This weekend the Center for the Study of Constitutional Originalism will be holding its Ninth Annual Originalism Works-in-Progress Conference.
Islamic Constitutionalism and Human Flourishing
I’m deeply grateful for Professor Hashmi’s lead essay and would recommend it to anyone interested in the intellectual history of Islam or curious about the distinctions between a modern Islamic view of the relationship between government and religion and the modern, dominant view of the Christian and post-Christian West. It is not, in fact, my purpose to rebut Professor Hashmi. Indeed, I defer to his superior knowledge of Islamic thought and history. Rather I come at the question of Islam and constitutionalism from my own experience as a lawyer and soldier – one who has experienced first-hand the relationship between ideas, law, and power and how, ultimately, constitutionalism cannot flourish without all three elements.
And thus, the key question: While Islamic constitutionalists have ideas and arguments, do they have a constituency? If they gain a meaningful constituency, can that constituency gain the numbers, resolve, and – ultimately – power to prevail against a deadly foe?
Perhaps the most helpful framing of Professor Hashmi’s essay was his framing of the distinction between natural law and divine law in Christianity and in Islam – with Islam putting great weight on divine law:
Two factors were determinative in giving rise to the idea of constitutionalism: a robust notion of natural law, on the one hand, and a relatively weak idea of divine law in Christianity, on the other.
In contrast, the Islamic heritage bequeaths to modern constitution writers a relatively weak idea of natural law, on the one hand, and a robust notion of divine law, on the other.
As a Christian, I might quibble just a bit with this formulation (asserting, for example, that natural law represents divine law revealed to humans through God’s common grace), but the point is well-made. The Christian West’s constitutionalism relies not explicitly on scripture but on a concept of inalienable rights of man that resonates with religious, marginally religious, and nonreligious alike. In other words, the sources of Western law – drawn from ancient Greeks, Romans, Jews, and Christians – create a broad, reason-based concept of individual rights, the rule of law, and the limits of government. By contrast, the extent to which explicitly Islamic thought aspires to dictate the civil law of many Muslim countries is completely alien to our experience.
As Professor Hashmi knows, this basic formula for Western constitutionalism — where the natural law rights of man trump any narrow denominational construction of religious truth, and religious disputes are settled within the marketplace of ideas and not at swordpoint – was both hard-won and hardly inevitable. Indeed, it was opposed at every turn.
The history of the development of Western Constitutionalism is an intellectual and theological history, to be sure, but it is also – and perhaps equally – a military history. In short, through a series of direct confrontations with contrary powers, the pioneers of constitutionalism and then its architects and heirs won a series of quite clear military victories that cleared the way for constitutional experimentation, then – ultimately – triumph.
The King of England did not sign the Magna Carta because he was enlightened but because he feared the power of feudal barons. The British king and parliament did not find Thomas Jefferson’s Declaration of Independence to be terribly persuasive, but did find that Washington’s triumph at Yorktown could not be reasonably overcome. Lincoln’s Gettysburg Address would remain unwritten and undelivered had Pickett’s Charge carried Cemetery Ridge.
The list goes on – would the Western democracies exist in recognizable form had Eisenhower’s assault on the Normandy beaches failed, or if the united Western powers not resisted Soviet tyranny through unassailable force of arms for two generations?
It is this martial element that is so often lacking in debates and discussions about the intellectual and theological future of Islam. In short, Islamic constitutionalism requires not merely an intellectual and theological foundation but also the numbers and power to triumph over an implacable and exceedingly violent ideological and theological foe. Yet here is where hope for contemporary change begins to fail.
With the potential exception of Tunisia (as Professor Hashmi notes), the recent history of revolutions and other mass movements in the Muslim world is hardly encouraging. Iran’s Shi’ite Revolution resulted not just in an illiberal theocracy at home but the export of jihad across the region. The Wahhabists of Saudi Arabia have spread their own brand of radicalized Sunni Islamism with far greater success than any countervailing liberalizing Islamic force. Indeed, as Islamism grew, even secular Arab dictators began to adopt the trappings of religion – with Saddam Hussein famously (allegedly) writing a Koran with his own blood, or — more precisely — donating his blood to serve as the basis of ink for a scribe’s use.
