Sunday, April 24, 2011

the economics of sharia law

Kuran, Timur, The Long Divergence. How Islamic Law Held Back the Middle East, Princeton: Princeton University Press, 2011. ISBN 978–0–691–14756–7. U.S. $29.95.

Even though Timur Kuran is overall convincing at laying out arguments on the backwardness of Islamic practices regarding partnerships, corporations, banks, loans with interest, waqfs (mortmain properties blocked from circulation), and contracts in general, he seems less convincing at explicating why Islamic societies were held back from competition with Europe from the middle ages up to modern times. Indeed, his main assumption that it was Islamic law that held back the economy escapes the problem rather than points at its cause in a convincing way. Legal systems in general are more an outcome of social conditions, rather than the major force that would bring social relations to a more developed level. In other words, history shows that whenever the law is “behind” social practices, whether cultural or economic, they tend to be addressed sooner rather than later. A case in point, which Kuran explains at length, is the ban on loans with interest that both Jews and Christians had to abide by in the early European middle ages, which in both instances were bypassed due to the socio-economic conditions in Europe at the time. Even in modern times, legal systems tend to struggle in order to match cultural and economic developments. Witness how the American common law had to battle, since the nineteenth century, its formative period, with issues like private property, contracts, the corporation, slavery, rights of minorities and women, abortion, and gay and lesbian rights, in order to become congruent with the nascent capitalism and the mores of the times. It therefore seems quite obvious that for any society and civilization, at every historical juncture, it is the totality of social relations, or the mode of production, which in the last stance is what impacts politics and law. There are times when the law falls behind the evolution of social relations, which could be attributed to anything from the weakness of the state, or to the nature of legal reasoning itself, for instance, a need for complete overhaul that is constantly delayed, due to lack of adequate resources or for political reasons. However, Kuran addresses Islamic law for over a millennium, and for that long a period it would be absurd, as he does, to blame economic backwardness solely on the law, as suggested in the book’s subtitle and its various chapters. It goes without saying, however, that there is a “divergence”—and a wide one for that matter—between Islamic economies and their western counterparts; the Mediterranean economies of the last millennium, between east and west, point to such a divergence. Even though Islamic law shares the blame, it is more of a symptom of a much broader and deeper problem, than the major culprit.

Kuran’s demonstration often questions the reasons that did not push “communities” and subcommunities from tailoring Islamic law to their own needs and aspirations. In other words, if Islamic law proves to be, indeed, the main culprit, or the prima causa, in the history of economic backwardness of middle eastern societies, why hasn’t there been any resistance to its rule? Or why, in the vast Islamic empires since the Umayyads and Abbasids up to the Ottomans, no major challenges were posed to the legal limitations on partnership, inheritance, loans with interest, and waqfs? Why is it that no corporations, loan institutions, public debt and banking services have emerged even in rebellious peripheries? Or why is it, as far as economic and legal practices are concerned, no significant changes are to be noted between the Shi‘i and Sunni sects? Why is it that no group, subgroup, community or subcommunity broke the general rules in order to establish more aggressive economic and legal practices?

