Dahlia Litwick defends the the notion of a "Living Constitution" (in the American context) and mentions the Iraqi Constitution.
Mickey Kaus focuses on the actual text of the new constitution: he notes that it calls Islam "a fundamental source" of law and thinks that the word "a" ought to be seen as more important than the word "fundamental." But nothing binds the interpreters to Kaus's textualism. They might adopt the notion of a "Living Constitution" or something like it.
Whether the Iraqi Constitution invokes Islam as its source of law or not, what is more important is what those who apply the Constitution have to say about it. They could import Islamic law whether it's mentioned in the Constitution or not, and they could interpret that Islamic law in a way that respects the rights of women or not. They could also oppress women without referring to Islam.
Glenn Reynolds has this:
Americans are unusually legalistic and unusually focused on constitutions. But plenty of constitutions have wonderful language on paper (the old Soviet constitution was great that way) and plenty of countries (Britain, for example) manage to get by without written constitutions at all. What matters more is political culture. If the Iraqi people want a free, prosperous country and are willing to work for it, they'll get that. If they don't, or aren't, then they won't.
He's right.
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It is interesting that the Iraq constitution requires that no law violate "Islam: or "Democracy."
Perhaps something as simple as this could spark the so called reformation in Islam that people have been "hoping for." After all if you have thousands of muslim lawyers and thinkers trying to rationalize islam with Democracy, eventually your going to do it.
Given the disputes leading up to the drafting its failure to address certain key issues leaves it a compromise document. Our Framers addressed the issues that they deemed important at the time and were forceful in doing so. Sure there's ambiguity. All documents have ambiguity. But this document is pretty equivocal on the core issues. On that front it's not really the success it's cracked up to be.
I'd agree with Glenn too...it's political culture that matters, and constitutions are pretty much irrelevant. But it's surprising to see a ConLaw prof encouraging that kind of talk. :-)
oops.. jimmy is a spammer
Why am I getting comment spam still???
Smilin' Jack: "But it's surprising to see a ConLaw prof encouraging that kind of talk."
Actually, it's quite typical of what conlawprofs say.
Sloanasaurus: Nice observation.
Victor: Leaving some play in the joints can be a positive thing. If you had to nail everything down, it would not be workable. The real constitution will emerge in practice. The important thing is to get the process started, and agreeing on the document is that step.
It looks to me like a lot of people are getting screwed under this document. Women, nonIslamists, secularists...seem to be on the disenfranchisment special, when it comes to this Constitution.
Certainly our own Constitution has had it's ups and downs..and needed great fixes. And this one may as well. But this is a country that's looking more and more like a theocratic Islamic state..and less and less like a representative democracy.
Had the American people been told the truth about this (and make no mistake..there were a lot of predictions out there that this is how it would go down)..none of us would have agreed to it.
This is the epitome of painting lipstick on a pig.
Instapundidt may be right. But he could have been equally right three years ago and saved us the whole trouble of the invasion. Besides, it's not terribly difficult to predict what sort of political culture you're going to get in a country without basic security and reliable public services. And where the only authority that remains comes either from the gun or from religious figures not notably interested in full rights for women.
Nobody left to blame for the botched invasion but... the Iraqis. Good for Glenn!
There has been a lot of talk about the new Iraq essentially becoming another "theocratic state." For example Carla writes:
"...But this is a country that's looking more and more like a theocratic Islamic state..and less and less like a representative democracy...."
To help people along, I think it would be wise to understand what an Islamic "Theocracy" is and how a constitution would read that would set up such a Theocracy.
Therefore, to put the Iraq constitution into context, we should consult the Iranian Constitution (available online). Below are the applicable Articles that set up the Theocracy (note I have nto seen or heard of anything remotely like the Guardian Council in the Iraq Constitution)
--Iranian Constitution--
Article 91 [Guardian Council]
With a view to safeguard the Islamic ordinances and the Constitution, in order to examine the compatibility of the legislation passed by the Islamic Consultative Assembly with Islam, a council to be known as the Guardian Council is to be constituted with the following composition:
1. six religious men, conscious of the present needs and the issues of the day, to be selected by the Leader, and
2. six jurists, specializing in different areas of law, to be elected by the Islamic Consultative Assembly from among the Muslim jurists nominated by the Head of the Judicial Power.
