Wednesday, March 9, 2011

Contract law and Islamic law in Iraq

To paraphrase my friend Peter Wood, those who are interested in this sort of thing will find this to be the sort of thing that interests them:

From the University of Pittsburgh School of Law publication JURIST, February 10, 2011:

JURIST Contributing Editor Haider Ala Hamoudi of the University of Pittsburgh School of Law says that a recent decision by Iraq's Federal Supreme Court is the first opportunity to understand the Court's position on the interpretation of Article 2 of the Iraq Constitution, which prohibits law from violating the settled rulings of Islam...


Quite recently, in an opinion dated December 21 of last year (but published on its website sometime thereafter,) the Iraq Federal Supreme Court in a short, scantly heeded but quite significant decision, made its first important interpretation of Article 2 of the Iraq Constitution, which prohibits law from violating the "settled rulings" of Islam. There has been much academic speculation respecting what the clause means, and I have been, and continue to be, very much of the opinion that the clause is more ornamental than real and meant to assert a Muslim identity more than act as a real constraint on past or existing legislation. This decision is the first opportunity to understand the position of the Iraq Federal Supreme Court on the matter.

The case itself, Decision 60 of 2010, involved an alleged construction contract between two parties. One of the parties had sought to prove the existence of the contract by means of "personal evidence," meant generally to refer to oral testimony. The lower court refused to hear the evidence and dismissed the case, pursuant to Article 77(2) of the Law of Evidence, which, in a manner that loosely resembles our own Statute of Frauds, requires the existence of a contract over a set amount to be in writing. The allegation made by the appellant was that requiring a writing to satisfy evidentiary requirements was a violation of Article 2 because it conflicts with shari'a...

...But the jurists are not all powerful, and Iraq's legislature is decidedly more secular this term than it was in the previous one. While this hardly signals the end of Islamism as a political force, it does suggest a greater willingness on the part of the Court to rise to the challenge of offering competition, albeit very much at the margins, on the meaning of Islam in our challenging times. Certainly the Court's assertion of power is real, if cautious. In upholding the lower court decision, and by extension, Article 77 of the Law of Evidence, the Court's language was provocative and one must assume intentionally so. This was not strictly necessary based on the shari'a rules concerning contracts in writing...

...The Court instead took a different, and more potentially incendiary, approach. In concluding Article 77 did not contradict a "settled ruling" of Islam, the Court argued that requiring a written contract harmonized with Islam, citing two verses of the Qur'an in order to reach this conclusion. In other words, it challenged the jurists, stating on the basis of Qur'anic text, that written contracts were at the very least Islamically recommended, if not required. The implicit conclusion is that the jurists got it wrong in failing to at least recommend written contracts, that the juristic derivations that presume mostly oral contracts, and that in the classical tradition discounted written contracts severely, were simply mistaken interpretations of the Holy Text.

In most instances, this would be sure to provoke a reaction, given the central Shi'i assumption that it is the jurists of Najaf who are alone capable of deriving the rules of shari'a from sacred text. It is as if the Supreme Court had chided the Pope on a matter of Catholic doctrine. As to how and why the Court felt confident enough to do something this radical, the particular subject matter of the dispute before the Court provides the basis. The reality is that even though the jurists describe in detail the rules on shari'a as they concern matters of commerce, the relevance of those juristic rules in the modern world is exceedingly slight, with only minor discrete exceptions. Even in Iran, where jurists control the state, the state freely adopts transplanted French civil rules for contracts, and not the rules of the very jurists who run the state. The shari'a as concerns such matters is purely conceptual, theory without the slightest intent of practice, because the rules as they exist are simply incompatible with running a modern economy...

...Given the material realities, to ignore the bulk of Islamic rules as they pertain to commerce seems the only option, and the one taken by Islamic states and commercial actors alike, even devout ones...

...The juristic reaction would certainly not be the same were the Court to tread upon areas of religious doctrine that modern Muslims take more seriously, outside of commerce. If the Court, for example, were to reinterpret the Qur'an to adopt more expansive rights to women's divorce than those the jurists provide, the reaction would almost surely be swift and vociferous, and the Court would almost surely find its legitimacy challenged. While it is growing in strength and independence, the Court has nowhere near the authority to challenge the jurists on such core matters of shari'a as family law. Its influence for the moment probably lay at the very margins of modern shari'a, specifically, those areas where the historic rules are not taken very seriously at all and where their basis in Sacred Text is the most tendentious. Still, the fact that the Court is willing to offer competition to the jurists on interpretation of Islam's sources is quite interesting, and worth following in more detail as the months and years progress.

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