Opinio Juris

This is my last post on this site. It’s been a wonderful experience writing this week, I hope all of you found it as beneficial as I have. Thanks to the commenters, and of course to the editors of Opinio Juris for the opportunity. Anyone interested in the topics I have raised here is of course warmly invited to my own http://muslimlawprof.org, where some of these ideas, as well as others relating to Iraq and the broader Muslim world, will be discussed and debated and further expounded upon. Again, my deepest gratitude to all. Now on to the matters at hand.

When those unschooled in Iraq read the Iraq constitution for the first time, the greatest initial surprise (aside from the fact that even though it’s a Muslim country, the constitution actually looks normal—I wish I knew what they were expecting) tends to be concerning the scope of the economic rights granted in the document. There are rights to work, to health care, to social security, to education, to housing, and to protection for the widows and the elderly, among other things. Unlike, for example, South Africa, where many of these rights are qualified with a clause indicating that the legislature is entrusted with progressive realization of these economic rights, in Iraq the language is generally very broad and unambiguous. It is the state’s obligation to provide, and no qualifications are present. In understanding this rather startling result, or at least startling to American lawyers who’ve never seen anything like this, I think some light might be shed on some Iraqi frustrations with the United States that should be more obvious than they are.

Basically, the clauses found their way into the constitution because they were something each constituency could agree on. They all liked them, they all wanted to include them, and there was as a result very little discussion on most of them. Other than one concerning family law, that is, which really was an attempt to introduce notions of Islam into the law of the family, but the Islamists couldn’t do it directly, so they made it into a “right” of each person to choose their own law, which makes no sense but it’s all supposed to be organized by legislation later, so I guess we have to wait and see. Other than that, however, and the rights didn’t much change from first draft to last.

I suppose the Americans weren’t necessarily enthused about all of this, given American biases, but by the time the constitutional drafting had rolled around, they had long given up on having very much effect on the terms of the document, within reason. They had tried to manipulate the process—offering caucuses nobody could understand as a means to select the drafting committee, providing friendly American advisers, including some in academia, influencing the drafting of an interim constitution—but more or less they came to nothing. None of them worked, Sistani insisted on elections to select the body, and elections came (hard for an American administration to resist the one person one vote thing), advisers were quickly out, the interim constitution was going to be dead, Sistani more or less announced he was going to see to that. As a result, the US influence was some very savvy folks at State playing mediation, trying to make all sides happy, and making sure the document wasn’t a disaster, so they could say that Iraq had come together and forged a bold new national compact, and look up whatever the President said for the rest of it. The point is, that took work, because the groups didn’t get along, and didn’t agree on a great deal, and the US wasn’t about to waste energy on stuff that didn’t look embarrassing that they all agreed on.

Of course, this only begs the question, why did the Iraqis find these things so desirable? Why did they agree on a number of promises they could not possibly fulfill and, depending on the aggressiveness of the court, could well straitjacket policy for decades to come? I think here it is important to note one aspect of the Ba’ath, that isn’t often discussed. As with Lenin (Peace! Bread! Land!), the Ba’ath claimed to stand for three principles—Arab unity, freedom, and socialism. The first two, or the lack thereof, people know about, the final one they do not. This was not anything approaching a free market society. The public sector is huge, the former Minister of Commerce in Baghdad once told me he had about 75% more staff than he needed, and central government pressure was on more hiring, not less. Gas subsidies which cost the central government a great deal, and largely inure to the benefit of smugglers, are proving stubbornly durable. Rations for rice, cooking oil, sugar, tea and the like have been in place for almost two decades now, and simply cannot be removed. The insurgents when they took over Falluja suspended almost all government services, but not rationing. They had to let it continue, or the consequences could have been dire. To understand Iraq economically today, the most apt comparisons are to the former Soviet Union and its satellite states.

I’ve discussed in Howling in Mesopotamia some of the consequences of this. All too many of our employees and contractors seemed to measure their rights to payment based on appearance in the office, even if they were supremely unproductive during that time. Faculty seemed unwilling to take the simplest of steps to approve the use of our money to improve their facilities (for example, even the building of bookshelves), absent approval from superiors, which could weeks to arrive. (We gave up and simply started telling everyone that we had approval for everything we sought to do from George Bush himself, which seemed to work, even if we were not a government agency, a further demonstration of strong socialist bias). And most importantly, and actually most understandably, a populace that evaluated the change of regimes not by increased freedom, but goods and services provided. To the extent that this is true the world over (I think I know people here who would trade their vote for an iphone), it is dramatically more so in a society in which socialism played such a central role. And the failures of the Americans to deliver was, in many ways, the worst disaster of all from the Iraqi perspective.

