Category: Religion


The Real Face of Shar’ia

800px-IslamicGalleryBritishMuseum3.jpgGenerally speaking, when Americans hear about shar’ia it conjures up images of bearded and turbaned Taliban executioners gleefully stoning women to death in an Afghan soccer stadium. It is an unfair stereotype of a great legal tradition, and it is also one that misses some of the most important issues that shar’ia raises for the modern world. As usual, if you want to find the real action follow the money.

In a nutshell, there is a lot of money sloshing around the Islamic world. 20 percent of the world’s population is Muslim and at least part of the population sits atop oil fields that churn out an enormous amount of cash every day. What is an observant Muslim, one who cares about Islamic strictures against usury to do? Islamic law forbids the taking of interest, but certain transactional structures that allow some return in exchange for tying up capital are allowed. For example, a straight out purchase-money loan with interest secured by a mortgage on a the purchased house would violate Islamic injunctions against usury. On the other hand, if the bank buys the house, leases it to the resident for a period of years, followed by the resident’s purchase of the house at the expiration of the lease for a nominal sum, it does not violate the injunction. The game in Islamic finance is to come up with ways of structuring transactions so as to generate an attractive rate of return for investors without running afoul of the strictures of shar’ia. The result has been a cottage industry of banks and lawyers experimenting with various transactional structures and then rushing to find a reputable Islamic legal scholar willing to issue a fatwah validating the deal for Muslim investors.

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Theodicy in the New Yorker

thing2007.jpgJames Woods’ essay on the problem of evil in the New Yorker is an illuminating reflection on the question of how an omnipotent and benevolent God can permit suffering. The essay gives us a sense of how everyday legal categories of restitution and responsibility inform theology (and perhaps should humble lawyers into recognizing how much their own categories owe to religious thought). Though there’s much to commend in the essay, I found his closing assessment of Marilynne Robinson’s novel Gilead most interesting:

Heaven, one of the tenderest verses in the Bible has it, is where God will wipe away all tears from our faces. In her novel “Gilead,” Marilynne Robinson adds, in a line just as tender, if a little sterner, “It takes nothing from the loveliness of the verse to say that is exactly what will be required.” Robinson, herself a devout Protestant, means that the immense surge of human suffering in the world will need, and deserves, a great deal of heavenly love and repair; it is as close as her novel comes to righteous complaint. But one could also say, more skeptically, that Christianity needs the concept of Heaven simply to make sense of all the world’s suffering—that, theologically speaking, Heaven is “exactly what will be required.” In the end, Heaven, it seems, is the only tenable response to the problem of evil. It is where God’s mysterious plan will be revealed; it is where the poor and the downtrodden, the sick and the tortured, will be healed; it is where everything that we went through on earth will suddenly seem “worth it.”

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“For Every Three Judges, Two Are in the Fire”: Richard Posner and the Usul al-Fiqh

I’ve been reading Richard Posner of late, and it strikes me that there is an odd analogy between the his vision of the pragmatic judge and the position of the judge under the classical usul al-fiqh of Islamic law. It seems to me that ultimately Judge Posner’s theory of adjudication rests on a radical rejection of the ex post perspective. On his view all judicial decisions are — and ought to be — forward looking, focusing solely on the consequences for the future that will come from deciding one way rather than another. Of course, a concern for future consequences needn’t preclude a certain respect for past practices, expectations, and rule of law values, but none of this stuff has any force in and of itself. It only matters in so far as it impacts the future. One of the implications of this theory is that the judge can never hide behind the “the law” as a way of distancing him or herself from moral responsibility for her decisions. The law does not dictate particular results in any case. Rather, it is always a matter of the judge making an individual — albeit practically constrained — judgement about what would — all things considered — be best. One doesn’t get any sense that Judge Posner spends much time thinking about the personal moral status of the judge, but it seems to me his theory makes the judge into a radically responsible moral agent. If the consequences of one of Judge Posner’s decisions is really bad, it really is Judge Posner’s fault.