Kuran’s reasoning assumes that, first, Islamic law reached such a level of maturity and comprehensiveness so as to rule out any possible defections on the part of groups and communities, whether urban or regional: “On the face of it, the presumed comprehensiveness of Islamic law ruled out self-governance on the part of subcommunities; one could not replace divine law with human-made law even in limited domains.” (107) Such passages do suggest that, first, Islamic law reached such a level of comprehensiveness and a systematic character by the early middle ages to the point that it would undermine other sub-laws from emerging, which would have been secular and more competitive. In other words, the divine character of Islamic law gave it such an aura that no community would have even dared to challenge it. But what if the reverse proves to be the truth, namely, that three to four centuries since its inception, Islamic law failed to develop a systematic character, and that at no point there was even an attempt to develop a system of codes à la Justinian? What in effect persevered since the 10th–11th centuries was a de facto process of “accommodation” of the broad principles of the law, which were never comprehensive in the first place, to the needs and aspirations of the local regional communities; and even at this level, it was custom that reigned supreme, rather than sharia law. Such a failure to create a corpus of Islamic law that would have served as a comprehensive code for the various regions and communities of “the lands of Islam” has been accommodated for in various forms from one epoch to another. In Ottoman times, for example, a clear division was instated between sharia law, on one hand, and the regional bureaucratic “secular” laws, commonly known as the qanunname, on the other, which in itself was a bland admission of the inoperative character of Islamic law in such matters as rent, taxation, and crime. Moreover, even for the core of sharia law, the Ottomans adopted Hanafism out of the four Sunni schools, a flexible school that accepts “custom” as regionally operative, while assuming the status of “law” (“habit is tenacious,” states one of the “general rules” of Hanafism). What the Ottoman centuries therefore point to is precisely the level of “autonomy” that subcommunities have assumed on their own, a self-rule that was made possible not so much by sharia law itself, but rather thanks to the very nature of the societies on the eastern Mediterranean and north Africa.

The main problem in Kuran’s book is not only his desire to see in Islamic law the prima causa of economic backwardness, but more importantly, in an inability to properly describe the sociological and historical nature of the societies and civilizations which were operating under Islamic law. Which gives Kuran’s study the impression that things could have been otherwise were it not for Islamic law. But what if things could not have been that much otherwise, precisely because the societies that were subject for centuries to sharia law operated under their own ecological, tribal, urban and social limitations? Indeed, a major weakness of the book is that it does not delve deeply enough into the political and economic organizations of such societies: Would a system more open than sharia law made them any different? Assuming that in the past millennium the bulk of Islamic societies were under prebendal and patrimonial absolutist dynasties, where prebends in the form of land grants were donated as signs of loyalty to urban élite groups, were the social conditions ripe enough to create a milieu that would have hosted more competitive economic practices from the ones already in place? Is it really a problem with sharia law itself, and the fact that it imposed all kinds of restrictive uncompetitive norms, or was it a limitation coming from social structure? Historians working within a sociological comparatist perspective (such as Barrington Moore and Reinhard Bendix) have often noted that “feudalism” in its European connotations was a privilege that failed to materialize in the middle east and Asia (except perhaps in Tokugawa Japan), and that such a failure was what led to the general backwardness in the past millennium. The point here is that when speaking of economic performance over long periods, one cannot escape the totality of social structure—the “law” being one of the components of society rather than its determining agent. Had the economic practices covered by Kuran been indexed to social structure instead of being reduced to their legal underpinnings, economic backwardness would have eo ipso looked messier, with no prime cause in sight.

