The Role of Islam in the Iraqi Personal Status Code: Realism in Action
One of the most unusual things I am discovering about my general realist based approach to law and sharia in the Muslim world is that the greatest pushback comes not from religious scholars (the truly intellectual ones, I mean), but from judges. The shari'a types might not necessarily agree in the wide role I might grant to judicial choice in any given decision, the idea that the judge can choose between different interpretations in almost any context. Rather, they think there are things that are firm (qati' to use the Islamic term) in the texts that are not open to interpretation or question. Still, for the most part, leave aside the qati', and it wouldn't occur to them to argue that anything from personal bias to economic or political interest would not affect the outcome of any given case in which the interpretation of something from Holy Text was at issue. Certainly the Shi'a scholars of Najaf don't jump up and turn red in the face when I suggest this to them, and neither did the shari'a fellows at Qatar University or Oman.
The group who always jumps up and shouts me down are the civil lawyers, the secular fans of the Civil Code (not necessarily personally irreligious, but secular as in trained in the secular legal system, not religious rules). The Civil Code is hallowed, it is complete in that it covers all legal matters, it is determinative in that you just go to it in any dispute and it gives an answer clear as day, what do you mean bias? What's wrong with your American judges, they ask, that they are so politicized and so prone to manipulation? This is the problem with the common law, others say, you all get your law from all these cases and you can make the cases say whatever they want, we get ours from a single source, one law, and so we can follow that, we don't get choice in outcomes. This isn't just an Arab thing, it was a German aspiring academic who said that to me, and indeed where realism more or less spread its tentacles over so much of our legal thought, the free law movement, (more or less the same idea, that law does not really determine outcomes, there is flexibility in outcomes under law) had a much worse time in Germany. I am sure most smart Germans aren't silly enough to rely on this absurd common law civil law cliche, but the biases are there on both sides.
Too bad this nonsense about the civil law isn't really true, or at least is subject to Realist skepticism. Let me demonstrate with a singular reference to a split right now in Iraqi courts concerning something in the Iraqi Personal Status Code. First, the supposedly "clear" rules of reference in Article 1, which read:
*********
Art 1
1-These legislative provisions in this law shall govern all matters that they encompass, in letter and in spirit.
2-If there is no law that can be used, then the rule of decision shall be the principles of the shari'a that are most harmonious with the provisions in this law.
3--The courts shall seek guidance (tastarshid) in all of this from rulings of judges and Islamic jurists in Iraq or in Muslim countries whose laws resemble most closely that of Iraq.
*********
Now most civil lawyers would look at this and think it's pretty clear. Naturally everyone agrees that there is ambiguity in the law at times, your average civil lawyer might think "well, if the provisions don't cover something as per part 1, and the Islamic rules of part 2 you are supposed to refer to have a split, say Malik has a rule from the medieval era that says X and then Abu Hanifa has one that says Y, maybe then we can argue about which one is more harmonious with the law, that might not be clear." They would think there was a right answer, but could agree that it gets murky at that level.
But if the law is clear? Well then simple. Follow the law. No problem, the civil lawyer is prone to say. Let's turn to something then in the law to test that.
*****
Article 6(1):
No marriage contract shall be concluded if it is lacking any conditions of its conclusion or its validity, which are:
. . . .
the witnessing of two witnesses with legal competence over the marriage contract.
******
Now the word is "witness", and in Arabic, as in French, the term is necessarily gendered, and the male form is used. Now the male subsumes the female in all cases under the law unless otherwise specified, because otherwise the whole law is a mess. (For example, the "accused" in criminal procedure is always the male form, can you imagine the mess if it was held not to apply to women accused? What would then apply?)
Add to that the term is LEGAL competence, not religious competence. For the parties themselves, the term for competence is modified with all "legal and religious" (qanuniya wa shariyya) requirements, here it says just legal. Presumably that means of age and not insane or some such thing
So it's clear, right? Bring two witness, whoever, just not some 2 year old, and we're all good.
