Monday, March 9, 2009

laws that cannot be amended


The laws of kings can’t be amended.
This was the rule in Persia when
Queen Vashti foolishly offended
the king, and would not show to men
her beauty. Thought to be most cute,
she came a cropper when the king
declared that he must execute
her. From a tree that queen would swing,
because a king’s law can’t be flouted,
unless the ruler is persuaded
by someone who has not been outed,
that laws he does not like are dated,
and have to be revised. The her-
meneutics of revision aren’t
the same in every case, but were
what saved the Jews. The Queen, a plant,
for Mr. Mordecai a mole,
made sure that genocide was halted
by finding in the law a hole
felonious Farsees never faulted.

Survival of the Jews depends
on finding loopholes in such laws
when they are threatened. Jews’ best friends
are Jewish lawyers who, though whores,
know how to plead their case in courts
where laws can be amended when
the wiles of lovely young escorts
confuse the horny, hateful men.
This is what happened once in Shushan,
when Mordecai used Esther to
persuade a king upon a cushion
on which they both lay twice to sue
all antisemites in the realm,
and change the law the king had passed
against the Jews, to overwhelm
the antisemites. What a blast
they had in Shushan then, and soon
will have again, if God is willing!
Hey, if He’s not, who’ll play our tune,
and pay the lawyers, busy billing?

Inspired by Purim 5769 and an article by Roger Scruton of Institute for the Psychological Sciences in Arlington, Virginia, in Azure 35 (2009) (“Islam and the West: Lines of Demarcation”), contrasting the modifiability of Western secular law with that of its antithesis, shari’ah, whose laws, being divine, cannot be amended:

The consensus among Western nations is that the law is made legitimate by the consent of those who must obey it. This consent is given through a political process in which each citizen participates in the making and enacting of the law. The right and duty of participation is what we mean by “citizenship,” and the distinction between political and religious communities can be summed up by the view that the former are composed of citizens, whereas the latter are composed of subjects who have “submitted” (which is the primary meaning of the word islam). If we seek a simple definition of the West as it is today, it would be wise to take this concept of citizenship as our starting point. Indeed, it is what the millions of migrants roaming the world are in search of: an order that confers security and freedom in exchange for consent.
Traditional Islamic society, by contrast, sees law as a system of commands and recommendations laid down by God. These edicts cannot be amended, though their application in particular cases may involve jurisprudential argument. Law, as Islam understands it, is a demand for our obedience, and its author is God. This is the opposite of the concept of law that we in the West have inherited. Law for us is a guarantee of our freedoms. It is made not by God, but by man, following the instinct for justice that is inherent in the human condition. It is not a system of divine commands, but rather the residue of human agreements. This is particularly evident to British and American citizens, who have enjoyed the inestimable benefit of the common law—a system which has not been laid down by some sovereign power but, on the contrary, built up by the courts in their attempts to do justice in individual conflicts. Western law is therefore a “bottom-up” system that addresses the sovereign in the same tone of voice that it reserves for the citizen. It insists that justice, not power, will prevail. Hence, it has been evident since the Middle Ages that the law, even if it depends on the sovereign to impose it, can also depose the sovereign if he tries to defy it.
As our law has developed, it has permitted the privatization of religion and of large areas of morality. To us, for instance, a law punishing adultery is not just absurd, but oppressive. We disapprove of adultery, but we also think that it is none of the law’s business to punish sin just because it is sin. In the shari’ah, however, there is no distinction between morality and law. Both stem from God, and are to be imposed by the religious authorities in obedience to his revealed will. To some extent, the harshness of this is mitigated by a tradition which allows for recommendations as well as obligations in rulings of the holy law. Nevertheless, there is still no place in the shari’ah for the privatization of the moral, and still less of the religious, aspects of life.
Of course, most Muslims do not live under shari’ah law. Only here and there—in Iran, Saudi Arabia, and Afghanistan, for example—is the attempt made to impose it. Elsewhere, Western codes of civil and criminal law have been adopted, following a tradition begun in the early nineteenth century by the Ottomans. But this recognition accorded to Western civilization by the Islamic states has its dangers. It inevitably provokes the thought that the law of the secular powers is not really law; that, in truth, it has no real authority, and is even a kind of blasphemy. Sayyid Qutb, the former leader of the Muslim Brotherhood, argued precisely this in his seminal work Milestones. Indeed, rebellion against the secular powers is easy to justify when their law is seen as usurping the sovereign authority of God.
From its origins, then, Islam has found it difficult to accept that mankind stands in need of any other law, or any other sovereign, than those revealed in the Koran. Hence the great schism following the death of Muhammad, which divided Shi’ia from Sunni. From the point of view of secular government, questions of legitimate succession such as those that drove these two groups apart are settled by the very same constitution that governs the daily operation of the law. That is to say, ultimately they are a matter of human agreement. But a community that believes itself to be governed by God, on terms conveyed by his messenger, has a real problem when the messenger dies: who takes over, and how? The fact that rulers in Islamic communities have a greater-than-average tendency to end up assassinated is not unconnected with this question. The sultans of Istanbul, for instance, surrounded themselves with a household guard of Janissaries chosen from among their Christian subjects precisely because they did not trust any Muslim to miss the opportunity to rectify the insult to God represented in the person of a merely human ruler. The Koran itself speaks to this point, in sura 3, verse 64, commanding Jews and Christians to take no divinity besides the one God and no lords (ârbâbân) from among each other.
In short, citizenship and secular law go hand in hand. We are all participants in the process of law-making; hence we can view each other as free citizens, whose rights must be respected and whose private lives are our own concern. This has made possible the privatization of religion in Western societies and the development of political orders in which the duties of the citizen take precedence over religious scruples. How this is possible is a deep and difficult question of political theory; that it is possible is a fact to which Western civilization bears incontrovertible witness.

© 2009 Gershon Hepner 3/9/09

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