From Baton Rouge to Baghdad: A Comparative Overview of the Iraqi Civil Code

Author:Dan E. Stigall
Position:Attorney with the United States Army JAG Corps

I. Introduction. II. Civil Law, Civilians, and Civil Codes-a Brief Explanation. III. What Does it Look Like? A Structural Comparison. IV. Comparing the Sources of Law. V. Comparing the Formation of Obligations. VI. Comparing the Law of Property-division of Ownership, Usufructs, and Servitudes. A. The Iraqi Codal Provisions Regarding Musataha and Tasarruf. 1. Musataha. 2. Tasarruf. VII. The... (see full summary)


CPT Dan E. Stigall is an attorney with the United States Army JAG Corps and served in Iraq as a legal liaison to the Coalition Provisional Authority. He received his J.D. from the Louisiana State University Law Center in 2000 and is a member of the Louisiana State Bar.

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I Introduction

On April 9, 2003, a statue of Saddam Hussein was pulled down by American troops in Baghdad, signaling the end of a dictator's brutal reign and the beginning of a long process of redevelopment and discovery. Redevelopment was necessary because so many Iraqi institutions were destroyed by war, Ba'athist policies, or oppression. There was discovery because the United States, as an occupying force, was suddenly saddled with the responsibility of rebuilding a torn land and, therefore, required to become intimately familiar with a place and culture that the western world had largely ignored.

Today, the legal system of Iraq is still something of a mystery to the western world. Given the resurfacing importance of the region, the paucity of legal literature concerning Iraq is surprising. When it is addressed, far too often it is mischaracterized as a fundamentally Islamic system or presumed to be a system based on principles alien to the western world.1 Though such presumptions might be warranted in the limited areas of personal status (i.e. family, marriage, and inheritance) a comprehensive analysis reveals something quite different-especially in the realm of Iraq's civil law.

It is particularly unfortunate that the details of Iraq's legal culture have remained mired in obscurity. As Professor Khaled Abou El Fadl noted:

Iraq has had a long and rich jurisprudential experience. Before Saddam came to power, the country, along with Egypt, was one of the most influential in the development of the legal institutions and substantive laws of the Arabic speaking world. A high level of education was enjoyed by the Iraqi elite, andPage 132 Iraqi legal thought was characterized by a lack of xenophobic nativism.2

One of the great legal triumphs in Iraq's history was its enactment of the Iraqi Civil Code on September 18, 1951. According to its foreword, the Iraqi Code is derived from two main sources: the Islamic Shari'a and the Civil Code of Egypt which derives from the laws of the West and the Islamic Shari'a.3 While this statement is technically accurate and likely designed for public consumption, it ignores the rich legal tradition that spawned the Iraqi Civil Code-a tradition that binds it to so many countries and cultures across the globe, linking it legally and historically with a global community of civil law jurisdictions.4

Commentators recognize that the modern Iraqi Civil Code is primarily based on the Code Civil of France.5 Professor Abou El Fadl notes that " . . . Iraqi jurists, working with the assistance of the famous Egyptian jurist Al-Sanhuri, drafted a code that balanced and merged elements of Islamic and French law in one of the most successful attempts to preserve the best of both legal systems."6

As a result, Iraq, while retaining its ties to Islamic law, is part of a wider global community of civil law jurisdictions based on the French model-connecting Iraq's judiciary with jurisdictions as diverse as Ukraine and Burkina Faso, Quebec and Portugal, Greece and Louisiana. From Baton Rouge to Baghdad, the civil law heritage is a rich, global legal tradition which binds Iraq to a vast majority of the world's jurisdictions and offers the advantage of centuries of legislative wisdom to assist its developing judiciary and future legislators.

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The purpose of this article is to provide a comparative overview of the Iraqi Civil Code to the western jurist. It must be noted at the outset that the entire subject of Iraqi Civil Law is far beyond the scope of a single article (or even several articles). Therefore, the objective of this article is to provide the western jurist with a general introduction and facilitate the ongoing process of discovery in the realm of Iraq's legal culture by offering brief descriptions and comparisons of some identifying characteristics of the civil law: the Code's overall structure, sources of law, theory of obligations, and its concept of property. In conclusion, this article comments on the impact of the new Iraqi constitution and assesses the implications of this civil law heritage as it relates to the problems of Iraq's developing judiciary.

