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Middle East: Iraq

By:
H. Hamoudi
Source:
The [Oxford] Encyclopedia of Islam and Law What is This? An English-language legal reference for scholars of Islamic studies and Western engaged readers presenting the history and development of Islamic Law.

Middle East: Iraq

Iraq is a state that, though long controlled by Sunnī rulers, has a Shiite population that makes up the country’s largest ethnic/religious group. The use of Islamic law in contemporary Iraq comes about primarily through the operation of the Personal Status Code of 1959, which is a composite of Sunnī Ḥanafī and Shiite Jaʿfarī rules along with modest modern reforms. The Civil Code, drafted by the great Egyptian legal jurist ʿAbd al-Razzāq al-Sanhūrī, was designed to draw on and reflect Islamic law to some extent (indeed, it reflects it perhaps to a greater degree than does al-Sanhūrī’s famous Egyptian Civil Code). Finally, after the American invasion of 2003, Iraq’s new constitution has embraced the regional trend in favor of “repugnancy clauses,” which prohibit the enactment of all law that, in the specific case of Iraq, violates the “settled rulings” (thawābit aḥkām) of Islam. This entry describes how all of this came to be.

Ottoman Origins.

After the fall of the Baghdad-based Abbasid Empire in 1258, the area that is contemporary Iraq fell under the control of a succession of different rulers. Some semblance of stability was finally achieved in the sixteenth century, when the Ottomans established control over Iraq and administered it as three separate provinces, or vilâyets—Mosul, Baghdad, and Basra.

Until the middle of the nineteenth century, Ottoman control over Iraq was loose, both because it lay at the eastern periphery of the empire, at the border with Safavid, and later Qajar, Iran, and because Iraq was separated from the Ottoman heartland by inhospitable, mountainous terrain. Thus, while the Sunnī Ḥanafī madhhab was technically in force throughout Ottoman Iraq, its official status had little practical effect. In reality, most of central and southern Iraq was dominated by largely nomadic tribal groups operating almost entirely independently of the Ottoman Empire and governing themselves primarily by their own tribal codes. Shiism was certainly present in Iraq during this period as well, though the Shīʿah were a distinct minority through the early part of the nineteenth century.

Iraq went through a period of tumultuous change from the middle of the nineteenth to the start of the twentieth century. As part of its reform efforts during this period, the central administration of the Ottoman Empire sought to exert much greater control over the provinces, including Iraq. The empire sought to domesticate Iraq’s nomadic tribes, which it did with remarkable success. There were also Wahhābī incursions from the territory that is now Saudi Arabia into Iraq, targeting the Shiite holy shrines in Najaf and Karbala, deemed by the Wahhābīs to be idolatrous. The Shiite ʿulamāʾ reacted with aggressive proselytization efforts directed at Iraq’s rapidly settling tribes. From the end of the eighteenth century through the start of the twentieth century, as a result of these efforts, a great number of Iraq’s tribes were converted into Shiite Islam. Belated efforts by the Ottomans to reverse this trend proved largely fruitless. By the time of the British Mandate in 1920, the majority of Iraq’s entire population, and its tribes, were Shiite. The effect that this had on the actual practices of tribes is, however, debated. Some have maintained that beyond the rules of marriage and divorce, the impact of the change of allegiance on the part of the tribes to the Jaʿfarī school was of only marginal significance to the practice of the tribes, with tribal codes continuing to regulate most aspects of life.

Even as Shiite Islam was spreading rapidly among Iraq’s tribes, the role of the Sunnī-dominated Ottoman state was rising. The Ottoman laws generated as part of the Tanzimat reforms, among them the Ottoman Mecelle, came increasingly to be enforced as the Ottomans strengthened efforts at central control. Administering this new regime were Arab notables, almost all Sunnī. Many were educated in Istanbul and were growing familiar with the bureaucratic and administrative challenges of modern statecraft.

British Mandate and Monarchy.

The British Mandate of Iraq came about in the aftermath of the First World War. It was met with almost immediate resistance led by the Shiite ʿulamāʾ who led an insurrection of sorts that roiled Iraq’s center and south and is commonly known as the Revolution of 1920. While the uprising was soon put down, British policy turned toward devolving responsibility for the governance of Iraq on the local population. The state was made into a kingdom, with an “election” managed by the British for King Fayṣal I, the son of the Sharif al-Hussein of Mecca.

In the early monarchy, Iraqi law continued to be dominated by its Ottoman antecedents. The Mecelle was derived primarily from the Ḥanafī madhhab, and it operated as Iraq’s civil code. This met with some objection from prominent Shiite ʿulamāʾ, chief among them Najaf’s Grand Ayatollah Muḥammad Ḥusayn Kāshif al-Ghiṭāʾ, who produced a remarkable multivolume work entitled Taḥrīr al-Majallah, perhaps best translated as An Analysis of the Mecelle, pointing out in exacting detail where the Mecelle departed from Jaʿfarī rules. This did nothing to alter the continued use of the Mecelle for decades, however. The one area in which Jaʿfarī rules did find recognition was in the area of personal status, which remained uncodified throughout the period of the monarchy and in which specialized Shariʿah courts corresponding to each of the Shiite and Sunni sects continued to apply the rules of the relevant sect in making determinations.

