Iraqi Constitution and Islam:

There is good and bad news about the Iraq Constitution (which looks likely to pass), religion, and democracy.

First, the obvious bad news: The Iraqi Constitution explicitly does what our Founders refused to do with Christianity—found Islam as the official religion of the nation, make it a source of legislation, and actually give the tenets of Islam constitutional status.

Article 2:

First: Islam is the official religion of the State and it is a fundamental source of legislation:

A. No law that contradicts the established provisions of Islam may be established.

Our Constitution on the other hand says nothing about God or Christianity (except in the most nominal sense like the customary way of stating the date), which is why it was dubbed by two Cornell scholars as "The Godless Constitution" and opposed by some religious fundamentalist in the founding era for refusing to invoke God, Christianity, or the Bible and covenant with Him (as did many of the colonial charters of an earlier, less-Enlightened era). Moreover, Article VI and the First Amendment of the US Constitution are magnificent statements of religious liberty and neutrality. I suppose we couldn't expect Iraq to copy our Constitution verbatim.

Article 2 in Iraq's Constitution sounds like it imposes a Sharia like system, which brings to mind all of those brutally frightening and oppressive rules in the Koran...but not so fast. Right after Article 2(A), we see:

B. No law that contradicts the principles of democracy may be established.

C. No law that contradicts the rights and basic freedoms stipulated in this constitution may be established.

Further we see in Article 2:

Second: This Constitution guarantees the Islamic identity of the majority of the Iraqi people and guarantees the full religious rights of all individuals to freedom of religious belief and practice such as Christians, Yazedis, and Mandi Sabeans.

And Article 7 says:

First: No entity or program, under any name, may adopt racism, terrorism, the calling of others infidels, ethnic cleansing, or incite, facilitate, glorify, promote, or justify thereto, especially the Saddamist Baath in Iraq and its symbols, regardless of the name that it adopts. This may not be part of the political pluralism in Iraq. This will be organized by law.

And in SECTION TWO: RIGHTS AND LIBERTIES, we see:

FIRST: Civil and Political Rights

Article 14:

Iraqis are equal before the law without discrimination based on gender, race, ethnicity, origin, color, religion, creed, belief or opinion, or economic and social status.

Article 15:

Every individual has the right to enjoy life, security and liberty. Deprivation or restriction of these rights is prohibited except in accordance with the law and based on a decision issued by a competent judicial authority.

Article 16:

Equal opportunities are guaranteed for all Iraqis. The state guarantees the taking of the necessary measures to achieve such equal opportunities.

Article 17:

First: Every individual shall have the right to personal privacy, so long it does not contradict the rights of others and public morals.

...

Article 40:

Each individual has freedom of thought, conscience and belief.

Article 41:

First: The followers of all religions and sects are free in the:

A. Practice of religious rites, including the Husseini ceremonies (Shiite religious ceremonies)

B. Management of the endowments, its affairs and its religious institutions. The law shall regulate this.

Second: The state guarantees freedom of worship and the protection of the places of worship.

And the document also provides for an independent judiciary as well as many of the other natural and positive rights that liberal democracies guarantee.

What to make of all this? On the one hand, Islam seems say, or at least it is interpret by many orthodox believers as saying that there is no gender equality, no right to worship outside of Islam, no protection for minority rights in a pluralistic society. However, this Constitution explicitly says that both Islam is a source of law and may not be contradicted and that non-Islamists have freedom to worship and of conscience, and generally that there are liberty and equality rights (including gender) antecedent to majority rule.

One way to analyze this is that the Constitution simply invokes a number of different contradictory principles, which judges and legislators will have to later work out.

And there are some who view America's founding in the exact same way. For instance, see this article by Robert Locke.

He believes that the ideals that found America are contradictory and that we should embrace those contradictions as the unique essence of America's Founding.

The problem of contradiction is even worse in the Constitution, which is a curious mixture of Greco-Roman ideas, Christian ideas, Lockean natural-right ideas, plus a few other odds and ends from Montesquieu and other sources. Now a propositionist can claim that America is founded on these multiple propositions, but even all these ideals taken together as ideals, do not found the nation. It is only their synthesis in the Constitution, in which they are combined in a certain way, modified and compromised to fit, and gifted with institutional arrangements to embody them, that founds the nation. The separate strands of idealism, in abstracto, are not a constitution, and found nothing. Therefore even if there is a national proposition, which I deny, it can only be the Constitution as a whole, not any set of ideas abstracted from it. It follows that what the Constitution actually says, with all its compromises and deviations from ideological purity, should be our ideal, which implies a strict-constructionist approach to its judicial interpretation. There is a reason why office-holders swear an oath of loyalty to the Constitution, not to the ideals of the Declaration.

