Iraq and Judicial Review
I've written before about how so much within Iraq is mired in the thought of the late 1970's because that was the last time that the country was thoroughly connected with the world around it, and that a nation does not, upon opening up to the outside world, suddenly develop a mentality that is consonant with contemporary ideas. Hence Iraqi economic nationalism sounds like the thoroughly discredited nonsense one used to associate with the Non-Aligned Movement, where to grow only what one eats, or to drill for oil without the assistance of foreign enterprise was a sign of strength as opposed to stupidity.
But this is equally true, or perhaps even more true, in law. One of the interesting things about watching Iraqi criminal procedure is the extent to which it relies on assumptions and paradigms that have shifted over the past several decades, so that one is almost witnessing a 19th century French trial The types of qualifications and limitations that developed on the inquisitorial method, for example to allow for a more robust cross examination, are not really present, and it is a purely judge driven enterprise from beginning to end.
Another, more recent way in which this has been exhibited, and the subject of this post, relates to the concept of judicial review. Judicial review, or the power of a court to declare void a statute which is in conflict with the constitution, tends to feel more harmonious with the common law, where it originated, than in civil law systems. The reason is partly that the civil law has tended to view its statutes as we do our constitution--sacred symbol of nationhood, nearly sacred text--but also partly that the very nature of judicial review seems to privilege the judge as the primary source of interpretation. That is, the idea that the civil law is about codes and the common law is about cases is simplistic and silly--we have statutes (though admittedly fewer codes), they have judges. The real issue to my mind is where interstitial authority is located--or in plain English how do you fill in the gaps. The civilians tend to rely on commentaries which might discuss a few cases but primarily develop elaborate explanations that seek to clarify code provisions which are then additional source material, whereas we in the common law might cite a law review article or two, but primarily use cases to add to the source material of the original statute. In both cases you construct a doctrine from a few words on a page, but the materials used do differ.
Judicial review necessarily makes some high court the supreme authority for what the constitution says, not subject really to alternative consideration. So that if courts interpret the civil law, for example, one might pay attention to what one or another says, but it's not a binding interpretation, it's at most a very tiny addition to the doctrine, nothing compared to the academic discursions of the real experts in the law, the professors. The same cannot be said when you create a Constitutional Court, as surely that court's decisions must be the major source of the doctrine, or the doctrine will be entirely divorced from anything real.
Now while I think that's true, and maybe written on, who knows, it's also true that civilian countries are pretty comfortable with constitutional courts or councils as the case may be notwithstanding the civil law history, even as we are comfortable with the near complete codification of most common law doctrines. Iraq, however, continues to stand out as this odd exception. Hence, for example, not two days ago Mohammad Allawi of the Iraqiya list insisted in an interview on Hurra in Arabic that he didn't care that the Court had ruled against his party on the meaning of Article 76. The reason he said was that the Court's function is merely to relay the meaning of the drafters, it's not like they add meaning. That's not problematic, or rather it's typical Iraqi formalism and is not dissimilar from the types of originalist theories advanced here. Some find it morally objectionable, others (Realists like me) find it laughably preposterous as a descriptive matter (go ahead, be consistent and ban paper money if you think that, see how long you stay credible after that) but the point is, it's not inconsistent with the very concept of judicial review to say this. But M. Allawi continues.
If the point is to find original intent of the drafters, well then the Court isn't really the final say, his theory goes, but the drafters themselves are. They are still alive, there are records, we need to ask them, the Court's opinion on the matter is, to quote the man precisely, of no weight. Now you've lost the originalists, and in fact the entire system of judicial review falls apart. Something like this might work in the case of an interpretation of the Civil Code. Not precisely, obviously a court judgment always has weight as to the litigants it is deciding between, but as a source of authority as a prospective matter, it's easily challengeable. By which I mean, the fact that you can point to a decision by a similar court, even the same court (though you'd think it would be a different judge in that court as a strategic matter), that has the same facts and went against me isn't dispositive. I can definitely say the judge's job is to interpret the law, and if he made a mistake, you cannot afford it weight, go back to the law itself (which will probably involve resort to the academic commentaries too). In our world, well the Second Circuit interpretations of the law ARE part of the law for the district courts in that circuit. In the civil law world, they are tangential.
But M. Allawi's theory cannot be right if judicial review is to work. It has to be that if we're going to argue about who can form a government, and the high court says the clause means X, then forever more, it means X, or at least it does until you manage to convince the court to change its mind. You can't, as you would tell a judge deciding YOUR case after an earlier case had been decided in a civilian system, that the judge isn't the authority the Law is, and the leading authorities say the Law means this. But that's what he wants to do, except using the drafters as the leading authorities which is of course an additional problem because those guys aren't just alive, they're also still politicians with a significant stake in the outcome. (That's probably because he has no choice, there's no scholarly authority to whom to turn).
There is a danger in reading too much into the statements of one politician, and I don't mean to draw too much out of it. in fact, I'm usually critical of Western accounts that pay far too much attention to the self interested statements of various politicos to decide a law is confusing in Iraq. If that's the standard, go listen to what different people have said of the Arizona law, take ALL of them seriously and make it coherent. So the point I would make is not so much that one politician thinks we should ignore the court, but the very interesting biases and assumptions that form the basis of his objection. As to whether this will lead to anything more significant, we will have to see.
