Clash of Civilizations, American Jurisprudence, and Islamic Law and Policy in the Middle East

Clash of Civilizations:
“First World” Jurisprudence Meets “Third World” Laws

By Ali Ebrahimzadeh, Spring 2005.

As Mary Robinson, the former UN High Commissioner of Human Rights, recently stated in her lecture at UC Hastings, the frightening convergence between purportedly “religious,” “fundamentalist” Western and Eastern political, industrial, and military leaders upholds free trade concerns while simultaneously degrading human rights, and that this international trend is truly “backwards,” taking us back decades in human rights reforms. In his book, Democracy Matters, Cornel West calls this “free market fundamentalism,” supported by the related theorems of “aggressive militarism” and “escalating authoritarianism,” the current era’s greatest threats to universal democracy. The violent international clashes between thousands of human rights-minded citizens and WTO or NAFTA convention security forces is one example of this trend. The War in Iraq is another. The despotic regimes of Middle Eastern warlords, such as King Sa’ud, King Hussain, Saddam Hussein, Ayatollah Khamenei, among others, are yet more examples of this pandemic assault on human rights in the name of maintaining strong oil exports to the world. Nothing is more emblematic of the failure of the municipal and international democratic process, and thus of true progress, than such examples of mass violence.

To say that the legal systems of the “First World” are secular and advanced, while those of the “Third World” or “Developing Nations” are “backwards” or “religious” is to distract from the real issue at hand. Both in the USA and in Iraq and Afghanistan, for example, there have been major doubts raised by the international community, including Commissioner Robinson, about the authenticity of the election process, which is the pivotal feature of a truly democratic government. As pointed out by recent Nobel Laureate and Kenyan environmental activist Wangari Maathai, the reality is that a war on the common person’s basic civil liberties to free expression, and more so, on our human right to live in peace, to have access to clean air, water, and organic food, and to be safely sheltered and well cared for by a quality health system, is being waged in exchange for the financial interests of the wealthiest nations and people in the world. In short, sure the legal systems of the Middle East are backwards, but not because they are “religious.” What they are is abysmally unethical. Similarly, the legal systems of the West are also backwards.

Like a beacon of love in the midst of such hatred, the Dalai Lama says, “My religion is kindness.” This is the fundamental aspect of the teachings of the Taur’at, the Christian Bible, and the Qur’an, from the just life of Moses, to the proverbs of Jesus, to the constant reminders of Mohammad to remain peaceful and kind, even in the face of absolute provocation. In light of this, and with due consideration of the bloody history of the world and the paltry present state of world affairs as described in the above paragraphs, to claim that any legal system or national culture in the West or in the Middle East has been or is presently a religious one certainly strains credulity.

Let us consider two examples from each region, the USA and the Islamic Republic of Iran. It can be argued that even in the USA, the power of the state is inherited originally from the “divine.” William the Conqueror, who seized control of the British Isles in 1066 A.D., claimed to possess the holy support of Christ, and thus established a religious monarchy in England. In line with the theory of “Continuous Empire,” it is from this Christian kingdom that the legal sovereignty of the US Presidency and the federal government is officially derived (see US v. Curtiss-Wright Corp., 299 U.S. 304 (1936)). According to the US Constitution (see Art. I, Sec. 1; Art. II, Sec. 1; Art. III, Sec. 1) and subsequent case law (see, inter alia, Marbury v. Madison, 5 U.S. 137 (1803)), it is from this federal sovereign power that the law, the court system, and the states inherit their authority over the people. The same can be argued with respect to the Islamic Republic of Iran, whose supreme leader carries the title of the “mirror of God,” Ayatollah Khamenei. Since history makes clear the fact that the political, military, and economic actions of the Middle East and of the West never were nor are in line with the peaceful and altruistic teachings of Mohammad or Jesus, and since Kings, Presidents, Prime Ministers, Sheiks, and “Supreme Religious Leaders” have reaped the political benefits of aligning themselves with the specter of religiosity, one can only conclude that such purported alliances with the divine are nothing short of propaganda. From the epoch of Roman domination over Europe and the rule of Roman Canon law, to the nascency of the “Enlightened” European state and of the USA, the hierarchical structure of the state, with the inviolable sovereign power – be it in the body of a single monarch or in a democratic-come-oligarchical concept of a federal government – at the very top of the social pyramid, has remained a constant conception of power in the West. The same can be said of the East, from the Persian Empire to the Ottoman Empire to the Arab principalities and the formation of nation-states such as Iran, Iraq, and Saudi Arabia. It is no surprise, therefore, that in light of such a history of elite rule, that even modern states – even so-called democracies like the USA – breed economic, political, military, and educational networks of elitism that reproduce themselves from generation to generation, a social phenomenon that Michel Foucault refers to as the reproduction of the “power elite.”

