EPILOGUE

The Rule of Law or the Rule of Justice?

Justice, it has been said, is only a metaphor. All the theorizing of philosophers and scholars of jurisprudence has not yielded a theory commanding universal acceptance; no simile or analog has finally settled precisely what justice is. But one need not be an unrepentant relativist to acknowledge that the questions logic and philosophy may leave open society and history may have supplied with answers, if only for their particular adherents and their moment in time. This may be because justice is as much felt as comprehended. When an American speaks of having his or her “day in court” and when studies show that such litigants are not simply concerned with winning their case, say, in a small claims or divorce court but with someone attending to their felt sense of injury, we know that somewhere in this larger cultural process may lurk an elusive yet decipherable sense of justice. Indeed, since people often have a more developed sense of injustice than they do of justice it sometimes becomes necessary to approach the culture of the latter through an understanding of the former.1

So, too, in the Arab world the concept of justice is absolutely central. But whereas Westerners tend to frame matters in terms of rights, Arabs emphasize a language of justice, whether in assessing a foundational document, the character of a person, or a sense of the age. Unpacking this concept and its place in Arabs’ individual and collective sentiments is integral to understanding why, in rounding out this study, it may be necessary to think as much in terms of a rule of justice as of a rule of law.

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Is it possible to specify some of the features that comprise so generalized a concept as justice? Can we do so for a whole people or range of societies that share some things in common? In one sense the attempt must seem both vain and vague. Yet when one watches the occasions in which many Arabs draw immediately on this term and this concept rather than some other—whether it is in the streets of the Arab Spring or in the context of a woman’s arguments in court—the very fact of its prevalent usage and its highly situated overtones challenges the outsider to at least grasp some of its repeated elements. The word in Arabic for justice, ‘adl, means “to be straight or balanced,” and is more an attribute of a person than a disembodied idea. Justice for many Arabs therefore incorporates several key ingredients: the emphasis on reciprocity, the stress on equivalence rather than equality, and the concentration on persons rather than institutions.2 Indeed, we have seen each of these characteristics at work in a number of the previous chapters.

Running through these individual features is a crosscutting array of concepts and assumptions that bind the whole together into what might, to borrow Clyde Kluckhohn’s elegant phrase, be called a “design for living.” Justice, in this generalized Arab sensibility, significantly depends on difference. “If God had willed He would have made you one nation,” says the Quran (5:53; 16:95) in several of its most characteristic and striking passages. As people explain it to me, this means that God intended for us to have to investigate one another’s customs and personal identities, to seek such knowledge (as the Tradition of the Prophet says) “even unto China” in order to grasp the ways others forge their ties of interdependence and understand how, in turn, you might form a tie with another. The Quran (49:13) also says: “We have created you male and female, and appointed you races and tribes, that you may know one another.” As one commenter explains: “Diversity is thus viewed as a challenge to the believer to look at his fellow human being with a discerning and educated eye, rather than with a prejudiced eye that sees stereotypes and outward manifestations of difference.”3 A North African sheep trader once put it to me in these terms: “We say ‘It is by the grace of God that contentiousness is put between the buyer and the seller.’ Why? Because differences make you pay attention to who that other person is and how you could be dealing with him. The market works best when there is diversity and difference—Berbers, Arabs, Jews, Europeans all mixed together.”

The importance of difference appears, for example, when people agree that an individual should be punished according to who he is, not simply for the act he committed, since it is not possible to know the nature of the latter without knowing the qualities and associations of the former. For a man is known not only by the company he keeps but how he arranged that company and thus demonstrated how he has applied his God-given reason to create a network of obligation that conjoins them. As one’s network becomes more elaborate or intense the consequences of one’s actions ramify differently than if one has a very limited or thin set of dependents and allies. Thus one often hears it said—and occasionally sees it displayed even in court decisions—that an educated person should be punished more severely than one who is less educated since his actions have graver repercussions for the networks of others and (rather as most of our parents once said to us) because given our intelligence we (as opposed to that dirty little kid we played with) should have known better.4 That is why, when people refer to the Tradition in which the Prophet says “God loves those who hide their sins,” they do so not out of hypocrisy but because if a person’s actions do not become so public as to adversely affect the networks of others the social order upon which all depend will not have been deeply threatened.

Even in humor the point is underscored: “A man hauled another man before [the Prophet’s son-in-law] ‘Ali and fumed: ‘This man claims that he had a wet dream about my mother!’ ‘Take the accused out into the sun,’ ruled ‘Ali, ‘and execute the punishment (i.e., eighty stripes) . . . on his shadow!’”5 From this perspective to treat an individual or situation other than as personally embedded in a local set of relationships would be unjust precisely because the emphasis is not on acts alone but on the effects they have on that running imbalance of obligation and recompense, ingratiation and negotiated response, hospitality and delayed reciprocity that can only operate to hold the community of believers together if all ties are kept open for permissible maneuver.