As a frame of reference, this article compares the Iraqi Civil Code to the Louisiana Civil Code. This comparison is useful for several reasons, but primarily because the Louisiana Civil Code represents a traditional civil code in which civilian characteristics have been assiduously preserved while its contents have been selectively improved. Though commonly considered a "mixed" jurisdiction, Louisiana retains such significant ties to the civilian tradition that it doubtlessly remains an appropriate civil law model.7 Thus, for jurists of all stripes, it provides a modern benchmark by which the Iraqi Civil Code (which has languished for over three decades under the Ba'athist regime) can be compared.

Secondly, this article demonstrates the numerous similarities between the Louisiana Civil Code and the Iraqi Civil Code. The implications of these substantive ties are significant as, though there is little modern Iraqi scholarship on the subject of civil law, a great deal of American and European legal scholarship has been devoted to its history and principles. With regard to the scholarly material addressing the Louisiana Civil Code, it is easily accessible to American jurists and is, for the most part, written in a familiar tongue. Thus, American jurists can easily gain a basic understanding of the principal concepts of Iraqi Civil Law by perusing the scholarly work and jurisprudence regarding Louisiana's civil law system.

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Third, the Louisiana Civil Code is a familiar institution to a number of jurists (particularly those in Louisiana) who may have some interest in studying how the Iraqi counterpart to their cherished document has fared.

Finally, and not least in significance, it is the civil code of the author's home state and, therefore, the code with which the author is most familiar. To choose any other civil code as a frame of reference would be an act of unforgivable treason.

II Civil Law, Civilians, and Civil Codes-a Brief Explanation

Before entering into a comparative overview of the Iraqi Civil Code, it is important to make clear the meaning of the terms civil law, civilian, and code as they are used in this article. Civil law has been defined as:

. . . that legal tradition which has its origin in Roman law, as codified in the Corpus Juris Civilis of Justinian, and as subsequently developed in Continental Europe and around the world. Civil law eventually divided into two streams: the codified Roman law (as seen in the French Civil Code of 1804 and its progeny and imitators-Continental Europe, Quebec and Louisiana being examples); and uncodified Roman law (as seen in Scotland and South Africa)."8

Civil law is highly systematized and structured and relies on declarations of broad, general principles.9 What distinguishes civil law systems from other legal systems, such as "common law" systems, is their uniquely shared history and a tradition of deeply rooted attitudes about the role of law in society and the polity. Civil law systems share a common belief about the proper organization of a legal system.10 Those jurists who are a part of that civil law tradition are referred to as civilians.

The civil law is generally subdivided into a German-influenced area and a French-influenced area. However, commentators further distinguish a family of mixed systems: Scotland, Louisiana, Quebec, and South Africa being examples.11 A mixed legal system is one which contains elements derived from multiple legal traditions. ForPage 135 instance, the Egyptian legal system combines elements of the civil law tradition with the Islamic legal tradition. Quebec and Louisiana combine elements of civil law with the common law tradition.12Though exceptions may exist on the periphery, mixed systems are generally considered to remain under the broader rubric of civil law systems.13

One of the chief characteristics of a civil law jurisdiction is the existence of a civil code.14 However, civil law codification is to be distinguished from the compilations of laws in other jurisdictions that are casually referred to as codes, such as tax codes, commercial codes, criminal codes, and the California Civil Code. These are not codes in the sense civil law jurists use the term. The use of the term code to civilian jurists conveys something specific: it is a tradition, a particular way of thinking about the law and codification.

What is meant by the term 'code' . . . is to designate an analytical and logical statement of general principles of the law to be applied by deduction to specific cases and extended by analogy to cases where the aphorism au-dela du Code Civil, mais par le Code Civil (beyond the civil code but by the civil code) can be applied.15

III What Does it Look Like? A Structural Comparison

Traditionally, civil codes are divided into three separate books and ordered in a logical progression. This tripartite structure dates back to the Roman jurist, Gaius, who posited that...

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