This spring, the government of Maldives (a small island nation in the Indian Ocean) and the United Nations Development program asked Paul Robinson, a law professor at the University of Pennsylvania, to write a new version of its criminal code. The catch: the code had to be consonant with Shari'a. Robinson set up a special seminar this fall and is having his students do most of the work. When Pipes heard about this (via the detestable Little Green Footballs, no less), he screamed bloody murder:
It is easy to see how Professor Robinson would jump at the chance to develop what he calls “the world’s first criminal code of modern format that is based upon the principles of Shari‘a.” Here is an opportunity for a leading criminal law practitioner to do something completely different – not Anglo-Saxon common law, not Napoleonic Code, but Shari‘a. No wonder he ditched his standard seminar.Robinson responded:
And he finds the present Maldivian criminal justice system inadequate, to the point that it systematically fails to do justice and regularly does injustice. He sees the need for wide-ranging reforms, and believes that without dramatic change, the system is likely to deteriorate further. Robinson’s preliminary thoughts for reform include such basics as making the judiciary an independent branch of government, limiting the police’ right to search, establishing the defendants’ right to legal counsel, and ending the present practice of relying primarily on confessions as the basis for establishing criminal liability.
These are worthy objectives, to be sure, but Professor Robinson should stand back from this project and reassess it. This leading scholar, through his work in the Maldives, will render more acceptable Shar‘i provisions about killing apostates from Islam, subjugating women, keeping slaves, and repressing non-Muslims (in this light, note the matter-of-fact comment in the course description that “as a matter of law, all citizens [of the Maldives] are Muslim”).
Rather than cleanse and modernize the Shar‘i code, I appeal to Professor Robinson to reject the Maldive commission and take a totally different approach in his seminar, critiquing that code’s criminal provisions from a Western point of view. He and his seminar students would then show how this religiously-based legal system contradicts virtually every assumption an American makes, such as the separation of church and state, the abolition of forced servitude, the right not to suffer inhumane punishments, freedom of religion and expression, equality of the sexes, and on and on.
The Shari‘a needs to be rejected as a state law code, not made prettier.
You object to my plan to assist the Maldivians in drafting a new criminal code. I think the opportunity ought to be enthusiastically embraced.
The Maldives does not allow the classic barbaric punishments of Shari'a, such as cutting off the hands of thieves or stoning adulterers to death. Indeed, Amnesty International reports that the country de facto abolished the death penalty for all offenses more than a half century ago. (And every one of the reforms you mention—independent judiciary, explicit limitations on police power, defense counsel at all stages, and moving away from the use of confessions—is something that the Maldivians themselves are now doing or committed themselves to do long before I ever showed up on the scene).
Does the country impose criminal liability and punishment that I find objectionable? Yes, which is precisely the reason that drives my interest in helping.
I do criminal code consulting for many countries. A few days ago, one client, China, beheaded a person for embezzlement. (Worse than anything the Maldivians have done.) Should I now refuse to advise them further on what I think a criminal code should look like? Your strategy of willful disengagement seems an odd way of bringing greater justice to the world.
The Maldivians are in the midst great social change. A special parliament called to draft a new constitution met for the first time two days ago; disagreements among the members spilled into demonstrations in the streets. A young and idealistic Attorney General, with much credibility with the people, was recently appointed, after police beatings of prisoners prompted riots. This man and many others in the country have made serious personal sacrifices to advance the cause of justice for Maldivians. He and others like him represent the forces of enlightenment that seek to move the country toward the principles of fairness and justice. When this man asks me to help draft a criminal code for his country, how could I possibly in good conscience refuse?
My views on criminal justice are well known. No one would think that I am inclined to tolerate barbaric punishments, nor would they think that I would renounce my independent judgment and be cowed into silence. (I was the lone dissenter in the promulgation of the United States Sentencing Commission guidelines.) If someone hires me to help draft a criminal code, that in itself tells you something about the person's agenda. If their goal is not fairness and justice, they are only hiring trouble. Why would they?
If the Western world had beat this country into submission through economic boycott and political isolation, we would take their request for Western advice to be a great victory. Why should the request to be shunned simply because some leaders of the country are people of conscience who by their own choice have sought the advice?
My goal is not to make their code "pretty," as you suggest, but rather to make it just. And the evidence to date suggests that this is their goal as well.
One of my best friends, I just learned, is a student in Robinson's class. He's Jewish, and has spent over a year in the Middle East and East Africa. On Friday I got to talking with him about this, and it became clear that there are some basic misunderstandings at work in Pipes denunciation. Most of them are addressed in Robinson's letter above. Via email, my friend adds:
[Pipes] suggests that Robinson will simply be "render[ing] more acceptable" these nasty ~Islamic ideas. (subjugating women, keeping slaves, etc.) In response, I say, and so would Robinson, that a) their Islamic-ness can be easily questioned; b) we aren't including these types of things anyhoo c) and most importantly, isn't it better that we write such a code, not the Saudi's? And isn't it clear, in their asking Robinson to write it, not the Wahabists or the like, that these kind of extreme ~Islamic ideas are not what they want?What Robinson is doing for the Maldives isn't perfect, but it's far superior to the Pipes approach of making unreasonable demands and pushing them away. The perfect is often the enemy of the good.
In a related story, here's what Thomas Barnett has to say about Turkey's ongoing bid to join the European Union:
Again, my basic point that connectivity requires code. You want equal rights for women? You want better care of the environment? You want an end to repressive police tactics? Then invite Gap nations into your political and economic unions! Invite them into the party so long as they're willing to synchronize their internal rule sets with that of the Core. Development will bring pollution, stress on families, and corruption, but the lure of economic integration with the Core brings legal rule sets, and those rules create the possibility of environmentalism, women's rights, and whistle-blowing in general.Well put.
You want the Gap to remain the Gap? Then make unreasonable demands that countries there find some way to develop economically without damaging the environment. Or pretend they can somehow skip the factory-based abuse of workers that the Old Core went through. Or pretend that a perfectly operating democracy on par with Vermont is required before they can join our "club."
You can't demand the code before offering the connectivity—it's really that simple.
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