Similarly, the notion that people fall into certain categories but that it would be unfair to treat all those of a given sort as identical is indispensable to the way the concept of justice is commonly explained. Several examples may help in this regard. When I say to Muslim judges that we operate with the principle that similar cases should be decided similarly they always respond that no two cases are the same. I then propose a situation in which the same person commits the same act. They respond, in the sense we might mean by saying that you cannot step in the same stream twice, that those cases are still dissimilar because in the living, ever-changing networks that people create, service, and are defined by the repercussions of a similar act must necessarily imply possible alternative results which it would be unfair, unjust, and simply incomprehensible to ignore. So, Arab judges, both in their formal procedures and in their written and oral comments, repeatedly assert that failure to understand “who” a person is (i.e., their associations, their past interactions) would be to produce a process that is as unwise in the ways of mankind as it would be unjust by any standard of common sense and morality.

A second example concerns a story I was told about an Iraqi judge who was presented with forensic evidence by a Western legal adviser that indisputably pointed to the accused having fired the gun involved in the crime. The adviser was stunned, however, when the judge told him that forensic proof of the act alone was not really very relevant because it told him nothing about the relationship of the two parties, the way the accused had acted in other contexts, and the repercussions for others with whom he is associated, all of which the judge regarded as crucial to understanding the factors that are truly relevant to interpreting the very meaning of the man’s act.6 It is much the same orientation that, as we have seen, may have led Zacarias Moussaoui to be so eager to tell his story in his own way, to be so frustrated when the court said that what he wanted to testify to was irrelevant, and why he consistently marked this shortsighted process as not merely political but, much more importantly in his conceptual repertoire, unjust.

The idea of equivalence may also seem incompatible with the idea of justice to Westerners even though we draw upon it at times ourselves. An example may help. If a believing Catholic woman regards the priesthood as reserved exclusively for men, if an Orthodox Jewish woman has no objection to not being allowed to be called up to the Torah reading or serving as a rabbi, or if a devout Muslim woman is not offended because she cannot lead the prayers, is any of them simply brainwashed or incapable of comprehending that “true” justice must incorporate absolute equality of all acts? But if any of these women believes that what she does in the home is equivalent to what a man does in the place of worship, if to her these seeming incommensurables are equilibrated through a religious division of labor by gender, can one really say that no cognizable sense of justice is at work here? Quite the contrary, Muslims argue, particularly if (as many, though certainly not all of them, would say) one needs to think of people as having baseline category attributes from which, by rearing, background, and biology, they initially take their place in the world. But, they emphasize, these baselines can be superseded by developing one’s reasoning capacities to gain control of one’s passions and to effectuate a greater contribution to one’s dependents and the community at large. To assess another solely on the basis of his or her origins could, therefore, lead to unjust results.

Justice, then, incorporates not some rigid sense of everyone having to be judged by their social origins but their entitlement to being assessed in terms of how they may have overcome or augmented their category beginnings in the course of applying their own intelligence. That factor shows up repeatedly—though by no means for all individuals—when we look at why women may be treated as persons and not simply as category occupants in the family law courts, or why so many women have been able to succeed on the qualifying examinations and move into the workforce and bureaucracies. An interesting example of this conceptual relation of category and personhood is evident in an interview in which Muhammad Morsy, prior to his becoming president of Egypt, was asked whether a Christian could serve in that office.

“Which Christian?” Morsy responded when I first asked.

I explained: not a particular Christian, but any Christian.

“There are no Christians running for president,” he said.

Yes, I know. It’s a theoretical question.

“This is a nonsense question,” he said. So I asked him if the [Muslim] Brotherhood had ideological objections to a woman’s running for president.

“Which woman?” he asked.7

Morsi may just have been cleverly evading a sensitive issue, but even if that is true the way he did it is still culturally revealing. The main point to be underlined is that a truly just person—indeed anyone who has developed his or her reasoning capacity—looks at the whole person and asks of all individuals not only what their social baseline is but also what they have done beyond it. Category placement is a starting point, while individual person assessment is a process that requires knowledge and experience.8