My point here is that the Constitution means what it says, not what some ideals abstracted from it say. The Constitution, with its various compromises and its playing off of various ideals against each other, quite wisely limits the degree to which it embraces these ideals. It establishes some democracy, but not absolute democracy. It invokes Divine providence, but does not establish a church or even specify which variety of Theism it takes as its inspiration. It allows autonomy within a federal system, but not total autonomy. It allows the Federal government to enact laws for the general welfare, but reserves powers not given it to the states or the people. To argue that the essence of the Constitution lies in "the ideals of the Constitution, not its compromises," as Straussian scholar Henry [sic] Jaffa has done, is precisely the opposite of the truth. The compromises are of the essence of the thing, and these compromises deliberately and ruthlessly subvert attempts to abstract "propositions" out of it. The founders were perfectly well aware of the trouble abstract ideology can cause: in the 18th century, it produced the French Revolution; in the 20th, judicial activism.

Robert Locke would further agree that just as the tenets of traditional Islam seem to be in great tension or even contradict liberal democracy, so too could we say the same thing about Christianity and our Founding liberal democratic principles.

Furthermore, the ideas expressed in the Declaration are contradictory. For example, Lockean natural right, the source of unalienable rights, is founded upon John Locke’s social contract theory. But the Declaration says that men are endowed with these rights by God, not by the social contract. [Rowe: Robert Locke is mistaken here. It was Hobbes, who originally formulated the theory of "rights" and the social contract, who said that such rights come from the social contract. John Locke indeed did say that rights come from God. However, Robert Locke correctly notes:] This is a puzzling assertion in light of the fact that God was worshipped for 4,000 years without anyone noticing that He had endowed man with unalienable political rights. The Bible does not mention social contracts (of Locke’s variety) or democracy. When it does discuss governments, like King David’s Israel or the Roman Empire, it not only does not say that they derive their just powers from the consent of the governed, but frequently intimates quite otherwise.

Robert Locke's writings on this matter are Straussian influenced and this is a pretty standard East Coast Straussian observation. For instance, as Walter Berns writes in Making Patriots.

[U]nlike Jefferson, Madison, and others, the majority of ordinary Americans at the time were probably of the same persuasion [as John Witherspoon], taking it for granted that nature's God, who endowed them with unalienable rights, including liberty of conscience, was the providential God of the Bible. However wrong as a matter of doctrine -- where does the Bible speak of unalienable or natural rights, or of the liberty to worship or not to worship as one pleases? -- this made good political sense in America. pp. 42-3.

Now, another way to interpret the Iraqi Constitution is that it does not contradict Islam because, quite frankly, all religious texts say many different things (which may on the surface appear to contradict one another) and are thus open to interpretation. Through interpretation of religious texts (as with constitutional interpretation) we attempt to formulate coherent doctrine. And just as it was possible to reconcile Christianity with liberal democracy by "re-thinking" through certain doctrines, it's also possible to reconcile Islam with liberal democracy as well.

So when the Iraqi Constitution states, "Islam is the official religion of the State and it is a fundamental source of legislation...No law that contradicts the established provisions of Islam may be established," doctrinally, it is not referring to the Islam that uses the organs of the state to punish heretics and Infidels, makes woman wear burkas and the like, but rather a kindler, gentler version of Islam.

This brings to mind one of my better posts where I discuss a post by Rick Garnett on two competing schools of Enlightenment philosophy on religion and government, both of which undergird our Founding. On the one hand is the notion that because the rights of conscience are absolutely unalienable, because government by right cannot intrude itself into matters of religious opinion, government must never "take cognizance" of religion, to assure that it never violates such sacred rights. On the other hand, as Garnett notes:

[I]t seems hard to deny that liberal governments have a strong interest in the content and development of religious traditions and doctrines....In fact, it seems to me that liberal governments have an interest in convincing people — whether they belong to the religion in question or not — that the religion in question really teaches in accord with liberal values....It is better, then, that religions inculcate some values, commitments, and loyalties rather than others. As I wrote in my article, “Governments like ours are not and cannot be ‘neutral’ with respect to religion’s claims and content. [T]he content, meaning, and implications of religious doctrine are and have long been the subjects of government power and policy. Secular, liberal, democratic governments like ours not only take cognizance of, but also and in many ways seek to assimilate—that is, to transform—religion and religious teaching.”

The Iraqi Constitution seems to embrace this latter philosophy; it does take cognizance of Islam; it doesn't separate Chuch and State; but it does nonetheless assert that individuals have liberty and equality rights, and that non-Islamic religions have freedom to worship as they choose. In order to argue for doctrinal coherence in the Iraqi Constitution, their (and our) government has taken an interest in the "content and development" of the Islamic traditions and doctrines. The government has taken cognizance of Islam and it is, at least in part, up to them -- public officials -- to argue that Islam, properly understood, is indeed a religion of peace that guarantees liberty and equality rights to among others, women, non-Islamic religions, and racial and ethnic minorities.

In other words, this government has taken a strong stake in attempting to put Islam through the Enlightenment that it greatly needs. Let's hope they can do it.