Mosque and state in Iraq's new constitution.

AuthorTownley, Stephen
  1. INTRODUCTION

    On Saturday, October 15, 2005, the Iraqi people ratified their new Constitution. (1) Despite this endorsement, many believe the Constitution is flawed. Indeed, it has provoked hostility (2) since its provisions became known late in August 2005. (3) Characteristic of this early response are the reactions of Sheik Abdul Rahman Mished, who said, "Kirkuk's Arabs refuse any constitution that would divide the country by different names, which is at odds with Islam and with the Arabic nation of Iraq," (4) and Abdul-Nasser al-Janabi, who exclaimed, "[w]e declare that we don't agree and we reject the articles that were mentioned in the draft and we did not reach consensus on them in what makes the draft illegitimate." (5) The hostility has not abated since the referendum (6) and may have even aggravated divisions expected to heal. (7)

    In the United States, in the weeks between when the document was translated into English and the referendum, pundits focused on, and reserved their most vituperative language for, the role the Constitution assigns Islam--establishing it as the religion of the state. David L. Phillips of the Council on Foreign Relations opined, "It]he Constitution pits Islamists against secularists, Shia against Sunnis.... The 'new Iraq' is a far cry from what President Bush had in mind when he promised freedom to the Iraqi people." (8) Likewise, the editorial board of the New York Times declared, "[p]rovisions that could strip away the legal rights of Iraqi women have been left unchanged [in the Constitution]. The chances of this language being interpreted benignly by a future legislature dominated by Shiite religious parties or a future Supreme Court packed with senior clerics is [sic] less than nil." (9) Since the referendum, these observers have reiterated this criticism. (10)

    Yet there are both ethical and practical reasons for the United States to approve those provisions of the new Constitution addressing religion and Islam. As Noah Feldman has explained in a recent book, we owe an ethical duty to the Iraqi people. (11) Feldman enumerates three roles for the "nonpaternalistic nation builder": 1) to impose security; (12) 2) support the freedoms of speech and assembly; (13) and 3) insure the participation of all relevant stakeholders in important negotiations. (14) Essentially, the role of outsiders like the United States is to assist in the processes of state and nation construction.

    This is not only an ethical duty; it is also a practical imperative. (15) The sooner the United States can withdraw from Iraq, the better. (16) But it is only when Iraqis have built both state and nation that Baghdad will be safe and U.S. troops able to withdraw. Larry Diamond, an advisor to the Coalition Provisional Authority, emphasizes state building. One point he makes is that people are afraid of more than the state; they are also afraid of loosing their freedom through the absence of order. He argues that before Iraq can become a democracy "it must first become a state, which establishes a monopoly on the means of violence." (17) Toby Dodge, on the other hand, highlights the importance of nation building. (18) In 2004, he warned the Senate Foreign Relations Committee that Iraq's "largely atomized society" would have to come together for the U.S. mission to succeed. (19)

    Accepting Feldman's thesis--that the United States is ethically required to work to help Iraqis build a state and construct a nation, and my extension of it--that it behooves the United States to do as Feldman urges, the worth of the new Constitution from the U.S. perspective will vary according to how well it advances state- and nation-building efforts. (20) In this article, I offer a preliminary assessment of that worth. I focus only on those provisions of the Constitution that relate to religion, both because they are among the most controversial in the United States (21) and because they have great potential to affect the state- and nation-building processes. (22)

    In the first half of the article, I contend that Iraqis can most easily build a state and construct a nation if they cooperate with religious groups, as the Constitution permits and impels them to do. I also argue that such cooperation is inconceivable unless the Constitution establishes Islam as the religion of the government, as it does. In the second half of the article, I take up another question: that of the rights due minorities and the requisite corollaries to cooperation and establishment. I suggest that Iraq should make a concomitant commitment to protect Muslim dissenters, those who neither want to abandon their Islamic faith nor accept the dictates of the Muslim majority without question. I lay out practical steps the Iraqi polity could take--including laws it could pass and judicial structures it could adopt--to realize such a commitment. In sum, the thesis of this article is that U.S. hostility to the new Constitution is misguided. I argue that the United States should instead refocus its energy on spurring Iraq to take steps to protect Muslim dissenters.