If equivalence is not incompatible with justice—if justice is not in these cultures (and perhaps not necessarily in any philosophical scheme) simply coincident with equality (in the sense of treating all things exactly the same)—then how does one go about establishing equivalencies?9 To many Westerners equilibrating incommensurables is an open invitation to arbitrariness. The answer I think that most Arabs are comfortable with, however, is that it is the regularity of the process of assessment, not the regularity of results that counts. If I try to understand who someone is—by the lights of a culture that stresses embeddedness in a web of social indebtedness and the recognizable modes of its formation—I will be doing justice to that person even if, notwithstanding many similarities, the ultimate treatment differs from one individual or one occasion to another. It is rather like the game we played as children in which you had to start with one word and by changing one or two letters at a time see what result you ended up with. The winner was not judged by simply getting to the end but by the skill and cleverness with which the process of transformations had been employed. In contexts that, to outsiders from the culture, may seem to be identical because of the way these outsiders have defined the situation within their own framework of common sense, results of equal validity may be totally compatible notwithstanding outcomes that are never replicated. In a world perceived as replete with difference—but celebrated for the room to maneuver that such an attribute provides and sanctions—a calculus of equivalence depends on how one applies reason to social evaluation, not how one mechanically applies the same outcome to situations whose differences one has failed to grasp. Such application is, crucially, an index of one’s knowledge of the world of differences and, as a demonstration of one’s ability to negotiate such a world, the reason why others should believe and rely on you. This emphasis may also play a role in the traditional absence of appellate courts in Islam—because cases turn not on uniform endpoints but on the process of assessing particularities—and why, by contrast to Westerners who imagine themselves exquisitely adept at assessing “facts” (tire tracks, fingerprints, DNA), Arabs regard themselves as especially proficient at assessing persons and have developed the conceptual vocabulary to go with it.

If, then, we turn to the role of the state in such an environment some general propositions may also be offered. Several of the preceding chapters have suggested that the state is commonly viewed as incapable of engaging in genuine reciprocity. Indeed, since it is equally common for people in the region to believe that persons cannot be separated from roles one cannot expect institutions to replace the face-to-face personalism seen as indispensable to all relationships.10 The result is an awkward impasse, one in which each bureaucrat is approached as a person with whom one ought to be able to establish ties of reciprocity but who, relying on money and unwilling to be drawn into every possible obligation, increasingly fails to play the game, so to speak, of building up interpersonal debts that could be converted into multiple and negotiable forms of reciprocation.

Similarly, the state is not consonant with the shari‘a, notwithstanding the claims of some that theirs is an Islamic state or their monarch both Commander of the Faithful and ultimate arbiter of the law. As a consequence, the legitimacy of state power and divine law are not combined but diluted. For while state decision-making forums—the divan of an Ottoman ruler, the personal decisions of a contemporary monarch—have a long history of adjudication separable from shari‘a precepts and procedures, the inclusion in most present-day instances of the entire legal apparatus within a single ministry of justice undercuts the formal separation of past legal forums. State centralization of the legal system also undermines the use of fatwas from scholars versus the mercy of the ruler, each of which could form a check on the power of the other. For all the efforts of various regimes to combine the legitimacy of the religious and the political, the result has, almost without exception, been a diminution in the connection between the formal structure of the legal system and the popular impulse to distrust the consolidation of power.

It is here, too, that a deeper set of cultural assumptions may come into play. Briefly, these include a host of ways in which ambivalence to power has been pervasive in the practices of different communities in the region. Whether it is the style of political jokes in Egypt or Syria, the earlier ritual inversion of choosing a student to command the Moroccan sultan on one day of the year, the emphasis on addressing even nobles as equals in the Arabian Peninsula, or the often ambiguous approach to living saints in North Africa, a certain ethos appears to inform much of contemporary Arab culture which balks at the exclusion of alternative bases for building power. Throughout much of the region, therefore, there is evidence of a deep sense that too much power should not be in too few hands for too long a period of time. Thus the legitimacy of the “big man” who comes to power through the formation of an elaborate network of obligations may be replaced by a competitor who, by forming a better network, becomes the legitimate holder of power. That is not to say he is liked, only that he holds power legitimately, as would whoever can build a superior network to replace him. In such an environment there may seem to be a total absence of a rule of law, but in fact it is perhaps best to see this as an alternative set of features playing into a different conception of the rule of law, a system, or style, of law in which the constraints of network construction, reciprocity, and legitimization all possess distinctive modes of articulation, enactment, and restraint.

To think in terms of a rule of law model, then, may not always be the most useful way to think about orderliness. In a sense, of course, what reasonable person could oppose the implementation of a rule of law? Would its absence not imply utter lawlessness, a world of Hobbesian force and brutality? But the very idea of “a rule of law” is not unproblematic. Whether one tries to equate it with the rule of reason, the independent judicial review of governmental action, or as an ideal that unites disparate values embodied in a specific set of rules, a number of Western legal scholars have argued that the concept of a rule of law is neither capable of precise characterization nor is it necessarily compatible with democracy insofar as it still requires discretionary interpretation. Indeed, the usual dictionary definition—“a state of order in which events conform to the law”—appears to many a tautology.11

A more anthropologically compatible view of the rule of law may be that articulated by Harvard Law Professor Richard H. Fallon (1997) who argues that the very concept is multi-stranded and that to the extent it has real content it arises from the particularities of a culture to which law and the political order give voice and direction. If, as he suggests, the purpose of the rule of law is “to protect against anarchy and establish a scheme of public order, to allow people to plan their affairs with advance knowledge of the legal consequences, and to protect against at least some types of official arbitrariness,” and if, moreover, “practices that satisfy Rule-of-Law values in some circumstances may fail to do so in others,” then there is much to be said for his conclusion that “a theory of the Rule-of-Law must therefore attend to the diverse contexts in which Rule-of-Law questions arise.”12 He quotes Federal Court of Appeals Judge Richard Posner who further notes that “standards that capture lay intuitions about right behavior (for example, the negligence standard) and that therefore are easy to learn may produce greater legal certainty than a network of precise but technical, non-intuitive rules covering the same ground.”13

