For months, critics have observed that the rebels in Libya contains worrisome elements of religious extremists and that the rebel forces have been accused of war crimes (as have the government forces). The concern is that, like our work in Afghanistan (ultimately helping Al Qaeda and the Taliban), we have little understanding of who we are bringing to power in Libya in our intervention into that civil war. That concern is magnified this week by the release of the draft constitution, which (unless changed) would make Sharia law the governing law of Libya.
Of course, much appears in flux in Tripoli and this is just a draft. Yet, we have reason to be concerned. We have a long line of cases exploring the abuses and atrocities committed in various governments in the name of Sharia law.
Here is Part 1, Article 1: “Islam is the Religion of the State, and the principal source of legislation is Islamic Jurisprudence (Sharia).”
If this clause remains in any final version, Libya will join countries like Iran in imposing religious law on a population. Not only is it a rejection of the separation of church and state, it would make a mockery of other guarantees of due process.
It is interesting that this issue was raised by the conservative Heritage Foundation, which seems supportive of faith-based programs and legislation in the United States. Heritage (before which I have spoken in past years) is not viewed by civil libertarians as particularly strong on separation issues. Some of us disagree with faith-based politics and legislation regardless of whether it is Judeo-Christian or Muslim.
There is of course great disagreement over the proper enforcement or even meaning of Sharia precepts. However, the treatment of women, religious freedom, free speech, and the methods of punishment have been a constant source of abuses in Sharia-based systems.
It is not clear how much support this draft has within the transitional government, but the story highlights how little we know of the intentions of leaders or factions in this new government.
If anyone is still following this thread: OK, it looks like this document is for real. It has been mentioned by U Mich Prof. Juan Cole in his latest post, which has a lot of interesting analysis on the situation in Libya. (I think I can only include one link per post, so check out juancole dot com . The post is titled, “How to Avoid Bush’s Iraq Mistakes in Libya” – I’m pretty sure that US Republicans will read that post and rush off to try to call for the exact opposite of what this Middle East expert is suggesting….)
Prof. Cole links to an analysis of the draft:
http://www.al-bab.com/blog/2011/blog1108a.htm
I don’t know anything about the writer, but the post starts off by mentioning that it’s a good thing that the draft does not establish the new Libya as a specifically Arab nation, as was the policy under Ghadaffi.
(Libya has a substantial Berber population, and they played a major role in the actual fighting of the Revolution, and thus, probably expect a better deal under the new system. Berbers are mostly very tough nomads to begin with, and the various Berber groups have been fighting a Kurdish-like low-level, multinational “war” for recognition for decades, so they had the discipline and experience to fight that most Arab Libyan kids didn’t. That also means that they pose a threat to the new government if they aren’t adequately recognized.)
But the post goes on to compare the wording of the draft to several other constitutions in the region. Basing the constitution in Islam is de rigueur, of course. Various nations explicitly base their law in Islamic Jurisprudence to varying degrees. One land mine that the writer points out is that this draft tries to carve out an exception to the application of “sharia” to non-Muslims on matters of “personal status law.” (I assume that typically deals with issues that we would call “family law” and the like.)
I don’t need to point out to a bunch of lawyers that people can interpret constitutions and laws however they see fit. Just as Justice Scalia took a big black Sharpie and blotted out the opening clause of the Second Amendment because it didn’t fit what he thought the Framers should have meant, a President Bachmann would similarly read the Constitution and see the work of Christian Fundamentalists, and interpret it accordingly. Nominally secular states (like Ba’athist regimes in Iraq and Syria) were just as capable of what we see as gross injustice as the nominally Islamic/Sharia justice systems in their neighboring nations.
mespo,
that is all true. An “ideal” society would have “Reason is the principal source of legislation.”
But real world countries which are responsive to the will of the people have to take the moral standpoints of the population into account.
And these moral standpoints are often colored by religion.
For example: dry counties and restrictive laws against nudity in the USA, the protections of Christian holidays in all German states, the restrictions on beef in many Indian states, the restrictions on pork in Israel, and so on, and so forth.
All directly or indirectly grounded in religious teachings.
If the future Libya had similar Islamic influences in its constitution and law, would you really say that that wouldn’t be a “huge improvement” over an murderous dictator, just because it fell short of some abstract ideal of rule of reason?
@martin gugino: German (why the scare quotes?) peasants weren’t property in 1848.
“I wouldn’t put it past either factions within Libya (including Ghadaffi supporters or disgruntled elements of the liberation forces) or outsiders (like foreign governments’ “intelligence” agencies) from fabricating something like this and disseminating it for some gain during this transitional period.”
Tomdarch raises a valuable point here in that we don’t know the provenance of this document, or the purposes of its release. Beyond that though my assertion is that it is none of our damn immediate business. For years the foreign policy philosophy of the US has been sold to our people as exporting our superior values to those backward civilizations in the rest of the world. My belief is that unless those country’s are a threat to this nation, or others nearby, they should be left alone to decide their own fates and forms of government.
I’m aware that my last sentence opens up a plethora of controversy and I’ll try to deal with the issues inherent in it in brief.
