This is a great history of the sharia, detailing the emergence of the hadith, the four schools of Sunni jurisprudence, and the Twelver Shia. While thiThis is a great history of the sharia, detailing the emergence of the hadith, the four schools of Sunni jurisprudence, and the Twelver Shia. While this represents the majority of the Muslim word, important schools like the Ibadi are absent. Kadri also details the roots of some extremist Islamic thought from Hanbal to Ibn Taymiyya to Wahab through to elements of the Muslim Brotherhood to Al Qaeda. (The book was written before ISIS became a player). Fewer dots are connected in the history of Shia jurisprudence, though it is detailed as well.
Kari includes the token—sometimes gratuitous—reminders that, by comparison, contemporaneous Europeans were worse whenever we read something that sounds too awful, at least in the history. The conclusion has a similar kumbaya tone, which doesn't quite undo all of the work done in the previous chapters. Kadri, like many Western intellectuals, is capable of making criticisms of extremism in situ in other countries—he points out the utter unreality of decisions by judges in Pakistan and Iran, for example, or in his mentions of how harsh penalties were mitigated with legal fictions such as three-year-long pregnancies—when the situation turns to Muslim minorities in the West itself, somehow, anyone who is concerned is to be mocked.
For example, without further discussion, Kadri mentions on a couple of occasions the laws in Western Europe banning women from wearing the veil. Kadri assures us that most of the women subject to this law want to wear the veil and are more oppressed by the law itself. In other words, French revolutionary values in France should take a backseat to an Islamic Neo-Orthodoxy. In France. In other words, Islamic orthodoxy in Saudi Arabia should be criticized, but in France (or the US, or the UK) it should not. Similarly, when discussion arbitration laws in the US, Kadri mentions that Orthodox Jews use batei din just like Muslims might use sharia arbitration. No discussion is made about whether private courts are a good idea, just that if others are doing it, it's ok for Muslims. In other words, relativism for the West, liberalism for the East.
Frankly, I wonder if this is Kadri's real belief. This tone doesn't permeate the book until its last pages and they almost seem an afterthought. The historical portions are an honest and fair historical account of the development of the sharia—which, like many histories of Islam is colorful, vivid, and detailed from the seventh century to the thirteenth and then merely skeletal for the next 500 years.
It is critical for Westerners who want to understand more about Islam that they can't pick and choose a few verses from the Quran and seek to extract some meaning from that. The Quran is a relatively short work. But unless you understand how it's interpreted, and know something of the thousands of Hadiths that complement it, and the jurisprudential rules that make them all work together, you will be learning about the Quran only and not Islam.
This book does an excellent job of doing that work and is an excellent critique of how those rules are implemented in the East.
Edit: One concern I have with this book is its reliance on official statistics. Just because the state only performed one execution, how many people were killed extrajudicially? How many of those on religious grounds? Those may be unanswerable questions, but without those answers, the claim Kadri makes can't be made....more
This book presents evidence that just don't support its conclusions. Just for example, the fact that Byzantine documents did not use the term "Muslim"This book presents evidence that just don't support its conclusions. Just for example, the fact that Byzantine documents did not use the term "Muslim" means less than nothing. Well into the 20th century, the most common term in English was Mohammedan. Does that mean Muslims didn't exist until 1950?
If you're looking for something on the historical Muhammad, go somewhere else....more
This books starts out incredibly strong. I may end up assigning the first several chapters to my religion students, but the end, in an attempt to defiThis books starts out incredibly strong. I may end up assigning the first several chapters to my religion students, but the end, in an attempt to define the current era of alleged religious violence ties itself into contradictions and overly simplified colonial/resistance dichotomies, does not address what is perceived by many as religious terrorism in the last two decades unrelated to Muslim groups. Even in the very strong historical chapters a sentence will pop out that seems to make a connection with a current event that seems tenuous or even contradictory given the historical context provided.
Armstrong's two central theses are clear:
(1) the separation of religion and politics is a distinction drawn by Europeans, mostly Protestant, in the Modern period.This distinction does not fit the rest of the world. She masterfully shows how this is the case in most of the world's great religions. She discusses that this separation was largely created in the birth of the nation-state when the ideology of the state became the far more dangerous nationalism; and,
(2) Violence is inherent in the state.
