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Reconsidering the 'Rule of Law' in Iraq

JURIST Contributing Editor Haider Ala Hamoudi of the University of Pittsburgh School of Law says that outside observers purporting to assess adherence to the "rule of law" in Iraq should pay less attention to compliance or non-compliance with formally enacted codes, and more to social practice...


There is a conventional wisdom concerning law and social order that is prevalent in the West. This is that somehow once a law on any particular subject is enacted, social compliance necessarily follows. The only real hurdle, then, is to make sure the law is passed according to proper procedures, in accordance with what H.L.A. Hart would refer to as “the rule of recognition” whereby a pronouncement is recognized to be “law.”

While it is true that anyone who considered this proposition carefully would immediately find problems with it (jaywalking in New York City and marijuana consumption in California are both technically against the law), it nonetheless informs much of American policy in Iraq. This mistaken assumption underlay much of the lawmaking work of the Coalition Provisional Authority (“CPA”), the US/UK institution that ran Iraq from the end of the invasion until the restoration of Iraqi sovereignty.

The CPA took great care to ensure that its legislation, generally characterized as CPA Orders, was issued in accordance with accepted procedure. There were justifications (albeit controversial ones) for the Orders based on international law, and the CPA took steps to ensure that the Orders were published in the Official Gazette, which is under normal circumstances the final step to the enactment of law. They even put these issues of the Gazette online so that there could be no question of their issuance. To some extent this worked quite well, in the sense that Iraqi lawyers generally concede that the orders issued by the U.S led coalition remain valid Iraqi law unless repealed. This, it was assumed, was all that was necessary, the rest being up to the Iraqis.

The track record of the CPA Orders, as measured by actual effect on social practice, is not terribly good. Very few are paid much attention to; most Iraqi lawyers and judges barely know what they say. Rather than revise the original (and clearly mistaken) assumption of an inherent link between law and social practice, instead the reaction has been to tie all of this to the “rule of law”, which apparently it is assumed we in the United States have and Iraq does not. Simply train them in the “rule of law” and then the link between law and social practice will appear in Iraq as it does in the United States.

Recent Iraqi legislation demonstrates this to be almost as naïve as the first assumption. It not only ignores San Francisco marijuana, New York City jaywalkers, and moderate amounts of speed limit violations just about everywhere; it also seems to ignore the realities of Iraq, where some laws are enforced. The police arrest people every single day for basic felonies. Even lesser laws such as traffic laws have some force. I have been shocked, for example, by the growing level of compliance in Iraqi Kurdistan with seat belt laws. Where wearing a seat belt was at one time to self-identify as a foreigner (thereby leaving the expatriate Iraqi like me in a bit of a pickle: either risk your life without a seat belt or expose yourself as a foreigner and risk your life that way), now drivers wear seat belts almost universally. The passengers do not — for some reason the law does not encompass them — but there would be no reason to believe that they would not wear them if the law was amended to require it. At the same time, other laws (among them, a ban on smoking also enacted in the Kurdish region) are universally ignored.

So it would be a mistake, then, to view the near universal noncompliance with the smoking ban, compare it as against the near universal compliance of similar bans in the United States and Europe, and conclude that the discrepancy had to do with some ephemeral notion of the rule of law, as our policymakers seem to want to do. One may as well conclude that there is a deficiency in the United States with the rule of law as Iraqi anti-drug laws are vigorously enforced and nobody smokes pot on the public streets in the Karrada neighborhood of Baghdad as they might in Haight-Ashbury. Rather, in gauging social compliance in any society it is important to look deeper than the mere fact of enactment to its broader circumstances. Again, while this may seem obvious, almost banal, to some, clearly our country has not learned any such lesson in its dealings abroad.

The reality is that Iraqis care little about smoking and tend to dismiss discussion on the dangers of smoking as a concern of rich nations with fewer dangers. These laws are passed more as a signal by a legislature to demonstrate acceptance of growing global standards than anything else. The idea that anyone would think to follow them because people in Paris do is absurd. Iraqis are, however, (at least in the north) becoming increasingly aware of the dangers of not wearing a seat belt. The deaths by car accident are astonishingly high, and this has resulted in a social campaign against speeding. When this is accompanied by a law, one might well expect broader compliance. As for the CPA, I suppose it should be obvious what the problems are going to be when a foreign government attempts to impose law, even uncontroversial law, on a populace by enacting Orders in a foreign language and then assuming that they will be enforced because they are, after all, “law.”

I do not mean to suggest that all developing and developed nations may be treated uniformly. Clearly the resources for enforcement and the respect given to the government in pronouncing law, vary widely across the globe. My only point is that sometimes, we might do well to pay a little less attention to enacted codes, and a little more to social practice, when trying to understand why societies react to different laws in the way that they do.



Haider Ala Hamoudi is a professor at the University of Pittsburgh School of Law. The American-born son of Iraqi parents, he has lived and worked in Iraq and has been a legal advisor to the Iraqi government, experiences he describes in his book, Howling in Mesopotamia (Beaufort Books). He has a blog on Islamic law at http://muslimlawprof.org.


September 08, 2009


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Comments:

Superb insights yet again from Professor Haider Ala Hamoudi!

Readers, do also consider what other JURIST contributors have written on the subject of tule of law, namely:

Haider Ala Hamoudi's previous piece in 2008 at http://jurist.law.pitt.edu/forumy/2008/05/role-and-rule-of-law-in-iraq-insiders.php

Peter Shane in 2008 at http://jurist.law.pitt.edu/forumy/2007/12/senator-leahy-executive-power-and-rule.php

Justice Jawwad S. Khawaja et al., in 2007 at http://jurist.law.pitt.edu/forumy/2007/11/restore-rule-of-law-in-pakistan-open.php

Former Australian Prime Minister Malcolm Fraser in 2007 at http://jurist.law.pitt.edu/forumy/2007/04/carhart-casey-and-supreme-courts.php


Tara Lee (2008) at http://jurist.law.pitt.edu/forumy/2008/12/sofa-discards-contractors-and-rule-of.php

Peter Erlinder at http://jurist.law.pitt.edu/forumy/2008/11/applying-rule-of-law-to-all-heads-of.php

...and Kevin Govern (2007 and 2008) at

http://jurist.law.pitt.edu/forumy/2007/02/rethinking-rule-of-law-efforts-in-iraq.php

and

http://jurist.law.pitt.edu/forumy/2008/07/sharing-sofa-with-iraq-towards-status.php


V/R,

Kevin Govern
Assistant Professor of Law
Ave Maria School of Law
1025 Commons Circle
Naples, FL 34119
khgovern@avemarialaw.edu

September 08, 2009  


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