Krieger on Feldman, or utter incompetence

While Noah Feldman’s piece in the New York Times Magazine is certainly imperfect, Zvika Krieger’s critique at TNR‘s is even more so. Not only does it not refute or disprove any of Feldman’s claims, it is written in such a condescending manner as to erode its own credibility.

Take the first point:

Feldman claims that the reason Islamist parties are so popular in the Middle East these days is that they promise a return to Shariah as the guiding principle of governance. He bends over backwards, via a long-winded historical overview, to prove that Shariah is actually a code-word for “rule of law” in Muslim societies, and that people who want to implement Shariah really just want to implement the rule of law. The problem is that this argument is purely theoretical; in the hundreds of people I interviewed across the region in my two years as a correspondent there–including supporters of Hezbollah in Lebanon, the Muslim Brotherhood in Egypt, and Wahhabis in Saudi Arabia–I never once heard this rationale for supporting Islamist groups or parties. The three main reasons I heard were (a) politicians from Islamist parties were less corrupt than those from other parties; (b) Islamist parties are good at disbursing social services; or (c) people actually supported the more conservative elements of Shariah–like stoning adulterers and forbidding alcohol–not some lofty concept of “rule of law” that Feldman claims it represents. So while Feldman’s theory may make sense in the libraries of Harvard, it doesn’t really square with the reality on the ground

The problem with this assessment is that it offers no definition of what constitutes “rule of law,” and does not disprove Feldman’s argument that, for their supporters, Islamist parties represent a return to the rule of law.

The reasons Krieger notes actually do point to the fact that Islamist supporters view their parties as agents of the rule of law. Corruption violates one of the most widely excepted aspects of any conception of the rule of law; that no one is above the law. Furthermore, that Islamist parties are efficient in the distribution of social services indeed represents another aspect of rule of law; the fulfillment of the social contract. In most Arab-Islamic societies, the social contract has been such that the population at large keeps out of politics and does not ask questions and the government provides employment, social services, and so on. When states cannot do so (many Arab and Muslim states are nowadays failed states or are on the verge of being so, including those under the American embrace), the people tend to turn to Islamist factions. The final observation, about supporters of Islamist factions being especially drawn to the more austere aspects of shariah, does not contradict either of the previous two, nor does it contradict any vision of the rule of law. Krieger seems to be arguing against placing the rule of law ahead of individual liberties, but this argument is poorly articulated and its opposite is not the case that Feldman is making.

Krieger’s second criticism is that:

– Feldman tries to argue that Islamic scholars, as the ultimate interpreters of Shariah, serve as a counter-balance to power of political rulers. The problem is that the scholars are almost always appointed (and easily dismissed) by the rulers, which severely limits their ability to disagree with the rulers in any substantial way.

This is the only point Krieger makes that is remotely defensible. In present times it is the case that religious authorities (collectively called the `ulama) have been largely and widely neutered. This is precisely because Feldman’s point about the ability of the `ulama to temper the power of rulers was true throughout most of Islamic history. In Morocco, the `ulama was one of the deciding factors in whether or not the Sultan went to war and in the exercise of trade and diplomacy. At every level, the religious authorities were involved often times hindering the governing elites. This was also the case in Iran before the Islamic Revolution, and the quarrels between the monarchy and the `ulama were among the strongest factors contributing to Ayatollah Khomeni’s vitriolic rejection of the Shah (who had made many attempts to marginalize the `ulama whereas they had traditionally been an important part of the edifice of the regime) This system, contrary to Krieger’s claim exists superficially in Iran, Morocco, and to a lesser extent in Egypt and Mauritania where religious scholars form important segments of the civil society. They are strongly and formally institutionalized only in Saudi Arabia and Iran. There they are appointed by the regime with the primary purpose of reenforcing and legitimizing the regime. Where the `ulama is at the present time the weakest, they were often times historically the most powerful. The historical practice of the kind of “checks and balances” that Feldman describes is solid; it began to wane in the nineteen the century, as Western influence became more powerful, and the `ulama opposed military and economic reforms that included ideas imported from the West forcing rulers to circumvent them.