Even though a big advantage of Kuran’s approach is his excellent description of economic practices over a millennium with their legal underpinnings, his ascription to “law” the prima causa of all economic backwardness does a disservice to his enterprise. As already pointed out, in various passages Kuran seems uncertain as to how much the “holding back” was an outcome of the “law” itself: was sharia law, as divine law, so powerful that no community could be set free from its creed? And why with all the “autonomy” that communities enjoyed in most Islamic empires, no alternative economic systems came to light? As in the passage above (107), Kuran seems to suggest that the “divine” aspect of the law made it irreproachable. Such arguments, however, do not feed well for a complex undertaking on economic development, and end up too circular, if not solipsistic: Islamic societies have created a divine legal system, to which they’re imprisoned, precisely because of the divine character of the law. For example, notice how Kuran is at loss when he questions the reasons behind the failure of anything close to a “corporation” or a “corporatist structure” in Islam. Having first noted that “free incorporation” would have implied “the right to incorporate at will, without the consent of a monarch, president, or parliament” (121)—which makes “corporation” even stronger than “partnership” (which in Islam was limited to the basics)—Kuran then notes that, under such conditions of “free incorporation,” “of necessity subgroups of the community would enjoy a measure of self-governance” (122), which in turn, would pose a challenge to the ideal of communal unity, and which in the case of Islam would have implied a challenge to the divine character of sharia law. As in other passages, and whenever we’re faced with a crucial “shortcoming,” in this instance the “corporate structure” (even the Roman Church behaved as a corporation), it was the “law” that halted the process: “In adhering to the ideal of a unified community and withholding legal rights from subcommunities, jurists and political theorists doubtless thought to deny social divisions legitimacy.” (122–23) So, if the “corporation” or “the fictitious person,” which as legal notions stand as prerequisites to one another, have not been embraced in Islam, it is because as radical innovations, they would have undoubtedly posed a threat to “the ideal of undifferentiation,” namely the Islamic community of believers known as the umma. The problem with such views is that they give the false impression that it was Islamic law that prohibited communities, which for the most part were based on strong kinship and tribal ties, from embracing the corporation (and other prerequisites, such as the fictitious person and competitive partnerships), hence in moving in the direction of openly liberal markets. But were such handicaps and constraints imposed by the monolithic nature of Islamic law, as Kuran seems to suggest, or by the social structure of Islamic societies, which in turn are an outcome of the ecologies and terrains in which they have evolved?

Zouhair Ghazzal
Loyola University Chicago

Wednesday, April 6, 2011

Why the Arab revolts are not political, at least not for now

The Arab revolts have thus far taken different routes, even though their root cause may be similar. In Tunisia and Egypt, the army stood off the conflict, posing as arbitrator rather than protagonist. Such position led to a relatively bloodless resolution to the uprisings, at least for now. In neighboring Libya the army, composed of 50,000 or so poorly trained and equipped elements, dissolved rather rapidly, while the ruling clan managed to survive thanks to its private militias (the seven Qaddafi sons have, we are told, each their own militia, 5,000 each on average). In Yemen the state lost control over most of the national territory, but the president Ali Saleh survives in his presidential compound thanks to tribal links and his well-trained presidential guards, in spite of daily manifestations that have metamorphosed into a thriving business. In Syria, the bloody demonstrations have been spreading at a slow pace, with thousands (mostly male) demonstrators in various cities managing to break the security vanguards of the ruling clan. The Syrian revolt will thus to be fought city by city, neighborhood by neighborhood, and clan by clan, so much this urban society is fractured along kinship loyalties.

Observers of the Arab revolts have often pointed to their presumed “political” character in the narrow sense of the term: namely, that what is common to all of them is that urgent demand to overthrow an existing corrupt ruling group, which took control of the state apparatuses decades ago. What is therefore “political” in this instance is the overthrow of a corrupt régime as an apparatus that dominates “civil society.” But what such a view often overlooks, however, is how much is at stake beyond the usual opposition of state and civil society. In effect, analysts typically miss the fact that the link between state and civil society is so abstract as to become analytically useless. A more fruitful approach would be to point to intermediary institutions, such as political parties, municipalities, daily practices, the social uses of space, charismatic leadership, as necessary components of society, whose political expressions have been cruelly lacking in the Arab societies that have been witnessing uprisings and revolts. Such a crucial shortcoming, which has been present for over half a century, in the so-called postcolonial period, will only postpone the move towards more democratically representative (and industrialized) societies.

With the end of the Second World War and colonialism, it took over three decades for the middle east, as an inherently incoherent region, to establish a political order that would become its trademark. In fact, both the 1952 free officers revolution in Egypt, and the 1958 bloody end of the Hashemite monarchy in Iraq, have set a dubious pattern of a sudden military takeover of civilian rule at the hands of low middle class officers from rural landowning families. The Baathist coups in Iraq and Syria in the early 1960s had consolidated that already familiar pattern of the breakdown of civilian bourgeois rule, and its concomitant replacement by a one-party state with faked mass-mobilization strategies. Such an arrangement meant the end of politics in civil society at large, and the current uprisings and revolts would not be enough to get politics back on track. At best, such uprisings could be termed “cultural,” in that they seem to emanate from groups (not to be limited to the youth) which by and large have learned their modus vivendi from the globalized media landscape in terms of mass communication, body language, and the social uses of space.