Yet the general trend of the state throughout the monarchy was not so much in incorporating Shiism as in working to marginalize Islamic law generally. The Sunnī notables who dominated the Iraqi state during the period of the early monarchy tended to regard Islamic law generally as obsolete and, in the context of Iraq, dangerous. This was because, in their minds, excessive reliance on Islamic law in Iraq could lead to particularist identities that detracted from the creation of a broad Iraqi national consciousness. Hence Shiite rituals were suppressed, Shiite religious institutions harassed, and a general educational effort undertaken to centralize the state in a manner that removed vestiges of particularism within any Iraqi community, going so far as to discourage the use of dialects common among tribes in Iraq’s south.

Ultimately, secularist and nationalist positions like these led to the monarchy’s determination to replace the Ottoman Mecelle with a civil code written specifically for Iraq. This code was drafted by al-Sanhūrī, enacted in 1951, and bore much resemblance to the Egyptian Civil Code. The extent to which al-Sanhūrī’s civil codes might be thought of as Islamic is the subject of rich debate, but, quite plainly, the Iraq Civil Code derives many of its substantive rules not from a particular Shariʿah madhhab but rather Continental law, transplanted for application in Iraq. Furthermore, the method that its drafters used to determine that a law was “Islamic” was open to question. Whatever its validity in the Sunnī paradigm, this method would not be commonly viewed as legitimate by Shiites. This is due to Shiite deference to Shiite mujtahids as the exclusive authorities for outlining Islamic rules, something that Sanhuri plainly did not do. One final interesting fact about the Iraqi Civil Code is that it departs in places from its Egyptian counterpart—at times in an apparent effort to recognize some key principles of fiqh that the Egyptian Code had abandoned. Article 219 of the Iraq Civil Code, for example, which deals with vicarious liability, is considerably narrower than the comparable provision of the Egyptian Civil Code. This is specifically justified by leading Iraqi legal commentators as an accommodation to Islamic law, presumably across the schools of thought, because no one madhhab is specified.

The Republic.

Iraq’s generally nationalizing tendencies accelerated after the fall of the monarchy in 1958. Most importantly, a Personal Status Code was enacted in 1959—one that remains in force today. This had the effect of abolishing the Shariʿah courts and administering personal status law in accordance with a single unified national system for family matters, with inheritance still largely governed in accordance with the sect of the deceased party. Some modest reforms respecting minimum marriage ages, custody determinations, restrictions on polygamy, and the like were included as well. The code met with vociferous Shiite objection even before it was enacted, on the grounds that the amalgamation effectively did not permit anyone, Sunnī or Shiite, to live by the rules of their own sect. Though the code was ultimately enacted, the level of Shiite opposition, mobilized for the most part by previously apolitical Najaf jurists such as Ayatollah Muḥsin al-Ḥakīm and Muḥammad Baḥr al-ʿUlūm, marked the first significant rise in specifically Shiite political consciousness since the 1920 Revolution.

Further codification and much greater levels of secularization were reflected in the Penal Code (1969), the Criminal Procedure Code (1971), the Commercial Code (1984) and the Labor Code (1987), all of which are nearly entirely transplanted from Western sources. The successive realization of these projects, combined with a particular affinity among the Shiite laity for Marxism, caused something of a crisis in the centers of Shiite scholarship in Najaf concerning how to deal with an increasingly aggressive, nationalist, and secularizing state. Najaf found itself split into two wings. One wing, led by the apolitical Quietist Abū al- Qāsīm al-Khūʾī, counseled continued disengagement from politics, while the other, led by Muḥammad Bāqir al-Ṣadr, believed that Najaf needed to interject itself into political activity (indeed, it needed to lead the state as the premier juristic authority) to prevent a descent into irrelevance. Ṣadr’s revolutionary works on economics, philosophy, finance, and political organization in pursuit of this vision ultimately led to his brutal execution by Saddam Hussein in 1980.

Iraq after 2003.

While there have been many shifts in Iraq since 2003, when Iraq was at least nominally a socialist state ruled by a totalitarian dictator, the emphasis on Islamic law as part of the state has not increased much. Yet Iraq certainly has not been immune to the general rise in interest in political Islam throughout the region. As such, its Shiite parties are predominantly Islamist. A significant number of advocates for political Islam can be found among Sunnī Arabs as well. Only the Kurds remain remarkably secular, significantly modifying the Personal Status Code in the Kurdish region to abolish polygamy in all but the most exceptional of circumstances. The general rise of Islamist parties within Arab Iraq, however, has not resulted in a great deal of legal change. There have been modest pieces of legislation, perhaps most significantly the enactment of two laws regulating the Islamic charitable trust known as the waqf for the Sunnis and the Shi’ah, respectively, in a manner that defers far more significantly to juristic authorities than earlier laws did. Aside from such modest efforts, the legal infrastructure of the existing, generally secular, Iraqi state has been preserved, with two exceptions.

