The Will of the (Iraqi) People

Abstract

While there has been much literature on the Iraqi constitution of both the scholarly and popular media variety, attention to contemporary Iraqi judicial decisions, and in particular those of the Iraqi Federal Supreme Court, has been far less pronounced. In fact, my own search has not led me to a single published law review article on the subject. There is some irony to this – it is, after all, rather difficult to address the concept of constitutionalism in any state without reference to constitutional praxis, and the judiciary is, at the very least, an integral participant in that praxis. I have sought to address this omission with my own review of Iraqi judicial practice over the past half decade. My thesis upon completing such a review is that Iraq’s judiciary is generally (though not entirely) independent of overweening executive influence, its rulings are generally (though not entirely) heeded within the political classes and the broader polity, and as such its emerging practice does not differ from contemporary scholarly accounts of the history of the United States Supreme Court, or, perhaps better stated, the differences are of degree rather than quality. This Article proceeds in three parts. The first part addresses the independence of the Iraqi judiciary from direct executive interference, and provides limitations on the thesis that the judiciary is able to work largely without threat of reprisal from the executive. The second part addresses the legitimacy of the Court’s decisionmaking and the broad (though by no means unlimited) extent to which its rulings are heeded by other political institutions and by the broader public. The third part acknowledges that which will be made clear in the first two sections – namely, that the Iraqi courts, particularly at the higher level, while being generally independent and legitimate, perceive themselves as constrained enough to proceed cautiously and carefully, anxious not to issue rulings that will be broadly rejected by the political classes, or enter the courts into divisive disputes that will only lead to a loss of the prestige of the judicial institution. However, far from being some sort of anomalous example of judicial failing, in fact, the judiciary is conducting itself precisely as any judiciary would, including that of the United States, at least according to contemporary scholarly accounts, and in particular that of Barry Friedman in his most recent work, The Will of the People.