When I first saw the Iraqi Airways plane that Sara and I were to board to go from Amman to Suleymania, my feelings varied between nationalist pride and unadulterated terror.  As to the pride, for the first time since 1990, I would be flying an Iraqi plane, owned and operated by Iraqis.  As to the terror, well it was an Iraqi plane, meaning it was three decades old, had sat idle for two of those and was being operated by Iraqis, whose notions of modern flying, and whose rules concerning it, were unusual to me. 

As we went into the plane, it was clear that not many people understood or cared what seat assignments were.  One stewardess was actually trying to keep everyone in the right rows, though she constantly made exceptions for older people or others who to her mind did not belong in the back.  This has happened to me before in Iraq, for example at the barber shop, when I am asked to wait behind an elderly respected patron wearing a religious turban though he came in after me.  There is something pleasant about it, a respect that often is too fleeting in America’s youth obsessed culture, and usually I do not mind sitting a few extra minutes to get my hair cut.  The situation is different on an airplane, where dozens of people are trying to board at once.  America’s rules seemed altogether more fitting for the purpose.  Unsurprisingly, at some point the well laid plans of the stewardess fell completely apart, and everyone just sat wherever they wanted.  We were among the fortunate few who actually sat relatively close to where we belonged.

The rather casual association of rules to conduct was also evident in the attitude towards smoking.  The no smoking signs were mostly ignored—both in the terminal and on the plane.  Cell phones were used throughout the flight—at takeoff, at landing, during taxiing, in the air, whenever someone had a signal, they felt free to make a call.  

More remarkable to me was the entire lack of even rules recitation at the start of the flight.  We had maybe two sentences in Arabic, and heavily accented barely comprehensible English about seat belts, seat positions and trays, and off we went.  No mention of where the exits are, or that cellphones are prohibited, or what to do in case of an emergency landing, or anything else.  I was not accustomed to this, usually Iraqis (like Americans) are very good in at least laying out what the rules are, even if they (unlike Americans) then promptly ignore them in many instances with the most transparent of pretenses.  Ask any rising Iraqi law student about the rights of criminal defendants, and if good, the student will promptly recite any number of them, and the relevant code provision that grants them.  Ask her what the police do when they interrogate, and she is confused.  That’s not on the exam.  Part of this is an ignorance of practice as opposed to theory, a matter on which I have worked extensively in Iraq and written an article (see my SSRN link on the side bar).  However, even a judge far more aware of practice will betray some of these biases.  When asked if relying so heavily on confessions induces coercion without his knowledge against criminal procedure rules, in my experience the answer has come back more than once that what happens without his knowledge he cannot control, which is not precisely responsive to the issue of rule compliance.

It is in many ways the fertile laboratory of the realist, the land where legal rules really aren’t what control conduct.  As with realism, clearly the rules have some effect.   The judge will never admit testimony described by the police as coerced, and the police will thus not admit to coercing testimony even if they do. The smoker lays the tray downon top of his cigarette when he smokes, so that in theory the cigarette cannot be seen.  The driver (aside from my father in law, who actually follows this rule) pulls the seat belt across her body and holds it in place when the policeman is nearby, to make a pretense of wearing the belt as required.   I suppose this is more naturally to be witnessed in societies such as that of Iraq, where many of the rules are imported from abroad.  Somebody somewhere said civilized countries have seat belt rules, and thus so do we. They said don’t smoke or talk on the phone on the plane, so I guess that’s what we should say too. Once that is the attitude, the actual, tenuous relationship of rule to practice is more obvious than in a country where, say, the seat belt laws are assumed by the citizenry to save lives and not just to be something the government has said.  That this same government coerces confessions only adds to the skepticism.

That doesn’t mean that the West is necessarily more rule observant, only that the rules, not being transplants, reflect normative understandings more closely and thus appear to compel results when they do not.  The rule on seat belts is clear in most Western jurisdictions.  And in the West most judges, and lawmakers, and policemen, and citizens, think that’s a good thing because it saves lives.  As a result, the practice molds itself to that.  Bring the policeman who thinks he’s got better things to do than worry about seat belts, or the judge who has a libertarian antipaternalist streak, and all of a sudden, the rule seems far less compelling.  By contrast, certain social norms in Iraq (not frisking women or searching their private belongings at the entrance to city parks, to mention one I noticed today) are rigorously upheld in a wide variety of instances, even if they make the original, transplanted rule (search for weapons), completely undermined (because your girlfriend can carry the gun).  Ignoring one rule, thus, does not mean a reversion to a state of nature, it just means a different set of norms and understandings are driving the result.

In other cases (probably most cases, actually), it isn’t so stark as ignoring the transplant and doing something else. Usually, the rule, the same rule, the one transplanted from one jurisdiction and dropped into another, is not ignored, but played out in practice in a manner that is different from the host country, in some ways so different that the host country would never have imagined or permitted it on its own soil.  Hate speech laws become rules of blasphemy, for example.  Same rule (no insulting sacred things in a manner that causes one to hate or have contempt for people who hold those things sacred), and widely disparate results. 

None of this is particularly profound (Alan Watson has written on some of this for decades), but to witness it directly makes it all the more valuable to me.

HAH