Howling in its middle tells the story of a neighbor of mine, Abu Ahmed, who was in fact early on more or less a supporter of the American invasion. As a Shi’i, he had no love for the Saddam Hussein regime, but in addition to the expectations of future Shi’i dominance (I don’t mean to downplay this side of things too, only point out other strong influences), he looked forward to a better life for himself and his family. Clean water, a good salary and continuous electricity were what he wanted, and everyone was certain that the Americans could deliver it, given their own domestic achievements. When it didn’t come, the assumption was that the Americans had deprived them intentionally, and the population began to turn. The book conveys Abu Ahmed’s growing frustration with the American rule to the point where, shortly before his untimely death, he shouted to me in the street well within earshot of American soldiers that if given $300, he would kill any number of them immediately. The insurgents had money, he said, and the Americans did not want to share theirs.

While the Iraqi expectations were unrealistic of course, and putting a man on the moon (a favorite Iraqi example of American prowess when they are determined to achieve something) is different than administering a country, it cannot be underestimated how badly the occupation went from a goods and services standpoint. I lived in Iraq for two years, and in that two years, I saw absolutely no improvement in living standards of any kind, other than perhaps the advent of the mobile phones and the satellite television. Electricity never improved, water quality never improved, hospitals looked the same, and so did schools (if you don’t count a paint job). I read about all sorts of achievements, I continually heard US senators proclaim how much rebuilding money had been spent for Iraq, and how it was Iraq’s turn to spend on itself, but that didn’t exactly mean much when they had no effect on a man on the street. Most Iraqis couldn’t understand exactly what these officials were talking about, some assumed the money had been smuggled by the CPA to Saddam, who it was commonly said before his capture was living comfortably in Hawaii.

I tend to believe that things might have been done to placate Iraqis at least temporarily. Distributions of truckloads of televisions and electricity generators would probably have done more good than unrealistic multibillion dollar infrastructure projects that would have taken years to realize in the best of conditions. Broad Rooseveltian plans to hire people to do a lot of nothing would have won a few friends as well, as opposed to trying to open the country to foreign investment that was not going to be coming. There are any number of reasons the US did not do this, but one probably is that it isn’t the American way, at least under the Bush administration. Governments don’t pass out goodies, they set the rules to let people build them on their own and get out of the way. It's largely laissez faire to this crowd.

It isn’t my purpose to deny this or advocate for it, only to point out that this isn’t the Iraqi mentality, bred of decades of socialist rule. And if someone is going to try to help Iraq out of its current economic nightmare, at least taking cognizance of the Iraqi mentality might be a good place to start.

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.

Hours before the execution of Saddam Hussein, there was a flurry of debate on both the Iraqi and the American sides concerning its legality. One of the primary American concerns was that the Iraqi law permitting executions clearly barred their being carried out on Islamic holidays, and the proposed execution was at least arguably (depending on when you start the day) on just such a day. The Iraqis retorted that in fact that law had been suspended by Ambassador Bremer and the Coalition Provisional Authority. When reinstated by the National Assembly upon the re-establishment of Iraqi sovereignty, the exception concerning Islamic holidays was nowhere mentioned. To this the Americans took a skeptical view, and asked for the intervention of the Supreme Federal Court of Iraq, or at least its Chief Justice, Midhat Mahmoud. The Iraqis complied with the request, but Justice Mahmoud demurred from issuing any opinion on the subject. The Iraqis, however, hardly stopped with the American request. Instead, they sent their own emissary to Najaf, and obtained an opinion from the clerical authorities that the execution of a man on an Islamic holiday was not a violation of Islamic law.

I think we all know how any American lawyer unfamiliar with the ways of the Iraqi Shi’a might respond upon hearing this. What do I care, the lawyer might say, what Islamic law or some bearded fellow in Najaf has to say about this? I am not concerned with religious permissibility, only legality. What is or is not a sin has nothing to do with whether or not Iraqi law allows this execution to proceed. Why is the judge not saying anything and the cleric offering an opinion?

The answer is important, because I think it helps to shed light on how Shi’ism operates in Iraq today, and provides a legal dimension to the distinctions between the Shi’a and the Sunnis that is barely understood (sadly, even by the most prominent members of our own academy in US law schools supposedly expert in Iraq and/or Islam), let alone adequately discussed. This also provides, I hope, a bit of an answer to Chris’ fine post regarding whether or not Iraq might hold together as a nation.