– Feldman asserts that by serving as a counter-balance to rulers, the scholars are “agents of stability and predictability”–factors that “were absolutely essential” to the flourishing of Muslim countries during the Islamic Golden Age. The problem is that, as much revisionism as Feldman would like to employ, Shariah is an inherently conservative tradition that propagates values and regulations that most in the Western world would consider retrogressive. So while these scholars may help keep their societies stable and predictable, the problem is that they remain stably and predictably retrogressive and exploitative to many. The only society today that has a cadre of independently powerful Islamic scholars along the lines Feldman describes–Saudi Arabia–is a perfect example of what happens when you take “rule of law” as inherently valuable and as an end unto itself (as Feldman does in his piece).

This last point is simply not true. Shariah is not “inherently conservative tradition” when put into comparative perspective. At the present time it is overwhelmingly so, but historically this was not the case. Krieger’s analysis does not disprove Feldman’s argument, and it seems to offer a rather dim understanding of Islamic political traditions. The rule of law is something lacking in much of the Islamic world nowadays (see the map) and was historically one of the most important aspects of what constituted political legitimacy. Krieger’s argument here only applies to Saudi Arabia and ignores the implementation of shariah elsewhere in the Islamic world, in Malaysia, Indonesia, North Africa, and sub-Saharan Africa where it has been more progressive almost as a rule. One can very easily make a case that the Iranian tradition is more liberal than the Saudi one.

The Rule of Law Index, And for all his intricate theories of Islamic scholars acting as a counterbalance to rulers, he does not give even one example of the piece–in recent times or through Islamic history–where the scholars were actually able to exercise such power in any significant way.

There a few examples I can think of, off of the top of my head. The first is the Constitutional Revolution (1905-11), in which the `ulama, together with the bazaari (merchant) class forced the Iranian [Qajar] monarchy to adopt a constitution and form an elected parliament.

The second is the whole of Moroccan history up until the middle nineteenth century. Before engaging in any military campaign, the sultan was forced to obtain a fatwa from the `ulama in Fes accepting the validity of his expedition and explaining how it was compatible with the tenets of Islam. The Moroccan monarchy provided support to the Algerian `Abd al-Qadir only after an exchange between the Sultan and the `ulama debating whether or not it was the responsibility of the Sultan to defend (directly or by proxy) the sovereignty of a fellow Muslim polity that had been invaded by a Christian power when that polity was under the umbrella of another empire. The Sultan argued that the Ottoman Empire was incapable of maintaining the rule of law in Algeria and that it was thus his responsibility to provide it by means of jihad. The `ulama argued that the region in question (western Algeria, especially Oran and Tlemcen) was still under Ottoman sovereignty and that the Ottoman Empire should be responsible for its defense and that there was no need for a jihad on the part of the Sultan. The `ulama was ultimately won over, and the Moroccans provided a great deal of material and moral support for the Algerian resistance, until French pressure (in the way of coastal bombardments and ground offensives into Moroccan territory) forced the Sultan to stop giving Algerian fighters sanctuary and arms.

Krieger’s piece is a wonderful example of the TNR‘s style of journalism, which comes in several shades of yellow. Feldman’s imperfect essay deserves a more scholarly critique, and while it is certain that Feldman’s “troubling” complaints about feeling alienated from his Orthodox Jewish alumi association are of interest to some, those concerned with the theoretical, practical, and spiritual implications of shariah will have to look elsewhere to look beyond the TNR’s non sequitors.*

* [ The actual “take down,” by Leon Wieseltier, that Krieger’s post links to is vaguely more scholarly but relies entirely upon ethos and makes no substantive logical arguments against Feldman’s article. Wieseltier’s critique centers around attacking the NYT Magazine and the idea that shariah in its entirety is either without value or ipso facto “bad.” As with so much of what appears in the TNR, Wieseltier takes an idealistic stance overshooting for “secularization” as opposed to following the trajectory of history, which indicates that shariah will be a part of the movement of Muslim history whether it is pleasing to Westerners or not. ]

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