Legal Change and Iraq

Having spoken yesterday about some of the legal issues that divide Iraq, I thought I would focus today on the central legal matter that seems to unite them: the Civil Code. Those from civilian nations, or Louisiana, would have an easier time understanding this I think. However, I suppose if I had to analogize, within Iraq, reverence to the Civil Code is more or less like American reverence to the Constitution. In Iraq, constitutions come and go, they are politically motivated, they are hard to take as seriously, but the Civil Code is central to the legal theology. Sure a clause here or there might be amended, but as a general matter it has proved remarkably durable. Get lawyers in Iraq, from any place, including the Kurdish self rule areas that have not been under Arab control for nearly two decades, including the most religious and the most secular, the most Kurdish and the most Arab, the most Sunni and the most Shi’i and they all know the Civil Code and can quote its provisions, and the commentaries, thereto, very liberally. Nor is that likely to change any time soon—even if one imagines the most extreme Islamization of the state, I think at most, a half dozen clauses (those permitting the taking of interest, for example) might be amended, a few references to God or shari’a thrown in for good measure, and everything would go on as is.

This is no small matter—the Civil Code handles virtually all private law (torts, contracts, debts, etc.) except for the family law and inheritance issues that are the subject of vigorous dispute. It is a substantial means through which a uniform legal culture has developed throughout Iraq. A group of judges from all cities throughout Iraq, including the Kurdish region which has operated under self rule for almost two decades, understand each other well, and routinely in my experience (having organized my fair share of judicial conferences) share notes and discuss cases with each other. There isn’t any idea of federalism, or geographically determined outcome, at work here. In fact, even introducing American legal realist notions of choice or discretion in the decision making process results in a rather vigorous and at times angry response. To these civilians at least (and actually to a rather high number of civilians I know), the Code is complete (it covers everything imaginable) and its provisions determinative (it provides a definite outcome to any factual issue, or refers you to a provision elsewhere that will provide one). Interestingly, it’s the shari’a guys who are more intrigued by realism—they sort of get the notion that judges choose, because the shari’a has no Code to hide behind, there can be no certainty on what a story involving the Prophet is supposed to mean for our times. Like the common law, discretion and choice seems more natural. The Iraqi civilian lawyers won’t accept it.

In any event, it is worth wondering why it is that the Civil Code has proven so durable, and has such a profound influence on legal culture and legal philosophy in Iraq. After all, the CPA wandered in, passed a whole bunch of laws, and quite a few of them got ignored. Certainly they didn’t change the legal culture of Iraq at all. Yet the Civil Code managed to make a profound imprint despite obviously massive Western influence. I think a contrast of the two approaches might well show precisely how legal change can occur, and how it cannot.

First of all, the guy who wrote the Iraq Civil Code was an Egyptian legal genius, Abdul Razzaq al Sanhuri, who was acting as Dean of the Baghdad Law School at the time, having been invited to that position. This works, Iraqis aren’t jingoistic, you don’t have to be an Iraqi to have an influence, and certainly Sanhuri’s identity as a fellow Arab and Muslim helped him. Among other things, it helped him draft the Civil Code in Arabic. The deeper point, however, is that he was an academic working in Iraq and invited by the Iraqi government.

The CPA folks, by contrast, spoke no Arabic and passed their laws in English. Someone translated them, at times rather badly (meaning the terms were just wrong), but this was no problem because the English version was authoritative. We really should stop there. You have Arabic speaking judges (even among the Kurds, they have to know Arabic to read the Civil Code), whose English, I know this personally, is often quite uneven, Arabic speaking ministry officials expected to pass implementing legislation and Arabic speaking lawyers trying cases, how is it possible for the English version to be authoritative? Who’s going to show what the English word means? How are they going to prove that? It’s absolutely preposterous, a belief that somehow saying it will make it so.

In addition, the CPA weren’t precisely academics working in Iraq at the request of a government, as we know. They came on the backs of tanks. Now of course in some ways those tanks were welcomed by some, say the Kurds to take the easiest case. But legal changes were much less welcome, the assumption was they would remove Saddam and offer political stability and transition, not start to pass laws on everything from traffic to foreign investment. The Iraqis, including the Kurds, didn’t think they needed any of that from these fellows who couldn’t even speak their language.

Secondly, Sanhuri knew well the Iraqi culture, tradition and ways. When he drafted the Civil Code, he took some cognizance of Islamic legal history (really Sunni Islam, but at the time, they called the shots, and by now the Civil Code is so ingrained it hardly matters, for these purposes). He went back into Islamic texts and tried to show how his rules could in some ways be derived from them. He has a five volume work on this very subject demonstrating the Islamicity of the civil code. When he adopts the Roman law of obligation (it’s a civil law thing, I can’t explain what obligation means very quickly), he tries to show it as consistent with classical Islamic doctrine, for example.

The theory for doing all of this was pretty esoteric, and as a Realist I don’t really take it very seriously, though my colleagues in Islamic studies always do and this more than anything exemplifies the difference of my approach to theirs. To them, it’s important to understand Sanhuri’s methodology in approaching classical Islamic texts. To me, it’s more important to note that the man needs a modern civil code. That’ll get you to the place you need to be, and without the metaphysics. I don’t mean he wasn’t sincere, I’m sure the guy thought he was deriving something useful, I just mean the man needed a particular result, and the texts were used to achieve it. Certainly at times he clearly abused classical texts to reach the result, this article of mine shows one such example, and expresses my distress at the approaches of some of my colleagues.

In any event, the point isn’t so much what Sanhuri was doing (which was taking the Code Civil of France and working backwards to justify it) but more how he did it. Because he I think took the harmonization process seriously and spent a great deal of time thinking about Islamic doctrine, when he shaped it to basically reflect Roman notions with modifications, it all seemed okay, or at least less controversial than it could have been. And there are Islamic remnants, as Dan Stigall’s excellent work points out.

The CPA, by contrast, was absolutely not familiar with the Iraqi culture, tradition and ways. I don’t think a single one knew shari’a or Civil Law very well. To refer to the above, ask them what “obligation” means in civil law, don’t think they got it. One even told me derisively that the notion that contract and tort could be subsumed into one general theory was, in his words, “medieval.” It’s not, it’s French. And German. And Chinese. It’s civilian, not Islamic certainly (where there isn’t even a general theory of contract, much less obligation), and not medieval. I can’t see how Iraqi advisers help on this score, unless someone thinks you can take a Kurdish goat farmer who is familiar with solving disputes among tribes and hand him an American adviser and expect him to come up with something useful to say about American law. And the orders tend to appear foreign and unfamiliar. Most Iraqi criminal law judges I know cannot figure out the CPA amendments to the criminal procedure code and tend to pay almost no attention to them. It’s worth a study, I am going to try to look into this more systematically when in Iraq next month.

Finally, Sanhuri’s code took years to draft and years to pass. Consultations, discussions, meetings, arguments, within legislatures and the legal community as well as broader society seemed endless. When it was finally done, everyone knew what it was and what it was going to do. It grew fairly deep roots after that. The CPA gave us on the Iraqi side a day to review their drafts. Nobody knew about them until they were enacted. Once enacted, few paid attention because they had not been discussed. No discussion, no understanding, and no understanding, no implementation.

This is not a treatise on the nature of legal change of course. It’s only a blog post, I guess on the do’s and don’ts of legal change. Tomorrow will be my last entry, and I’ll talk a bit about law, economic theory, and what all of that has to do with my book.