Ulema.pngWhere Judge Posner’s theory of law is radically ex ante, the theory of law (usul al-fiqh) proposed by the classical Islamic jurists purported at any rate to be radically ex post. In theory, all human legislation is a denial of the sovereignty of God, a kind of blasphemy. Rather, a righteous society follows God’s law. This law, however, is finished and complete, indeed according to the dominant theological approach in Islam it is uncreated, a co-eternal emanation of the divine mind. The task of a jurist is to discover the divine law as revealed in the Qur’an and the example of the Prophet Muhammed. Put in more concrete terms, the classical Islamic jurists claimed that every rule necessary for the proper government of society could be discovered — not deduced from or promulgated in accordance with — with the sacred texts of Islam. At this point in their theory, however, the jurists came up against the ultimately unsystematic and ad hoc nature of the Islamic revelation. The Qur’an is not a legal code. Rather it is a collection of “recitations” — often in the form of religious poetry — given by God to the Prophet, often in response to concrete questions or problems raised by the early Islamic community. It was only in the generation after his death that these “recitations” were collected into the Qur’an. Not surprisingly, it takes some nimble exegetical gymnastics to transform this religious ur-stuff into a functioning body of substantive law. What haunted the classical jurists was that they might be wrong in their exegesis. As Marshall Hodgson has written, for a Muslim “every person, as such with no exceptions, was summoned in his own person to obey the commands of God: there could be no intermediary, no group responsibility, no evasion of any sort from direct confrontation with the divine will.” Hence, there was no sense in which a jurist could hide behind some abstraction like office or “the law” to shield himself from full responsibility for his judicial decisions. He was to apply the law of God, and if he got it wrong he was responsible for that mistake.

According to one Muslim legal aphorism, “For every three judges, two are in the fire.” The fire in question here is the hell reserved by God for judges who do not apply His law. Indeed, there are stories of great classical legal scholars who fled from Baghdad at the prospect of being made an actual judge by the Caliph. The reason was that once one moved from exegetical speculation to deciding actual cases, one’s eternal soul was on the line. I don’t think that Judge Posner is much worried about hell fire, but ironically his radically ex ante approach leaves him in a similar moral position personally to the radically ex post approach of the ulema.


Preaching to the Court House and Judging in the Temple

I have put up a couple of posts here on my on-going research on the resolution of civil disputes in ecclesiastical courts.The full version of my research is now up on SSRN for those interested. Here is the abstract:

A number of American religious denominations – Quakers, Baptists, Mormons, and others – have tried with varying degrees of success to opt out of the secular legal system, resolving civil litigation between church members in church courts. Using the story of the rise and fall of the jurisdiction of Mormon courts over ordinary civil disputes, this article provides three key insights into the interaction between law and religion in nineteenth-century America. First, it dramatically illustrates the fluidity of the boundaries between law and religion early in the century and the hardening of those boundaries by its end. The Mormon courts initially arose in a context in which the professional bar had yet to establish a monopoly over adjudication. By century’s end, however, the increasing complexity of the legal environment hardened the boundaries around the legal profession’s claimed monopoly over adjudication. Second, the decline of the Mormon courts shows how allegiance to the common-law courts became a prerequisite of assimilation into the American mainstream. While hostility to the secular courts had been a hallmark of a major stream of American Protestantism during the colonial period and the first decades of the Republic, by the end of the nineteenth century, Mormons’ rejection of those courts marked them off as dangerous outsiders. Part of the price of their acceptance into the national mainstream was the abandonment of legal distinctiveness. Finally, the story of the Mormon courts also illustrates the importance of law for the development of religious beliefs and practices. Other scholars have documented the “public law” side of this story, showing how the federal government’s effort to eradicate Mormon polygamy was central to Mormon experience in the last half of the nineteenth century and ultimately forced a revolution in Mormon beliefs and practices. The rise and fall of the Mormon court system, however, shows that private law could exercise no less of a power over the religious imagination.

Dowload it while its hot!


An Al Smith Moment?

I have an op-ed piece in the San Francisco Chronicle today on what Romney’s “Mormon problem” tells us about American politics. Rather than asking the question of what it would men if a Mormon were elected president, I ask the question of what it would mean if Romney lost because he is a Mormon. In such a case, the correct analogy for Romney would not be Kennedy in 1960 but Al Smith in 1928, who for a generation stood for the rule that a Catholic could not be president. You can read the whole argument here.

A Hope-filled Christmas

It’s always difficult to know exactly how to observe a holiday like Christmas on a blog like this. On the one hand, norms of “public reason” tend toward the neutrality of a “happy holidays” approach. On the other hand, I do celebrate Christmas and have a sense that at least some dimensions of Christianity’s aesthetic and ethical appeal are universal. So I’ll make a brief note of three of that come to mind.