Viewed against this background it may be suggested that while Fallon is right to say that “invocations of the Rule of Law are sufficiently meaningful to deserve attention, but today are too vague and conclusory to dispel lingering puzzlement,” we may still be able to triangulate in on the cultural contributors to this notion in particular societies and moments. Thus in the case of the Arab Middle East (again, speaking very generally) we can see that there are indeed constraints on power, that a process based on a cultural idea of person perception takes pride of place over formal substantive rules, that placing people back into workable relationships may be a better way to secure society against chaos than rigid application of formal strictures, and that in each instance—and with considerable local and historical variation—it is possible to discern many related principles that are coincident with a popular sense of when justice is being done.

In this regard Muslim judges and many jurisconsults have always been legal realists; they find no inherent contradiction between the idea of a rule of law and a rule of men in the sense of a person’s relationships and attachments to the community not extinguishing individual reason. Moreover they believe that it is unwise to convert justice into a mechanical means of knowing the “uniquely correct decision” that alone would justify any given result. For them, it might be said, a rule of law is both more realistic and more just than a law of rules. But even that is not enough. “Knowledge,” Muslims often note, is the second most frequently used term in the Quran after the name of God, and the person who seeks knowledge is not a person whose individual judgment is to be sequestered by rigid propositions but one who may indeed exercise discretion without it necessarily overstepping the bounds of independent reasoning (ijtihād). What the nations of the Arab Middle East have not been particularly successful at doing, however, is translating many of these features into so foundational a document as a national constitution.

A written constitution is not, of course, indispensable to national political organization: The British do just fine without one. To some a constitution is indeed vital to the forging of a society-wide consensus; to others it is more a symbol of national distinction—like a national airline or soccer team—than a statement that shapes and accords with the true structure of power. But in the modern period virtually all of the Middle Eastern countries have felt the need for one. The history of Arab constitutionalism is not, however, one of great success. This has been true in practically every country and time period. Reviewing this history, Elizabeth F. Thompson, for example, recites the efforts made by a series of noteworthy individuals over the course of several centuries.14

There is Mustafa Ali, the seventeenth-century Ottoman, whose “Circle of Justice,” though grounded on a hierarchy of social duties, influenced the nineteenth-century Tanzimat reforms that undercut the very idea of governance by privileged status. When, in 1858, a peasant revolt on Mount Lebanon “went so wrong” it was the claims of equality by the underclass that nevertheless made the extension of the Tanzimat principles imaginable. Later in that century, Ahmed Urabi in Egypt and Nazem al-Islam Kermani in Iran spread the idea of constitutionalism, but like their predecessors found Western support for existing monarchies overpowering.

In the second half of the nineteenth century, deeply influenced by their experience of colonial encounters with France and Britain, a number of Muslims scholars, particularly in Egypt, argued that only a modernization of legal forms coupled with a less centralized distribution of power could allow Muslims the freedom to adapt to modern needs. Jamal ad-Din al-Afghani (1838–1897) could therefore argue that Islamic law should not be bounded by the interpretations of the past alone. Principles of modern science, as grasped through our God-given reason, could provide the guidance and stability that conservatives mistakenly and unnecessarily restrict to the legal and political precepts that took form soon after the death of the Prophet. Muhammad ‘Abduh (1849–1905) and Muhammad Rashid Rida (1865–1935), following this path, supplied additional impetus to the argument that legal and governmental forms should move with the times. Nevertheless, constitutions as such did not succeed in embracing modes of organization capable of gaining sustained support and were frequently undermined by authoritarian domination or discarded by opponents frustrated by the colonial, monarchical, or dictatorial regimes that followed one another with considerable regularity.

By the twentieth century, the career of Turkey’s “Joan of Arc,” Halide Edib (1884–1964), mirrored the failure to bring about Wilsonian ideas of small nation independence. Similarly, Musa Kazim’s encounters with David Ben Gurion and the British in Palestine never resulted in converting the claim for self-determination into a concrete governmental structure. Thus by the time Hasan al-Banna organized the Muslim Brotherhood in Egypt, Comrade Fahd revitalized the Communist party in Iraq, and Akram al-Hourani allied with the Ba’ath Party in Syria, the descent into violence had accelerated as autocratic powers sought to crush the movements’ popular appeal. Thompson ends with the Arab Spring’s Wael Ghonim whose Facebook communications sought to revive his precursors’ democratizing efforts, only for the democratically elected government of Muhammad Morsi to be removed by a military coup which, whatever its popular support, followed on the Muslim Brotherhood’s failure to reach out to the whole of society and fashion a constitution that would have secured the interests of all Egyptians rather than their own most ardent supporters.