What therefore needs attention are the implications of the dismantlement of civil society in the Arab world at large for over half a century, and why the revolts sweeping the region at present won’t be enough as a remedy. What is at stake are practices that delve much deeper into the socio-political and cultural substrata.

Arab and Islamic empires of the past centuries give the false impression of states tightly controlling their societies, which some historians have wrongly attributed to long-term “absolutisms.” In reality, those states were more prebendal and patrimonial than “absolutist,” as the core of state formations was the clan and tribe of the ruling dynasty which distributed prebends to loyal urban groups. In modern times, with military power and technology, the grip of the state over society has only marginally solidified, giving that illusion of mighty control, while in reality the state only contributed at crushing and postponing movements in civil society that could have created possible alternative political formations and representations.

Having already overestimated the power of the authoritarian state, we should refrain from either overestimating its downfall or for a rapid emergence of political movements in civil society in the near future. Indeed, what we have been witnessing since December 2010 throughout the Arab world are the “cultural” expressions of large segments of frustrated groups in society. Besides the fact that 65 percent of the populations of the Middle East is under the age of 35, high unemployment, the failure to industrialize and modernize at a large scale, the marginalization of women in public life and the dismantlement of family values, have all contributed at pushing protesters into a “public sphere” that exists only marginally, that is, as a space whose social use has been severely truncated for decades. As globalization has created a mediatized world of images that centers on the body and its social power, it is that kind of culture, which is primarily non-political in its essence, that protesters have espoused, while the bringing down of the likes of Ben Ali and Mubarak are only symbolic acts which help to foster that needed energy of belonging together among protesters. It remains to be seen, however, whether such cultural representations would find a much deeper political expression, in terms of deeply rooted institutions, in particular that there is much at stake in the cultural values of society. Think, for instance, of family values and the role of women in public in Arab societies: Would it be possible to industrialize and modernize at a large scale without dismantling many of the traditional family values, and without giving women more public prominence and freedom? We should know by now that technology and science are not neutral entities, which could be exported and implemented at will, without their ideological underpinnings. It remains uncertain, however, how much awareness there is at the implications behind cultural change, and whether there is, indeed, any willingness to find political expression for popular discontent.

Monday, April 4, 2011

mysteries of minorities

The harassments that Christians are facing today in countries like Iraq and Egypt tend to be seen in isolation to similar problems across the middle east, on one hand, and from historical precedents on the other; and while routinely associated with a surge in Islamic values across the Arab and Islamic worlds, their economic underpinnings are overlooked.


In the old Islamic empires, Christian and Jewish minorities were simultaneously referred to as “the people of the book” and ahl al-dhimma, the former referring to the identification of minorities with their holy scriptures, while the latter limited them to their status as minorities, in particular in matters of political representation and taxation (the special jizya tax). In Ottoman times, such minorities were integrated within the millet system, which grosso modo implied, as with the previous empires, poor political representation and special taxes, together with the legalization of economic practices that were forbidden to the majority of Muslims under sharia law. Thus, when Jews fleeing the Spanish inquisition in the fifteenth and sixteenth centuries opted for the Ottoman empire, they were greeted within the millet system, on one hand, and as potential moneylenders on the other. Such historical millet-specific economic functions tend to be overlooked these days, in particular in relation to the hardships that Christians have been going through in the middle east. That 2010 implied the end of Christianity in Iraq, and that the hardships of the Copts in Egypt have been under the hood during the Mubarak autocratic rule, and have only accelerated since his departure, beg the following questions: How come autocratic régimes, like Baathism under Saddam Hussein, Nasserism up to Sadat and Mubarak, or Syrian Baathism, manage the status of minorities far better than the more “democratic” ones? It is, for instance, no secret that under Saddam Hussein the Christians of Iraq were much safer than now, and that an explanation of the kind that they have been targeted because of a sudden rise of Islamic jihadic groups, which the nascent federal state is unable to control, would certainly not suffice, and is inadequate as an explicans. What needs to be explained here—the explanandum—is the relative “security” that Armenians, Christians and Jews, in their lives and properties, have benefited from in Ottoman, colonial, and postcolonial times, but only when the postcolonial independent state acted like a mini-Ottoman state, with millet rights and privileges. There seems therefore, prima facie, at face value, a contradiction, which is precisely what needs to be explained: Why under autocratic conditions, in countries like Iraq, Syria and Egypt, minorities feel much safer than in less autocratic and more open conditions? The reason is that postcolonial autocratic states have stabilized around post-Ottoman notions of power, where millets were kept with similar economic rights and privileges. Whenever such autocratic states have shifted in another direction, as is the case in Iraq and Egypt, the “protection” accorded by the state is not there anymore, and the minorities find themselves competing with other groups, in particular the Muslim majority.