By threat I mean a physical threat that would cause direct harm to US citizens, in America. I don’t mean US economic interests (i.e. oil) because I don’t see it as our governments duty to protect the economic interests of industry’s or corporations. If we are dependent on foreign oil, that is the fault of oil corporations putting us there through manipulation and co-opting
of our government. The US has no inherent right to the resources of other countries. I cannot see our troops dying in an effort to ensure oil resources.
As to the system of jurisprudence used I believe that it is still not our mandate to impose our beliefs upon other nations we deem “backwards”. I dislike many aspects of Sharia Law, such as its’ treatment of women, lack of religious freedom, oppression of homosexuals and draconian punishments. I am not against protesting these issues and even boycotting countries that have legitimized this oppressive behavior. However, we are certainly not without sin in this country and thus should not be casting stones.
I grew up in a US that decried the horrible system of Soviet “justice”, while at the same time imposing “Jim Crow”, oppressing Native Americans, enforcing rigid systems of political thought through McCarthyism and banning the books of some of the 20th Century’s greatest authors. The USSR was an abomination as a nation, Stalin certainly ranked with Hitler, but was it any better under the Czars, or better now with “democracy” under Putin. Why does the US get to decide what happens with the Russians, just as why should they get to decide our internal politics.
I won’t belabor this, but will elaborate if asked. There is a large group of American’s with influence who believe that we should create an empire.
See PNAC for one plan in this direction. I think their dream of “Empire” is chimeric and wrongheaded. I further believe that even before that thought is even entertained, we should clean up our own house, such as the highest rate of imprisonment in the world. I want us to leave Iraq, Afghanistan and disengage from Libya. I don’t want to see one more American die in these
misguided projects, nor do I think we will improve the lot of any of these cultures people.
Martin:
You’ve raised many interesting points, but I’d like to explain my take on just one. The notion of separation of church and state is designed not merely to avoid religious entanglement with government but also the reverse entanglement of government in religion. It protects minority interests that are defined as any group not aligned with the state religion. This could be weaker religions in terms of numbers, wealth, or prestige, and also groups for which spirituality is not even a concern. The issue is whether or not the minority group’s beliefs conflict with the state sponsored religion’s tenets. Thus a group of omnivores would be a minority to a state sponsored religion whose members eat only plants as a religious tenet. The protection involves avoiding the state’s imprimatur on any belief system thus insuring that a well-spring of new and innovative belief systems may be tried and hence evaluated. It also insures that one group will not use government’s coercive power agianst another’s belief system. As Thomas Paine observed, “Persecution is not an original feature in any religion; but is always the strongly marked feature of all law-religion, or religions established by law.”
raff
good for us or good for them?
Mike A.,
We have so much experience trying to back the so-called good guys, you would think that we would eventually get one right. Even if by accident!
http://www.bloomberg.com/news/2011-08-23/oil-rich-libyans-won-t-need-financial-aid-in-post-qaddafi-era.html
What is occurring in the Middle East is a series of internal movements. Attempting to predict the outcomes is fruitless speculation, but it would be foolish to think that we are watching the birth of democracy in the western tradition. That is precisely why we should avoid the inevitable calls to intervene on the side of the “good guys.” What Mike S. said about American cultural assumptions is absolutely correct. Some form of sharia law is likely to form the basis for civil law systems in all of these countries for the simple reason that Muslim thought and culture predominates. If our experience in South and Central America and Vietnam was not enough to convince us that our system of government cannot be exported like surplus grain, surely the billions of dollars and tens of thousands of lives expended in Iraq and Afghanistan are sufficient to that purpose.
PS to martin gugino: Megan Stack’s book was truly outstanding. It should be required reading for yahoos like John McCain and Michele Bachmann.
Gyges,
The church persecutes some people, and the state persecutes some people. Russia had “separation of church and state” in the extreme, yet there still was substantial persecution in Russia. Could you make your point in defense of the idea, that separation of church and state will minimize persecution, in a more explicit way?
I assume that that was the assertion that you were defending: minimization of church power is a strategy that will increase freedom.
Mespo, sorry. You were claiming the leaders will protect us from mob rule.
The standard answer is that the USA is a land of laws not men, and the Constitution will protect us. In the context of a revolution and writing a Constitution, what is there to protect the powerless?
Well, usually a revolution is made up of many diverse elements, and it is often a race to see if a stable government can be cobbled together before the thing falls apart. So the answer is “compromise”.
For example, in the revolution of 1848 in “germany”, the Frankfurt Assembly stuck to their principles of free trade and of private property, and so lost the support of the guilds (who liked regulation) and the peasants (who were property). The royalists came back, snearing at the offer of a “crown from the gutter”.
No compromise means no revolution, sometimes at least.
Martin,
There’s an interesting and somewhat random use of Saffron in some Pennsylvanian Dutch recipes.
Apparently a few of the Confessors of the Glory of Christ were Saffron growers in Europe, and they brought their trade with them to the U.S.