Thus the history of constitutionalism in the region, veering from mimicking Western forms to utter dependence on the whim of those in power, has, for all the talk of creating a document of genuine “authenticity,” often been hampered by models and divisions that have seldom resonated with their people’s deepest sense of how power is and should be managed. But as vital as a structural model for distributing power is to any constitutional order no such document may achieve broad acceptance entirely on its own. Any nation’s political course, even when subject to outside interference, may ultimately depend more on the precedent of its own guiding beliefs and the analogies drawn from its own concept of justice than on outsiders’ versions of the past or an untethered list of rights and duties. Regrettably, appropriate precedents and authentic analogies have so far eluded most of those seeking democratic reform in the region.

Scholars, journalists, and politicians attribute the failure of constitutionalism in the Arab world to a variety of factors. To some it is a matter of hostility to the West, misplaced nostalgia for an early Islamic order that was never in fact stable, or gravitation to some “taste for the absolute” that is deeply engrained in the familial, marital, and political life of the region. Thompson (2013, 9) argues that constitutional democracy in the region was, in fact, well on its way to realization around World War I, and she blames its stillbirth on the machinations of Britain and France as well as Woodrow Wilson’s failure to overcome the allies’ imperial designs. Still others attribute the failure of democracy not to an inherent incompatibility of Islam and democratic constitutionalism but the difficulty of persuading the more conservative members of society that legitimacy can lie in a document other than the Quran and Traditions of the Prophet.

Whatever the merits of these alternative explanations, pessimism about constitutional democracy in the Arab world is understandable. Constitutions are frequently altered to suit the autocratic leader of the moment. King Hassan II changed the constitution of Morocco six times—always by means of a referendum that, not surprisingly, turned up support ranging well over 90%—and his son and heir, Muhammad VI, changed it yet again in response to events during the Arab Spring of 2010–11. Bashar al-Assad, aged thirty-four at the time of his father’s death, simply changed the constitution that required Syria’s head of state to be at least forty years old, while Abdel Fattah al-Sisi manipulated the election for the presidency by extending the voting period for Egypt’s constitutional revisions in order to claim greater support for its alteration. Numerous other regimes have changed their constitutions—whether for the length of time a ruler could serve or as a means of playing musical chairs with the opposition parties—to the point where it became difficult to develop interpretations of the document’s provisions before it was again altered. With no viable political arena available other reformers gave up on constitutionalism, at least for the moment, and expressed their claim for justice through domestic violence or terrorist attacks. Thus Abu Iyad’s Black September spin-off from Fatah, like Sayyid Qutb’s harangues against the corruption of Nasser’s Egypt and Western degradation, ended in their being killed, while Ali Shariati saw his belief in a democratic Iran give way to the rule of clerics.

Westerners—especially Americans—have by contrast seen the creation of a constitution as indispensable to the formation of a modern democratic state. The failed attempts at “nation building” by the United States in Iraq and Afghanistan have not only been a result of poor execution and reliance on inappropriate leaders; they have resulted from the assumption that if one simply cleared the field of preexisting political forms and their beneficiaries democracy would, with remarkably little “encouragement,” grow naturally.15 Even in its most seemingly innocuous form the effort may presume a universality that negates any consideration of cultural and historical distinction. Thus when George W. Bush invaded Iraq he assumed that if we simply removed the old regime a democracy not unlike our own would take its place. Once Saddam Hussein was eliminated constitution writers followed in the wake, while in Afghanistan we were assured by some legal scholars that the constitution that was adopted would serve as a model for the entire region.16

Characteristically, the constitutions proposed in recent years have included a very large number of provisions, many of which represent issues of concern at the moment of construction, attempts to satisfy all factions, or efforts to preempt later interpretations or amendments. Thus, to choose only the most recent example of a constitution many in the West regard with unusual hope: the Tunisian constitution contains 149 articles, among them the establishment of an Audio-Visual Communication Committee, provision for national support of sports, and a statement in the Preamble (made “an integral part of the Constitution” by Article 145) calling for support of “just liberation movements at the forefront of which is the Palestinian liberation movement.”17 There is ostensible protection of religious diversity. However, as the director of the Human Rights Watch office for Tunisia and Algeria points out, contradictions in Article Six leave open the possibility for quite strict religious views to be enforced under the constitution.18

