JURIST Guest Columnist Haider Ala Hamoudi of the University of Pittsburgh School of Law says that the much-discussed ideological divide between Shi'is and Sunnis in Iraq is actually more subtle and complex than is usually depicted...
Surprisingly, however, the most misleading of all media appearances are by those who claim to know and understand the differences between the two sects. Invariably these supposed cognoscenti explain rather simplistically that the sects diverged over the question of the successor to the Prophet Muhammad nearly 1400 hundred years ago and have been fighting each other since then over this question. It is not uncommon for this to be followed by a conclusion that the region is fundamentally irrational and incomprehensible, as indeed any region would be whose adherents were fighting over a succession of political leadership that took place 1400 (as opposed to eight) years ago.
However, the current dispute is not incomprehensible to a Western audience because at its most fundamental level, it does not involve wrangling over successorship to Muhammad. By large majorities, Iraq's Sunnis do not seek to reinstate the caliphate they once revered and that existed after Muhammad's death. As for Iraq's Shi'a, their current, designated successor to Muhammad, a lineal descendant known as the Mahdi, disappeared from the earth nearly a millennium ago, and, according to Shi'i theology, has remained in hiding since then. Proceeding on the delicate assumption that the Mahdi's reappearance is not imminent, the Shi'a have no designated successor to the Prophet to whom to turn either.
The ideological divide between the two sects is actually more subtle and complex than this, and much more difficult to reconcile in a modern nation state. Not only does it have nothing to do with Muhammad's successor, it does not even relate to differences in the substantive Islamic rules developed by each community, which in point of fact are remarkably similar to each other. Rather, it has to do with the way in which religious authority is wielded within each community, and the manner in which the religious authority then affects the law of the state.
In the Sunni world, the Islamic rules and norms known as the shari'a developed in the classical era primarily through four juristic "schools of thought" that, as the late George Makdisi notes, functioned like guilds in many respects. That is, they were associations of jurists with internal hierarchies and licensing procedures that functioned independently of state control. In the contemporary era, however, these guilds have disappeared. By and large, in light of the dissolution of the guilds, Sunni Islamists, leaving aside extremists from Al Qaeda and the like, have purported to preserve the shari'a through the codification of select classical era Islamic rules within individual Muslim states.
There are a series of very serious problems with attempting to take centuries-old rulings from four different guilds with contradictory conclusions and picking among them to try to make a modern code. It is less the recreation of historical than its entire reinvention, but this is a matter that is, unfortunately, far too complex to discuss here. It suffices to say that without the guilds, codification of classical shari'a rules remains the standard to which mainstream Sunni Islamists purport to adhere, with one important consequenceâtheir acquiescence to the form of the modern nation-state. That is, in seeking to "Islamicize" any particular nation state through the codification of the shari'a, mainstream Sunni Islamists accept necessarily the state's final authority over law. The Egyptian Muslim Brotherhood, for example, seeks to increase the role of shari'a by influencing legislation and initiating test cases before a judiciary, thereby accepting the modern, Western nation-state model and attempting to Islamicize that state.
However, this dominant contemporary Sunni paradigm is rejected in Shi'i circles. Shi'i Islam traditionally places the determination of shari'a in clerics known as mujtahids within an informal and entirely extralegal hierarchy known as the marja'iyya. Grand Ayatollah Sistani is one such mujtahid (there are currently three others in Najaf), and Muhammad Sadiq al-Sadr, Moqtada al-Sadr's father, was another.
The membership of the marja'iyya shifts informally over time as elders die and younger members rise up through the hierarchy. Any Shi'i is free to follow any single living mujtahid, though he is supposed to continue follow the one mujtahid he has selected until the death of the mujtahid, with a change before then permitted, but only in unusual circumstances.
Similar to the traditional Sunni guild system, the means by which the shari'a is developed by the marja'iyya does not lend itself easily to the process of lawmaking and enforcement in a modern nation state. The rules of the shari'a are not uniform but pluralistic, depending on the mujtahid who any given Shi'i selects relatively freely. Given this reality, most Shi'i Iraqi jurists (in contradistinction to those of Iran) seem to have taken the implicit theological position that the marja'iyya is not intended to be an institution of political rule and that it operates entirely separately from the state. The state is then viewed by the jurists as inherently secular, a distasteful if necessary institution in the absence of the Mahdi. Political rulers are as a consequence suspicious characters of which one should be wary. They are more consumed with self-interest and material gain than with following God's path, which the presumably selfless and modest marja'iyya has laid out.
Given the extra legal nature of the marja'iyya, and given the deep respect most Iraqi Shi'a afford to their juristic leaders, deference to nonlegal forms of authority, at least in some realms, is inevitable. To a religious Shi'i who reveres the jurists, the state may be necessary in foreign affairs or international finance in today's profane world, but in other areas, such as family law or local commerce, this is not necessarily the case. As a result, Islamist Shi'i politicians have sought a relative withdrawal of state authority in certain areas of law. They have in the past proposed, for example, a repeal of state laws concerning marriage, divorce and inheritance and putting in their place nothing other than "the implementation of the rules of the shari'a . . . in accordance with the sect" of the persons affected, with the expectation that the marja'iyya will fill in the blanks and assume entire lawmaking control in this area, at least as it might affect the Shi'a population.
It would be remiss to omit the fact that there are not an inconsiderable number of secular Sunnis and Shi'is who do not take shari'a very seriously, or view it as an arcane and antiquated legal system best left in history's dustbin. For them, very little of this is applicable. For the majority of Sunnis and Shi'is in Iraq who are seeking to Islamicize the state, however, the divergent perspectives create a very serious and difficult problem. To the Shi'a, the rules of Islam are understood to be defined and enunciated by a religious authority viewed with a great deal of respect, and state incursion onto the rights of that authority in outlining religious rules is impossible to contemplate in certain realms. To the mainstream Sunni Islamic forces, the state is the only repository of authority in the contemporary era and must itself be Islamicized. So long as Islam is expected to remain an important part of the legal order, and so long as one sect seeks to project Islam through the state while the other entrusts it to a non-state religious authority, tension is likely to continue.
Haider Ala Hamoudi is a professor at the University of Pittsburgh School of Law. The American-born son of Iraqi parents, he has lived and worked in Iraq and has been a legal advisor to the Iraqi government.