Article 92 [Term]
Members of the Guardian Council are elected to serve for a period of six years, but during the first term, after three years have passed, half of the members of each group will be changed by lot and new members will be elected in their place.
Article 93 [Mandatory Formation]
The Islamic Consultative Assembly does not hold any legal status if there is no Guardian Council in existence, except for the purpose of approving the credentials of its members and the election of the six jurists on the Guardian Council.
Article 94 [Review of Legislation]
All legislation passed by the Islamic Consultative Assembly must be sent to the Guardian Council. The Guardian Council must review it within a maximum of ten days from its receipt with a view to ensuring its compatibility with the criteria of Islam and the Constitution. If it finds the legislation incompatible, it will return it to the Assembly for review. Otherwise the legislation will be deemed enforceable.
Article 95 [Extended Review]
In cases where the Guardian Council deems ten days inadequate for completing the process of review and delivering a definite opinion, it can request the Islamic Consultative Assembly to grant an extension of the time limit not exceeding ten days.
Article 96 [Majority]
The determination of compatibility of the legislation passed by the Islamic Consultative Assembly with the laws of Islam rests with the majority vote of the religious men on the Guardian Council; and the determination of its compatibility with the Constitution rests with the majority of all the members of the Guardian Council.
Article 97 [Attendance in Parliament]
In order to expedite the work, the members of the Guardian Council may attend the Assembly and listen to its debates when a government bill or a members' bill is under discussion. When an urgent government or members' bill is placed on the agenda of the Assembly, the members of the Guardian Council must attend the Assembly and make their views known.
Article 98 [Authoritative Interpretation]
The authority of the interpretation of the Constitution is vested with the Guardian Council, which is to be done with the consent of three-fourths of its members.
Article 99 [Supervision of Elections]
The Guardian Council has the responsibility of supervising the elections of the Assembly of Experts for Leadership, the President of the Republic, the Islamic Consultative Assembly,
and the direct recourse to popular opinion and referenda.
The Iranian constiution: Irrelevant when it comes to the manner in which social & political power will be weilded in the New Iraq. The Irish constitution of 1937 merely mentioned a "special relationship" between Catholicism & the Irish state, for instance, & included protections for adherents of other religions, but for decades that was pretty damn near a theocracy in terms of how ordinary life was experienced by citizens of the Republic.
In Iraq the de jure is going to get its butt royally kicked by the de facto, and it's delusional to pretend otherwise.
It is not the constitution but the political culture that matters?
I wonder if this blog would endorse your extremely odd view if you would turn that same laser beam of intelligent analysis onto our own society.
The religious and political culture in Iraq is very dislocated, especially among the Shia. See this link for a description of the various Shia factions:
http://slate.msn.com/id/2082980/
Another fact that people overlook when comparing Iraq and Iran is the social and cultural differences. Consider the following:
Iranians are mostly Persians and other central Asian ethnic groups
Iraqi's are mostly Arab and Kurds
Iranians speak Farsi
Iraqi's speak Arabic and Kurdish
The terrain of Iraq is mostly desert and broad plains.
The terrain of Iran is mostly rugged mountaineous.
The last time Iraq and Iraq was controlled by the same leader/government was in the 14th century for a brief time after it was conquered by the Mongols.
Just because Iranians and 60% Iraqis are both shia doesn't mean they are natural allies or allies at all.
And don't forget the Iraq/Iran war.
Another fact that people overlook when comparing Iraq and Iran is the social and cultural differences.
Right. So of course they are likely to be much more influenced by the United States than Iran, because our culture is much more similar.
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