Expecting that a constitution would not address issues of the moment is perhaps unrealistic: Whatever provisions a new U.S. constitutional convention might seek to incorporate one would not, for example, expect the billeting of foreign troops in one’s home to be a pressing issue, whereas abortion and gun rights would no doubt garner substantial concern. Yet all of the Middle Eastern constitutions seem to start from the assumption that one must reconcile—or accommodate or defer to—Islam and that much of the structure of governance must flow from this primal concern.19 One cannot discount the importance of Islam’s embodiment in certain institutions—the charitable foundation, the shari‘a, and sometimes the monarch as religious head. Nor can one doubt that as a symbol of national solidarity and indeed morality the shari‘a occupies for many a crucial place. But Islam lives in the details of its daily application—in the morals of the marketplace, the procedures and assumptions at work in a court of law, and the rituals that fall outside of (and sometimes stand in opposition to) the religious personnel or structures controlled by the central government.20 That is why it is worth considering that an alternative does exist to the direct application of Islam in the construction of a constitution, a possibility that need not merely render the constitution secular. At least as a thought exercise the alternative to be suggested here may help us to consider the relation of culture to constitutionalism and draw attention to the ways in which a constitution might sufficiently sound in the experience of ordinary people as to garner popular support.

Specifically we might ask whether it is possible to create authentic constitutional forms based on an underlying cultural principle not unlike that which may be said to form part of the basis of the U.S. Constitution. This is in no way to suggest that the American constitution should serve as a model for all. Quite the contrary, the point is that just as the U.S. constitution may, in part, be based on culturally shared ideas that remain largely unexpressed in the final document so, too, other nations might choose to build a constitution from their own version of a cultural base. To see where such a foundation may lie, consider, for example, the role played by the concept of “virtue” in the formation of the American Constitution.21

James Madison, like the other Founders, thought that America’s relative isolation from the corruption of European regimes gave it a chance to be grounded on “the great republican principle,” the proposition

that the people will have virtue and intelligence to select men of virtue and wisdom. Is there no virtue among us?—If there be not, we are in a wretched situation. No theoretical check—no forms of Government, can render us secure. . . . The institution of delegated power implies that there is a portion of virtue and honor among mankind, which may be a reasonable foundation of confidence. And experience justifies the theory.22

“Virtue” was not a vacuous concept for the Founders. Madison and his colleagues infused the idea of virtue with specific content: that people who had control of their own property would be constrained by the opinion of others to seek the law as protection for all; that civic virtue would gain expression through participation in the choice of like-minded persons representing one in the legislature; that the broader and more diverse the nation—indeed, the more complex its tensions—the greater the chance that a balance of contending forces would serve as a counterweight to “the common interest or passion” that would lead a majority to deny others their rights, for “as there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust, so there are other qualities in human nature which justify a certain portion of esteem and confidence.”23

Thus, to the Founders, if men lived in a political environment in which the principles of nature were afforded the greatest chance of being expressed they could manage their affairs best with a balance of powers that encourages the highest expression of the virtues inherent in social relationships, virtues that would form a hedge against many of the greatest abuses of power no political structure alone can prevent.24 It is, therefore, possible that, absent the shared belief in government being able to elicit and encourage such virtue, the fabrication of a foundational document embracing a broad range of local and political differences would have been impossible, or at least thought impossible. And if we read a number of specific provisions of that document—as well as those left unenumerated—into our understanding of its success the resultant interpretation does not depend solely on what is on the face of the document but on a set of enfolding cultural propositions that were indispensable to its garnering a sense of authenticity in the first place.

Now if, for the sake of argument, we view the U.S. Constitution as resting to some extent on a shared cultural notion of “virtue,” the question may be asked whether there is, perhaps, a functional equivalent present in the Arab countries that could also serve as a basis for the specific propositions incorporated in a formal constitution. Beginning not with the resultant structure of government but with what might be thought of as the scaffolding that is necessary for its construction, we might turn to the assumptions that emerge from a study of Arab cultures, assumptions about the nature of human nature and the proper relations among the members of a common religious and political community. From this foundation we might then ask: What sorts of governmental mechanisms might emerge from or be suited to such cultural values and how might they contribute to the success of a foundational document? In North Africa and the Middle East the basis from which one might start might, therefore, include several of the cultural precepts that can be teased out of the specific situations we have been reviewing. These would include the importance of justice as equivalence, reciprocity and structured personalism, ambivalence to power, and property as collective trust.

Justice as Equivalence. It has been suggested that in much of the Arab world justice means equivalence, not equality in the sense of treating all persons identically. If Madison and his cohort could believe that “the supposition of universal venality in human nature is little less an error in political reasoning than the supposition of universal rectitude”—and draw upon this belief in structuring a government—then arguably one might build on the belief many Arabs exhibit that differences among various categories of persons must not be inconsistent with the way government affects everyday relationships. Because a constitution is neither self-executing nor culturally isolated it may only enshrine stable relationships if grounded on its adherents’ views of human nature and how power might realistically be confined.