Within Shi’i Islam, Islamic law is determined, and can only be determined, by the clerical authorities, generally operating in Najaf. Period. I want to stress this because so much thought and work and effort has gone into understanding Sunni Islam, where this is not true (more on this later), that this central point, obvious to every reasonably devout Shi’i eight year old, is almost universally missed, by many legal scholars let me emphasize, not just by US political figures who cannot tell the difference between the Shi’a and the Sunnis. To expect any judge in a Shi’a dominated country to conduct his own independent interpretation of Islam’s sacred texts to come to an answer on Islamic law to the derogation of the Najaf scholars is preposterous, as preposterous as an American federal judge determining Catholic doctrine by looking to the Bible and ignoring the Pope.

For a time in the Sunni world, in the so-called classical era, much the same was true. But scholars in the Sunni world have suffered a catastrophic loss of legitimacy from the dawn of modernity, and as a result courts in the Sunni world interpreting Islamic law do not hesitate to conduct their own independent investigations into foundational texts to come up with answers to questions before them. Thus, while the Shi’a and the Sunnis might well agree (certainly they do in Iraq) on the need to constrain Iraqi law with Islamic law, how Islamic law is determined is quite different. This is bound to create difficulties as Iraq’s legal system evolves.

To demonstrate the distinction, one need go no further than comparing the interim constitution, the so-called Transitional Administrative Law (TAL), drafted by the Iraq Governing Council with the support of liberal, secular expatriate Iraqis Salim Chalabi and Feisal Istrabadi, with the permanent constitution, which was effectively controlled by the Shi’a Islamic parties, at least as concerned these types of provisions. The TAL sought to limit the influence of Islam and the clerical authorities, though they could not entirely as Islamists also participated. Laws could be passed so long as they did not violate the “certainties” of Islam “on which there is consensus.” The last word is important, “consensus” is a source of law within Islamic jurisprudence signifying the universal agreement of the relevant schools of thought. The idea was that if all of the scholars within all of the established schools (four within Sunnism, and then probably one within Shi’ism, at least according to Iraqis) agreed on an interpretation, then it was certain to be the correct one because the Prophet Muhammad had indicated that his people would never agree on an error.

This clearly gives to courts a fair amount of flexibility in interpretation. To declare a rule permissible, the court may survey all schools of thought and try to find some strand of opinion, somewhere, that might lead to such a conclusion. That Najaf did or did not like a particular piece of legislation would hardly be dispositive of the matter, particularly since those ruling on the matter would be judges from different sects with different levels of religiosity.

Clearly, this was not going to be acceptable to the Shi’a Islamists, and changes were made. First of all, the constitution clearly contemplates jurists serving on the Supreme Federal Court for the express purpose of providing guidance on Islamic law issues, thereby diluting the judicial power. Secondly, the language of “consensus” has disappeared, and now no law may be passed that violates the “certain rulings of Islam” (emphasis supplied). Sunnis objected to this, suggesting that “rulings” might well mean the opinions of the clerical authorities of Najaf. Of course it does, yet they were unsuccessful at changing it, though they did manage to water down or eliminate other provisions that made express reference to the importance of the clerics of Najaf.

That clerical authorities consider it their duty to oversee the law of the state and ensure that the state respects Islamic boundaries seems, at this point, so obvious it would hardly deserve recounting, if so many did not continue to underestimate the role of Najaf in determining matters of Islamic, and indirectly Iraqi, law. When Ambassador Bremer sought to have a constitution drafted by a body selected through some sort of inane caucus system nobody could understand, it was Sistani who successfully rebuffed him, demanded elections, and got the constitutional body he wanted. When the United States and Iraq declared their interest in a long term security arrangement, it was Sistani who indicated that he would not accept it unless it respected Iraqi sovereignty. And when it came to executing Saddam, it was Sistani and not the Supreme Court who ultimately allowed the matter to proceed.

Yet of course in executing his wishes, Sistani has relied on his political allies in Parliament. He has not sought to join the Court, or to have another jurist under his direction join. Nor do I expect that Justice Mahmoud or his brethren would really want to see that. A common misconception among those unfamiliar with the Middle East is the depth and strength of its modern legal traditions, which developed separately from the state. The commendable scholarship of Lama Abu Odeh of Georgetown helps to reverse these misconceptions, but to summarize them, an Iraqi lawyer is proud of her legal tradition, proud of her Civil Code, belongs to a legal culture, and makes cases before judges on a daily basis, and yet might know nothing about Islamic law. Ask her to try a criminal case, and she can. Ask her how to do it under Islamic rules, and she is as lost as most of the readers of this post. This doesn’t make her irreligious, it simply means a legal culture has developed separately from the juristic culture, there is Baghdad and there is Najaf, and neither understands the other.