1) The Vatican’s increasing environmental awareness was manifest in the Pope’s midnight mass today, when Benedict XVI lamented “the abuse of energy and its selfish and reckless exploitation.” An eschatological awareness can help us better value a future too easily diminished by standard economic discounting methods.

2) On the aesthetic side, I would trade all the department store carols in the world for a few minutes of Bach’s Christmas Oratorio. This podcast organized by the extraordinary Christopher Lydon is a great introduction to Bach’s music.

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The Place of Charity

By the way, I don’t want to sound (from my last post) as if I am against all charity. I’m very concerned about the plight of those in LDC’s, and I’ve argued that charitable giving should be something of a moral requirement for many of us in the developed world. As this extraordinary program from Krista Tippett’s Speaking of Faith shows, charitable giving can help us find a true “moral balance” of sharing, saving, and spending.

Sometimes it is hard to know exactly where one’s contribution will do the most good. Over the past three years I have found many good causes through Global Giving, a group now sponsoring a Giving Challenge. Here are some causes I found compelling enough to give to:

Safe Water and Latrines for Bangladeshi Slum

Clean Water for DEPDC’s Underprivileged Children

Help Feed 200 Neglected Elderly in Guatemala

I’m also happy to report that GG’s president, Mari Kuraishi, recently gave a talk at a conference devoted to figuring out the best ways of assessing the reputation and value of various online entities–including charities. As efforts like these improve, questions about the accountability of charities will become less nagging.

Questioning the Prosperity Gospel

camelneedle.jpgRecently Republican Senator Charles Grassley has begun to investigate “six televangelists who are part of an evangelical subculture known loosely as Prosperity gospel.” For example,

Grassley wanted to know how Kenneth Copeland–who as a church leader pays no taxes but is expected to plow revenue back into the public welfare–got a private plane and whether flights to Hawaii and Fiji qualified as business trips. Grassley sought credit card receipts and the numbers of the church’s offshore bank accounts.

The conflict raises some interesting theological questions–for example, what if the religious group sincerely believes that its leaders deserve extraordinary opulence? What if their high spending is not a diversion of resources, but instead is the very point of the religion? As I’m mentioned before regarding The Secret, wealth worship may be working its way into the DNA of American culture. Consider this conflict between Grassley and the Prosperity gospel crowd:

Prosperity adherents believe the right thoughts and speech, along with giving to the church, will prompt divine repayment in this life, with a return as high as $100 on each dollar handed up. On a small scale, Prosperity’s positive thinking has sometimes energized the march of the poor into the middle class, but many Christians find it theologically and ethically perverse. Prosperity dominates American religious TV, and millions of adherents send millions of dollars to preachers they have never met. For Grassley, this might be fine if the ministers put all the money back into their mission work. But his now famous question about Meyer’s $23,000 commode suggests he questions the destination of her estimated $124 million annual take.

I think the answer has to be that the Prosperity Gospel crowd is itself distorting and ignoring Christian doctrine–even if such an indictment sets up the state as a more authoritative interpreter of the Bible in this case than those it would prosecute.

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A strudel for Lawrence

strudel.jpgHe can’t say he wasn’t warned about the strudel, either.

So, Lawrence O’Donnell seems to have an interesting set of beliefs about Mormons and Romney. His discussion is a little disjointed, but as far as I can tell from his interview, his Hewitt interview, and his Huffington Post column, his beliefs can basically be distilled into some major ideas. For example:

1. Early Mormon leaders said some strange things.

2. All of those strange things play an important role in Mormonism today.

3. There are no moderate Mormons. All Mormons fervently believe everything that any prior church leader has ever said, and they accord those statements a very high priority.

3a. Mitt Romney is not a moderate Mormon. (This follows naturally from “there are no moderate Mormons”).

4. Therefore, Mitt Romney’s worldview is closely linked to any strange thing Brigham Young may have said 150 years ago.

5. Romney’s refusal to state this (and to discuss Mormon theology and/or history in detail) makes him a liar.

Let’s look at a few of these ideas.

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“Beyond Belief” Videos

Earlier, I posted about this year’s Beyond Belief: Enlightenment 2.0 conference at the Salk Institute in La Jolla. The event touched on a wide variety of issues related to science, faith, and reason. Videos from that event are now available here.

For those following the Richard Dawkins thread from last week, why monogamously limit yourself to this year’s videos when you can also see last year’s, including Dawkins himself? See here (he spoke during session 7, but you may have to find a way to fast forward a bit).