TCS Daily

Hammurabi's New Code

By Ilya Shapiro - April 2, 2004 12:00 AM

One of the more interesting developments in the ongoing democratization cum pacification of Iraq was the release earlier this month of that nation's provisional constitution. Western critics immediately charged that, if deft in combining Islamic and Enlightenment values, the constitution devolves too much power to local authorities (read: tribal chieftains and clerics) and creates a central government too weak to shepherd the transition to liberal democracy. University of Chicago professor Jacob Levy addressed such concerns in a recent New Republic Online column, focusing on the need to adapt constitutional theory to the on-the-ground travails of a newly liberated state.

As I do not claim any special insight into the social realities of Arab life, nor into the potential interplay between religion and classical political theory in modern Mesopotamia, my interest in this new Iraqi charter is its place in the overall scheme of transitions from authoritarian rule. Much as Samuel Huntington, before his work on the clash of civilizations, detailed the Third Wave of democratization that swept through Spain, Portugal, and their former colonies in the late '70s and early '80s, what we are seeing in Iraq has the potential to be a breakthrough into one of the most backward and reform-resistant areas of the world. It has already fomented an Islamic Civil War, with internal divisions far greater than even those between the Muslim world and the West.

But what is a constitution to all this and why is it important? At a general level, it is a founding document, a political statement about the relationship between an entity and its component members. In its most common modern usage, a constitution defines the structure and role of the state within a country and articulates certain societal ideals. A constitution at odds with the society it purports to frame will not long survive, whether de jure or de facto. On the other hand, a constitution that is well known and revered can do much to unify, legitimate, and stabilize a nation. Moreover, as the example of Great Britain shows, a constitution need not be written to demonstrate an acceptance of constitutionalism -- while the example of Venezuela shows that prolix constitutions do not guarantee stability.

On paper, the Iraqi constitution has a lot going for it. The preamble begins: "The people of Iraq, striving to reclaim their freedom, which was usurped by the previous regime . . . have determined that they shall hereafter remain a free people governed under the rule of law." To that end, one of the constitution's "Fundamental Principles" is that the system of government shall be "republican, federal, democratic, and pluralistic." Virtually the entire American Bill of Rights -- including property and privacy protections -- appears under the category "Fundamental Rights," which ends with the principle that the rights not therein enumerated remain with the people. In a bizarre nod to the UN Declaration of Human Rights, each citizen also has the right to "security, education, health care, and social security," and the State "shall strive to provide prosperity and employment opportunities." But at least these positive rights are cabined by "the limits of [the government's] resources and with due regard to other vital needs."

The Iraqi Government is to enjoy a strict separation of powers, with each branch's responsibilities clearly delineated. The Armed Forces are explicitly placed under civilian control -- hearkening to the lessons of Huntington's earliest academic work -- and its personnel cannot even stand for election to political office. Members of the National Assembly cannot have been ranking members of the Ba'ath Party, nor of the "former agencies of repression," nor have "enriched [themselves] in an illegitimate manner." In a variation on the Roman republic, the executive is to be composed of a President and two Deputies -- and this "Presidency Council" must make decisions (such as the naming of the Prime Minister) unanimously. There is even provision for a Special Tribunal and National Commissions in such areas as Public Integrity, Property Claims, Human Rights, and National De-Ba'athification.

The Iraqi federal republic will be composed of eighteen "governorates," with any three able to form regions among themselves. The Kurdistan Regional Government is officially recognized, with full authority over all Kurdish lands save in such issues as security, central banking, immigration, natural resources, telecoms, and the interpretation of federal law.

Finally, the transitional period is to end, a permanent constitution adopted, and a new government elected by the end of 2005.

All in all, a good skeleton, but one that, as with all fledgling democracies, remains frail until supported by a muscles of civil society -- with which no level of government can constitutionally interfere -- and political culture.

More generally, the diverse countries that have undergone democratic transformations over the last 20 years have at times shown illusory similarities: rampant corruption, presidential domination, sham federalism. Yet distinctions emerge below the superficial symptoms of constitutional growing pains. Most of the former Soviet republics have serious flaws in the design of their political institutions, with excessive presidential power and subordination of the judiciary. Latin American democracies have always faced serious challenges in preventing their fledgling political institutions from being subsumed by personal ambitions and party rivalries.

The Middle East, where Iraq (and Afghanistan) are hopefully but the start of a new wave of democratization in the region, must deal with the overwhelming religious issues that are far beyond the scope of this essay. All require solutions that demonstrate sound constitutional principles and a profound understanding of the particular circumstances of each country.

Returning to first principles, the complex challenges of a modern world demand the simplest social charter possible, not one where every aspect of society is spelled out. Political actors used to have the attitude that law pre-existed in nature, that government is to be tolerated to preserve man's freedom but mistrusted for its monopoly on legal coercion, that republican democracy is the worst form of government except all others. Now man is the source of law, government ordains basic rights, limiting freedom for man's own good, and temporary majorities act without thinking about the hidden consequences of their laws.

It remains to be seen how Iraq will fare, particularly once its body politic matures. Problems with balance of powers, rule of law, competing rights, and other constitutional issues will not be resolved quickly or easily. The future makes no guarantees, but it would seem that the 21st century -- even post 9/11 and 3/11 -- could not do worse than its predecessor in finding humane methods of social organization.

To paraphrase my favorite Founder, if men were angels, we would not have a conception of "constitutionalism." If angels ruled over men, we would not need one. Since neither is the case, we had better find good thinkers to contain our natural leaders. All nations, but especially Iraq at this crucial time in its development, could use a James Madison.

Ilya Shapiro, who studied comparative constitutionalism at Princeton's Woodrow Wilson School and the University of Chicago Law School, is currently clerking on the United States Court of Appeals for the Fifth Circuit. He recently wrote for TCS asking "Why Do They Hate Us?"


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