Justice, then, may for Arabs not have to mean identical treatment but attending to the disparate nature of the category or set of affiliations that characterize each person, an orientation that makes for a very different basis for “democracy” than the self-fashioning Enlightenment-era variety found in the West. To many this may seem as flawed a basis for constitutional protection as the denial of equal rights to women, slaves, and Indians in the original U.S. Constitution. But if one is guaranteed not equality of outcome but equality of attention to one’s whole person—particularly one’s knowledge and consequential relationships—then provisions in the laws that discriminate against one or another category at the outset have a vital escape clause. So, for example, faced with the situation that Muslim courts frequently grant custody to a better educated and employed mother than a dissolute father who has an overriding statutory right to custody, a more general protection for the process of whole-person evaluation could be the basis for a constitutional right even if agreement cannot be immediately achieved on statutes guaranteeing equality as identical treatment. Provisions that insure full consideration of one’s personal attributes, along with foundational guarantees for all categories of persons, may yield specific interpretations over the years that draw together rather than separate groups of persons by dint of the emphasis on vitalizing everyone’s opportunities for maturation. Moreover, given the built-in flexibility of Arab concepts of personhood the provisions that may seek to implement broad-scale assessments of the whole person would not be frozen in the meaning given to them at any moment but might possess a dynamic quality that could respond to changes in employment, education, and family organization over the course of time. Such an approach would, moreover, reinforce the common law style of Islamic legal case law and its role as a check on other agencies of government.

Reciprocity and structured personalism. One problem Arab constitutionalists have never solved is how to couple justice as personal embeddedness in a web of malleable obligations with assurance that government will not interfere in one’s relationships to the point of distorting or unbalancing the negotiation of such ties. In the history of the Middle East the frustrations occasioned by foreign intrusion and the efforts made by articulate and courageous individuals at constitutional government cannot be underplayed. Nevertheless, many would argue that a valuable accelerant to democratic reform may be the separation of personal affiliations from the institutions of governance. Indeed, if a constitution cannot encourage and enshrine, for example, the separation by a judge or legislator of his or her official powers from personal identity and entanglements then any hope of circumscribing power may fail regardless of constitutional guarantees. In this view the countries of the Middle East did not simply experience an interruption to their independence occasioned by Western interference; they also lacked the urge or breathing space to transform the person situated in a network of obligations into a citizen able to play a variety of discrete roles within a government of limited powers.

But what if one started instead with the view that is so often implicit in Arab culture that the self cannot be fractionated, that people are the concatenation of all their traits and ties and that it is unrealistic—indeed untrue—to maintain that anyone, regardless of office or position, can be expected to act one way in one role and quite another as a matter of personal belief and attachment? Thus when I suggest to judges, for example, that several of our Supreme Court justices have said they personally oppose the death penalty but as judges must nevertheless apply it I am always asked who this man is, who he is connected to, what other events concerning crime have occurred to him or his family, the thrust being that if I knew enough about each man I would see no inconsistency or divisibility in his viewpoint. Can one, then, maintain in a constitutional structure a view of the person as unfractionated and couple it with their view of how it is still possible for power to be divided and balanced?

The answer may lie in the notion that these two cultural postulates are not incompatible. One can simply recognize that an office is not the whole of a person but an aspect of that person and bind an officeholder to the standards of a reliable witness whose full array of attachments must be a part of the transparent public record at all times. Just as Arabs constantly seek information about another’s relationships as the basis for establishing an interpersonal tie, so, too, the law could emphasize ways in which all of one’s associations must be made part of common knowledge through open qualification, transparent personal and governmental contracts, and greater disclosure of an official’s former and current attachments. In addition, following the emphasis in the Quran, the process of engaging in contracts could receive explicit constitutional protection, including methods of weighing the fulfillment of a contract by any of a number of alternative modes of reciprocation. Where local officials have experimented with such openness it has attracted considerable popular support.25Again, transferring a cultural propensity into a constitutional protection is not a matter of one-to-one correlation: It is a matter of creating the mechanisms that facilitate the range of relationships commonly accepted while protecting against too much power in too few hands for too long a period of time. This brings us to the next postulate.

Ambivalence to power. Skepticism about the powerful is different from the existence of a number of ways in which such systemic incredulity is actually institutionalized in ritual and social practice. Building cultural ambivalence to power into a constitution can involve a very wide range of mechanisms, from rotation of office to institutionalizing electoral cycles and engaging in redistribution through forms of taxation. Arab nations have tried a broad range of ways to limit power: A few have mandated term limits, election by proportional representation, reservation of a specified number of parliamentary seats for different segments of society, and so on. Power might be significantly devolved to local areas not as a way of deferring to ethnic or confessional differences but as a way of emphasizing the domains in which custom may govern specific issues. There are those who have argued that the Iraqi and Tunisian constitutions, for example, err in allowing any degree of local autonomy, while others assert that its absence in Afghanistan would be a grave error.26 But electing local governors and councils is more likely to allow the mechanisms of popular limitation on power to be expressed than is seeking hermetically sealed domains of legislative and executive action.