In addition to the fact that the West and the Middle East share this ancient, “religiously”-rooted, hierarchical elitism, it is imperative to highlight the fact that the Middle East’s legal systems, such as Iran’s so-called “Islamic” model, are structurally complex and historically well-bred enough to consider them, even according to the definition of the International Court of Justice’s Article 38 definition of official sources of law, so-called “civilized” legal systems. Specifically, in Chibli Mallat’s treatise, From Islamic to Middle Eastern Law: A Restatement of the Field, Prof. Mallat clearly outlines the ornate structure and 1,400 year-long history of Islamic Law, generically referred to as the shari’a. The first source of the shari’a is the Qur’an, the holy Islamic text purportedly dictated by God directly to the Prophet Mohammad, which contains fundamental principles and practical laws of guidance on virtually every major subject of human endeavor, from cradle to grave, both specific and general. The second major source of the shari’a is the sunna, which is a huge body of work by scholars concerning the legal guidance provided by the Prophet by way of his words and actions. Through the past fourteen centuries, the hierarchical system of Islamic law has been expanded by volumes of legal analyses, historical texts, jurisprudential writings, and formal codes and statutes, all contributing to a huge body of law known as fiqh, which concerns itself primarily with the jurisprudence of rituals and transactions, which encompass every aspect of personal and social life in the state, and to an equally grand collection of formal legal codes, known as qanun. The court system of judges, advising scholars, clerks, and attorneys have similarly evolved into the complex group of personnel required to functionally deliver and interpret this hierarchical system of law, and thus to support the sovereignty of the state’s ruler, and purportedly, even more so, the dominion of God.