HAH
But this is equally true, or perhaps even more true, in law. One of the interesting things about watching Iraqi criminal procedure is the extent to which it relies on assumptions and paradigms that have shifted over the past several decades, so that one is almost witnessing a 19th century French trial The types of qualifications and limitations that developed on the inquisitorial method, for example to allow for a more robust cross examination, are not really present, and it is a purely judge driven enterprise from beginning to end.
Another, more recent way in which this has been exhibited, and the subject of this post, relates to the concept of judicial review. Judicial review, or the power of a court to declare void a statute which is in conflict with the constitution, tends to feel more harmonious with the common law, where it originated, than in civil law systems. The reason is partly that the civil law has tended to view its statutes as we do our constitution--sacred symbol of nationhood, nearly sacred text--but also partly that the very nature of judicial review seems to privilege the judge as the primary source of interpretation. That is, the idea that the civil law is about codes and the common law is about cases is simplistic and silly--we have statutes (though admittedly fewer codes), they have judges. The real issue to my mind is where interstitial authority is located--or in plain English how do you fill in the gaps. The civilians tend to rely on commentaries which might discuss a few cases but primarily develop elaborate explanations that seek to clarify code provisions which are then additional source material, whereas we in the common law might cite a law review article or two, but primarily use cases to add to the source material of the original statute. In both cases you construct a doctrine from a few words on a page, but the materials used do differ.
Judicial review necessarily makes some high court the supreme authority for what the constitution says, not subject really to alternative consideration. So that if courts interpret the civil law, for example, one might pay attention to what one or another says, but it's not a binding interpretation, it's at most a very tiny addition to the doctrine, nothing compared to the academic discursions of the real experts in the law, the professors. The same cannot be said when you create a Constitutional Court, as surely that court's decisions must be the major source of the doctrine, or the doctrine will be entirely divorced from anything real.
Now while I think that's true, and maybe written on, who knows, it's also true that civilian countries are pretty comfortable with constitutional courts or councils as the case may be notwithstanding the civil law history, even as we are comfortable with the near complete codification of most common law doctrines. Iraq, however, continues to stand out as this odd exception. Hence, for example, not two days ago Mohammad Allawi of the Iraqiya list insisted in an interview on Hurra in Arabic that he didn't care that the Court had ruled against his party on the meaning of Article 76. The reason he said was that the Court's function is merely to relay the meaning of the drafters, it's not like they add meaning. That's not problematic, or rather it's typical Iraqi formalism and is not dissimilar from the types of originalist theories advanced here. Some find it morally objectionable, others (Realists like me) find it laughably preposterous as a descriptive matter (go ahead, be consistent and ban paper money if you think that, see how long you stay credible after that) but the point is, it's not inconsistent with the very concept of judicial review to say this. But M. Allawi continues.
If the point is to find original intent of the drafters, well then the Court isn't really the final say, his theory goes, but the drafters themselves are. They are still alive, there are records, we need to ask them, the Court's opinion on the matter is, to quote the man precisely, of no weight. Now you've lost the originalists, and in fact the entire system of judicial review falls apart. Something like this might work in the case of an interpretation of the Civil Code. Not precisely, obviously a court judgment always has weight as to the litigants it is deciding between, but as a source of authority as a prospective matter, it's easily challengeable. By which I mean, the fact that you can point to a decision by a similar court, even the same court (though you'd think it would be a different judge in that court as a strategic matter), that has the same facts and went against me isn't dispositive. I can definitely say the judge's job is to interpret the law, and if he made a mistake, you cannot afford it weight, go back to the law itself (which will probably involve resort to the academic commentaries too). In our world, well the Second Circuit interpretations of the law ARE part of the law for the district courts in that circuit. In the civil law world, they are tangential.
But M. Allawi's theory cannot be right if judicial review is to work. It has to be that if we're going to argue about who can form a government, and the high court says the clause means X, then forever more, it means X, or at least it does until you manage to convince the court to change its mind. You can't, as you would tell a judge deciding YOUR case after an earlier case had been decided in a civilian system, that the judge isn't the authority the Law is, and the leading authorities say the Law means this. But that's what he wants to do, except using the drafters as the leading authorities which is of course an additional problem because those guys aren't just alive, they're also still politicians with a significant stake in the outcome. (That's probably because he has no choice, there's no scholarly authority to whom to turn).
There is a danger in reading too much into the statements of one politician, and I don't mean to draw too much out of it. in fact, I'm usually critical of Western accounts that pay far too much attention to the self interested statements of various politicos to decide a law is confusing in Iraq. If that's the standard, go listen to what different people have said of the Arizona law, take ALL of them seriously and make it coherent. So the point I would make is not so much that one politician thinks we should ignore the court, but the very interesting biases and assumptions that form the basis of his objection. As to whether this will lead to anything more significant, we will have to see.
HAH
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