This rising tide of political Islam has so far swamped the liberalizing elements of the Arab Spring. Egypt is in the hands of the Muslim Brotherhood, and its chief competition is not constitutional liberals but even more extreme Salafists. Amidst the confusion of the Syrian bloodbath, reports indicate that jihadists are assuming ever-greater power amongst the Syrian rebels, and the window for liberal democracy may well have already closed. Libya, while not yet explicitly Islamist, has seen more than its share of jihadists, and has yet to prove that it can be governed as a unified, coherent nation following its successful revolution.
This astounding burst of Islamist energy – seen on the battlefield, in the ballot box, and in the hearts and minds of millions of young Muslims – has led many Westerners to believe this version of radical Islam is Islam. In other words, to all appearances, the more devout a Muslim grows, the more likely they are to align with, say, the Muslim Brotherhood than any competing and more liberal theology.
Ultimately, however, it could be that the cure for Islamism is Islamism itself, and that in the temporary defeat of moderates lies the seeds for ultimate triumph of a more liberal polity. In reality, the tyranny of political Islam – and its conceptions of Sharia – does not lead to human flourishing and indeed brings ruin wherever it takes root. Nothing won over the people of Diyala Province, Iraq (where I served during Operation Iraqi Freedom) faster than the previous 18 months in the grip of the al Qaeda-run “Islamic Caliphate of Iraq.” The initial departure of the Taliban was not mourned by the Afghan majority; though continued insecurity, corruption, and violence has since complicated allegiances and darkened Afghanistan’s future.
Islamist power – once gained – is not easily relinquished, and America’s military will ultimately prove – and has already proven – of little use in accomplishing true reform. After all, while we have proven more than capable of deposing the worst of tyrannies, our track record for nation-building (much less building true constitutional governments) is much more dismal. We left behind a strongman in Iraq – preferable to Saddam but a strongman nonetheless – and we’re leaving behind what looks to be unstable kleptocracy in Afghanistan. Again, a regime vastly preferable to the Taliban that preceded it – but who knows if the Taliban won’t return?
Moreover, the American moral argument is of little worth in the Middle East. Aside from the decision to take sides in any given conflict, do the people of the Middle East really care what any American politician thinks about Islam? Or what the American people believe? How much do our desires for Islam weigh as compared to the thoughts of leading Imams? Do they find either of the last two presidents’ professed reverence for an idealized, peaceful Islam to be theologically or intellectually compelling?
The battle for the heart of Islam can only be won within Islam, and it is and will be not merely – or perhaps not even principally – a contest of ideas, but a literal battle on many battlefields. While the parallels between the growth of natural law and constitutionalism in the West will of course not be exact, at some point there must exist constituencies large enough – and strong enough – to force the king to sign the Magna Carta (so to speak) or to hold the line against a quite literal onslaught of Islamist foes. After all, when Hamas took power in Gaza, one of its first acts was to hurl its opponents from high buildings. Those are not men who reform or surrender power easily.
The Western optimist looks at Islam – a religion centuries younger than Christianity – and compares it to pre-Reformation Christianity, when the liberal democracies that now dominate the Western world weren’t even a gleam in Martin Luther’s eye. The pessimist looks at Islam and says it is post-Reformation – and the Wahhabists were the Reformers.
It is difficult to argue with Professor Hashmi’s call for an “ethical objectivism” within Islam. I fervently hope to see such an emergence, for it would likely mean the end of our long war and perhaps even (could one dare to hope?) an Israeli-Arab peace. Yet for now constitutional Islam is an idea in search of a constituency, and even with a constituency constitutionalism is hardly guaranteed victory.