The 2005 Iraqi elections and law: a positivist tale.

• Author: Diamantidis, Marinos

INTRODUCTION

IN CONTEMPORARY SOCIAL-POLITICAL circumstances the discourses of science and economics--based on experience, observation and perception--continue to dominate the production of truth. For politics and law this suggests the privileged position of those who understand the social as materiality and the law as a mechanism. The 'law' in particular is therefore approached as posited by the legislator, recorded and dated, backed by the might of the state and, in application, observed and measured in a scientific manner. In terms of its relation to politics, law is seen as a means of manipulation, or engineering of "societies" that are, in turn, understood as devoid of spirit e.g. as momentarily coherent measures of utility. In this article, I begin by engaging just such a positivist view of post-invasion Iraqi electoral "law," notwithstanding the many powerful criticisms to which the politics and epistemology of positivism have been subjected. This is not out of personal conviction over the value of positivism which can declare Iraq's sovereignty restored or out of indifference for human suffering. Rather my intention is to point out, first, how the occupiers' commands as to how the Iraqi elections should be held can only be considered "law" by relying on legal positivism's reductionist and fiction-based view of law as a "morally-neutral" tool. Second, I intend to show how said positivism both serves the logic of social engineering that is inherent in "nation-building" and manifested in the electoral rules, by legitimating it without concern for the impact of the rules' substance on post-Saddam Hussein Iraqi political life. Third, by discussing the relevant commands as if they are indeed "legal rules" I will avail myself of wider lessons from the literature on electoral law design and thus, gain insight as to the impact the people who selected the Iraqi electoral rules expected them to have.

IRAQ, ELECTIONS, DEMOCRACY

Let me begin with a certain uncertainty. There is little doubt that to see the ongoing Iraqi electoral process as part of a democratization process entails belief rather than reason. A quick way of ascertaining this is to rely on the technical literature on the use of electoral law design as a means of drastic political reconstitution. Indeed, since modernity is characterised by the prevalence of empirical over speculative thought, what better "authority" on the matter of the relation between elections and democracy, than a publication entitled Electoral Systems for Emerging Democracies published by the Ministry of Foreign Affairs of a post-industrial wealthy country which was destined to become part of the "coalition of the willing." Published in 1997 by the Ministry of Foreign Affairs of Denmark, Electoral Systems for Emerging Democracies, is characterised by a sharp contrast between the programmatically charged title's summary reference to "emerging democracies" on the one hand and the scholarly empirical content's use of the much more cautious term "transitional polities" throughout on the other hand. In sum, the title misleads as to the main double message of the book which is, first, that "transitional polities" is merely a shorthand for a wide spectrum of societies in varying degrees of political (dis-) organisation in which appeals to "democracy" are made, and, second, that while the periodic holding of elections is a necessary condition for the establishment of representative democracy, elections by themselves do not guarantee a successful transition to democracy (Barkan 1997). In sum, the publication's contributors reiterate an established view that "elections per se do not a democracy make" (Karl 1986, Barkan 1993).

Thus, in this essay, I remain unsure as to whether Iraq is or is not on its way to liberal democracy, irrespective of the relative success of elections and the constitutional referendum and despite assurances such as G.W. Bush's, offered in his 23rd September 2003 Address to the Nation, "America has done this kind of work before. Following World War II, we lifted up the defeated nations of Japan and Germany and stood with them as they built representative governments." Apart from this "certainty over uncertainty," however, post invasion Iraq continues to constitute quite a classificatory challenge. While it is preferable to call Iraq a "transitional polity" than an "emerging democracy" we must bear in mind that the former, seemingly abstract term was historically developed with quite specific cases in mind. Thus, on the one hand it seems a wide enough term to cover all sorts of political systems where the socio-economical and political environment is very different from that in post WWII Germany or Japan and certainly contemporary liberal industrial established democracies (Barkan 1997). Indeed, Iraq displays all of the relevant features noted by Barkan, being an agrarian and peasant-based society, a plural society and a society where political interests are identified geographically. On the other hand however, Iraq must obviously be distinguished from Cambodia, Mozambique, Nicaragua, or South Africa and all other "transitional polities" that experienced the reconstitution of their political systems following periods of civil war and the collapse of the state. Post-invasion Iraq is unlike the former USSR or contemporary Egypt each of which has been going through various stages of transition from authoritarian to democratic rule that may or may not complete their transition and where the incumbent regime presides over the transformation. In sum, the fact that "regime change" in Iraq was primarily an accomplishment of "non-Iraqis"--be it in the sense of foreigners or in the sense of unwilling Iraqi citizens--matters enormously, in that it occurred as simultaneous assaults on the Iraqi nation-state's sovereignty and also in that the ensuing political vacuum, which was initially entirely filled by occupation rule, is being seen not only as an opportunity for democratization but also, perhaps primarily, for the federalization or even dissolution of the Iraqi state, similar to what happened in the case of the USSR/CIS.

LEGITIMIZATION OF THE IRAQI ELECTORAL PROCESS CIRCUMVENTS INTERNATIONAL LAW

Positivist jurist Hans Kelsen, famous for his so-called "Pure Theory of Law," believed in law as science. According to his theory, legal "scientists" (in which he included both scholars and practitioners, an inclusion that has remained problematic) can point out the law in a morally neutral way on the basis of two social facts. The first fact concerns the existence or non-existence, in a given society, of a legal system that functions efficaciously as a whole. The second social fact turns on whether individual rules, say the rules over elections, are part of this legal system or not. That, according to positivists, depends on whether a given rule can be traced to an authorized social source, all the way back to what Kelsen called the "basic norm" the existence of which must necessarily be presupposed by the legal scientist as a fiction. The theory's seductive aspect is that, provided such a basic norm exists in the consciousness of lawyers in a country whose legal system functions as a whole, they can point to, and talk about, the law "objectively," namely as if they are subjectively detached from its content and function in a given socio-economical context suggesting the normative character of law without necessarily believing in its moral validity.

In what follows I will endeavour to look at Iraq's electoral law in a "positivist" spirit which may require me to be rather schizophrenic. On the one hand my task entails reference to the various texts that have served as post-invasion Iraq's electoral law. Whether I can use the word "law" depends on whether these texts are in any way connected to an efficacious legal system of post-invasion Iraq as well as presupposing their fictitious authoritative social source. There are two problems here. First, I have not found anyone, sociologist or other, who can assure me that in the aftermath of its invasion and occupation, Iraq has had a legal system which functions "efficaciously as a whole." If, as a good legal positivist, I claim this question of fact to be for others to answer, you may think that I should desist from making any study of texts that have been referred to by others as post-invasion "Iraqi law," including electoral law...