Saturday Extra

Noah Feldman played a role in the preparation of the Iraqi constitution.

His latest book puts the case that sharia law could play a more significant role in a modern Islamic state.

Transcript

This transcript was typed from a recording of the program. The ABC cannot guarantee its complete accuracy because of the possibility of mishearing and occasional difficulty in identifying speakers.

Geraldine Doogue: Now we're going to talk about this ongoing debate around the compatibility of Islam and democracy. It continues to burn bright, this debate.

You'll remember that the Archbishop of Canterbury, Rowan Williams, recently caused an absolute furore when he suggested that it was possible that Britain could adopt aspects of the Sharia law. And moving closer to home, on Tuesday night, a lively discussion is promised in Sydney when six people, including the well-known US conservative commentator Daniel Pipes, debate the provocative question, 'Islam is incompatible with democracy'. It's a transposition of the famous Oxford Union debates to Australia, and I'll give you details later.

Well this international discussion is taken up in what I think are fresh and interesting ways in a new book by a Harvard Law Professor, Noah Feldman. Noah Feldman's written extensively on law and religion, and he also played a role in the preparation of the Iraqi Constitution. His latest book, The Fall and Rise of the Islamic State puts the case that Sharia law could play a more significant role in a modern Islamic State. So what the West sees as a remnant of feudalism, he says is central to a balance of political power within the Muslim world that is actually now lacking. A crucial distinction the West doesn't really grasp. So Noah Feldman, welcome.

Noah Feldman:Thank you so much for having me.

Geraldine Doogue: The case you essentially put in The Fall and Rise of the Islamic State is that Sharia has an appeal for many Muslims and that there are ways in which it can be incorporated into a modern Muslim state, and that the West has got to expand its understanding in order to take this in. So make that case for us now, please.

Noah Feldman:Well if you look at the polling data, you'll see that in places like Egypt, where 66% of the public wants to see Islam as the source of law, in places like Pakistan where the number is closer to 60% -- even in Jordan it's pushing 60%. So pretty disparate countries in the Muslim world. Large segments of the public, not everybody, but large segments of the public want to see the Sharia playing a significant role in daily life.

But if you ask those same people 'Do you want rule by the clerics?' they say, 'No'. If you say to them, 'Do you want to see hands chopped off, or adulterers stoned?' they say, 'Absolutely not'. So in the first place it just raises the question of what is it the people are asking for when they say 'Sharia', because it's obviously not what we picture in the West, or in the English-speaking countries when we hear that word.

And I think the best way to answer the question based on reading what they actually have to say, what the politicians promoting this view really have to say, is that they see Sharia as a system of law that guaranteed equality of everybody under the law and most importantly, it made the government subject to law, instead of governing without responsibility to law, which is of course how most leaders in the Arab world at least today, presently govern.

Geraldine Doogue: I think the West's view of Sharia is that it's full of ghastly barbaric mediaeval punishments. Now does -- am I right in assuming that that's part and parcel of Sharia? Did the Iraqi Constitution you helped contribute to have different sorts of punishments?

Noah Feldman:The Iraqi Constitution doesn't contemplate any of the traditional Sharia punishments, the corporal punishments, be incorporated. So I think the best answer is that it's true that some of the mediaeval punishments are still on the books in some states, they still happen occasionally in Saudi Arabia, they have it under the Taliban. Those are leftovers of a time when they were extremely difficult to administer, they were very rarely administered. But of course to our contemporary eyes they seem terribly, terribly wrong. And I think they are wrong, I don't think anyone should use punishments like that. But I think for most contemporary Islamists, that's not the version of how the Sharia system will operate. They actually don't want to see, in most Muslim countries, those kind of punishments being applied, that's very much an outlier case, that as I say happens in circumstances that are actually rather extreme.

And just to give you one practical example of this: In Nigeria, in some of the Muslim provinces where they decided to impalement Sharia, the initial thought was that perhaps they would try to stone some adulteresses, but very quickly they were instructed by scholars in Islamic law from the rest of the Muslim world, that they had the law wrong, that in fact it was almost impossible to get the kind of proof that would be necessary actually to do this, and as a result all of the people who were subjected to those kind of charges were ultimately cleared. So that I think is the way of the future.

