Negotiating in Civil Conflict: Constitutional Construction and Imperfect Bargaining in Iraq by Haider Ala Hamoudi

Author:Haider Ala Hamoudi [Hamoudi, Haider Ala]
Language: eng
Format: epub
Tags: Constitutions, Comparative, Comparative Politics, Middle Eastern, Political Science, World, Law, General
ISBN: 9780226068794
Google: 3ZsTAQAAQBAJ
Goodreads: 22899015
Publisher: University of Chicago Press
Published: 2013-01-01T00:00:00+00:00

CHAPTER SIX

Post-Ratification Consensual Construction beyond Federalism

While the divisions concerning federalism proved to be the most severe during the drafting phase of the Iraq Constitution, and while the progress in reaching consensual constructions in that area has been instrumental in developing the limited but real intersectarian and interethnic reconciliation that exists, other areas of division that appeared during the drafting process also needed to be addressed through post-ratification construction. In these areas, the extent to which consensual constructions have developed has varied greatly. There has been unmistakable success in the context of Islam and the state, recognizable and significant gains in the area of de-Baathification, only modest measures taken to temper majoritarian impulses with minority participation, and the festering problems over Kirkuk have proved entirely unresolvable. Each of these areas will be discussed in detail in this chapter, beginning with that area which has seen the most success, the role of Islam in the state.

Islam and the State

Over the short life of its current constitution, it is difficult to gainsay the level of progress that Iraq has reached in attaining a broad consensus on Islam’s role in the nation-state. Where the nations that underwent massive regime change as a result of the Arab Spring continue to be bedeviled by internal divisions between secularist and Islamist, comparable disputes in the context of Iraq are largely muted. This has been achieved in a society where at the time of drafting there were not only divisions as to levels of religiosity, as seems to be the case in all Muslim states, but also divisions between sects, with those sects having entirely different conceptions of the role of juristic authorities in determining the contours of religious doctrine as it pertains to state activity. It therefore is important to describe precisely what has happened to heal many of the divides in this historically contentious area.

The successful, consensual solutions respecting the role of Islam may be summarized as largely maintaining the level of Islamicity in the state as it existed before 2003. Islamists have had modest success enabling and enhancing public religious practice through public funding of universities and inserting limitations on laws that might otherwise require the individual believer to violate shari’a. However, they have not made significant headway elsewhere. Everything from personal status law to general legislation betrays little evidence of state-driven Islamization or, for that matter, secularization. It is not a surprise to learn that secularists find this acceptable given the broad, continuing strength of Islamist parties, primarily of the Shi’i variety. The more interesting question is not only how this came about but precisely why Islamists have accommodated themselves to constructions that do not seem to realize their original desires despite their continued, considerable electoral strength.

To review, there were four areas of dispute where severe divisions over the extent of the state’s commitment to Islam manifested themselves in the form of flexible framework text.1 These were the following:2

1. The role of Islam as source of legislation;

2. The role of Islam as constraint on

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