Therefore, blaming violence on religion assumes the Modern European politics/religion dichotomy and is incorrect. She argues that most religions have some kind of warrior tradition and that these traditions originate in the religion having to grapple with statehood or porto-statehood at some point.
So far, so good.
Where I think Armstrong goes wrong is when she tries to define contemporary jihadi and terror groups as mostly motivated by politics. She repeats numerous times that jihadis were motivated by a desire to ease suffering and despair at the current world order. The glaring problem with this excuse is that she spends the first three quarters of the book trying to define religion and politics as inseparable. So which is it? For me this is a very difficult flaw to overlook in an otherwise wonderful book.
As a counter-argument to the polemics of New Atheists like Christopher Hitchens's God is Not Great, this book should be devastating, and it should change the debate. There really is no response to the fact that it has been in the service of ideologies like nationalism that the world has suffered far more and that religion has actually done much to temper state violence throughout history.
On another front, I take issue with Armstrong's overly simplistic dichotomy between colonizer and colonized. Armstrong has, in the past, rejected this kind of oversimplification and political correctness, for example, in addressing the "Aryan Conquest Theory," whose detractors argue is a legacy of British rule in India, despite overwhelming evidence to the contrary. She does not mince words about this being the case in this book. India is not as rich as many of the post-Colonial Arab states, yet she casts the Arab world as much more troubled by colonialism than India. Other times she substitutes "humiliation" for colonization. American troops in Arabia may be humiliating, but it is not colonization. By that definition, there is no basis for terrorism against the UK or Germany, where American troops would be "colonizing." This sort of ghost of Edward Said lingering in the pages troubles me.
Reducing the Israeli-Arab/Palestinian conflict to colonialism also is troubling. There is no answer Israelis can make in that framework. But in a broader context, Israel as a refuge for the Jewish people who were, after its founding, expelled en masse from many of the post-colonial and allegedly secular Arab states, not to mention the events in Europe, the issue appears different.
The New Atheists aside, I think the popular perception of religion causing violence stems largely from the very groups bucking under the pressure of the modern world and seeking the very alternative Armstrong suggests gave birth to many of the world's religions: fundamentalists. She points out that under threat of annihilation, many groups become more extreme.
Also, one nitpick. Armstrong references the "Samson Option," which allegedly is or was an Israeli nuclear strategy whereby Israel would target non-enemy countries so as to trigger a global nuclear conflict, if they were threatened with conquest. Her citation for this fact isn't to a news report, but to a book by Talal Asad about suicide bombing. Officially, Israel doesn't even admit to having nuclear weapons, and while I've read about the "Samson Option" before, it triggers so many antisemitic tropes for me that I needed more proof than one CUNY Professor's text on a different subject. In looking for sources, I found nothing but the usual Neo-Nazi garbage on the web. Even if this idea did come from some Israeli official, it could just be used as a psychological ploy, whereby, ironically, those who will gobble up antisemitic garbage will spit it out in furtherance of Israel's goals. I try not to judge the rest of this work by this one work, but as a Jewish Studies scholar, I bristled at her reductive treatment of the Israeli-Arab conflict and this makes me wonder more.
Looking at Asad's book, I only see him reference the "Samson Option" as the name for Israel's nuclear arsenal and his discussion of Israel (allegedly) teaching its children than Samson was a "tough Jew." Continuing the metaphor to Samson bringing the temple down on himself and everyone else isn't backed up as part of Israel's nuclear strategy, even if that's the name. It's just assumed in the antisemitic halo about this name that it involves a totally suicidal use of those weapons against non-aggressors. Asad's reference to the "tough Jew" seems both more apt and more consistent with Zionist and later Israeli self-image.
Yet Armstrong's explanation is that it is "a strike that would inevitably result in the destruction of the nation to be an honorable duty and a possibility that the Jewish state has freely chosen." From Samson to Masada to the Crusades, Jewish suicide has been a theme in its history, but to my eyes the comparison that is apt, and more likely looming in the minds of Israeli strategists, is the Holocaust, not suicide bombing. The name isn't about the enemy, but the self. It's about the ghostly question of why (it is perceived that) so many Jews went (seemingly) willingly to their death in the Holocaust. Of course, that's just not true and the assumption of this being the case is a good way to pick a fight.
Armstrong needed to show more care and insight in bringing this topic up.