Geraldine Doogue: So you're suggesting that in fact there's been a downgrading of true Sharia in a lot of the traditional Muslim countries that hit the headlines these days?

Noah Feldman:Well it depends I guess how you define downgrading. I think if you ask Muslims what they would say is, they're focused on the essence of the Sharia which is a 1,500-year-old tradition, which teaches ultimately the transcendent value of obeying divine justice. But the Sharias have also always understood that its rules are interpreted by human beings, and of course there are more conservative and more liberal interpretations, and some Muslims prefer the more liberal, some prefer the more conservative. I don't think it's possible to generalise absolutely. But what I'm saying is what seems apparent to Muslims is that aspect, and the reason it seems appealing in so many Muslim countries I think is that governments since they tried Western-style government, with the state passing all of the laws, they haven't experienced the benefits of, broadly speaking, Western freedom. The governments they have had have failed.

Geraldine Doogue: Something to do with the rising power of the executive, if I can put it like that, in Muslim countries, in that decade of the 20th century when of course we did go through that period of Arab nationalism trying to ape, in a way, Western ways. That's the curious thing.

Noah Feldman:It is curious. It's somehow trying to be Western is precisely, I'm suggesting, what failed in these countries, and a result people are sick and tired of the language of secularism because they think it just hasn't delivered. For them, secularism meant autocratic strong-men, which is how they're governed in many of these countries. And naturally began to wonder well maybe we've gone wrong somewhere, maybe things were better in the good old days. There's a little bit of nostalgia in this conception among some Muslims, and in themselves it may not be wholly realistic, but I think at least explains why there is this tremendous appeal, and I don't think it's utterly groundless either, because whatever its demerits, the classic Islamic law system, though it didn't treat women so equally of course and didn't treat non-Muslims as full citizens, it was nevertheless a lot fairer than the European equivalents in the same time, for much of the time. And it also did a reasonably good job, delivering basically fair government that satisfied most of the citizens most of the time.

Geraldine Doogue: Let's go back to a teeny bit of history and the Ottoman Empire crumbling at the end of World War I. Was this when Sharia as it had been understood in the previous, say, 600 years in particular, of Muslim dominance, was that when it started to crumble, really?

Noah Feldman:That's when it really hit rock bottom. It had started to crumble already in the previous I would say 75 years, because over the 19th century the Ottoman Empire was already in trouble, and the elites in the Empire were trying to reform, and that's when he really started looking to the West and saying what can we adopt from the West? And one thing that they adopted was the idea of a Code of Law. Now a Code of Law with everything written down as opposed to a Common Law system where it's up to judges to figure out the - really to discover, they would say, the meaning of the law -- is in principle fine, but in the case of the Muslim world it didn't work out that way, it didn't work out to be fine, because historically the fact that the religious scholars had the job of finding the law, enabled them to counterbalance the executive. When you put a code in place, you make it unimportant for anybody to find the law, you make the role of the scholars unimportant. And once that happened it began to erode their ability to counterbalance the executive. And then after World War I as you say, when the Ottoman Empire was lost completely, and pure secularism was opted for in many Muslim countries, that's really where the bottom fell out, that's really where there was no longer anyone to counterbalance the executive, and so you got these strong men that you still have in so many countries today.

Geraldine Doogue: In effect, are the scholars like our lawyers, are they?

Noah Feldman:Very much so. Traditionally that was very much the case. They were very much like our lawyers or our judges. The one difference is that our lawyers and judges are typically operating solely within a court system that belongs to the government, whereas because Islamic law was in some ways outside the government and greater than the government in its importance, scholars didn't have to serve as judges or as lawyers, they could also be independent scholars sitting around and writing about the law in their own books and treatises. And that was found to have the force of law, and so they were also a kind of civil society, they played a kind of of civil society role outside the direct function of government. But again, that's very much a story about the past. Today the scholars still exist but in much reduced circumstances.

Geraldine Doogue: But the power of the scholars and the mullahs in places like Iran are the things that worry a lot of moderate Muslims, and also of course the West. So the scholars are hardly someone to bank on. are they, to bring some form of ease with modernity, if that's what you're really seeking?