How then to negotiate this divide, given the disparate cultures? Well, quite simply, avoid the intersection. Justice Mahmoud and the Federal Supreme Court do not do Article 2 cases concerning Islamic law as a de facto matter (or at least I have yet to read one, and I’ve read almost everything issued in the past two years), and do not intervene when the matter appears to impinge on questions of Islamic law. Sistani announces such matters on his own and quite successfully implements it without the court, and then, in return, is content to let the Court do its own work separate from him. God and Mammon operate on their own planes, even if both are intimately involved in affairs of the state.

In a sense, it works, until we get back to Chris’s problem. Only the Shi’a recognize this. The Sunnis need a court, and probably prefer Sunni judges on it, and the Kurds, though Sunnis, generally don’t have much appetite for Islamic law at all. It is, in all seriousness, easier for someone who wants it to buy beer in Sulaymania than in Pittsburgh. These differences, these important legal differences, seem hard to bridge. The osolution that seems obvious is the one the Kurds essentially adopted—they do what they wish in their territory, and thus have no problem with much of what Sistani does. Is it a blueprint for the nation? I can’t say, but I can say it helps solve this particular problem.

One of the stories I recount in Howling in Mesoptamia relates to an episode at the Suleymania University College of Law, concerning the arrival of USAID personnel, and their hired guns, military contractors from Blackwater, or Triple Canopy, or one of the other organizations hired to protect government personnel during their travels through the country. (I didn’t ask at the time.) The particular occasion was discussion about a rule of law project on which I was working, and which USAID was funding, and in which the College was participating. I, and an American law librarian, Kimberli Morris, whose incredible work in Iraq in obviously difficult conditions led to the creation of law libraries that rival those of many in the Middle East, went to this school nearly every day, unarmed and without protection because it was in the considerably safer Kurdish region. USAID, however, had other requirements, and brought along their contractors.

The book tells the details of the encounter, the SUV’s nearly killing a student, the guns pointing in every direction, on a campus where to carry a firearm is to risk expulsion, professors in their 70’s who stepped forward to greet me being rewarded with a forearm in the neck, and the impromptu student demonstration that began two hours later, in the most pro-American region of the country, solely based on the activities of a few hours. It was, suffice it to say, distressing, ludicrous and embarrassing.

But what made the matter even more ironic to my mind was the purpose of the meeting. Here they were, and we were, funding and implementing a project to strengthen the rule of law in Iraq, and it was the Iraqis—students, professors, and administration—who in fact were providing us the lessons. They had campus rules, and Kurdish laws, and wanted our side to respect them, or at least to negotiate exceptions as necessary with appropriate authorities. But this was not the contractor way in Iraq, they recognized no laws, they had the guns, and sought submission of all to their might. How the USAID personnel managed with a straight face to discuss with the Dean the importance of the rule of law under these circumstances, when the only rule they had recognized upon entering was that of the gun, they will have to answer. I can only say I offered no comments that day, and was fortunate enough not to have to endure a similar situation again, as the Dean barred them from campus thereafter, indicating he would rather lose funding than deal with the local consequences of another visit.

The story came to my mind recently as I continue to hear about the long term security arrangement being negotiated between the United States and Iraq. One of the most intractable points in the agreement relates to immunity for contractors such as Blackwater. The United States, unsurprisingly, will not accept anything less than full legal immunity, the Prime Minister reportedly wants all contractors, and indeed even soldiers to be subject to full legal process. Even the religious authorities in Najaf, who realistically carry far more political influence in the National Assembly than the Prime Minister, have weighed in, alluding darkly to opposing any agreement that infringes on Iraqi sovereignty, an oblique reference, no doubt, to immunity deals, among other things.

