Civil Laws at Iraq
Iraq's civil law system is a hybrid system that primarily draws from the Civil Law tradition (like France and Egypt) but is deeply influenced by Islamic Sharia law, especially after the 2005 Constitution. This creates a complex and evolving legal landscape.
1. Primary Sources of Civil Law:
The Constitution of Iraq (2005): This is the supreme law. It declares Islam as the official religion and a foundation source for legislation. Crucially, it states that no law can be enacted that contradicts the established provisions of Islam (Article 2). This means that while the Civil Code forms the backbone, its interpretation and any new legislation must adhere to Islamic principles. It also guarantees the "Islamic identity of the majority of the Iraqi people" and "full religious rights" for all, leading to a dual system in personal status matters.
The Iraqi Civil Code of 1951: This is the most significant codified civil law. It was largely drafted by the renowned Egyptian jurist Abd El-Razzak El-Sanhuri and is heavily influenced by the Egyptian Civil Code (which in turn has French and Islamic elements). The Iraqi Civil Code governs core areas of civil transactions, including:
Contracts: Principles of offer, acceptance, validity, effects, and termination. It outlines general contractual obligations and specific types of contracts (e.g., sale, lease, loan). The principle of freedom to contract is recognized, alongside the need for good faith and transparency.
Obligations: Beyond contracts, it covers obligations arising from torts (civil wrongs), unjust enrichment, and unilateral promises. Iraqi civil law generally adopts a concept of "encroachment" for tortious liability, showing a strong influence from Islamic jurisprudence, though it implicitly recognizes fault.
Property Law: Deals with ownership, possession, usufruct, servitudes, and other real rights over movable and immovable property. Iraq has faced significant challenges with property rights due to conflict and displacement, leading to the establishment of bodies like the Property Claims Commission (PCC) and specific laws (e.g., Law 20 of 2009, Law 57 of 2015, and Law 2 of 2020) for compensation for damaged or lost properties.
General Principles: It includes a "General Part" establishing fundamental concepts like persons, legal capacity, and the exercise and protection of rights. In the absence of specific legislation, the Civil Code explicitly directs judges to rule according to custom, and in the absence of custom, according to the relevant principles of Sharia.
Other Statutes (Acts of Parliament): Beyond the Civil Code, numerous specialized laws regulate specific civil areas:
Personal Status Law No. 188 of 1959 (and recent amendments in 2025): This is a critical area. Originally, it aimed to provide a unified civil law for personal status matters (marriage, divorce, custody, inheritance) for all Muslims, drawing on the Hanafi school of Islamic law. However, recent amendments (effective February 2025) have significantly altered this.
The new law allows Muslim couples to choose whether the 1959 Personal Status Law or a personal status code based on the Ja'afari Shiite school of jurisprudence will govern their family matters. This essentially creates separate legal regimes for different Islamic sects, raising concerns about legal equality and women's rights from human rights organizations.
While the amendments initially caused alarm about lowering the marriage age, the final legislation requires religious codes to comply with the PSL's existing age restrictions (18, or 15 with a judge's permission and proof of maturity).
For non-Muslims, personal status matters (marriage, divorce, inheritance) are generally governed by their respective religious laws (e.g., Christian, Yazidi laws) administered by their own religious courts or by specific provisions in the Personal Status Law.
Commercial Code of 1984: Regulates matters specific to businesses, including trade names, registration, financial transactions, and international sales.
Companies Law of 1997: Governs the types of companies allowed in Iraq, their formation, and management.
Civil Procedure Law: Dictates the rules and procedures for civil litigation.
Labor Law: Governs employment relationships.
Investment Law: Promotes and regulates foreign and domestic investment.
Intellectual Property Laws: Cover trademarks, patents, and copyrights.
Islamic Sharia Law: Beyond its influence on the Civil Code and Personal Status Law, Sharia is a direct source of law, especially for personal status matters and as a guiding principle for all legislation. The Supreme Federal Court, for instance, includes judges who are "experts in Islamic jurisprudence."
Custom and Usages: As mentioned in the Civil Code, custom can be applied in the absence of specific legal provisions.
Judicial Precedent: While a civil law system, the decisions of the Court of Cassation (Iraq's highest ordinary court) have significant persuasive authority and play a role in legal development and interpretation.
2. Judicial System for Civil Matters:
Iraq has a hierarchical judicial system for civil matters:
Courts of First Instance (Bada'a Courts / Courts of First Instance): These are the entry-level courts for most civil cases, handling disputes related to contracts, debts, property (excluding specialized land courts), and general civil obligations. They consist of one judge.
Personal Status Courts (Family Courts): These specialized courts exclusively handle family matters such as marriage, divorce, custody, alimony, and inheritance, applying the relevant personal status laws based on religious affiliation.
Courts of Appeal (Istinaf Courts): Located in each province (with two in Baghdad), these courts review decisions from the Courts of First Instance and Personal Status Courts on both factual and legal grounds. They typically consist of three judges for civil cases.
Court of Cassation: This is the highest judicial authority in the ordinary judiciary, located in Baghdad. It reviews decisions from the Courts of Appeal on points of law. It has several bodies, including an Expanded Civil Authority and a Penal Body, and its General Assembly reviews important cases.
Federal Supreme Court: This is a separate constitutional court. Its jurisdiction is limited to constitutional issues, interpreting the Constitution, and determining the constitutionality of laws. It also resolves disputes between federal and regional governments and acts as a final court of appeals in constitutional matters. It is administratively independent of the ordinary judiciary.
Specialized Courts: There may be specialized courts or bodies for specific matters like commercial disputes or property claims (e.g., the Property Claims Commission, though not strictly a court, performs a quasi-judicial function in resolving past property disputes).
Key Characteristics and Challenges:
Islamization of Law: The 2005 Constitution's emphasis on Islam as a foundation for legislation means that the legal system is constantly evolving under Islamic influence, particularly in civil and personal status matters.
Legal Pluralism: The co-existence of codified civil law and diverse personal status laws for different religious groups creates complexity.
Post-Conflict Environment: Decades of conflict, political instability, and internal displacement have severely impacted legal infrastructure, property rights, and the consistent application of law.
Corruption and Inconsistency: The judiciary, despite efforts, still faces challenges with corruption and the inconsistent application of laws, particularly in commercial cases, leading to delays in contract enforcement.
Human Rights Concerns: Amendments to the Personal Status Law and the broad interpretation of "Islamic morality" in constitutional guarantees have raised concerns from human rights organizations regarding women's and minority rights.
In conclusion, Iraq's civil laws are a blend of modern civil codes (largely inherited from a French-Egyptian model) and deeply entrenched Islamic legal principles, all operating within a complex constitutional and political environment.
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