This is hardly the history of a “backwards” or “rigid” legal system, so far as the West might judge, for the similarities between the legal system of Iran and of the USA, for example, are obvious here. Both nations have their respective constitutions, statutes and codes, case law, scholarly treatises, law schools, court systems, and hierarchical model of government. In both nations, criminals are tried and go to jail, the civilly liable are mandated by judges and juries to make amends for their malfaisances, and ironically, both legal systems, in practice, suffer from grand deviations from notions of justice and fair play. Even the very structural aspects of these legal systems fall prey to devious economic mandates to uphold the rights of the wealthy against the pleadings of the middle class and the poor. For example, whether a concept of “stare decisis” exists openly in the practice of the legal system, as it does in the common law, or whether it functions more subtly, as in the civil law and Islamic law systems (Mattei, class notes), the fact remains that in hierarchical regimes such as these, lower levels of the state pyramid, including the lower courts, the police, and the populace itself, has very little ability to change the precedents and policies of the higher levels of state administration, such as the supreme and constitutional courts, the legislature, and most importantly, the executive branch, whose powerful control on general state governance is consolidated by political, and ultimately, by economic dictates. Take for example the U.S. Supreme Court’s unexpected 2000 decision in Bush v. Gore, which effectively robbed the American people of the ability to elect their executive representative, and via which, despite much legal precedent, as clarified by Alan Dershowitz’ book, Letters to a Young Lawyer and John Fund’s book, Stealing Elections: How Voter Fraud Threatens Our Democracy, the Supreme Court virtually crowned an economically powerful, and thus politically influential, President – a man who singularly represents the monolithic oil, guns, and Bible-thumping lobby groups of America – such is “W.” How’s that for a “constitutional moment?” Further, as seen in the pro-trade and pro-property recodification efforts of civil law systems in the EU and of Islamic systems in the Middle East (Mattei, class notes), as well as seen in the pro-big business commercial and international case law of the USA, and in the international trade conventions and treaties between Western and Middle Eastern nations through the WTO, the IMF, and the World Bank, the creation of a wantonly “free” trade market has taken precedence to popular opposition (see Noam Chomsky’s Hegemony of Survival: America’s Quest for Global Dominance). Such opposition is branded as criminal, and is addressed via mass arrests and clear deprivation of officially-publicized due process rights, such as those arrests that occurred recently in New York City during the Republican National Convention (see Amy Goodman’s “War and Peace Report,” Democracy Now), or such as those that regularly take place in the Islamic Republic of Iran (see HumanRightsWatch.org). As big business’s stranglehold on civil liberties tightens, so the public’s reach towards justice wanes. The pervasive use of abbreviated-justice processes such as pro-prison-industrial complex “plea bargains” and pro-lawyer and pro-business civil liability “settlements,” the astronomical price of quality legal representation, and the labor laws which promote expansive, monopolistic, industrial globalization and which demote worker’s rights to fair compensation, health benefits, and safe work environments (e.g., Nike): These are the threats to justice for the poor and the middle class people of the world, whether they work for Wal-Mart in California or for the National Iranian Oil Company in Abadan, Iran (Amy Goodman, Exception to the Rulers).

Nothing is a more profound example of this truly sacrilegious and “backwards” phenomenon than the “blood for oil” war against the peoples of the Middle East, namely in Palestine, Iraq, Afghanistan, and soon, Iran. Lest this should be seen as a war waged purely by the West, recall the century of Middle Eastern governmental and industrial coalition-building between the oil-producing and the oil-consuming nations of the world, such as Iran and the USA, respectively (see Michael Klare’s book Blood and Oil). In short, the power elite of the Middle East have quite “legally” sold out their own people in the bartered oil agreements with the power elite of the USA, UK, France, Germany, Russia, Korea, Japan and China. Such shortchanging deals have been backed not only by American law and military forces, but also, by despotic and genocidal Middle Eastern governments and corporations: remember, for example, the Iran-Contra Affair and the genocidal militarism of Ayatollah Khomeini, the Cold War US’s political and military support of the Taliban, and the oil-focused motivations and timing of the first Persian Gulf War to “liberate” the “people,” and more so, the oil wells of Kuwait. This global, power elite-driven, unethical, and dare I say, anti-religious domination over civil rights belies any real delineations between Western and Eastern legal systems.

The real issue, then, in light of the actual cooperation between governments of the West and the East when it comes to trade – for despite all the innocent carnage, the oil keeps pumping – is the propaganda of a culture war, of a religious war, be it Bush’s “crusade” or Khamenei’s “jihad,” that is meant to instill quasi-religious patriotism and to distract the people from the real war – the age-old assault against the populace by the world’s power elite. This propaganda, that the Islamic legal system is a “backwards” one, that its schools of jurisprudence (i.e., ijtihad) do not “progress” like those of the “intellectual” civil law system, that it lacks the “constitutional moments” of the common law system, is nothing more than media hype. As the ancient history of the Code of Hammurabi (1500 B.C.) and of the Taur’at, Bible, and Qur’an (all authored by Middle Easterners) remind us – just as the writings of al-Salah, as the humongous body of fiqh literature, and as the volumes of codes and statutes in Middle Eastern legal systems will galvanize us into recognizing – the legal systems in the Middle East have certainly “progressed” over time, just as much as those in the West have supposedly “progressed.” The sad fact is that such “progress” has led us here.

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