Noah Feldman:It's a very fair point, and to explain it I would just say Iran is itself a very weird deviation from Islamic history. Historically, it was never the scholars who exercised total control, there was always an executive who exercised it and all the scholars counterbalanced that executive. Iran, after the 1979 revolution, they tried a brand new experiment where the supreme leader was actually a scholar, you know, first Ayatollah Khomeni and various successors, and of course that didn't work any better than having an absolute leader who was secular. If you have an absolute person in power, that person will be corrupted and they won't deliver fair government. So Iran, I would say this is the case of the pendulum swinging...

Geraldine Doogue: The other way.

Noah Feldman:Yes, I mean but I agree with your basic point. I think it's true that today the scholars are not the answer, it's not that going back to that old-fashioned model will work. Sometimes you just can't turn the clock officially backwards. Today what the Islamists are calling for is something rather different. They are calling for legislatures in the courts, but they want those legislatures in courts to enforce what they consider Sharia values, which is rather a different thing than the tradition of relying on the scholars to interpret the law.

Geraldine Doogue: Have you come to a good definition from a Western perspective of what Sharia values represent? Can you say it?

Noah Feldman:It's pretty difficult to pin it down to be honest with you. It's intentionally vague on the part of Islamists, and they themselves don't always know what it's going to mean. Frankly much in the way that the phrase 'Christian values' which we hear a great deal of in the United States, or even 'moral values' are sometimes vague and empty phrases. So I think it is non-specific, but in a way that's very liberating because it means that a government that says it's enforcing Sharia values can still be very modern. So that's the mechanism for resolving this ideal of Sharia with the modern world. You pass ordinary laws, and as long as they don't violate some explicit precept of the Sharia and there are not very many points at which it's likely to be violating it, then you could say that it's compatible to Sharia and indeed expresses Sharia values. So in some of the writings of some the Islamists, we hear them saying for example that today democracy, even though it's a Western creation, captures Sharia values because it holds the rulers to account and is therefore desirable. So if you can cover democracy you can cover almost anything.

Geraldine Doogue: Yes. In your book, Noah Feldman, you write of the possibility of Sharia law becoming this positive tool of a modern Islamic state. Now is the Iraqi Constitution that you helped contribute to drafting, is it one example of what you think is possible?

Noah Feldman:I do, with the large caveat that it is yet really to be implemented properly. So the constitution itself of Iraq, simultaneously declares that Islam is the basic principle on which the thing is based and that democracy is. It says no law shall violate the principles of Islam but also at the same time that no law shall violate the principles of democracy, and of constitutional liberty. So it is a model of a hybrid of these things, and it's thorough-goingly Islamic. At the same time, and that is indeed what the public wanted, I think it's fair to say that the US government would have much preferred to see a secular constitution, and it was because of the fact that there weren't free elections that we saw a constitution like that emerging. The story is very in Afghanistan where the public wanted something much more Islamic than what the Western countries who were involved in the drafting process, would have preferred to see, but popular will really won out.

The difficulty is in both of these cases that the security situation on the ground is so difficult, that we have so failed in both Afghanistan and in Iraq to deliver basic order in society that the constitution as written is not really being implemented on a daily basis. And that's of course a tragedy in its own right, but it's also a tragedy for this idea of a functioning Islamic state, a democratic Islamic state because we still haven't really had a chance to see if the religious parts of it are capable of working or not.

Geraldine Doogue: See I would have thought that most Westerners looking on would have diagnosed the problem of the inability to separate shurch and state in Muslim countries as one of the main worries they're facing, and then people like Nasser for instance, definitely thought this in Egypt years ago. Now are you really coming to change your mind about that?

Noah Feldman:I really am trying to suggest that the deep problems, both in these new Islamic democracy that we're talking about but also in countries like Egypt you just mentioned, are not a result of a merger of church and state but really a result of states that are not responsible to the law.

Geraldine Doogue: Like a vacuum you mean, there's been really a vacuum?