Plus, I'm completely at a loss as how explaining Jewish history and memory this way excuses suicide bombing or makes it not religious violence. It's an example of how, I think, Armstrong damages her own argument when she gets out of history and in to today. The very argument that the New Atheists make is that, yes, all religions foster violence by causing people to act on the basis of mythological memory and fake history, be it recalling Samson or be it suicide bombing. Her argument that these things are both happening in the context of secular Israeli Zionism and (mostly) secular anti-colonial Arab resistance movements, again, undermines her case that religion and politics are only artificially separable.
In what one of our most liberal Supreme Court justices referred to as "ceremonial deism," the US upheld the use of the motto "In God We Trust" and not some other ceremonial deism based on, say, a Sikh legend. The New Atheist argument is that, essentially, we must strip all of these symbols out and that because of things like this we have never really seen a "secular state" because even secular states are made up of, at least until possibly today, people who aren't atheists.
In other words, if Armstrong's first argument holds, our politics is influenced by our religion and vice versa. We cannot separate the two when convenient, even in the United States. I remain open to being convinced, but on the merits of this book alone, I can't agree that what motivates the jihadis, or America's home-grown terrorists who kill abortion doctors and bomb federal buildings, are purely secular motivations most of the time, or even ever. To me it seems much more likely that the dominant factor is some kind of mental illness, not the absence of religious influence.
Finally, it's unclear that resistance to colonialism or "humiliation" is entirely universal in any religion. As Armstrong mentions, some religions have always been "colonized" or minorities and some have sought and fought for independence and others haven't. In some cases it depends on the era.
The controversy over this book shouldn't be that it calls for major reforms to the Supreme Court. Rather, the controversy should be why it took untilThe controversy over this book shouldn't be that it calls for major reforms to the Supreme Court. Rather, the controversy should be why it took until 2014 for a major legal scholar to realize this was the case.
The answer is that the ascendent generation of legal scholars lived in the one period where the Court was an agent for progressivism. Indeed, I imagine most of those scholars were, like Chemerinsky states himself, inspired into the profession by those cases in the first place. This so drastically biased the view of these scholars, and their waiting for some messiah to return that era, that they were blind to the obvious truth: the Court has, as a rule, been a reactionary force in American politics.
There is virtually no other country in the world that we would consider "free" where an unelected, lifetime body of sages can strike down acts of the democratically elected legislature. There is one country that does have such an arrangement that I can think of, however: Iran.
Chemerinsky fails to point out—until his discussion of the merits of term limits—that the times when the Court was relatively progressive or moderate were times when the people were already way ahead of them. The "switch in time that saved the nine" in the 30s was one such example. Chemerinsky claims that the Civil Rights Act of 1964 was more or less enabled by the Brown v. Board of Education decision, but, in my opinion, the only way that's correct is that without it, the Congress could have expected any civil rights laws it might enact to be struck down. He claims the political process would have taken much longer—just a few sentences after pointing out that the Court's early jurisprudence on the 14th amendment set back civil rights for decades. If Congress had been able to act according to the plain meaning of the 14th amendment, it might have done so. Who can say?
There is a contemporary example. Gay marriage is a hybrid of judicial decisions, popular referenda, and acts of legislatures. Even though at the moment, it appears that the existing cases require gay marriage to be legal, it's hard to believe we would have gotten there if so many states and the political process hadn't moved too—indeed, a key step was "civil unions" that were widely enacted by legislatures. From there, it was an easier argument to say there's no sense in discriminating between group A and group B. And this change has come about rather rapidly as these things go.
Finally, judicial review gives the legislatures and Congress the ability to punt on controversial laws and take political credit for feeding red meat to their base without owning the consequences of actual enactment, especially in the case of very controversial laws. This fact gets just a few sentences of consideration by Chemerinsky.
Congress is extremely unpopular and it is unlikely that Americans would support an amendment giving them the authority to override the Supreme Court, say, on a two-thirds vote with concurrence from the President (no veto override). But there ought to be some further check and balance on the decisions that don't involve the political pressure of removal or term-limits like Chemerinksy suggests.
One much more practical way to do this is to demand from Presidential candidates that they appoint justices who will give greater deference to Congress than they do.
Chemerinsky's lead suggestion is to re-implement the "merit-based" judge selection implemented by President Carter. This is a suggestion only a law professor could love. In a time when political procedural obstruction is at its maximum, what possible benefit could there be from another veto point in a process? Would Chief Justice Earl Warren survive such a panel today? After all, he was not a Harvard educated appeals court judge. Chemerinskiy deplores the homogeneity of the Court's composition while suggesting a process that would only serve to make it even more the same.
