This is not a post on Iraqi politics, but on longstanding Iraqi law. Those interested in the latest on ISIS might want to look elsewhere.
As many know, I’m co-writing a casebook on the operation of Islamic law in modern state courts, my role being to focus on Iraqi courts. While some might comment that there will be no Iraq in a few years, and while I find that a bit premature, the comment in any event misses the point of the book. It is not to offer any lessons on Iraq per se, but to demonstrate precisely how Islamic law, which is a body of norms and rules developed for a different polity at a very different time operating under a very different set of political and sociological assumptions, works in the judiciary of a modern nation state. My coauthor Mark Cammack is focusing on Southeast Asia as I focus on Iraq, so that we can show similarities and distinctions in trends and evolutions in quite different states and indeed across the sects and madhahib as well.
I came across a 2010 case that I thought highlighted some of the tensions quite effectively and thereby deserving of a blog post. I would expect it to be in the final version of our casebook, but there is much editing and cutting between now and then, so who knows. In any event, the case is at the trial level, in Baya’, and involves my friend Salim al-Musawi as judge. A woman, 17 years of age, seeks what is known as a khul’ divorce, and in this particular khul’, basically she gives up any rights she might have in shari’a and law, and in exchange her husband divorces her. This is potentially quite a substantial amount, including deferred dower (under shari’a), housing for three years and support for up to two (under law) and separate additional support for three months (again under shari’a). Judge Salim looks at the case and says, no, not in this court, and not on my watch. This is a girl, underage, who was married at 14, a marriage the court should never have permitted in the first place (because the minimum age for marriage is fifteen, and even then you need advance court permission, which was never obtained). The lack of capacity on her part means lack of a case or controversy, so the attempted divorce is dismissed.
There are other aspects to the opinion, but it’s good to focus on just this point for now. And it’s easy to ridicule the decision though I think that to do so is to be a bit unfair to Judge Salim. But to describe the logical problem, you dismiss the attempted divorce, this means she stays married. That means she has certain obligations to her husband as a wife does under the marriage contract, including an obligation to submit to her husband’s sexual demands whenever made and not to leave the marital home. (If you want a source, look up the rules of the nikah of practically any jurist who ever lived). Now it seems extremely odd to say that she remains bound by those obligations because, well, she agreed to them, and yet she doesn’t have the capacity to get out of them. How do you have capacity to enter a contract but not exit it? Surely this isn’t right and any divorce lawyer can see that too.
Yes, it’s a logical flaw and yes, it makes little sense. But consider the alternatives facing our judge. He could, he says in the opinion, operate on the basis that there is a marriage, and so we’ll just make a legal assumption, create a legal fiction if you will, that she has capacity to divorce given this. The judge doesn’t think that right, this is a major concession of severe financial consequence, he isn’t comfortable permitting a 17 year old to simply decide that. His opinion seems to conclude she would be reduced to penury, and he will not put state sanction to such a notion against a minor when he finds the decision to be such an ill advised one.
Why not, you say, merely declare the marriage invalid ab initio? Problem solved! He doesn’t raise it, but the reason is obvious why this can’t work. Because now in addition to the fact that she has none of the financial advantages she’d be giving up anyway (all available to divorced wives), she’d also be giving up an advance dower. And let the law says what it wants, she isn’t a virgin, she isn’t going to find another man interested in marrying her. She’s deemed divorced socially whatever the law says. Nice try, but you just destroyed this woman’s life if you go that way, far worse than permitting the divorce, which at least gives her a recognizable if stigmatized social status.
Aha, you might think, here’s a different solution. Don’t let any judge register a marriage contract for those under 18! Yup, they thought of that. That’s in the law, but then when parties think their marriage won’t get registered, they get married out of court and then register it later in court. If they are underage when they try to register it, sometimes courts don’t care. But some do, and in that case, they’ll go away, and come back when they are of age.
