A Draft Code of Personal Law for 'Irāq

In 1947 a draft Code of Personal Law was approved by the Committee for Judicial Affairs of the 'Irāqī Chamber of Deputies. In spite, however, of the recommendation of this Committee that it should be enacted by Parliament and promulgated as law, the Code was then shelved—chiefly, no doubt, because of a change of Government and the election of a new Parliament, but partly also on account of the opposition of the more conservative elements in the country, both Sunnī and Ja'farī. With regard to the latter, I was given a copy of a letter addressed in 1948 by the President of the Ja'farī Division of the Court of Cassation to the then Minister of Justice calling attention to certain major objections to the draft Code and adding, ominously, that ‘the Ja'farī Court of Cassation cannot in future apply these provisions, so long as they do not conform to the correct precepts of the arī'a’; while the points most likely to have aroused the opposition of Ḥanafī purists are not hard to guess. There can be no doubt, however, that the real reasons for opposition to the Code are more fundamental than any of these detailed criticisms. The basic objection of the Sunnī conservatives almost certainly lies in their apprehension that once so many of the provisions of the arī'a have been codified the unification of the courts in 'Iraq will be yet further advanced, since any competent civil judge will be able to administer this Code, and even to dispense, in most cases, with expert opinion: so both the prestige and income of the ‘ulamā’, who alone have been trained to refer to the ancient texts, will inevitably decrease. And the still more vehement opposition of the Ja'farīs can be traced to the fact that they regard the Code as a direct infringement upon the prerogatives of those mujtahids whom their school still recognizes, and to whose decision the courts—and, still more, the public —regularly refer not only points of dispute in general but several of the matters covered by this Code in particular. But the Code has recently again been debated in Parliament, and once more referred to a Judicial Committee for further study and reflection: so this may be an appropriate opportunity to examine its scope and contents.