    This article is sited at the intersection of policy and theory. The article could be useful to U.S. diplomats and policymakers. To date, U.S. lawyers and legal academics have not offered policymakers much assistance. (23) This article aims to remedy that failure and help U.S. policymakers prepare for the critical next two years of Iraq's constitutional and legal development.

    The article also makes three theoretical contributions to legal scholarship. First, I offer a rebuttal to those who argue that the best way to render Islamic states more tolerant is by reinterpreting and re-imagining Islam. (24) Islamic constitutionalism is a burgeoning field. (25) But even after roughly ten years, most scholars still seem content to look backward, tracing principles of tolerance through Islamic history. (26) As Erik Jensen has said, contemporary scholars "look[] superficially at selected passages from the Quran, the Constitution of Medina, as well as concepts and practices such as shura, ijma and maslaha, and pour[] Islam into liberal democratic vessels." (27) I take the Shari'a and unwritten Islamic constitution as I find them and explain how they can usefully be used to promote tolerance. Second, I describe a new way to conceptualize the relationship between religion and government. Although much ink has been spilled on the question, no one, to my knowledge, has mapped this relationship in two dimensions, rather than in one. (28) I do so. Third and finally, I strive to contribute to the ongoing discussion of the utility of comparative law. (29) I am fully expert in few of the areas of law I discuss. I am neither verifying a theory nor building one immediately susceptible of falsification. (30) Rather, by discussing and comparing constitutional experiences proximate to Iraq's, such as that of Egypt, and distant from Iraq's, such as that of the Netherlands, I hope first to debunk a popular perception (that the establishment of Islam as the religion of Iraq is a recipe for disaster), (31) second, to tentatively explore the role religion should play in Iraq, (32) and third, to show, by example, how Iraqis might better understand their own system by looking to other countries. (33)

    Before laying out the structure of this article, I want to define a few important terms and offer a brief caveat. A "state" is a territorial entity that provides essential services (including security). The state should assure freedoms of speech and assembly. The state should also assure the full participation conducive to national legitimacy. A "nation" is a sociological and legal idea to which those who live within the territory of a state may or may not subscribe. "Government" means something different than either "state" or "nation." The government is the set of actors able at any given time to effect policy. Finally, a "belief association" (34) is a group of individuals who hold common and sincere beliefs (35) that help to define their relationships to other men, to the universe, or to God. (36) This term is broad and I mean it to include both religious and quasi-religious groups, like, for instance, scientologists and Jehovah's Witnesses. I do not intend it to include, however, the Church of No Taxation. Rather, a "belief association" facilitates and passes on "demands made upon us by society, the people, the sovereign, or God.... [It offers a set of symbols and] signs by which each of us communicates with others." (37)

    Finally, I articulate this theory rather forcefully at least in part in an effort to stimulate a discussion on the merits of the new Iraqi constitution. I offer this caveat: this article is neither exhaustive nor comprehensive. Rather, I have simply tried to generate plausible arguments and apply them to the Iraqi Constitution. My hope is that this article will stimulate further discussion within the U.S. legal community.

    This article proceeds in four parts. In Part I, ! set the stage for argument by modeling the relationship between governments and belief associations in a new way: along two axes rather than along a single vector, with a government's position along the x-axis representing the extent to which it prefers one belief association (or indeed secularism) to other belief associations, and its position along the y-axis representing the extent to which it is willing actively to cooperate with non-dominant belief associations.

    With this model in mind, in Part II I defend the way the Iraqi Constitution treats religion. I do so by articulating what I call the privilege paradigm. I suggest that the two principal U.S. desiderata--the establishment of a state and the construction of a nation--can best be realized if Iraq privileges religion. Using the model, Iraq should not only cooperate with non-dominant belief associations (i.e. be above the origin on the y-axis) but also entrench Islam as the...

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