Noah Feldman:Yes, it is a vacuum, to the extent that the law functions and they have courts in a place like Egypt, it's the state that makes the law, but that means it's under the control of the president in effect, the legislature is really under his control, the judiciary to a very great extent under his control. I mean they show flashes of independence when they can, but it's not that frequent. And the most extreme example this would be President Musharaf in Pakistan, who recently in what was an incredible display of contempt for the rule of law just suspended the constitution and put under house arrest many members of the bar and judiciary and ultimately fired the Chief Justice of the Supreme Court because he didn't like what he was doing. So that's an example of the extremity to which this kind of a model can reach. And it seems to me that anything that restores the Rule of Law in these countries is going to be a step in the right direction not a step without risks of course, I mean there'll be very great risks associated with implementing more Islam, but at least the people who were advocating more Islam in these countries know that the reason to do so is precisely to bring more of the Rule of Law to these countries, and that I think is something that I'm very focused on as a potential direction and I'm willing to sacrifice the separation of church and state if it would get us more of the Rule of Law.

Geraldine Doogue: Dare I ask you, and I think I asked you this four years ago when I last spoke to you, just after you'd emerged from that Iraq process -- are you also sacrificing women's rights, and have you had to come to terms with that?

Noah Feldman:It's a very fair question. In some cases there's no doubt that some of the laws passed by for example the new Iraqi government, have turned women's right backwards. A good example of this would be that the Iraqi family law code, which was always based on the Sharia had adopted some rather liberal versions of Sharia interpretations in its old form. And in the new form, which gets rid of that rule and allows traditional Shi'ite and Sunni rule to apply is by definition a little bit more conservative and it probably does limit women's rights on questions of divorce for example, more than the old law did. Yes, there's an example of what I think it's fair to say is a bit of a step backwards, at least formally, for women.

But the thing to know is that it's been women who have been among the biggest supporters of the religious parties in Iraq. You know, they voted overwhelmingly in very large numbers on the Shia religious parties in just the same numbers as men did, and they've been advocating for equality for women within the Sharia framework rather than outside the Sharia framework. So...

Geraldine Doogue: They could be just desperate for order, perceived order of course.

Noah Feldman:Yes I think that's probably right. I think the key point here is that women are citizens just like men are, and when they look at a system of government that's as broken as the systems of government are in so many Arabic speaking and even other Muslim countries, they have the same interests as the men do in trying to find something they think will work better, and they're willing to try the Sharia, even eager to try the Sharia because they think that it will work better, and then they figure they'll worry about the question of women's rights afterwards.

Geraldine Doogue: Well look, a final question really. Do you think that the modern Islamic state, and democracy, and Sharia are compatible?

Noah Feldman:I think it's clear that they're compatible in theory because we now see that if you free people up to vote and draft constitutions, in the Muslim world, many will choose constitutions that simultaneously guarantee equality for women, as the Iraqi constitution does, and that the Afghan constitution does, and provide for democracy, and also provide for a major role for Islam. What remains to be seen, and I think the jury's very much still out on this question, is whether the governments that are formed under these conditions will actually succeed in delivering better government, fairer government, more just government that did their secular predecessors. So far we don't have examples of governments that are doing this and doing it well. The difference between now and five years ago is five years ago nobody had done it. Now several governments have done it, but it remains to be seen if they'll be able to do it and do it effectively.

Geraldine Doogue: Noah Feldman, thank you very much indeed for this interview.

Noah Feldman:Thank you so much for having me. Thank you very much.

Geraldine Doogue: And Noah is an Adjunct Fellow at the Council on Foreign Relations. He's also Professor of Law at Harvard University, and you might like to seek out his book. It's not too big, for once. It's The Fall and Rise of the Islamic State and it's a Princeton University Press publication. And I did say that I'd mention the details of that debate in Sydney. It's under the IQ2 Oz headline, that's the way the Oxford Union debate series is being flagged in Australia, 'Islam is incompatible with democracy', that's the debating point that's going to be put, this Tuesday 15th at 6.45 at Angel Place, at the City Recital Hall in Sydney. You can go to the IQ2 website to book a ticket.

Guests

Noah Feldman
Adjunct senior fellow Council on Foreign Relations Professor of Law Harvard University

Publications

Title: The Fall and Rise of the Islamic state
Author: Noah Feldman
Publisher: Princeton University Press

Story Researcher and Producer

Julie Browning

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