JURIST Contributing Editor Haider Ala Hamoudi of the University of Pittsburgh School of Law says that while Iraq has a long and proud legal tradition, and certainly boasts a large number of legal professionals who take their work very seriously and do it well, there are many rules, impediments and obligations that for many of Iraq’s citizens lie beyond the bounds of the law…

I recently published a book chronicling my own experience in Iraq, living amongst Iraqis from just after the invasion in 2003 to the summer of 2005. Howling in Mesopotamia is a firsthand perspective on some of the failures in Iraq with particular focus on the tribulations of ordinary Iraqi people — my family, friends, colleagues and acquaintances. In it, I describe at some length a country in disintegration in every possible meaning of that word: physical, mental, logistical, spiritual – and, most importantly for purposes of this op-ed, legal.

The notion of legal disintegration perhaps does not earn the attention is deserves among us lawyers, who often tend to emphasize legal codes as the only, or at least the premier, form of binding order in society. Two recent events, both of which call upon previous experiences in Iraq chronicled in my memoir, remind me of this. The first was a report I read in the New York Times, confirming something I had heard directly from my own friends in Basra, that the veil was being more stringently enforced by the Mahdi Army militia over the past several months, at least until recently. One sign reportedly read as follows:

We warn girls not to put on makeup and to wear scarves. Anyone who does not follow these orders will be killed.

As I noticed during my time in Basra, and as I reported in my book, it was exceedingly rare to find an unveiled woman in Basra, and posters of senior Muslim clerics, from Muqtada al-Sadr to America’s one time nemesis, Ayatollah Khomeini, adorned the gates of the state university. None of this appears in the legal codes, neither Khomeini’s theories of juristic rule nor any legal requirement of veiling will be found in any state text, and yet I fear for the woman who might dare to use this as her pretext for violating these rules, given the threatened punishment.

As a result, I tend to take with a fair dose of skepticism, at least in the context of Iraq, Noah Feldman’s recent claim in a piece in the New York Times Magazine that Islamists no longer seek to impose the veil through law, but rather only view it as a desirable social norm. I think a fair number of Iraqi Islamists might well regard that statement puzzlingly, as offering an insufficient set of alternatives. That is, there are legal requirements (for example, registering a company under the Company Law), there are desirable social norms (for example, giving money to the needy when encountering them on the street) and then there are norms that are expected to be entirely binding even if not strictly speaking a product of state law. The veil falls firmly into this category for Iraq’s Islamists, as, for example, female virginity prior to marriage falls for most Iraqis. Read for as long as you like, and you will find nothing in the Iraqi codes that prohibits a woman from engaging in sexual intercourse prior to marriage. The shari’a’s strict rules respecting pre- and extra-marital sexual activity are absent. Yet, as CNN tragically showed nearly a year ago, a non-Muslim woman can in Iraq be publicly on video and in full view of police officers stoned by her non-Muslim clan for having a clandestine relationship with a Muslim man she wished to marry, without proof or even allegation of sexual intercourse. The Islamist push is merely to place the veil, currently a matter of some debate within Iraq, into the same category as premarital sexual activity, wherein to publicly breach the requirement, or even come close, would be, for any variety of reasons having nothing to do with legal requirements, absolutely unthinkable.

The second event that transpired recently related to a request I received for the advice of local Iraqi counsel, not an uncommon request these past few years. Yet this person wanted to know, from a practitioner’s perspective, how Iraqi judges viewed personal injury cases, which was not something I had been asked about before. While the written law on the matter is fairly clear, and the standard of negligence entirely obvious from reading the Code and its commentaries, I could find no practitioners who could provide an insider’s perspective. Between my wife, an Iraqi lawyer herself, and I, we called dozens of attorneys, and always received the same reply—in Iraq, such cases are very rare. This again was entirely consistent with my time in Iraq, where disputes involving car accidents, for example, were handled through clan mediation, and, in a particularly harrowing story reported in my book, encounters with police officers concerning regulatory matters are best handled with a bribe. The courts simply had almost no role to play in any of these matters. As a result, I found nobody who could provide the information I sought. I still could not say how, in practice as opposed to in theory, a personal injury case is handled in Iraq because neither I, nor the dozens of attorneys I know, has seen one.

To be sure, I do not mean to suggest that law is entirely irrelevant, in Iraq or in any other (perhaps more stable) state where the shari’a might also serve to establish order in a non-legal capacity. Iraq has a long and proud legal tradition, and certainly boasts a large number of legal professionals who take their work very seriously and do it well. But at the same time, as my time in Iraq and as subsequent events have shown, there is much by way of rules, impediments and obligations, particularly though certainly not exclusively in these difficult times, that lies beyond the bounds of the law for so many of Iraq’s citizens. That, too, deserves our attention.

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 new book, Howling in Mesopotamia (Beaufort Books). He has a blog on Islamic law at http://muslimlawprof.org.

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