Laurence Michalak and Jeswald W. Salacuse, eds., Social Legislation in the Contemporary Middle East (Berkeley, CA: IIS, 1986).
It is to the credit of the editors and authors of this volume that they approach the subject of law as the activity of contemporary governments and not as something frozen from the past, as Orientalists tend to do. Yet, despite this, the work remains sufficiently within the modernization theory tradition so as to pose no real challenge to older forms of thought. The authors by and large share three major assumptions: first, that the topic of state social legislation excludes consideration of Islamic family law (the exception here is Hamid Algar on Iran); second, that existing “traditional” law is pre-capitalist or pre-modern, making what the states are now enacting to be something new; and third, that the state has the autonomy to legislate as it chooses.
One can imagine two main justifications for excluding Islamic family law from consideration. The first is that religious matters are part of Islam and not part of the state — Iran being the odd case. The second is that Islamic law is part of tradition, and social engineering by modern states is an attempt to transform or eliminate tradition. The conventional assumption of conflict between the religious and the secular, reflected here in the commitment of the authors to study secular activities, comes to us as part and parcel of the social thought handed down from nineteenth-century Germany in the writings of Marx, Weber and Durkheim. Weber, the quintessentially loyal civil servant, found a dichotomy between the German state (the north) and religious tradition (the south). While this was a politically flattering description of Germany in the eyes of the north, today we know the German state was not what Weber imagined: The ruling class partly comprised the traditional landlords and a state church, Lutheranism. To this day, the Lutheran church contributes to the social control of the north over the more Catholic south.
Weber’s dichotomy of the secular and the religious should have been an easy target for Marxist thought. But Marxists could never make a clear analysis of the nature of the state. It remained for Emile Durkheim’s concepts of anomie and social solidarity to provide an elitist synthesis of state and state religion.
Ruling groups do try to use religious hierarchies in their social legislation. What the authors of this volume have ignored is the opportunity to use more sophisticated theorists of the state, such as Gramsci, to defend themselves on a systematic basis against the conservative Durkheimian tradition. Gramsci argued as a general point that the religious structure and the secular parts of the state logically would not have the same interests; he noted that the religious structure could easily disguise its power-oriented objectives behind a facade obviously different from that of the coercive side of the state apparatus. The secular cultural system — e.g., the educational system — simply cannot offer what the religious one can for the ruling class. It does not have the same reach into the society, nor is it as good a communicator of regime thought as religion is. On the face of it, the school is at a real disadvantage. Through ritual, the religious structure organizes the lives of the community, while the educational structure fragments the community. The only advantage of the secular apparatus to the rulers would appear to be in times of rapid growth, when the state wants to maximize work force output and needs to stratify more than it needs to unify.
As a corrective to current scholarly trends, one should write about politics in an all-inclusive sense, not separating off something called “religious politics.” If the media and the State Department promote the idea of an “Islamic movement,” this can scarcely be the basis for its adoption by political economy.
A second problem manifested here and more generally is a fixation on the “contemporary.” By sharply dividing the past from the present, liberals argue for the special importance of studies of the present. The dominant metaphor is one of each new generation having a clean slate. For political economy, the past defines the parameters of choice in the present.
For political economy, the culture of medieval Arab society impinges on the modern Arab world because it has previously confronted the problems of capitalism. Thus, when one writes about contemporary social legislation, one could try to include both current secular and religious legislation. Of course, medieval and modern conditions differ, but the best approach to difference is to find overlap, as well as separation. For medieval studies, Samir Amin’s thesis of the unity of the Middle East as a commercial zone is quite convincing. But today, in place of emirates along the trade routes, there are nation states in the modern world market. The recent widening of capitalism has disrupted regional self-sufficiency and given contemporary rulers more significance than in earlier periods. Even if rulers are stronger than they were before, and thus probably less responsible to their subjects today than in the Middle Ages, they cannot obliterate the cultural heritage and impose new models for social legislation. The reason is that they have no real alternative vision of how to organize society and human relations.
The third major divide between the book at hand and a political economy approach lies in its floating concept of the state. The authors share an assumption that law is an elite phenomenon, influenced only abstractly by labor, technology and capital. The title conveys this quite well, using the term “legislation” instead of “law” and implying that the state has this considerable autonomy. For political economy, if law is truly the province of the state alone, this would mean that the working classes were impotent. Such periods are not too common in modern Middle Eastern history. Working classes in the Middle East have always been small, but their impact has been out of proportion to their size. This makes even the autocratic state attentive to its subjects, all the while feigning indifference.
The nature of the state in the Middle East presents problems for both political economists and liberals. In observing how each formulates its problems and sets out to resolve them, one gains an important insight into the difference between the two traditions. A precise study of social legislation, where the intent is to discuss its impact, involves a preliminary conceptualization of the nature of the nation states in the Middle East. One type of law emerges from states where kinship is the political basis of sovereignty, such as Saudi Arabia. Legal existence is a genealogical fact; it is also gender-related. Similar bases for law exist not only among the oil states but in tropical Africa in countries like Zaire, in the Balkans and in Southeast Asia. Another body of law exists in regimes like Iraq, where law, in the sense of legislation, is an administrative tool to keep the bulk of the population at a distance. A third type of regime — e.g., Egypt — uses law to play off a citizenry against a peasantry. A fourth kind of regime is the bourgeois democratic model. Israel is the main example in the Middle East.
For those interested in “Russian road” countries (Iraq, Iran, Turkey), the writings of historian Moshe Lewin can serve as a model. Lewin manages to find the struggle of the peasantry embedded in the twists and turns of Soviet legislation. For those most concerned with Egypt or Syria, Subaltern School writers like Ranajit Guha or Partha Chatterjee provide examples of how to find struggle encoded in colonial administrative records. For the states politicizing tribalism and ethnicity, I know of no particular legal study. For such countries, I would like to see a feminist approach pursued; the political economy of dominant tribe as dominant class is sterile. The political hierarchies among men are free to collide with each other quite violently because of the underlying systemic stability maintained by a rigid gender hierarchy. As model studies of bourgeois democracy, Tom Nairn and Michael Hechter combine the analysis of Puritanism and of the underclass. 
 Moshe Lewin, Russian Peasants and Soviet Power (New York: W. W. Norton, 1968); Partha Chatterjee, "More on Modes of Power and the Peasantry," in Ranajit Guha, ed., Subaltern Studies II (Delhi: Oxford Press, 1983), pp. 311-350; Tom Nairn, The Break-Up of Britain (London: Verso, 1981); Michael Hechter, Internal Colonialism: The Celtic Fringe in British National Development, 1536-1966 (Berkeley, CA: University of California, 1977).