Why did they come to the U.S.? They were fleeing religious persecution. They were a minority.
http://en.wikipedia.org/wiki/Schwenkfelder_Church
If it’s one thing the U.S. history is full of it’s the immigration of people persecuted and prosecuted for their religious beliefs back wherever they came from originally. The first amendment (in theory) protects them from that sort of behavior here.
Roco, a lot of people like the Western ways and hate the dictators. Egypt is the most obvious example because the press was there, although some did a lazy job of covering the thing. (Megan Stack’s book is wonderful: Every Man In This Village Is A Liar).
But in my opinion, the best couter-insurgency manual to use is the Bill of RIghts. Short of that, not so good.
And Mespo, you say “Protection of minority interests (as is the essence of the doctrine of the separation of church and state) ”
You think that minority interests are protected by the separation of the church and the state? Could be, but I don’t get it.
I can see that separation of church and state protects some state interests from some church interests, but not how it systematically protects the interest of minorities better. And I am assuming that you are not saying that the separation protects the minority, by giving two sources of power, at least one of which may be favorable, but that the state protects the minorities where the church oppresses them.
By minority I mean the weak, but you may mean something else.
the US certainly seems hell bent on creating the caliphate. Maybe we can help oust the King of Jordan next. That should pretty much do it.
Once sharia is implemented in all of these states they will ditch cultural identities and unite under Islam.
It is going to be a mess.
Mespo, the question is who decides on the essentials, what are the limits to the essentials, who enforces the limits, and how are they enforced.
You say: that’s where the leaders come in. Bush would agree: he wanted to be “The Decider”.
Turley says two things:
1: “However, the treatment of women, religious freedom, free speech, and the methods of punishment “, etc…. and
2. “Not only is it a rejection of the separation of church and state, it would make a mockery of other guarantees of due process.”
As for #1 the record of the USA is not exemplary. (a:free speech) People are getting arrested this week in front of the White House for free speech (actually assembly to petition the government) as I noted above, and (b:women) our efforts to “free the women of Afghanistan” would be laughable, were it not for the acid in the faces of young women (ie it’s not a priority.), and (c:methods of punishment) Bush who admits to torture in writing is not prosecuted because the DoJ exercised “prosecutorial discretion” (per AAG Civil Rights T Perez, who is in a position to know.) And don’t say – torture is not punishment.
As for #2, (a) connection of church and state is not even abnormal. Usually the priests support the kings, because that way it all works out nicely. viz: chaplins, and God Bless America! and (b) a mockery of the “other guarantees” of due process. The “other guarantees”? And what does “due process” mean besides “the regular way things are handled” or “what seems fair to the rulers”. Due process does not seem worth mentioning if you disdain the laws to start with.
Really the question is: why shouldn’t they be allowed to do whatever they want? Are they children? If the objection is “but these rulers are real bastards”, let’s not forget the USA spent 7 trillion dollars on atom bombs.
see, it’s getting closer and closer. next stop, OKLAHOMA.
Tomdarch,
you may be right. We should take what the National Review writes with a grain of salt!
Woah! Time out! I see the words “Transitional National Council” written at the end of the document, but is there any evidence that this is a serious proposal from or within the organization?
The original would,of course, be written in Arabic – does such a document exist?
The simple fact that this was posted by the National Review and not an impartial organization or the TNC itself, means we need to seriously question the provenance of the text. (The use of the term “Sharia” and it’s placement in the very first paragraph of actual content, on the first page of text makes me a bit suspicious. It’s a perfectly logical place to state what is the core of the nation’s laws, but it’s also exactly where Pam Geller would want it placed.)
I wouldn’t put it past either factions within Libya (including Ghadaffi supporters or disgruntled elements of the liberation forces) or outsiders (like foreign governments’ “intelligence” agencies) from fabricating something like this and disseminating it for some gain during this transitional period.
Of course, it could very well be a position being staked out from within the TNC – the question would be how far such wording would get in the political process of developing the new constitution.
Both Ghadaffi and right-wing politicians in the US raised the false specter of al Qaeda or other radical Islamist elements being either behind the revolution or playing a major role in it, as an attempt to discredit the revolution. Both claims are clearly false. (If anyone is drinking LSD in their Nescafe it’s the Ghadaffis.)
Uultraconservative Islamists have played a very limited role thus far in the Libyan revolution (if any) and as a result, I doubt that the end result of the new Libyan government will be some sort of Iranian-style theocracy.
Sharia law is of course not compatible with modern notions of human rights.
But I would caution against an artificial dichotomy “either a totally secular state with a carbon copy of the US First Amendment or an Iranian style theocracy.”
I’m pretty sure that any future constitution will at least mention Islam.
The real question is if it will be (in both constitutional wording and actual lived practice) closer to the Danish and Norwegian constitutions (both establishing state religions) or closer to Iran and Saudi-Arabia. It’s a spectrum.
Oh, and I wouldn’t be so sure that we’ll see a republic: the rebels use the old royal flag and a constitutional monarchy could serve as a non-religious national rallying point.
I’ve got no idea how popular the house of Senussi is though.