The Fall Of Noah Feldman
Determined to prove that Islamic law (Shari’a) is compatible with democracy, Harvard law professor Noah Feldman is still laboring to fit a square peg into a round hole.
Five years ago, I reviewed Feldman’s After Jihad: America and the Struggle for Islamic Democracy in The Jerusalem Post and concluded that Feldman, then a professor at New York University, adopted “a ‘why not?’ approach to Islam and democracy,” and that he “ignored certain realities” that made the synthesis of Islam and democracy exceedingly difficult.
In his new book, Feldman, who was the center of controversy last June after writing a New York Times essay that slammed the Orthodox Jewish community, attempts to make a more pointed argument. However, The Fall and Rise of the Islamic State fails to convince the informed reader that Islamic law and democracy are destined for marriage.
Feldman’s central premise is that the scholars of early and medieval Islam were guardians of justice. These independent scholars, he argues, kept the all-powerful caliph in line by judiciously ensuring that his decrees were in accordance with Shari’a law. The proper application of Shari’a ensured fair governance. Thus, Feldman claims, resurrecting the scholarly class is needed today.
Feldman stands on shaky ground. Where was the scholar-enforced justice during the reign of Fatimid Caliph al-Hakim in 11th-century Egypt? His peculiarities included a restriction on manufacturing women’s shoes; prohibitions against watercress, dates, honey and raisins; a campaign against dogs; and the forbidding of chess.
“The most striking feature of his decrees is, however, their inconsistency,” writes noted scholar Hugh Kennedy. “At one time the appearance of the cross in the streets was forbidden as an anti-Christian measure, yet shortly afterwards, all Christians were obliged to wear large crosses, thus making nonsense of the previous decree… At some times he encouraged the spread of Ismaili customs while at others he seems to have permitted Sunni practices which had been banned.”
Granted, the role of scholars varied from one caliphate to the next. Hakim’s case was among the more extreme. Still, it underscored that under most caliphs, scholars were at the whim of their autocratic rulers. Thus, Feldman ignores the historical fact that true checks and balances, similar to those of modern democracies, have been largely absent throughout Islamic law’s evolution.
Feldman admits that the scholars, particularly during the Ottoman period, were “deeply imbedded in the bureaucratic and institutional structure” of the government. Thus, their rulings meant little, since they did not act as a counterbalance to the executive, and because their authority was minimized. But he loses credibility when he implies that the rightful place of the scholars was “undercut by the introduction of a human source of legislation.”
The anti-Western/anti-enlightenment tone is striking. Why is Feldman bothered by the notion that human reason would legislate, rather than Shari’a? Feldman bemoans that the Ottoman legislature was able to “replace the scholars as an institutional source of lawmaking.” He then seems to sneer at the modern Turkish constitution, which is devoutly secular, and only lightly peppered with Muslim influence. Turkey is the only democracy in a predominantly Muslim country with real checks and balances. Yet Feldman disdainfully complains that the constitution created by Kemal Ataturk “went further than any other… in marginalizing Islam.” Ataturk drew inspiration for his reforms from Europe. Yet, it is highly doubtful that Feldman would argue that secular law is wrong for Europe. Why, then, is secular law good for Europe, but bad for the Muslim world?
That Feldman does not hold Turkey as the best attempt to synthesize Islam and democracy is confounding. Over the last century, outside of Turkey, not one truly representative government has sprouted in the Muslim desert of authoritarianism. Only in Iraq and Afghanistan, where American military intervention toppled tyrants, has democracy shown the most remote signs of promise.
Interestingly, Feldman appears to understand the causes and dangers of Islamism. He notes that the “call for the restoration of the Shari’a in contemporary Islamist politics may be seen in substantial part as a response to this constitutional defect” of the executive eclipsing the state. He also notes that most important Islamist figures are not learned scholars, and that Islamists conveniently seek to implement Shari’a and Islamic values “as they define and apply them,” or as Sayid Qutb, the Muslim Brotherhood’s oracle in the 1960s put it, “the spirit of Islam.” Still, Feldman believes that Islamism, even though it is the ideology that powers Hamas, al-Qaida and a host of other deadly terrorist organizations, offers the best hope for marrying Islam with democracy. At this point, Feldman’s credibility is irredeemable.
Still, even without Feldman’s Islamist apologetics, this short book (which may have been more compelling as a less-repetitive journal article) fails to convince the reader that an Islamic government that “draws upon the best of the old while coming to terms with the new” is feasible.
While melding Islamic law and democracy is a noble undertaking that may yet occur in Iraq and Afghanistan (and perhaps elsewhere), there can be no denying that the Koran provides only a handful of passages (Suras) that even vaguely address governance.
Moreover, some of the laws proscribed in the Shari’a, notably the “Hadd offenses” (also known as Hudud), carry gruesome penalties, reflecting values that would appear to be incompatible with modern conceptions of justice. Indeed, sexual intercourse outside of marriage carries a penalty of stoning to death, while theft is punished with cutting off a hand. While the Judeo-Christian world has rejected similar punishments and religious laws in return for secular law, parts of the Muslim world have not.
Could the Islamic scholars of today help set things straight? Not likely. Even Feldman admits that Saudi scholars “intensively resisted the granting of permission to women to drive cars in Saudi Arabia.” This mistreatment of women is decidedly incompatible with democratic values.
Other scholars have endorsed jihadi violence against civilians. Qatar-based Yusuf al-Qardawi ruled that suicide bombing against civilians is permissible. In 2004 he told BBC television, “Allah… has given the weak a weapon the strong do not have, and that is their ability to turn their bodies into bombs as Palestinians do.” He later added that suicide bombings “are not in any way included in the framework of prohibited terrorism, even if the victims include some civilians.”
The scholars of yore may well have helped to maintain justice in their time. Today’s scholars may have a different conception of what justice means. Thus, Feldman appears to have committed an error common among professors of Islamic studies. He has not let go of the past. What held true in centuries past may not hold true today.
Feldman must understand that the proper application of Islamic law is not the answer for the crisis of governance in the Muslim world. Nor is a combination of Islamic law and democracy. The answer lies in tolerance, pluralism and egalitarianism. Once these virtues are upheld and enforced in Muslim states, the exact means through which they are implemented will make little difference.
The reviewer, a former US Treasury intelligence analyst, is director of policy for the Jewish Policy Center and editor of inFocus Quarterly. He is author of the forthcoming book Hamas vs Fatah: The Struggle for Palestine (Palgrave, November 2008).