Uniform Law in a Divided Society: A Closer Look at the Iraqi Personal Status Code

Abstract

Iraq is a deeply diverse society. Among its divisions are those between centralists and pluralists, more religious elements and more secular ones, Arabs and Kurds, and, of course, Sunnis and Shi’is. Each of these has a role to play in the operation of family law in Iraq, which is dominated by a single, putatively uniform law, the Personal Status Code of 1959. The manner in which the Code, controversial from its inception, has been able to survive has been through managing the various demands of these different elements of Iraqi society. Hence, for example, the courts interpret the Code in a manner that defers to sectarian rules in those areas where their application is important to the sects. The Code offers uniformity and progressivity in other places as a means to placate secularist demands, and courts then relax some of those provisions in places in Iraq where they might be controversial. Finally, the Code balances the competing claims of religious conservatives and progressives through a liberal use of talfiq, or a patching together of various Islamic rules in a manner that achieves the most progressive outcome that might be considered compliant with traditional understandings of shari’a. While none of this is without controversy, and the Code remains a target of attack from various Iraqi elements, most notably conservative Shi’i parties, the Code has managed to survive. This is because, simply stated, the parties can find no better bargain to manage their divisions.