I find it troubling how much Chemerinksy's consideration of ending judicial review is a straw man. In his example, there would be no vindication for any rights in court if judicial review pursuant to Marbury v. Madison were ended. In an extreme case, yes. He could, but does not, distinguish between several potential layers of judicial restraint that are possible. His example includes full deference to acts of the executive and the legislature. Why does this need to be the case?
Under English law, where Parliament is supreme, the Crown cannot act without legal authority and a court is empowered by mandamus to prevent such acts, just as it is in the United States. Even under such a system, there are judicial checks on executive action, and they aren't limited to violations of the English constitution just like American injunctions can issue from courts for violations of non-constitutional rights as well.
But what an English court cannot do is declare an Act of Parliament down. It can interpret it and if can reconcile conflicts. In Israel, there are "basic laws" which are presumed to trump other enactments, but the Knesset has the authority to amend the Basic laws, but political checks prevent that from happening with any regularity at all.
I wouldn't even go so far as to suggest that US courts cannot declare laws unconstitutional, but I believe that ideal justices would limit the holdings to each case and give a duly authorized act of Congress rational basis review in all cases. In a more ideal system, I would suggest that the American equivalent of "Parliament"—often misunderstood to just be Congress—but in fact, is the President and Congress (c.f. "King in Parliament") as the other two branches should have an additional check on Supreme Court decisions that touch on the Constitution.
Chemerinsky, after spending the beginning part of the book showing how terribly the Court has done in what he sees as its mission of protecting those that the political process won't protect, and citing examples where the political process has protected them (like the Civil Rights Act of 1964, the Voting Rights Act of 1965, and the Bipartisan Campaign Finance Reform Act of 2002) somehow just decides that all of this will be worse if there is no further check on the Courts. I find his argument to be very much not compelling.
The political process does better than he gives it credit for, and the Court is as bad as he says. The solution, then, isn't to simply let the executive and legislative branches run wild, but it isn't enough to just screen justices through a merit panel and then let them do anything they want.
But all of this assumes the truth of a very problematic assertion: that the judicial process is, in fact, outside of the "political process." Is this true? Does the judicial system exist on separate plane? I simply don't believe that. Not after over 10 years of practicing law. Granted, Chemerinsky gives a few examples of where the judicial process has worked where the "political" process has failed—but this implies it wasn't the "political process" that put those judges on the Court in the first place. Indeed, part of Chemerinsky's own argument for term limits for judges is that they be a product of their time, not 40 years prior. If we are to have judges and justices infused with the ideologies of the time, the process becomes even more political.
All of this, of course, is put in sharp focus by the fact that political ideology, not whatever abstract theory of Constitutional interpretation, a judge subscribes to is the number one most reliable predictor of how he or she will vote. Not political? And I haven't even mentioned Bush v. Gore yet.
Any political process is always going to disfavor certain people. Part of the genius of our Constitution was engineering some checks on this. But acting as if the Constitution was made perfect (which Chemerinsky does not) means not extending the principle of checks in favor of leaving one branch unchecked due to a ruling that branch itself made that the Constitution's own authors did not foresee.
For every Brown v. Board, I can show you a Civil Rights Act of 1964. For every Roe v. Wade, there is a Social Security Act. We may dislike Congress, but at least they have to answer to us.
I've already mentioned why merit-based selection panels are flawed and will only exacerbate the very flaws Chemerinsky complains of, but what about term limits? What has the experience been in putting term limits in place in other branches?
Well, it hasn't much harmed the Presidency, but with the exception of FDR, no President has ever served more than two terms to begin with. It is rather less common for a party to win a third term in a row, though it happens. (Just once since World War II -- Bush I after Reagan).
But in state legislatures, term limits on legislators has simply replaced the party machinery as the organization in charge and greatly deprived legislators of independence. They look to see what they will be doing next. This won't be any different for a 14-year Supreme Court term. We will simply see a series of clones put in place by the political process that places them.
If we're going to open the Constitution to solve this matter instead of just change the existing political process to require justices to give huge deference to Acts of Congress (if not executive powers), then why not simply give the Congress and President the ability to reverse the judgment of the Supreme Court?