One final thing you might think is, “well, make everyone get married in court. No out of court marriages, which might be a restriction on marriage, but this is a crisis and deserves this intervention.” Uh-huh. Iraqi law does that too. You must go to court to marry, and it is a criminal penalty on the husband involving jail if you don’t. Except no judge enforces it. And it’s not because judges don’t enforce laws well. That’s a separate, but real, problem. In this case, the judge is actually probably acting prudently. We got ISIS taking over half the country and you want to be putting 19 year old rural goat farmers in prison for a year because they married 16 year olds? At what point in Iraqi history did we have the luxury of filling our jails with such folks, and what purpose does it serve to do this, when the social norms are so in favor of such marriages in many rural communities? So I’ve only seen this provision referred to twice. Once in a 2009 case in Kerbala I was reviewing, out of the hundreds of out of court marriages I’ve seen certified (no idea why this one made the referral) and then, well, me. I was married in the US to my Iraqi wife, and some police guy in Kurdistan got it in his head he could get a bribe out of me, so he pointed out that Iraq won’t recognize my Ohio marriage, and therefore I was married “out of court” and therefore I had to go to jail. I paid $150, got out of the police station. Rule of law wins once again in Iraq. I did try to explain comity to the guy, and how if Iraq really does take the position that no American marriages of American citizens will be recognized in Iraq (which is the actual, current position of the Iraqi judiciary, at least for people of Iraqi extract), it really will work out much worse for Iraqis than Americans if US courts reciprocate the favor. But that went nowhere, $150 got me out of prison, so there we are.
Anyway, back to the topic, here’s another option–give the right to the girl to dissolve the marriage on her own if she is underage, and treat it as if it’s a husband ordered divorce. So then she keeps the monetary benefits, the marriage was recognized legally and culturally but now she’s out with whatever she is entitled to. Again, they thought of that. She does have this right under the Personal Status Code, and yet this minor, in 2010, didn’t think to make use of it. Why? Because every jurist in contemporary Shi’a-dom considers a girl of age to consent to marriage at nine lunar years (which is about 8 years and nine months). So none of them would regard that dissolution as valid. Has to be a divorce pronounced by the husband.
(This is different, of course, from saying that Shi’i jurists find it a good idea for a girl to marry at nine, and indeed, in some cases it will be a sin to engage in such a marriage. Ask a Shi’a imam in Dearborn if you can marry a 12 year old, I expect he will tell you no. He certainly should, following juristic theory. Why? Because the state of Michigan prohibits such a marriage and deems it criminal, you chose to live in Michigan, you are bound by its legal conditions, they are effectively shurut to a contract that are presumptively valid. Of course if there are rules that require you to sin, that may be different, but one does not sin by choosing a 18 year old wife instead of a 12 year old one. So you cannot violate the law to marry a child. However, this has nothing to do with the validity of that marriage to that 12 year old if you undertake it. You are married, she cannot divorce you. Maybe you belong in prison, but as a married person.)
So as you can see, Judge Salim was out of options. He couldn’t tell her to dissolve the marriage when jurists wouldn’t accept that dissolution as valid. He couldn’t fail to recognize the marriage because an earlier court already had, and indeed while he criticized the decision, the social fact of her marriage was well established in her social fabric. He couldn’t make Iraqi rural folk show up to court to marry and not marry them when they don’t meet the law’s conditions. because they won’t and you can’t imprison them all. And if he could wave a magic wand and make every Iraqi actually care about the legal provision and internalize its values over those of tribe and tradition, then he should be prime minister, but he can’t. So he did what he could. Applied the doctrine of capacity as half measure, to disallow the divorce that would have been financially injurious to the wife while not commenting on the same capacity as it concerned marriage. Illogical, and best justice he could probably do in an imperfect world.
This is what happens when, in many Islamic societies, you get a progressive elite on the one hand writing laws purported to be Islamic, folks like me basically, working every progressive angle they can lay their hands on, and at the same time, you have this broad swath of social actors who don’t inhabit the same legal universe and will continue to act as they always have, in accordance with some amalgam of culture, tribal custom and religious tradition, law of the state be damned. There’s only so much you can do. Or, as Bruce Hornsby put it with respect to the Civil Rights Act, applicable mutatis mutandis to the Personal Status Code:
Well they passed a law in 64
to give those who aint got a little more
but it only goes so far
because the law don’t change another’s mind
when all he sees at the hiring time
is the line on the color bar . . . .