The organization of the legal system is crucial here. Most constitutions claim that Islamic law must be granted substantial deference, or at least that no law be repugnant to it. But more important may be the recognition that Islamic legal systems are not, in fact, similar to civil law systems, in which reference to a set code, organization through a centrally controlled ministry of justice, and advancement based on government decisions is characteristic. Rather, if Islamic law actually operates more like a common law system—emphasizing case by case adjudication, pushing decision making down to the local and bringing cultural concepts in from that base—greater communication among courts may help to legitimize the criteria for insuring each person’s right to individual assessment. Removing the law courts from a ministry of justice may actually accord with popular ambivalence to power while further supporting the pride judges and lawyers wish to take in their profession. Encouraging the development of professional associations, which have a long history in the countries of the Middle East, would also assist in the constant battle against corruption.

Juries have been tried in a few Muslim countries. Where they have failed has been revealing. For example, in Morocco I was told by people who had served on juries during their brief tryout that because they could not engage the accused directly with questions and interaction how would it be possible for them to know who this person really is and what the meaning was of his actions? That form of cultural personalism may be drawn upon by using a mixed panel of judges and laymen, all of whom can address the parties directly but whose lay members may bring in local concerns and balance the potential corruption of permanent judges and notaries. By decentralizing the judicial system in a way that is consistent with the style of person assessment in which Islamic law courts and ordinary people approach such matters could, without sounding too Jeffersonian or Tocquevillian a note here, fit with a sense of devolved power and local inclusion in the institutions of governance.

Property as Trust. Public land and resources need to be conceptualized as public assets, not in the sense of those forms of socialism tried in Algeria or Egypt but as capable of distribution to a broad range of individuals, groups, and institutions. Some forms of collective ownership have profound roots in parts of the Arab world. It was the Arabs who, in the development of water law, established the principles of beneficial use and who sought, in the mortmain trusts (waqf, ḥabus), a vehicle for securing dependents and frustrating the depredations of those in power. Relying on deeper conceptions of the distribution of assets—whether grounded in the concept of revolving patrimony or the concept of the trust—might, then, contribute to support for the constitution as a whole. Some of these property concepts can have as much force within Muslim countries as they might, in our discussion of Israeli-Palestinian ties, have relevance for establishing peaceful relations within and across ethnic, religious, and territorial boundaries in the Middle East.

Finally, the preamble to any constitution might emphasize these shared cultural norms explicitly, rather than recite (as most Middle Eastern constitutions do) vagaries about the nation and its commitments. Succinctly stated and couched in familiar terms, such a preamble could be accessible to all and might set a tone that is all too often lacking in present forms.

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Justice may indeed be only a metaphor. But as one novelist notes: “Just because something is a metaphor doesn’t mean it can’t be real.”27 Justice and injustice are felt because, like any critical symbol, they are among those condensed concepts that pull into their orbit a wide range of experiences, understandings, relationships, and histories with such force as to define emotions and create reality. Westerners represent justice as blind, so that each case may seem to partake of a general principle, uniqueness being theoretically merged and cancelled in the process. But the Muslim conception, as I understand it, is closer in some ways to the Greek concept of dike, in which a dynamic balance of contraries is nevertheless subsumed under a unifying “law.” If underneath it all modern Western law, in Martin Jay’s phrasing of a point Max Horkheimer and Theodor Adorno once suggested, is “still beholden to a mythic assumption, the fetish of equivalence, the desire for perfect commensurability,” Islamic law in its actual practice is not uncomfortable with equivalence as differences that cannot—and should not—be reduced to simple identity.28 Reasoning may be analogic, but not with the goal of compelling that which is different to be melded into all that is the same. Nor does the Islamic-infused form of case law reasoning seek as its ultimate goal a replicable measure that collapses the temporal difference between past and present into some timeless, religiously sanctioned whole. To the contrary, Islamic law focuses on procedure thereby allowing difference to flourish, settlements to be varied, and the ability to negotiate relationships to be the point of origination for freedom rather than rendering freedom of maneuver a threat to uniform outcome. As a result, the rule of law is more a rule of justice in which a belief in reciprocity can check economic domination and faith in being judged as a whole person is recognized as a right held against all the world.

Justice Rosalie Silberman Abella of the Supreme Court of Canada has said that “Rule of law is a euphemism no one understands” and that instead “we need a Rule of Justice.”29 It is often by their absence, though, that we may at least sense the effects we would have both law and justice entail. The rule of law, vague as it may seem, is indispensable to the reorganization of political and legal culture in the Arab world, but that will not be enough. The question that is usually asked is this: Are there certain preconditions for “democracy” whose development would better serve the people it describes? It is unlikely that such is the case universally, and more likely that local cultural variation may be essential to the development of a sense of inclusion and constancy, especially where the element of religion remains strong. Rather, one might be left with a somewhat different, and even more hopeful, question, namely: Is it possible that what might be of significant assistance in formulating guiding precepts is that vitalizing sense that accompanies a culturally specific rule of justice, and at the end of the day could the linkage that metaphor provides be indispensable to the creation of new realities in the political and social life of the nations of the region?