The real secret here may well be the so-called “pluralism” in sharia law, which permitted a special legal status to minorities and foreigners. Up to the early 19th century, such special legal status did not create large economic discrepancies between communities. By the 19th century, however, competition across the Mediterranean pushed for greater legal autonomy to minorities. In areas where sharia law was particularly weak, such as partnerships, moneylending, and corporations, minorities benefited from their special legal status, namely, the fact that laws outside the sharia system were applicable to them—and to them only—either within their own confessional millets, or else through capitulations and special mixed courts.


It is, indeed, that relative economic “success” of minorities that is often overlooked today. Is there any connection between the economic and cultural edge that minorities were able to secure, and the harassments and massacres that they had to endure? Let us note here that the first calls for autonomy, in the form of regional and territorial nationalisms, in the Ottoman empire, were to erupt in Greece and the Balkans, in regions where the Greek Orthodox faith was predominant.


In a recent book, the economist Timur Kuran notes that until the late 18th century Muslim role in trade and commerce was significant, as there is no historical evidence that Muslim merchants left trade to Christians and Jews, even though both Islamic economic and legal practices lagged behind their counterparts in medieval and early modern Europe in practices like partnership, the corporation, the legal person, primogeniture (as opposed to equal inheritance), money lending, the letter of credit, trust funds (as opposed to the closed waqfs), stocks, bonds, treasuries and public debt. But with the expansion of capitalism, the industrial revolution, trade and colonialism, the trend has begun to shift towards non-Muslim minorities, as more aggressive trade practices were needed. As sharia law leaves the door open for “legal pluralism,” the denominational communal courts served the purpose of granting legal protection for practices that the sharia courts would otherwise not have permitted. Better still, non-Muslim minorities had that unique option to opt for the legal authority of their own choice, pending on what was at stake. “By the end of the 19th century,” however, “the Ottoman Empire’s Muslim merchants were decidedly secondary players in its external trade with Europe, and at home, too, they had lost enormous ground to local minorities” (Kuran 191). Soon, the dhimmi communities who were commercially active became, like the foreigners of the empire, protégés of European powers or of their inside cohorts. Some, seeking better protection, or to be exempted from specific taxes, either became consuls or dragomans (tercümans) in consulates.


