Sovereignty and Belief: The Case of Iraq

by Charles J. Reid, Jr Charles J. Reid, Jr. was born in Milwaukee, Wisconsin. He graduated from the University of Wisconsin-Milwaukee, where he majored in Latin, Classics, and History, and also did substantial coursework in classical Greek and modern European languages. It was during his undergraduate days that he developed an interest in canon law, doing a year of directed research in Roman and canon law under the supervision of James Brundage. Reid then attended the Catholic University of America, where he earned J.D. and J.C.L. (license in canon law) degrees. During his time at Catholic University, he organized a series of symposia on the bishops' pastoral letter on nuclear arms. The proceedings of these symposia were published under Reid's editorship as "Peace in a Nuclear Age: The Bishops' Pastoral Letter in Perspective" (Catholic University of America Press, 1986). This book was called by the New York Times "among the most scholarly and unsettling of responses" to the pastoral letter (December 28, 1986).Reid then attended Cornell University, where he earned a Ph.D. in the history of medieval law under the supervision of Brian Tierney. His thesis at Cornell was on the Christian, medieval origins of the western concept of individual rights. Over the last ten years, he has published a number of articles on the history of western rights thought, and is currently completing work on a book manuscript addressing this question.In 1991, Reid was appointed research associate in law and history at the Emory University School of Law, where he has worked closely with Harold Berman on the history of western law. He collaborated with Professor Berman on articles on the Lutheran legal science of the sixteenth century, the English legal science of the seventeenth century, and the flawed premises of Max Weber's legal historiography.While at Emory, Reid has also pursued a research agenda involving scholarship on the history of western notions of individual rights; the history of liberty of conscience in America; and the natural-law foundations of the jurisprudence of Judge John Noonan. He has also published articles on various aspects of the history of the English common law. He has had the chance to apply legal history in a forensic setting, serving as an expert witness in litigation involving the religious significance of Christian burial. Additionally, Reid has taught a seminar on the contribution of medieval canon law to the shaping of western constitutionalism.  Recently, Reid has become a featured blogger at the Huffington Post on current issues where religion, law and politics intersect. 24.06.2014

The crisis of Iraq is many things.  But at its heart, it is a struggle to define the Iraqi nation.  In other words, it is a contest over the meaning of sovereignty.  Sovereignty is the commanding power of the state -- the authority to order things to be done, or to forbid their doing.  But for sovereignty to work, for its commands to have effect, the people subject to that ruling authority, or at least a sufficiently large number, must believe in the sovereign.  They must, in other words, look upon the sovereign and judge its works to be good.

To appreciate the connection between sovereignty and belief, we might begin with the work of the great English legal philosopher, H.L.A. Hart.  Hart studied the nature of sovereignty and understood it as the cornerstone of his theory of rules.  There were two types of rules in the law of modern states, he claimed:  Primary rules, which establish duties and obligations; and secondary rules, which prescribe procedures and channel the ways in which we comply with the law.  An example might be the requirement to obtain a search warrant in American constitutional law.  The Fourth Amendment creates the primary rule -- namely, the obligation for police officers to obtain a warrant before conducting a search; while the rules that create the procedures by which the warrant is obtained (the requirement of probable cause, the presentation of evidence to the magistrate) constitute secondary rules.

Hart well understood the complexity of modern constitutional states.  But he knew that they all had in common a foundation which he called the Rule of Recognition.  The Rule of Recognition, which might be called the primordial primary rule, empowered the entire system.  Again adverting to American law, the Rule of Recognition is the United States Constitution.  It is, after all, from the Constitution that states derive their position vis-á-vis the federal government.  It is to the Constitution that the powers of all governmental officers are traced back.  And it is from the Constitution that citizens derive their rights.

How does the Rule of Recognition come into being?  What is the social glue that sustains it, that keeps the legal order from flying apart?  Here, Hart turns fuzzy.  He explains that obedience to the Rule of Recognition can never be explained in terms of other rules, but must finally rest upon a strong notion of acceptance.  It is the Rule of Recognition and the foundation of sovereign power because society generally, or at least a strategically significant segment of it, accepts it.

But what is this notion of acceptance?  The crisis in Iraq has caused me to reflect on Hart's theory of law and conclude that there is a missing ingredient.  We cannot stop at acceptance, as he does, but move the analysis one step further:  The Rule of Recognition is the Rule of Recognition because a sufficiently large segment of society believes in it, trusts in it, sees it as coherent and consistent with society's higher purposes and self-understanding.

Consider the ways societies have reinforced their Rules of Recognition and you will find at their core a commitment to a set of beliefs and values.  I am thinking first of Roman state religion in the Antonine period.  This period in Roman history, celebrated by Edward Gibbon, corresponded to most of the second century C.E.  The Roman state was at the very zenith of its power.  Its rule stretched from the Tigris and Euphrates, to the lower Nile, and north and west to the Rhine and on to the Scottish frontier.  It was a large and disparate collection of distinct peoples, languages, and local religious beliefs.

The Emperors attempted to hold it together by giving local peoples wide latitude to practice their religions but at the same time imposing on them what they believed to be a mild, unifying feature:  they must make periodic sacrifice to the imperial genius.  Jews were exempt.  When Christians sought to exempt themselves, they encountered periodic difficulties with the authorities.  Why?  Because where Christians insisted upon undivided loyalty to their God, the Roman authorities saw a threat to the belief and value system that underpinned their Rule of Recognition.

Now let's move forward in time to the British Constitution as it emerged from the settlement of the Glorious Revolution (1689 and all that).  The British certainly saw their state religion (the Anglican Church) as an integral feature of their constitutional order.  But at the heart of English constitutionalism was a peculiarly British way of viewing history.