No. Depends on the judge (there is a female judge in Sulaymania who would agree), but most judges would not agree with that assessment. We are supposed to be "guided" by the jurists it is argued, and the shari'a by consensus of the jurists (again, leave aside liberals and modernists like me who don't seem to count whenever shari'a is raised as a legal issue in the Muslim world, at least not in this context) requires two MALE witnesses. (You might be able to substitute one of them for two women, but certainly two women without a man is not acceptable). Get "guided" by shari'a, and you see that in fact, the two witnesses must mean two men, not two people.
Now once you do this, as so much legal thought in Iraq defends, you've pretty much popped open a gaping hole into any theory that the text of the code controls when it is clear. You've taken a text that appears pretty unambiguous standing alone, and you've invented ambiguity that you could not imagine being there absent the shari'a backdrop. It is therefore the context and not the text, not the words themselves, that create ambiguity. And once we can agree that the context can determine whether or not the text is clear, well then it's game over on clarity in just about any context.
What about "Article 3(5)--if an absence of equity between wives is feared, then polygamy is prohibited, and the determination of that is left to the judge" (Judge by the way is masculine, but clearly you'd think women judges were bound by it too). Shari'a doesn't traditionally give judges this role, it is the consience of the husband, does that "guide" the analysis at all? can we say then that the judge's role in determination has to be very limited to very extreme cases (where a judicial separation might be obtainable anyway) in deference to the "guidance" of the shari'a as pronounced by the jurists?
Let's take it further--girls can marry as young as 15 with a father's permission (THERE it says the guardian under religious rules, which will be a man) under Article 8, so long as the girl has physical capacity to marry (meaning she can have sex safely) and has menstruated. But what if an unusually mature 12 year old comes along, very physically capable, full parental permission, mentally sound, should we perhaps not take the statutory age as seriously because we are guided by the jurists who tell us the shari'a age is nine.
Most judges would say "absolutely not" to the last two questions, take the Code on its terms, but ask why, and I don't think a real methodology can or will be discovered. I think it's more that two male witnesses to a marriage sounds right to them, or at least sensible enough to merit consideration, and so the text starts to reveal a nonexistent ambiguity. Child marriage and limitations on their authority to restrict polygamy do not sound okay, and the text is therefore clear. It has, as a Realist I would argue, less to do with the text than with the preexisting ideological dispositions.
Yet it's not like I as the liberal have an easier solution. Sure I'd like to say just use the text when it is clear, but then how do I interpret Article 1(3) when it says courts shall be guided in ALL of this by other nations' courts and Islamic jurists? Surely that gives shari'a a role. And those who argue that if we simply took out (3) we'd be home free also are wrong, surely the same ambiguity that supposedly exists could be used to argue that Article 1(2) should apply, and we go back again to shari'a. And we can't take out Article 1(2) without changing the law fundamentally. Because ultimately what most Iraqis want is a family law and a personal status law that is "shari'a lite", mostly shari'a with the more troublesome provisions (child marriage, parental custody of children after age 7, etc.) eased up a little bit. And when you do the "shari'a lite", this problem is going to appear over and over and over, between those who want to see a little more lite and a little less shari'a, and those who want the opposite. Ambiguity isn't the result of a drafting mistake here, it's the result of competing forces in the social order. the text, civil code or common law, is only the sideshow.
HAH
The group who always jumps up and shouts me down are the civil lawyers, the secular fans of the Civil Code (not necessarily personally irreligious, but secular as in trained in the secular legal system, not religious rules). The Civil Code is hallowed, it is complete in that it covers all legal matters, it is determinative in that you just go to it in any dispute and it gives an answer clear as day, what do you mean bias? What's wrong with your American judges, they ask, that they are so politicized and so prone to manipulation? This is the problem with the common law, others say, you all get your law from all these cases and you can make the cases say whatever they want, we get ours from a single source, one law, and so we can follow that, we don't get choice in outcomes. This isn't just an Arab thing, it was a German aspiring academic who said that to me, and indeed where realism more or less spread its tentacles over so much of our legal thought, the free law movement, (more or less the same idea, that law does not really determine outcomes, there is flexibility in outcomes under law) had a much worse time in Germany. I am sure most smart Germans aren't silly enough to rely on this absurd common law civil law cliche, but the biases are there on both sides.