With respect to US military personnel, of course, the question is not whether or not they should be subject to criminal sanction at all, but rather which law should apply, the United States Code of Military Justice or Iraqi law. It is hard to imagine the United States yielding the point, but nonetheless, within Iraq, this notion of ceding authority over lawbreaking soldiers to the United States is contentious. With respect to contractors, however, the American position is viewed in Iraq as untenable. In the Iraqi view, the United States wants a continuation of the status quo as concerns the contractors, which is more or less impunity. Contractors have opened fire in the Iraqi streets and killed dozens, one has shot a Vice President’s bodyguard in cold blood in front of numerous witnesses while drunk, and countless other accusations of murder and mayhem have been lodged. Not one has resulted in criminal legal sanction against anyone, to date. As a de jure matter, the law applying to the contractors is insufficiently clear, and as a de facto matter, there is no such law. While the Americans, and the American media, repeat that there are difficulties of proof associated with such matters, Arab media outlets wonder aloud why it is that military justice manages to proceed in wartime situations (inadequately, in their view, but it does proceed) while a drunk contractor who shoots another man in full view of witnesses is whisked away almost immediately to the safety of his home in the United States, and indeed is given clearance to work again in the Middle East at a later time. Unsurprisingly, conspiracy theories abound.

Thus, it is not clear to me that as concerns the rule of law, the United States is on the winning side of this issue. Iraqis have courts, and laws, and judges, people I know well, proud of the legal traditions and the legal culture of the nation, even if it has, admittedly, some shortcomings. Yet they go to work every day, handle disputes every day and justifiably feel that alleged crimes committed in their jurisdiction, whether by soldiers or civilians, require a hearing in these venues; in other words, they seek a submission to the rule of law. The American concerns respecting bias, and the difficult manner in which the military operates in war-like situations that render domestic criminal law difficult to apply, are understandable enough, in the context of soldiers, who are subject to legal process. The rule of law remains, it’s just a different law. With the contractors, however, the position hardly seems sensible. I wonder, as we continue to fund rule of law programs in Iraq, worthy valuable programs in my view, whether or not some of the lessons might well be applied by both sides.

First of all, my thanks are due to Professor Borgen, and to all of the editors of Opinio Juris, my favorite law blog (aside from my own, of course), for giving me the opportunity to discuss these vitally important issues in this extraordinary forum. Just one small correction to Professor Borgen’s very gracious introduction: the name of my book is Howling in Mesopotamia, not Howling in Iraq. I emphasize this only because early on in the writing process, I had to fight rather energetically over this very point, whether to change the word Mesopotamia to Iraq on the theory that more readers would understand the latter. I won the argument and therefore feel compelled to make the correction, even at the expense of pedantry.

Howling in Mespotamia is a memoir, a personal experience of life in Iraq, as an Iraqi, beyond the protected walls of the Green Zone, by one with access to both the American administrators and the Iraqi people, of all sects and backgrounds. It was my purpose (and my editor’s mission in life, or so it seemed to me, to my eternal gratitude) to expunge political diatribes, legal exposition, tiresome exegeses of cultural differences, and to explain events as I saw them in as direct and unambiguous a fashion as I could, to relay a certain sense of humanity to the Iraqi people. How I was nearly shot for a terrorist by an American patrol while returning a generator to a manufacturer, what it was like for an Iraqi to eat at a restaurant at a time when several were bombed nearly every week, who these people were, waving their purple fingers at times, beating their chests at others—these were the questions I sought to address, to give a face, a name, a life, a family to the statistics, the numbers of dead and wounded, we see in the news nearly every day. Who was at fault for what, whether the invasion was a mistake, or what the role of Islamic law would be in the new Iraq were matters dear to my heart, and to my scholarship, but were not really the point of the book.

And yet, at every single forum in which I have participated, or interview I have given, concerning the memoir, these legal and political matters are discussed at some length, almost always in the context of the stories I have told in Howling. When it comes to Iraq, it seems to me, the personal is forever intertwined with the political, and life and law cannot so easily be separated from one another.

To give just one example, just last week I gave a talk at a fairly well known, and I think deservedly well respected, Washington DC based forum of Arab issues, Al Hewar. The Iraqi Ambassador and the cultural attaché were both in attendance, as were a number of prominent Arab Americans—professors, diplomats, doctors and the like. A rather nerve racking experience, given the prominence of the attendees and given that I spoke in Arabic, which presented its own unique set of challenges. Despite my penchant for attaching feminine adjectives to masculine nouns, I managed to convey the subject of the book, and, in that context, the work in which I was engaged in Iraq. These were, specifically, legal education reform through a DePaul University project run by the renowned Cherif Bassiouni and funded by USAID, and service on a Governing Council (GC) committee that was charged with advising on commercial legislation drafted by the American administrators at the time, the Coalition Provisional Authority (CPA).

