Legal Change and Iraq

by Haider Ala Hamoudi

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.

http://opiniojuris.org/2008/06/20/legal-change-and-iraq/

7 Responses

  1. I absolutely love this post. When I was a lawyer in Paris, I well remember a cocktail party where a French lawyer of lebanese ancestry asked me where I had gone to law school. When I said Harvard, he said that was too bad because I was a common lawyer and not a civilist. He said it not really with sadness but more with a kind of pity as he went on to say that civil law is real law. Describing Sanhuri the way you do reminds me of the references to him I use to hear from lawyers from Egypt and Libya and other places. The process of dialogue and acceptance of the Civil Code that you describe is the wonderful process of integration of concepts. How else could it be then that English texts based on common law traditions would be ignored even though passed by the CPA?

    I recognize your dubiousness about some of what al Sanhuri did, but to what extent do you render homage to the sheer force of will of the man to bring forth the Civil Code in Arabic. It is an extraordinary act of juridical creation I think that has sunk such deep roots of the kind that you describe.

    It may be precisely the code des obligations that keeps such force as it speaks to the everyday life in a way of reason. I can well remember French lawyers and the manner they related to their code books with the cases as illustrations of the rules. The relationship to the drafting of a contract was completely different from the piles and piles of paper of the American style contract.

    Then, I think of the insertion of globalization into Iraq and wonder how the anchor of the civil code culture adapts to new types of instruments, manners of doing business etc.

    Very interesting post, my friend.

    Best,

    Ben

  2. Does this portend (or, rather, should it) an increasing awareness of the significance of “comparative law”?

  3. An interesting post indeed.

    A comment I would make is that there is no reason to suppose that anything the CPA did or enacted could accurately be described as “law-making”, becasue they had no lawful authority to make laws for Iraq in the first place and their purpose was entirely criminal. When the Bazis invaded and annexed Poland they brought Geman law and justice with them, which is to say, in the context of the Nazi understanding of law and justice, the subverted the law itself to criminal purposes — and that’s a worse crime than murder, for all the reasons that Justice Jackson explained in his opening statement at Nuremberg.

    The case in Iraq is no different.

  4. Thanks to all of you for your comments. The legality of the CPA’s actions is certainly an important factor I didn’t discuss. Yes, Mr. O’Donnell my friend, I think comparative law deserves much more attention precisely for situations such as these. My jaw drops every time someone asks me, “well what’s the use of all this Islamic and Middle Eastern law stuff, if you’re teaching American lawyers how to practice American law?” Ummm, so they don’t run off and do this sort of thing again.

    Ben, just to clarify, I didn’t mean to disparage Sanhuri’s magnificent civil code by suggesting that maybe his look into classical Islamic texts was driven by a desire to conform them to modern civil law. As lawyers, we all approach texts with agendas I think, it’s the nature of our business. Sanhuri was no different, my only point was to really understand what he was doing, the methodology is less important than the agenda. Not irrelevant, just less important. If I had to analogize, I’d say the Supreme Court wanted in the 1960’s to find a way to make the Civil Rights Act of 1964 constitutional, and the Supreme Court of the 1880’s wanted the precise opposite. And unless one keeps that in mind, I think it’s hard to explain how it is that antidiscrimination laws manage to find their way to constitutionality not through an antidiscrimination amendment, but rather through a clause having to do with commerce. None of us, I hope, object to the 60’s court agenda, quite the opposite we share it completely, but I think to understand the court, we have to talk about the ideological biases because they really had a lot to do with the outcomes derived. So it is with Sanhuri’s derivations of Islamic principles in his Civil Code.

  5. Haider,

    I have not read your book so I am at a disadvantage in commenting. I plan to read it in due course. I understand the ideological approach. I know I did not say it well enough, but what I just was trying to say was how great is my esteem for a man of the law like Sanhuri when you think of how difficult it is to both create and get law accepted. Remarkable work my friend and I wish you all good things with your work.

    Best,

    Ben

  6. Haider, this is very interesting commentary on the limits of “exporting” law and the legitimacy gap that can result from too hasy a transplant. It’s worth noting that, in Louisiana, the Spanish, upon attaining control of the colony, imposed Spanish law on a polity that had grown accustomed to French law. In spite of the similarities of the two systems, the result was — to a degree — that Louisiana citizens resolved matters extrajudicially in accordance with French law.

    As you note, the CPA in Iraq came in far too quickly and enacted “regulations, orders, and memoranda” that were ostensibly binding but of which the polity hardly seemed to take cognizance. I remember once having a conversation with a rather astonished judge in Tikrit, explaining that an “Iraqi Property Claims Commission” had exclusive jurisdiction over a host of claims which he had been hearing and adjudicating. Even the principal judge was unaware of so drastic a reform.

    It seems that policy makers are only now exploring the nexus of Comparative Law and state-building — something that, of course, should have been done years ago. If state-building is to be a feature of national security strategy in coming years (creating stronger governments to displace/prevent the incubation of terrorist organizations) then comparativists should have a better seat at the table — and much sooner in the process.

    Sorry to see your time ending on Opinio Juris. As always, your writing was extremely informative.

    DES

  7. Dan, always nice to hear your perspective, given your broad and admirable expertise on Iraqi law.

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