Too bad this nonsense about the civil law isn't really true, or at least is subject to Realist skepticism. Let me demonstrate with a singular reference to a split right now in Iraqi courts concerning something in the Iraqi Personal Status Code. First, the supposedly "clear" rules of reference in Article 1, which read:
*********
Art 1
1-These legislative provisions in this law shall govern all matters that they encompass, in letter and in spirit.
2-If there is no law that can be used, then the rule of decision shall be the principles of the shari'a that are most harmonious with the provisions in this law.
3--The courts shall seek guidance (tastarshid) in all of this from rulings of judges and Islamic jurists in Iraq or in Muslim countries whose laws resemble most closely that of Iraq.
*********
Now most civil lawyers would look at this and think it's pretty clear. Naturally everyone agrees that there is ambiguity in the law at times, your average civil lawyer might think "well, if the provisions don't cover something as per part 1, and the Islamic rules of part 2 you are supposed to refer to have a split, say Malik has a rule from the medieval era that says X and then Abu Hanifa has one that says Y, maybe then we can argue about which one is more harmonious with the law, that might not be clear." They would think there was a right answer, but could agree that it gets murky at that level.
But if the law is clear? Well then simple. Follow the law. No problem, the civil lawyer is prone to say. Let's turn to something then in the law to test that.
*****
Article 6(1):
No marriage contract shall be concluded if it is lacking any conditions of its conclusion or its validity, which are:
. . . .
the witnessing of two witnesses with legal competence over the marriage contract.
******
Now the word is "witness", and in Arabic, as in French, the term is necessarily gendered, and the male form is used. Now the male subsumes the female in all cases under the law unless otherwise specified, because otherwise the whole law is a mess. (For example, the "accused" in criminal procedure is always the male form, can you imagine the mess if it was held not to apply to women accused? What would then apply?)
Add to that the term is LEGAL competence, not religious competence. For the parties themselves, the term for competence is modified with all "legal and religious" (qanuniya wa shariyya) requirements, here it says just legal. Presumably that means of age and not insane or some such thing
So it's clear, right? Bring two witness, whoever, just not some 2 year old, and we're all good.
No. Depends on the judge (there is a female judge in Sulaymania who would agree), but most judges would not agree with that assessment. We are supposed to be "guided" by the jurists it is argued, and the shari'a by consensus of the jurists (again, leave aside liberals and modernists like me who don't seem to count whenever shari'a is raised as a legal issue in the Muslim world, at least not in this context) requires two MALE witnesses. (You might be able to substitute one of them for two women, but certainly two women without a man is not acceptable). Get "guided" by shari'a, and you see that in fact, the two witnesses must mean two men, not two people.
Now once you do this, as so much legal thought in Iraq defends, you've pretty much popped open a gaping hole into any theory that the text of the code controls when it is clear. You've taken a text that appears pretty unambiguous standing alone, and you've invented ambiguity that you could not imagine being there absent the shari'a backdrop. It is therefore the context and not the text, not the words themselves, that create ambiguity. And once we can agree that the context can determine whether or not the text is clear, well then it's game over on clarity in just about any context.
What about "Article 3(5)--if an absence of equity between wives is feared, then polygamy is prohibited, and the determination of that is left to the judge" (Judge by the way is masculine, but clearly you'd think women judges were bound by it too). Shari'a doesn't traditionally give judges this role, it is the consience of the husband, does that "guide" the analysis at all? can we say then that the judge's role in determination has to be very limited to very extreme cases (where a judicial separation might be obtainable anyway) in deference to the "guidance" of the shari'a as pronounced by the jurists?