Herein lies the shift that occurred from the “protected” millet status to one that was life threatening to non-Muslim minorities. To understand the significance of such a shift by the late 19th early 20th centuries we need to go no further than the decline of the populations of non-Muslim minorities in Anatolia. Historians of the empire (Kemal Karpat and Justin McCarthy) give on average 10 to 25 percent for non-Muslim minorities in Ottoman Anatolia, when it was still within the empire’s jurisdiction. But with the killing and deportation of close to 1.5 million Armenians, and other minorities (primarily Greeks) by the end of WWI, Turkey’s population of today’s minorities stands at less than 1 percent of the total of the republic. Nor was such a movement of deportation and harassment to stop with the foundation of the republic or in the aftermath of WWII for that matter. The last episode, known as “the pogrom against Greek businesses,” on 6 and 7 September 1955, when Adnan Menderes was prime minister (1950–60), emptied the heart of Istanbul, the Beyoğlu (Pera) area, from its Greek businesses, amid large scale riots that pushed many Greek families to leave their homes and fortunes behind in their rush for more secure countries (Zürcher 231). Ironically, the Greeks were targeted at a time when Turkey’s economy was most successful, achieving a 9 percent growth rate over the ten-year period of the Menderes administration, with rapid urbanization and industrialization, thanks partly to foreign aid. Which begs the question, Why are minorities targeted even in times of relative economic success, when the country is not challenged by external enemies?


Yet, Turkey is the only country in the region to have successfully industrialized and modernized, well situated within the prestigious G–20 membership. Why was it the first Islamicate society to systematically eliminate its minorities? Was the elimination of minorities an operation necessitated by the growth of the nation-state, industrialization, modernization, laissez-faire capitalism? In other words, does the “imagined community,” which acts as a prerequisite for the nation-state, necessitate that “minorities” be targeted to create a “coherence” in the imagined ideology?

Saturday, April 2, 2011

political or cultural theater?

The events in the Middle East are portrayed as people versus their despotic rulers, innocent masses against corrupt states, utopian crowds versus crony capitalists of the nouveaux riches, religious versus secular, and tribalism versus the cold raison d’état of the statism. That politics is perceived as a theater of expressivity against corrupt and oppressive rulers, good guys versus bad guys, is commonplace. In the wake of the financial collapse in the US and the rest of the world in 2008–09, the bad guys were the Wall Street bankers, who, behind our backs, and while benefiting from our trust (in the money that we’ve safely deposited in their banks), they went ahead and engineered all kinds of “immoral” (rather than illegal) transactions. The financial collapse was thus seen in terms of individuals defecting as a group from common sense behavior against the majority of innocent actioners. Similarly, the middle east uprisings are portrayed as an action of an innocent majority versus a corrupt minority in power. But how come such a minority managed to rule the uncorrupt majority? By sheer force? What political discourse and analysis hardly reveal is the amount of consensus behind political power, whatever the degree of coerciveness involved: indeed, it all comes to a matter of degree rather than deeply rooted principles. That oppressors and oppressed belong, therefore, to the same cultural landscape (ethos), that they may share similar cultural values, is what is often overlooked once the veil of consensual coercion has been broken—but to what kind of political order exactly? In other words, once the consensus that lies behind political power (from the most totalitarian to the most liberal) seems to have been broken, amid, for instance, street protests and violence, political power is de facto portrayed as “out of sync”—or out of touch—with the masses, hence hiding (repressing) the very idea of consensus even behind coercion and oppression, not far away from the consensus that we find in liberal democracies. That is to say, what is occulted here is what protesters are finally aiming at. Thus, when we ask the trivial question, What is it that they want, what is it that they are aiming at?, we get the trivial answer, They want political freedom, uncorrupt governments, and a radical régime change. Whether to some this implies western laissez-faire liberalism, or on the other end, a Muslim radical theocracy or a moderately Islamic liberal government (in the style of the Muslim Brothers), important as it may as an issue, is not what is at stake here, at least not for the centrality of the revolts. We want to unmask what has been left out in all this: the real motivations of the protesters, why they’ve been coming, with their bodies, alone or en masse, day after day. We want an analysis along the following lines: the body, the visible, the gaze, time and (public) space, all of which pertain to a particular political culture. We want to argue that the broad movement launched across the middle east, which is now shaped as a region whose coherence (or lack thereof) is being made and unmade through the protests, targets an entire cultural landscape, between oppressors and oppressed, wealthy and poor, the state apparatuses and those outside them.