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Roundup: Historians' Take

Daniel Pipes: The Debate About Islamic Law We Should Have Had about Iraq but Didn't

Daniel Pipes, in the NY Sun (March 2, 2004):

In Iraq, what ought to be the role of Islam and its legal system, called the Sharia? In theory, this topic should be the subject of a soul-searching debate in America and all the other countries whose forces are occupying Iraq, for how it is answered will likely influence Iraq's future in profound ways.

Views on Islam's proper role reflect how one understands the purpose of the war in Iraq one year ago:

  • Islamic law should be prohibited: The overthrow of Saddam Hussein was called Operation Iraqi Freedom for a reason: the American-led occupation forces must not become midwife for an anti-democratic legal system that disallows freedom of religion, executes adulterers, oppresses women, and discriminates against non-Muslims. Acquiescing to the Sharia discourages moderates while encouraging the Wahhabi and Khomeinist extremists in Iraq. Also, because Sunnis and Shiites interpret Sharia differently, its implementation promises troubles ahead.
  • Islamic law should be permitted: Coalition forces entered Iraq primarily to protect their countries from a threatening regime, not to achieve Iraqi freedom. Democracy and prosperity for Iraq is just a happy byproduct. The pursuit of coalition interests does not require that Iraq's penal, family, financial, and other laws conform to Western preferences. Further, for Washington to implement its ambitious goals in the Middle East, it must have good relations with powerful Shiite leaders like Grand Ayatollah Ali al-Sistani, who want the Sharia in place. And if a majority of Iraqis should opt for Sharia, democracy advocates can hardly deny them their wishes.

This has the makings of a deep argument over the purposes of invading Iraq, long-term coalition goals in Iraq, and whether the Sharia is or is not inherently reactionary, iniquitous, aggressive, and misogynist.

Unfortunately, the debate is already over, before it could begin: Iraqis have decided, with the blessing of coalition administrators, that Islamic law will rule in Iraq.

They reached this decision at about 4:20 a.m. on March 1, when the Iraqi Governing Council, in the presence of top coalition administrators, agreed on the wording of an interim constitution. This document, officially called the Transitional Administrative Law, is expected to remain the ultimate legal authority until a permanent constitution is agreed on, presumably in 2005. The council members focused on whether the interim constitution should name the Sharia as"a source" or"the source" for laws in Iraq."A source" suggests laws may contravene the Sharia, while"the source" implies that they may not. In the end, they opted for the Sharia being just"a source" of Iraq's laws.

This appears to be a successful compromise. It means, as council members explained in more detail, that legislation may not contradict either the"universally agreed-upon tenets of Islam" or the quite liberal rights guaranteed in other articles of the interim constitution, including protections for free speech, free press, religious expression, rights of assembly, and due process, plus an independent judiciary and equal treatment under the law.

But there are two reasons to see the interim constitution as a signal victory for militant Islam.

First, the compromise suggests that while all of the Sharia may not be put into place, every law must conform with it. As one pro-Sharia source put it,"We got what we wanted, which is that there should be no laws that are against Islam." The new Iraq may not be Saudi Arabia or Iran, but it will include substantial portions of Islamic law.

Second, the interim constitution appears to be only a way station. Islamists will surely try to gut its liberal provisions, thereby making Sharia effectively"the source" of Iraqi law. Those who want this change — including Mr. al-Sistani and the Governing Council's current president — will presumably continue to press for their vision. Iraq's leading militant Islamic figure, Muqtada al-Sadr, has threatened that his constituency will"attack its enemies" if Sharia is not"the source" and the pro-Tehran political party in Iraq has echoed Sadr's ultimatum.

When the interim constitution does take force, militant Islam will have blossomed in Iraq.

For their part, the occupying powers now face a monumental challenge: Making sure this totalitarian ideology does not dominate Iraq and become the springboard for a new round of repression and aggression from Baghdad. How they fare has major implications for Iraqis, their neighbors, and far beyond.