Let's take it further--girls can marry as young as 15 with a father's permission (THERE it says the guardian under religious rules, which will be a man) under Article 8, so long as the girl has physical capacity to marry (meaning she can have sex safely) and has menstruated. But what if an unusually mature 12 year old comes along, very physically capable, full parental permission, mentally sound, should we perhaps not take the statutory age as seriously because we are guided by the jurists who tell us the shari'a age is nine.
Most judges would say "absolutely not" to the last two questions, take the Code on its terms, but ask why, and I don't think a real methodology can or will be discovered. I think it's more that two male witnesses to a marriage sounds right to them, or at least sensible enough to merit consideration, and so the text starts to reveal a nonexistent ambiguity. Child marriage and limitations on their authority to restrict polygamy do not sound okay, and the text is therefore clear. It has, as a Realist I would argue, less to do with the text than with the preexisting ideological dispositions.
Yet it's not like I as the liberal have an easier solution. Sure I'd like to say just use the text when it is clear, but then how do I interpret Article 1(3) when it says courts shall be guided in ALL of this by other nations' courts and Islamic jurists? Surely that gives shari'a a role. And those who argue that if we simply took out (3) we'd be home free also are wrong, surely the same ambiguity that supposedly exists could be used to argue that Article 1(2) should apply, and we go back again to shari'a. And we can't take out Article 1(2) without changing the law fundamentally. Because ultimately what most Iraqis want is a family law and a personal status law that is "shari'a lite", mostly shari'a with the more troublesome provisions (child marriage, parental custody of children after age 7, etc.) eased up a little bit. And when you do the "shari'a lite", this problem is going to appear over and over and over, between those who want to see a little more lite and a little less shari'a, and those who want the opposite. Ambiguity isn't the result of a drafting mistake here, it's the result of competing forces in the social order. the text, civil code or common law, is only the sideshow.
HAH
Even without knowing the specifics of Sharia law (but learning), I can see that you have to be correct.
I'm not sure it can be any other way, and I don't care what system is used. To codify all behavior I think would be a disservice to society, even though not doing so allows for gross injustice.
Tonight was an historic night in America. For the first time, a Black man was nominated for president. Is the reason for the this because Barack Obama was the first Black man in the history of the United States to be judged worthy based on some set of rules that apply to all?
For prejudice to persist in a society, it must have been assisted by the uneven application of the law.
The Plutocratic system of government in US itself has been possible through ambiguous interpretations of even what a 'person' is.
That may be a naive viewpoint, and I'm willing to listen to why it is, but it better be good for me to believe that what I say is wrong.
Reply to this
You are right in my view that this is not limited to Iraq, and the US carries similar biases in our own legal fabric of course. You point to an excellent example, Taney's theory in Dred Scott was, partially, that slaves were not citizens and white people who owned them were citizens and could not be deprived of their property (ie their slaves) without due process. Except the Fifth Amendment doesn't say "citizens" cannot be deprived or life, liberty or property with due process, it says "people" cannot be so deprived and is there any doubt this escaped slave is being deprived of his liberty? Slaves were people undisputedly, you can't read the constitution, even its original racist clauses (like the three fifths compromise) sensibly to suggest otherwise. Taney does get around this with standing rules, but the point remains--one "person" is losing his property, another "person" is losing his liberty, can't have one without dropping the other.
You could play it either way if you are going to do this. You could read the due process clause to more or less obliterate slavery, at least in the federal territories where Congress rules (ie rule in favor of the poor black man) because Congress cannot deprive this person of his liberty, or you could read it to do what Taney does, to prevent the prohibition of slavery in those same territories because the rich white slaveowning man would otherwise be deprived of his property and "persons" effectively means citizens. Little surprise the Court came down on the rich guy's side, and not because of the text I would argue.
It's an interesting example, but not one I use because people just decide it's Dred Scott, a bad case. It's trying to balance slavery, an absolutely evil thing, with human freedoms, a good thing, and that cannot be done. Fair enough, of course, but the point is all laws try to balance different human interests, good, bad, evil, saintly, and can always be used to advance any one of those interests. The text rarely ends the inquiry.
HAH
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