other words what is the weak core of Shari'a?

FELDMAN:  It's a wonderful and fair question.  I do profess exaggerated admiration for the rule of law but as -- when it actually works.  And for me, what makes the rule actually work in a place is that there is a balance -- a constitutional balance of powers between whatever are the relevant forces in that society to the pressure that people with power actually to apply of the law.

So in the Soviets case, you didn't have that balance.  As you say, wonderful legal system, just never used, right -- and certainly never when the chips were down.

In the old fashion -- and this is by way of answering your question -- in the old fashioned version of Shari'a, there was this balance because the ruler was in charge of applying the law but he wasn't in charge of what the content of what the law was; the scholars were in charge of that.  And they had some leverage.  The leverage was that when the time came to switch rulers, they were able to influence -- not just at the margins but sometimes even in a fairly substantial way -- the question of who would take power.  And they always wanted the same deal from the leader which was agree to follow the law or we will de-legitimate you.

The weak core of the Shari'a today is that the Islamists who talk about restoring the Shari'a don't have a very clear idea of how to restore the balance of powers.  It won't be the old one because the old scholars who controlled the Shari'a don't have the power that they once had.  They used to be in charge of the whole legal system, now they're in charge of family law.  Family law is important but it's not the only or the most important thing in most societies.  Usually it's the economic drivers that are the most important thing to control in societies.  The family law doesn't usually control the economic drivers.

So as a consequence of that, when these parties say we're going to create the rule of law, they're probably going to fail to do it, right?  They'll probably come to power, implement some version of Shari'a and then fail to develop courts that can constrain the executive or legislatures that can constrain the executive, you know, or you'll have the opposite extreme as you get in -- in Iran, where the religious leaders get all the power and nobody can counterbalance them.

So you can have Shari'a and have a complete failure of the rule of law as you have in Iran as long -- because the most important thing you need is a balance and it's very hard -- the magical and I think unanswerable question of constitutional design, how do you create that balance?  You can put your checks in, you can put your balances in, but the way to have them actually work in real life is -- I want to say it's even to go so far as to be mystical -- it's a very difficult question to answer.

QUESTIONER:  (Inaudible.)

The other thing I was just wondering -- (inaudible).

FELDMAN:  Yeah.  So -- on Turkey, I feel like I should just say, that's a subject for another day.  (Laughter.)  You know, we're on the edge of, you know --

QUESTIONER:  We'll call it -- (inaudible.)

FELDMAN:  Yeah.  Well, it's not -- well, I mean, it's not -- well, it's not -- in a way Turkey's the most inspiring example because you have this moderated Shari'a party -- they would like to be a Shari'a party but they can't be.  So they play it very, very cool.

On the other hand, so, I mean, so you sort of think of them as people who are -- they're doing a pretty good job, all things considered, but the secular power doesn't -- is really nervous about it.  So, I mean, they pass one constitutional amendment that says women can wear headscarves at the university -- not they have to, they can -- and the chief prosecutor of the country says, I hereby indict the president and prime minister and 75 members of parliament for what they did -- I mean, so it's their own story.

On the brotherhood, I just talk about it a little bit in the book and the thing I try to say is that the Muslim Brotherhood, which has become this big transnational powerful movement, built on the model of the traditional brotherhoods.  They learned from those brotherhoods, those brotherhoods -- these sort of Sufi brotherhoods were not just get together and meditate -- they did that, too -- they were also you know, the Fraternal Order of the Elks.  And they were also the, you know, people who supported the local hospitals.  And they were also, you know -- I mean, they were simultaneously all the things that civil society -- not all but many of the things that civil society organizations try to be.

And the brotherhood sort of said, hey, we should try and do that, too.  We shouldn't be just a religious organization;  we shouldn't be just a political organization.

So that combination, which is threatening to people in the rest of the world, is part of what you might call civil society, you know, Arab style.  And it has a historical basis.  And I think the brotherhoods are significant for that reason.  And the Muslim Brotherhood -- it's also not a coincidence they chose that name -- you know, that name is not a coincidence either.  So I think it's a hugely important feature of the picture.

QUESTIONER:  No, I was wondering, how valuable -- or not valuable at all -- is the historical record as a guide to today's analysis.  By today's analysis, I mean, of the enlightenment forward -- (inaudible) -- allegedly periods in the flow of -- (inaudible).  Does that have anything to say about what we ought to do?

FELDMAN:  Well, I think it does but only in the way that people in the contemporary world use the past to make arguments about how things should work.  And the analogy I offer in the book and I'll try it again here is, you know, you can't talk about the U.S. Constitution today without talking about Jefferson and Madison.  And it's not because we literally are going to, you know, let them decide these issues for us -- I mean after all they live in a radically different world than we lived in.  But part of the way we talk about our Constitution is by invoking what they said and what they did.  And so that shapes the outcome.

Similarly, in the Muslim world, if you've got people arguing -- for example, Islamists arguing that they want to have an Islamic state, either they want to respect rights, they're going to call on those historical examples.  And opponents will call on the things that they don't like about those historical examples.  That become the ground for fighting it out.

So I happen to think the ground is really important in that way, and that's why I spend a lot of time on the history in this book.  It's the first book I've ever written that really went that far back into Islamic history to try and explain things and probably I think it's because it's one of things we're lacking in most discussions about these things is that historical backdrop which is sort of taken for granted in the Muslim world.  People do know about it but we don't necessarily know about it.

QUESTIONER:  Is the Dhimmitude historical?

FELDMAN:  Well, the status of being a Dhimmi -- D-H-I-M-M-I, is that that's the legal term in Islamic law for the status of being a protected person, a member of the peoples of the book, who could live in this Muslim state with certain rights but do not have as many rights as a Muslim.

And, yes, that is part of the historical record, and like most parts of historical record, you can spin to two ways.  You can say, wow, this is an extraordinary tolerant mode of government, you had nothing similar for Jews or Muslims in Christian Europe and that's the way some people spin it.  Or you can say, look how terrible this was.  They weren't -- Jews and Christians weren't equal citizens in the Muslim state.  What an example of terrible mistrust and, you know, and abuse.  And you can point to those examples where the system of protection broke down.

On the whole I think it's fair to say, historically, Jews and Muslims fared better -- sorry -- Jews and Christians fared better in Muslims lands than Jews or Muslims fared in Christian lands, but that's also not saying very much.

MODERATOR:  I'm afraid it's 2:00.  One of the things we feel very strongly about at the Council on Foreign Relations is ending on time.  You are welcome to stay, welcome to talk to Noah but the meeting ends now.  I want to thank you all very much.  And thank you, Noah, in particular.  It was a great conversation.  Obviously there are a lot more questions that everyone wanted to ask.  So this is the beginning of a very obviously interesting subject.

FELDMAN:  Thank you.










More on This Topic


Why Shariah?

Author: Noah Feldman
New York Times Magazine

Millions of Muslims think Shariah means the rule of law. Noah Feldman examines whether they could be right.