By Khaled Abou El Fadl
With the fall of the dictatorship of Saddam Hussein, Iraq is confronted
with the challenge of rebuilding its constitutional and legal order.
Having suffered the experience of living under some of the most
draconian laws known to the modern age, Iraqis are uniquely positioned
to turn a new page in the annals of Middle Eastern law.
Iraq has had a long and rich jurisprudential experience. Before Saddam
came to power, the country, along with Egypt, was one of the most
influential in the development of the legal institutions and
substantive laws of the Arabic speaking world. A high level of
education was enjoyed by the Iraqi elite, and Iraqi legal thought was
characterized by a lack of xenophobic nativism. Being geographically
at the intersection of Arab, Persian, Kurdish, and Turkish cultures,
the country has been home to both Shiite and Sunni centers of
After gaining independence from Britain in 1930, Iraq, like most Arab
countries, adopted Civil Law and Criminal Law Codes, which were adapted
from the French and Germanic legal systems. Iraq's personal law,
however, continued to be based primarily on Islamic law, feeding a
thorny relationship between Iraq's Islamic legal heritage, and the
legal system borrowed from Europe. Making the situation more difficult,
in Iraq, as in many other Muslim countries, there were socio-political
pressures to simultaneously Islamize and modernize.
Keeping all this in mind, the evolution of Iraq's new legal system will
have repercussions for the entire region. The urban centers of Iraq,
Baghdad, Basra, and Kufa played central roles in the birth of Islamic
jurisprudence, and they continued to play a leading role in the
development of the institutions and doctrines of Islamic law. Iraq's
intellectual heritage, especially as it relates to Islam's divine law,
continues to carry considerable moral weight within the Muslim world.
Iraqis already have some experience in this realm. In the 1950's the
country made an ambitious effort to adopt a system of law that was
efficient, modern, and at the same time, Islamically legitimate. The
Iraqi Civil Code of 1953 was one of the most innovative and
meticulously systematic codes of the Middle East. Iraqi jurists,
working with the assistance of the famous Egyptian jurist Al-Sanhuri,
drafted a code that balanced and merged elements of Islamic and French
law in one of the most successful attempts to preserve the best of both
legal systems. In 1959 Iraq promulgated the Code of Personal Status,
which on the issues of family and testamentary law was at the time the
most progressive Muslim code of law. Importantly, for our purposes now,
this code merged elements of Sunni and Shiite law to grant women
greater rights as to marriage, divorce, and inheritance.
All creative legal activity, of course, ended when the Baath party came
to power in 1968 and Saddam formally ascended to the presidency in
1979. For the most part, since coming to power, Saddam has involved
Iraq in a series of wars that enabled him to declare a constant state
of national emergency and to rule mostly by executive order. Legal
institutions lost all vestiges of independence, and civil society was
co-opted by the ruling party. Iraqi law could no longer be described as
either Islamic or French, but as distinctly and uniquely Saddamian.
Iraq became one of the few nations that legally sanctioned the use of
torture in pre-trial investigations, and as a punitive measure. The
death sentence was prescribed for a large variety of offenses including
usurpation of public money, corruption, insulting the Presidency, and
treason-loosely defined. Law became whimsical and contingent on the
will of the party and president. Even foreign investments were
dependent on the good will of the ruling elite, often tapping into a
network of businessmen sanctioned and protected by a Saddam family
After the Gulf War of 1991, and especially after the rebellions in the
South and North, Saddam announced that he would implement Islamic law
in Iraq, but he did so primarily as a legitimacy and popularity ploy.
Saddam had systematically obliterated all Islamic opposition, and
gained notoriety for executing more Muslim scholars and jurists than
any other leader in the modern history of Islam. But after the
post-1991 rebellions were stamped out, the staunchly secular Saddam
suddenly got religion: He made a point to be filmed performing his
prayers, often interrupting media interviews, as he did with Dan
Rather, to announce that he must pause for prayers.
Saddam's implementation of Islamic law was equally theatrical. On
occasion, he would announce that a group of individuals will have their
hands cut off for theft, or would be executed for adultery. The point
was public spectacle. Since the charges, trials, and often even the
names of the suspects were not made public, strong suspicions persisted
that those being punished were actually people accused of being
opposing the regime. Since the late 1970s, there has been no rule of
law in Iraq, only the rule of fear.
Today, there is little doubt that many Iraqis are aspiring for a
democratic order that would guard against the kind of abuses that they
have had to endure. They must overcome the absolute jurisprudential
impoverishment that they suffered under the Baath, while reclaiming
their creative legacy. They must find justice while avoiding vengeance.
And they must relearn how the law can be used as a shield and tool in
the hands of the people rather than a sword of the state.
The rule of law is a necessary condition for a democracy to exist and
considering Iraq's rich civilizational heritage, Iraqis will be
looking, and rightly so, into their pre-Baath legal and moral history
for inspiration and guidance. American policymakers must understand
that Iraq's legal and ethical history did not start with the overthrow
of Saddam. A dual commitment to Islamic law and democracy is possible,
but only if Muslims understand Islamic law to reinforce the same
commitments made by democracy to individual human rights and dignities.
This is where Iraq's jurisprudence was heading once upon a time and
this is where Iraq may reclaim its role as an inspiration to the Muslim
Mr. Abou El Fadl is a professor at the UCLA School of Law