Following the destruction of Saddam Hussein’s government and with it the disappearance of a functioning court system, many Iraqis are turning to young shaykhs for legal decisions. They do so even though their recently established sharia courts have no enforcement power and are not recognized by either the American occupation forces or Iraq’s other Muslim religious authorities. The sudden creation of these courts, whose authority rests entirely upon voluntary consent, testifies to the strength of the commitment many Iraqis have to living under the code of sharia.
Not all Iraqis are so keen to live by the strict doctrine of sharia, however, and their political visions extend as far as fascist Arab nationalism. Somewhere amidst this conglomeration of extremists lie the moderates who, with the help of the United States, are left with the enormously complicated task of establishing a democratically-run constitutional regime.
In order for democratic rule to work, though, every able individual must have the political freedom to participate in self-government irrespective of race, religion, creed, or class. In particular, the rights of minorities–like Christians, Jews, and secular Muslims–to participate freely in self-government must be ensured. Any attempt to structure the new Iraqi regime solely on the basis of ethnicity or religious adherence is likely to infringe upon the rights of minority groups, enrage the extremists among the minority groups, and incite violence, creating factions and possibly paving the path toward ethnic cleansing.
What is needed, then, is a system that allows for the diversity of the Iraqi people, but encourages civil interaction and the formation of associations between members of different religious and social groups. Such a system is especially difficult in a country like Iraq, indeed in much of the Arab world, where religious differences are centered largely on differing legal and criminal codes. Radical Islamists are willing to fight and die in the hope that their actions will bring about a society operating under the legal doctrine of sharia. What the exact legal doctrine is, however, seems to differ from sect to sect even within the various Shiite and Sunni groupings. Although the radicals make up only a small percentage of the population, they are bolstered by the often quiescent support of more moderate Muslims. As the radicals gain popularity, democratic institutions such as elections could place them in positions of great power and authority. This could have devastating consequences as the newly constructed democracy descends into radical nationalist or religious tyranny. Democratic institutions without an atmosphere of tolerance or a belief in fundamental rights of human beings are easily undermined and generally unsustainable.
Civility and tolerance, though, are not going to blossom overnight, especially after so many years of oppression and fear. A democratic mindset must come from within the hearts and minds of the Iraqis themselves if democratic government is to have any chance of success. If democratically established courts are to be accepted, the Iraqis must believe in their moral right to participate in selecting the government that creates those courts. Even moderate Muslims, however, view sharia as having legal and political force and are unlikely to accept a constitution that runs counter to it. Muslims will turn to the sharia courts for legal decisions and if a new constitution does not recognize the validity of these courts, it risks losing its own validity in the eyes of the Iraqi people. This could alienate a significant number of Iraqi citizens, preventing the new constitution from being widely accepted. Any democratic system created in a rebuilt Iraq will have to incorporate the significant number of Iraqi Muslims who wish to follow some form of sharia law. We cannot expect the Iraqi Muslims to abandon their values, their culture, and their laws and adopt an American or European style value system. We can, at best, help encourage the Iraqis to find civility, tolerance, and belief in the value of human rights from within their own moral traditions.
To this end, perhaps we should consider encouraging Iraq to take another look at their old constitution of 1925, as recommended by Prince Hassan bin Talal of Jordan. This does not mean Iraq should reinstate the monarchy, but rather it should adapt this constitution, with its parliamentary system and separation of powers, perhaps creating a presidency to fulfill the king’s duty in parliament, as many European countries like Greece have done. The main advantage of this constitution, though, is its federalist style administration of different communities within the Iraqi populace. The communities are defined by religion and religious law holds sway in each community as long as it does not conflict with civil laws that are binding for all Iraqi citizens. Civil laws, which can follow some sort of theory of fundamental rights of man, hold a sort of check on the power the communal laws are allowed to have. A broader definition of community could include the Kurds and also allow different secular groups to live under their own laws without necessarily requiring religious affiliation. The communities need not be defined geographically and can even encourage integration and positive interaction if people with different values can live near one another without being subject to the others’ doctrine.
This solution is likely to appeal to many Iraqis, Muslims and non-Muslims alike, since it allows sharia to have binding legal force for Muslims, but, if enacted properly, would not subject others to the Islamic religious doctrine. Additionally, if people are allowed to switch communities with relative ease, dissenting Muslims will be saved from the harsh apostasy laws of the sharia.
Radical Islamists, however, are unlikely to accept the validity of these sharia courts primarily because they are limited by the essentially secular civil code. These radical Islamists will probably continue to fight the Iraqi government and people, arguing that the power of sharia must be above all civil laws. Nonetheless, if more moderate Muslims are willing to accept such an agreement and follow the government enforced sharia laws, the radical Islamists will find themselves in conflict with these moderates and will lose support from the majority of mainstream Muslims.
Many Kurds already support such a federalist system. Over the past twelve years, the Kurds have enjoyed a certain amount of political autonomy as United States enforced no-fly zones and international aid effectively separated them from Saddam Hussein’s governance. Despite having somewhat independent political institutions, many Kurds are reluctant to completely separate from Iraq since political autonomy could be taken as a sign for Turkey to invade and conquer a newly formed Kurdistan. Many Kurds would prefer to keep and improve their current political structure, but remain under Iraqi sovereignty without being threatened. A federalist system based on principles of legal and communal autonomy in the 1925 constitution (modified to include the Kurds as regular and full citizens) could allow the Kurds to participate as a community in national government without compromising their security or their freedom.
A constitution that incorporates this sort of cultural federalism based on the 1925 constitution will not create a true democracy before our next presidential election, but it may serve to help Iraqis deal with the variety of culture among themselves in a way that does not diminish traditional values and customs of one group and does not impede on the traditional values and customs of another. This system also allows for Iraqis to be unified under the civil laws, but at the same time to follow the traditional laws of their respective communities. If individuals can determine their community themselves, and not have it imposed on them for geographical reasons, they can better participate in their own self-government without infringing upon the right of their neighbors to self-government.
Yehuda Halper is a senior at the University of Chicago, concentrating in both classics and mathematics. He is currently a research intern at the Ethics and Public Policy Center and a Junior Fellow at The John M. Olin Center for Inquiry into the Theory and Practice of Democracy.