One reason that the U.S. has been weak in effectively responding to Islamist maneuvers for control in Iraq is a persistent misunderstanding of the relations between Islam and the state, and this is creating major problems in the drafting of Iraq's "Fundamental Law," its interim constitution, due to be finalized by February 28.
Key administration officials, and the bulk of our news media, try to describe these issues in terms of the "separation of church and state," a phrase whose meaning within America is famously murky, and that is even murkier when applied to another country, and to a religion that has no real equivalent of a church.
Hence, we are often advised not to worry about the influence of the preeminent Shiite religious authority, Grand Ayatollah Ali Sistani, since he believes that clergy should not have a direct role in government. While he does think something like this, it tells us very little about what he does want: Sistani's primary concern lies elsewhere — with the influence of Islam on Iraqi law.
This confusion is deepened by the common habit of referring to Muslim religious authorities as "clerics" or "clergy," as if they were priests or Methodist pastors. But they are nothing of the kind. This is no pedantic matter of interest only to comparative-religion specialists: It is fundamental to understanding the relation of Islam and law.
Iraq's religious authorities are as much judges as they are "clergy." Their training is typically in law, not theology. They know the sources and history of Islamic jurisprudence (sharia) and they apply its conclusions to particular cases, either in a court, or issued as a fatwa (an opinion or decree). They adjudicate the rules and laws that govern Muslims' lives, from how properly to pray, to whether a mortgage is permissible, to whether someone is a blasphemer who should be put to death. In many historical Muslim settings, and in Saudi Arabia today, they are, for the most part, the only judges in the legal system. They are nothing like "clergy" in any common American usage of the word.
If we borrow Montesquieu's categories, we can say that Islam's relations to the legislative, executive, and judicial functions of government are quite distinct.
While the situation has changed in recent years, in many Muslim settings there has been, in theory, no legislative body. The state does not create law: Law creates the state. It would have been almost unimaginable that a group of people, even representative ones, could, by a mere vote, think that they had created some new rule that should govern Muslims' lives and established some new punishment for its infraction. Only God, not men, could make laws and set punishments, and God has already laid down such laws in the sharia.
Bernard Lewis recounts a visit to the British House of Commons in the late 18th century by Mirza Abu Talib who, after remarking that the parliamentarians' antics brought to mind the prating of parrots in India, expressed his astonishment when "it was explained to him that its function and duties included the promulgation of law and the fixing of penalties." Talib concluded that, unlike Muslims, they did not know the divine law "and were therefore reduced to the expedient of making their own laws…."
Governments should have executive power, but Islamic religious authorities themselves should not exercise such power: They should stick to judging. When the Ayatollah Khomeini took power in Iran and gave the mullahs direct control over the supreme guardianship, the presidency, and all the executive ministries, it was a radical departure from usual Muslim practice. His theocracy, based on the principle of velayat-e-faqih, or rule by the supreme religious leader, gave him, and his now successor Ayatollah Ali Khamenei, final say over all government decisions.
Grand Ayatollah Sistani, like most Iraqi Shiites, and most Sunnis, rejects this innovation, which is the main reason that he is frequently said to be a "quietist," or to want to keep religion and politics separate. However, this does not mean that he accepts that governments could have laws that are contrary to Islam, or that learned ayatollahs such as himself should have no say over the law. He simply wants religious authorities to stick to their judicial role and not, like Khomeini, grab executive power.
In Iraq, the key questions on the relation of Islam to the state revolve not around whether religious authorities will have a direct role in the executive. They are whether the constitution and laws will be based solely on an undefined Islam, and whether the authority to determine the meaning of those laws and that undefined Islam will be given to democratically accountable bodies or else left to religious authorities who frequently equate their own judgments with the will of God without recognizing their own fallibility. If it is the latter, there may well be an Iraqi legislature, but it will have little power: The power will reside with the judges.
Currently, the draft "Fundamental Law" lists only Islam as a "source of legislation," is ambiguous on other key matters, and leaves the door open to rule by such an undefined Islam. Unless these problems are addressed while the law is being revised in the next week, it will increase the likelihood of a permanent constitution that enshrines laws inimical to human rights and freedoms and that is beyond democratic accountability.
In addition, by enshrining contested interpretations of Islam as the basis of law, it could exacerbate the power struggles between religious authorities, a foretaste of which was seen in the murders of Ayatollahs Khoei and Hakim last year, and so undercut not only democracy and human rights but also the political stability of the country itself.