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.

The first interesting thing that might be said about this decision, even before discussing the merits, is that it has been a long time coming. The Court has been extremely reluctant to deal with Article 2 at all. This is hardly a surprise to many of us following Iraqi law and politics. After all, Iraq has an extremely powerful clerical institution in Najaf and Article 92 of Iraq’s Constitution permits jurists to serve on the Iraqi Federal Supreme Court, even though none have been appointed to that position. It strikes me as self-evident that the judiciary would thus not try to provoke the powerful jurists by interpreting Islam for them, as this might lead the Islamists in the Council of Representatives, Iraq’s legislature, to push for juristic inclusion on the Court. They could be successful in that effort. After all, the jurists have shown their ability to influence events in Iraq, from the momentous, such as the date of elections, to the mundane, such as school curricula. Given this, the Court has wisely felt it best to remain out of their sights. If anything, it is more surprising that the Court heard a case on the matter of Article 2 at all, rather than that it took six full years post-constitutional ratification to do it.

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.

While it is true that there is no requirement, or even recommendation, among modern Shi’i jurists that a contract be placed in writing, there is no prohibition in doing it. Thus, for example, Grand Ayatollah Sistani indicates that a contract for sale need not take any specific form and need not be in Arabic. Even conduct, specifically, delivery of the goods and payment for them, can constitute a contract so long as the intention to form it is present. It is true that both he and his predecessor the late Grand Ayatollah Khu’i refer, when discussing contracts of sale, to particular parties “uttering” particular formulations to form a contract for sale in a manner that presumes that the most common form of contract is oral. But this presumption does not translate into a prohibition under the rules as they are laid out. In fact, Grand Ayatollah Khu’i describes two opinions respecting whether or not written contracts are permitted to those capable of speech and movement, it being uncontroversial for obvious reasons that one who is mute and incapable of moving their bodies may use a writing in place of speech. He then indicates that the “more manifest” is that writings are “tolerated” in place of speech. Grand Ayatollah Sistani articulates much the same, but is more permissive, suggesting that the “more manifest” opinion is that writings are acceptable, not merely tolerated, irrespective of whether one is capable of speech more movement.

Admittedly there is some Sunni classical authority that discounted the evidentiary power of contracts in writing, as opposed to those concluded orally, in precise contradiction to Article 77(2). On balance, however, it is fair to say that overwhelming Sunni and Shi’i Muslim praxis in the contemporary era is in favor of written contracts. Aside from the pronouncements of the Shi’i Grand Ayatollahs, one need look no further than the booming multibillion dollar practice of Sunni-dominated Islamic finance, engaged in by such financial giants as HSBC and Citibank. It hardly needs to be said, these contracts are concluded invariably in writing and relied on as such.

Thus, while perhaps the Court could have determined that the pronouncements of the Grand Ayatollahs and the Sunni classical authorities favor oral contracts, and that therefore to require contracts to be in writing violates the “settled rulings” of Islam, it had ample authority to decide otherwise without creating controversy. It could simply have said that while it cannot be credibly maintained that Islam conclusively requires written contracts, a state law requiring them does not violate any sort of “settled ruling” as there is nothing “settled” on the question of contract formation given the varying positions of the authorities discussed above.

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.

Even a casual comparison of Sistani’s rules and those of Iraqi law on the matter of the Court’s decision is instructive as to why this is. Article 77 of the Law of Evidence imposes a writing requirement for transactions generally. The rules of Sistani, Khu’i and the classical Sunni jurists described above relate to a contract for sale. This is because the traditional Islamic rules have no general theory of contract, but instead divide contract into nominate forms, among them sale, lease, partnership, and the like. If the Court actually wanted to take these rules seriously, it would then have to examine the validity of Article 77 as against each shari’a based nominate form of agreement and the rules of formation related to them, effectively obliterating the general theory of contract upon which modern commercial systems are founded. To describe this as devastating from an economic perspective if carried out broadly is to understate the matter considerably.

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. This gives the Court some purchase to use somewhat provocative reasoning to reach the conclusions it does respecting written contracts without fear of causing a juristic reaction. After all, if Iran’s controlling juristic authorities do not care to adopt Islamic rules on contract, it is hard to believe that jurists in Iraq, given their restraint, will be very exercised about what the Court does to legitimate, on Islamic grounds or otherwise, thoroughly transplanted rules with roots now reaching back decades upon which its modern economy is based. The fact that the Court was dealing with a specific instance where juristic derivations seem the most peculiar. This is a rare, but by not means unique, situation, where the Qur’anic verses do indeed by their plain meaning seem to contradict the juristic presumptions in favor of oral contracts–surely played a factor as well.

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.

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 muslimlawprof.org

Suggested citation: Haider Ala Hamoudi, Religion and Law in Iraq: A Noteworthy Federal Supreme Court Opinion, JURIST – Forum,
Feb. 10, 2011, http://jurist.org/forum/2011/02/Religion_and_Law_in_Iraq_A_Noteworthy_Federal_Supreme_Court_Opinion.php.