The first is in the area of personal status. Shiite parties have been engaged, since 2003 (when the United States was administering Iraq under a UN Security Council mandate), in seeking to repeal the Personal Status Code and return matters to where they were before the code was enacted. The effort failed in 2003. Nevertheless, a commitment to undertaking a very significant legal change along these lines was reflected in the Iraqi constitution and Article 41 thereof. The article specifically gives Iraqis the right to live by the rules of personal status “according to their religions, sects, beliefs and choices,” leaving the details to be, in the words of the article, “organized by law.” Such a controversial and highly divisive law has never been passed, nor even broadly discussed, and it is hard to imagine it currently passing through Iraq’s highly charged legislature without causing a major crisis.

The second major change has been the enactment of a “repugnancy” clause in Article 2 of the current constitution. This clause prohibits the enactment of any law that violates the “settled rulings” of Islam. There had been some effort on the part of some of the Shiite parties to constitutionalize inclusion of Shariʿah jurists on the Federal Supreme Court (or an equivalent tribunal), which may well have given the repugnancy clause some significance. However, the most that could be achieved in the final constitution was a provision suggesting that the membership of the court could include experts in Islamic jurisprudence and that matters pertaining to membership and numbers of judges would be determined by a law passed by a two-thirds majority. No such supermajority law has been passed, nor is it likely to, and the current Supreme Court, composed entirely of judges from the secular legal system, is merely a continuation of the one that already existed.

As such, the Federal Supreme Court has seemed reluctant to decide matters relating to repugnancy, ruling directly in only one case on the matter since ratification of the constitution in 2005. This was a decision that found a law requiring particular contracts to be in writing to be consonant with Islam because the Qurʾan encourages contracts in writing. That jurists within both the Ḥanafī and Jaʿfarī traditions did not come to similar conclusions is not something the court thought worth commenting upon. In other cases that have come before it, specifically involving, among other things, the more highly charged areas of personal status and the consumption of alcohol, the Federal Supreme Court has either deferred to the legislature on appropriate measures to take or it has found procedural reasons to avoid addressing questions of Islamicity. Given all of this, it might be fair to conclude that as a constraint on legislative activity, the repugnancy clause may well prove not to be very significant.

Bibliography

  • Batatu, Hanna. The Old Social Classes and the Revolutionary Movements of Iraq: A Study of Iraq’s Old Landed and Commercial Classes and of Its Communists, Baʻthists, and Free Officers. Princeton, N.J.: Princeton University Press, 1978. Justifiably hailed as a landmark in the historiography of the modern Middle East.
  • Farouk-Sluglett, Marion, and Peter Sluglett. Iraq since 1958: From Revolution to Dictatorship. Rev. ed. London: I. B. Tauris, 2001. An excellent primer on the history of modern Iraq.
  • Hamoudi, Haider Ala. “Ornamental Repugnancy: Identitarian Islam and the Iraqi Constitution.” University of St. Thomas Law Journal 7 (2010): 692–713. A description of the role of the repugnancy clause in the Iraqi constitution, in theory and practice.
  • Hill, Enid. Al-Sanhuri and Islamic Law: The Place and Significance of Islamic Law in the Life and Work of ʻAbd al-Razzaq Ahmad al-Sanhuri, Egyptian Jurist and Scholar, 1895–1971. Cairo: American University in Cairo Press, 1987. An excellent description of the Egyptian Civil Code, with some mention of the Iraqi Civil Code in passing.
  • Longrigg, Stephen. Four Centuries of Modern Iraq. Reading, U.K.: Garnet, 2002. An excellent account of Iraq during the Ottoman era. First published Clarendon, 1925.
  • Lukitz, Liora. Iraq: The Search for National Identity. London: Frank Cass, 1995. As good a description of Sunnī efforts to develop national consciousness to the derogation of the interests of Najaf as can be found.
  • Mallat, Chibli. The Renewal of Islamic Law: Muhammad Baqer as-Sadr, Najaf, and the Shi’i International. Cambridge, U.K.: Cambridge University Press, 1993. An unparalleled account of Najaf’s political activism from the middle of the twentieth century onward.
  • Marr, Phebe. The Modern History of Iraq. 3d ed. Boulder, Colo.: Westview, 2012 An easy to read history of modern Iraq.
  • Nakash, Yitzhak. The Shi’is of Iraq. Princeton, N.J.: Princeton University Press, 1994. An excellent history of the role of Shiism in modern Iraq.
  • Nieuwenhuis, Tom. Politics and Society in Early Modern Iraq: Mamlūk Pashas, Tribal Shaykhs, and Local Rule between 1802 and 1831. The Hague: Martinus Nihoff, 1981. A particularly useful account of the earlier period of Ottoman rule, prior to efforts to incorporate Iraq into the Ottoman Empire’s centralization efforts.
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