This was the Ancient Constitution, made famous by J.G.A. Pocock.  The past was glorified and made normative.  Certain documents of the middle ages were seized upon and imparted with new meaning.  Magna Carta was such a text.  It was an important grant of liberties in the medieval period, but it did not become the foundational Charter of English Liberties until the time of the settlement.

Once again, we see at the core of sovereignty the component of belief.  The Ancient Constitution was not merely accepted.  It was internalized.  It became an act of self-definition -- a way in which the British people marked off what it meant to be British.  And so it became part of that great unwritten tradition that is today's British Constitution.

If we move across the Atlantic, to the United States, we see the American Rule of Recognition as grounded not in history, nor even in state religion, but in a set of propositions.  The Declaration of Independence was their first articulation.  All men were created equal, the Declaration announced, and were endowed by their Creator with certain inalienable rights.

The Constitution and the Bill of Rights became their fuller, more robust articulation.  Freedom of speech, freedom of religion, a commitment to representative government -- these are some of the foundational principles of the American constitutional order.

A nation founded on a set of propositions was a peculiarly appropriate Rule of Recognition for a land peopled by immigrants.  By migrating to America, one pledged oneself to uphold and defend these ideals.  And because the American Rule of Recognition is grounded on propositions, it has proved to be remarkably elastic and enduring.

It also has its own built-in self-correcting mechanism.  Because the Declaration of Independence stood for lofty ideals, it became a principal vehicle in the nineteenth century for attacking slavery.  Frederick Douglass set the tone with his famous oration of 1852, "What Is the Slave to the Fourth of July?"  And, more recently, it has formed the backdrop by which all forms of discrimination on the basis of immutable characteristics -- racial, ethnic, even gender and sexual -- have come to be criticized and delegitimized.

So far I have said a good deal about sovereignty, the Rule of Recognition, and belief, but little about Iraq.  So, let us see how what I have said squares up against the experience of the Iraqi nation.

In the Ottoman period, in the latter eighteenth and early nineteenth centuries, the territory that would become Iraq was divided into three loosely-governed provinces -- Mosul in the North, Baghdad in the center, and Basra to the South.  The writ of Ottoman authority ran weakly here.  These were decentralized provinces, where much power resided in local, tribal, and nomadic groupings.  As in present day-Iraq, Kurds tended to live in the northern territories, Sunnis in the center and west, and Shiites in Basra and points South.

The Ottomans, in the latter nineteenth and early twentieth century, attempted to exert more centralized control, but Ottoman plans were frustrated with the outbreak of World War I.  The so-called War to End All Wars brought mostly horror and tragedy to the land that became Iraq.  German, Russian, Turkish, and British armies vied for control and all of them suffered grievous losses.

Still, by 1916 the Triple Entente resolved that victory, if it should happen, must see a dismemberment of the Ottoman Empire.  In May of that year, the British and the French, with the assent of the Russians, concluded the Sykes-Picot Agreement, by which the two nations parceled out for themselves zones of control in what they hoped would be a remade Middle East.  The French claimed Lebanon and Syria, while the British extended their interests in the Persian Gulf and asserted control over Iraq and modern-day Jordan.

The twentieth-century history of Iraq can be briefly summarized as continuing efforts, now proven to be fruitless, to hold together a territory that lacked the cohesion required of nationhood.  First the British, then a feckless monarchy, and then the blood-thirsty Saddam Hussein each in their turn attempted to hold the country together.

But the twentieth-century history of Iraq made plain that sectarian and ethnic interests were always first in the hearts of ordinary Iraqis.  Shiites continually strengthened their self-identity, a process that was only fueled by their oppression by Sunni ruling elites.  The Kurds, who have been victims of persecution dating back hundreds of years, were also targeted for ethnic cleansing by Saddam Hussein and were made stronger and more cohesive as a result.  The Sunnis, who for much of the twentieth century governed the nation, experienced reprisals in the decade since the American invasion of Iraq and now also have a well-developed sense of grievance that is partially expressed in the on-going violent insurrection against the central government in Baghdad.  (In this toxic mix, smaller minorities, such as Christians, barely have room to breathe).

This returns us to the question of sovereignty.  Sovereignty requires acceptance of a commonly-agreed upon Rule of Recognition.  And that Rule of Recognition, in order to be effective, must be seen to be good.  It must reflect the interests of the nation and be seen to embody its values.  None of that is the case in contemporary Iraq, and it is unlikely that it will be the case in the foreseeable future.

So, what then to do?  Iraq cries out for prudent international involvement.  But such involvement, should it occur, must not attempt to cement back together Iraq's fractured nationhood.  Centrifugal forces are too strong.  It would be impossible to put in place the prerequisites of sovereignty.  Sunnis, Shiites, and Kurds must be allowed to separate and go their own ways.

Ideally, any international involvement should engage the regional powers most affected:  Most especially, it must include Iran, which has strong ties to Shiite Iraq; and Saudi Arabia, which has connections with the on-going Sunni revolt.  The Saudis must do their best at suppressing the extremism and violence of ISIS, the main insurgent group.  The Turks must also be reassured that any new "Kurdistan" that emerges from the rubble of the failed state of Iraq is not harmful to their interests.  And Iranian influence over the Shiite South, which is already strong, must be connected to an equally strong sense of responsibility and self-restraint.

What is needed, in other words, is statesmanship.  The great powers must not be distracted by the legal fictions of nationhood and sovereignty.  Those fictions have failed.  They must instead give prudent shape to the realities on the ground.

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