With one exception, the questions I received were polite, cogent and well informed. They were also largely, though not entirely, adversarial, particularly as concerned my advisory work, where my role in reviewing commercial legislation was in fact quite minor, as I emphasized. I was given a period of hours to review quite often poorly drafted legislation that members of the Governing Council in some cases said quite openly would never be implemented in any significant fashion. I could as a result only correct the most embarrassing and egregious of errors. Had the CPA not dissolved in June of 2004, I am sure I would have quit shortly thereafter, less because I considered the work harmful and more because I found it largely pointless. I spent three hours offering comments on an intellectual property law that is so widely ignored that I needed to send someone to Amman to purchase legal copies of Microsoft to comply with a US government contract. Even the Iraqi government offices I visited did not quite understand what I wanted, until I managed to meet a Minister of Higher Education in Kurdistan who had spent time in France, heard my dilemma and smiled, gently offering Amman as the only solution she could think of.

Nevertheless, harmless as I found this experience, and compelling as I found the stories that arose out of it, the matter did create some controversy at Al Hewar. It also, in the opinion of some, cast some doubt on my ability to tell stories of the Iraqi people as an Iraqi. Hadn’t I in fact worked with the occupier? (I guess so, sort of.) Did they in fact have the right to pass all of this legislation under international law? (Probably not.) And even harder to digest, for me--did Iraq even need new commercial laws? (Absolutely, the laws on security for loans are quite outdated, to name the simplest example.) And couldn’t domestic Iraqi lawyers, real Iraqi lawyers (i.e. not me) make the necessary changes? (Absolutely, with international consultation, nobody had seen a real cross border deal in Iraq for decades.)

What made the matter even more striking however, is how much less controversial the drafting of the Constitution was. Some raised questions, to be sure, one raised a fuss about my supposed role in its drafting and how awful it was. I had no such role, but my uncle was head of the committee that drafted that document and so the document in Arab circles, where kin is king, is often indirectly attributed to me, I am finding. However, for the most part, and despite this attribution, the Constitution was not raised nearly as often as this quite silly and pointless legislation. This is not the first time this has happened, and it should give anyone pause—why is it that nobody asks whether Iraq’s foundational document should have been amended, whether it was necessary, whether it was legal, and yet the questions came concerning issues of far less consequence? Clearly much of the Iraq constitution was influenced by other constitutions, as the CPA orders were influenced by material taken from other jurisdictions. Why then this rather striking difference in treatment?

I think there is a clear enough legal answer as to why this was, and how it came to be that what was in fact a recitation of personal and familial experiences in Iraq led to a rather enlightening example on the nature of law and the legal transplant. The CPA laws were clearly drafted by an occupying authority and approved by a Governing Council that had been selected by that authority. As I have relayed elsewhere, the GC selection was largely competent, the major Iraq players at the time were largely represented, but still, it was an appointed body. The idea of that process leading to anything but disaster remains for many Arabs unpalatable, and examples in my ">scholarship of CPA successes are never kindly met in such fora.

By contrast, the Constitution was written by an elected body, through elections urged by Grand Ayatollah Sistani, no American appointee, and in connection with which the Grand Ayatollah decreed that to vote was an Islamic obligation. (More on this subject later in the week.) The Kurds and the Shi’a both enthusiastically participated. This was not the product of the occupier, it is hard to make a case otherwise. As a result, questions concerning its necessity disappear, and objections as to the necessity of any legal reform are shunted from an entirely rewritten constituent document to subsidiary statutes. In other words, we may have needed a new Iraqi constitution, if the Iraqis think so, but we don’t need new Iraqi commercial law (all the evidence to the contrary notwithstanding), at least not unless the Iraqis say so.

This is not to say that there is no controversy attending the Constitution, but this relates to the sectarian nature of the drafting process, a matter I will turn to in another entry. That fact clearly does detract from the document’s authenticity and leads to Sunni accusations of a different foreign influence, Iran. For now, however, the point is this—a law is not controversial because it has been imported from, or at least influenced by, other jurisdictions. So much of Iraqi law already is. It is the process of importation, and the appearance of domestic legitimacy (ie urged by Sistani, drafted by an elected assembly) that is, I believe, dispositive. That in itself is not surprising, in fact I suppose it might be obvious, but the fact that it became manifest, in this context, not in an academic forum but rather in a presentation that was supposed to be about personal Iraqi lives and experiences was, to my mind, worthy of note. Nothing seems to escape law and politics in Iraq, I think, it is near to the minds of all Iraqis. No matter what else we might want to be thinking about, it looms always near in these difficult and precarious times.

This was by way of introduction, tomorrow I will endeavor to discuss some pressing legal matters in more depth.