SHARIAsource

This Country Profile provides a basic overview of the legal history and institutional structures of the Republic of Iraq (Jumhuriyat al Iraq/Komar-i Eraq), based on research produced by GlobaLex at NYU Law School and the Library of Congress. Under Iraq's Constitution, Islamic law (sharīʿa or fiqh) is a principle source of legislation. 

Constitution for Iraq in English, published with the permission of Constitute.

In this source, al-Khallāl (d. 311/923) echoes the criteria adopted by al-Shāfiʿī (d. 204/820) for determining the credibility of witness. His approach is largely in line with that of Aḥmad b. Ḥanbal (d. 241/855) and the Companion Abū Mūsā al-Ashʿarī (d. between 42 and 53/662–73). However, Khallāl slightly diverges in permitting non-Muslims to testify in the specific case regarding the last wishes of a Muslim who dies while traveling, a scenario explicitly condoned in Qurʾan 5:106. Aḥmad rejects the notion of non-Muslim uprightness forwarded by Ḥammād b. Sulaymān (d. 120/737) and Khayr b. Nuʿaym (in office 120-27/738-45), maintaining that individuals outside the Muslim community could not possibly be considered righteous in an objective sense given that they transgress fundamental commandments, for example they partake in wine and pork.

This source is part of the Online Companion to the book Justice and Leadership in Early Islamic Courts (ILSP/HUP 2017)—a collection of sources and other material used in and related to the book.   

In this text Abū Bakr al-Jaṣṣāṣ (d. 370/980) and Abū Jaʿfar al-Ṭaḥāwī (d. 321/933) documents the Hanafī position—upheld by al-Shāfiʿī’s (d. 204/820) teacher Mālik (d. 179/795)—which maintained stricter criteria for the qualification of witnesses. Mālik held that the testimony of witnesses who displayed any degree of heresy should be rejected automatically. In Justice and Leadership in Early Islamic Courts Ahmed El Shamsy contrasts Mālik’s position with that of his student Shāfiʿī who had more leniently maintained that heretical beliefs can only disqualify a witness if they have no precedent and have no basis in any possible interpretation of revelation.

This source is part of the Online Companion to the book Justice and Leadership in Early Islamic Courts (ILSP/HUP 2017)—a collection of sources and other material used in and related to the book.  

In this excerpt from his legal treatise, the Hanafī jurist al-Sarakhsī relays how the imperial grand judge Yaḥyā b. Aktham (d. 242/857) upheld the Ḥanafī position regarding the eligibility of non-Muslims to serve as witnesses. Yaḥyā was said to have permitted non-Muslim testimony against any other non-Muslims. He explained his position, writing that, “consulting the opinions of the earliest jurists, I have found no one forbidding the testimony of the protected people, except two [conflicting] opinions attributed to Rabīʿa.” Further, Sarakhsī relays the Ḥanafī criterion for witness eligibility which developed in a specific hierarchical framework. Muslims were placed above non-Muslims and, within that, locals above outsiders (dhimmī vs. ḥarbī). As Ahmed El Shamsy notes in Justice and Leadership in Early Islamic Courts, this framework equates the right to give testimony with the right to demonstrate legal authority (wilāya) over another.

This source is part of the Online Companion to the book Justice and Leadership in Early Islamic Courts (ILSP/HUP 2017)—a collection of sources and other material used in and related to the book.  

Religion appears in the constitutions of the Arab world, almost all with Muslim majorities, in a variety of ways. But aside from ensuring a public role for religion, these states are far from theocratic and show considerable though subtle diversity within them. 

Abū Yūsuf (d. 182/798) records a statement attributed to the Caliph ʿUmar I (d. 23/644) on the legal standing of non-Muslims which considers "all of unbelief" to be a single community in contradistinction to the community of Muslim believers and concludes that “neither do we inherit from them, nor they from us.” In this respect, non-Muslim and Muslim communities operate under separate legal statuses. Abū Yūsuf also relates in the same text the noteworthy opinion of Ibrāhīm al-Nakhaʿī (d. 96/715), an Iraqi jurist and forebearer of the Hanafī school, regarding non-Muslim testimony.  Nakhaʿī opined that the verse of Q. 65:2 functioned to proscribe non-Muslim testimony and could be understood to abrogate the allowance of non-Muslim testimony in verse 5:106. Ibrāhīm’s opinion differed from that of Companion Abū Mūsā al-Ashʿarī (d. between 42/662 and 53/673), among others, who had relied on the Quranic verse 5:106 to specifically permit non-Muslims testimony to record the last will of a Muslim traveler who dies away from home. Ḥammād b. Salama (d. 167/784) distinguished all non-Muslims as one community discrete from Muslims in his argument that non-Muslims were permitted to testify against any other non-Muslims, regardless of confessional lines. Ahmed El Shamsy notes the legal premise of non-Muslims' and Muslims' separate legal status in Justice and Leadership in Early Islamic Courts.

This source is part of the Online Companion to the book Justice and Leadership in Early Islamic Courts (ILSP/HUP 2017)—a collection of sources and other material used in and related to the book. 

This text documenting the positions of the jurist Aḥmad Ibn Ḥanbal (d. 241/855) relays a disagreement he had with the scholar Isḥāq Ibn Rāhawayh (d. 238/853). While Aḥmad b. Ḥanbal had maintained the non-Muslims might only testify regarding the last will of a deceased Muslim, Isḥāq b. Rāhawayh upholds the opinion suggested by earlier jurists that non-Muslim scripturalists might testify in Muslim courts so long as they only testify against members of their own faith communities. Isḥāq b. Rāhawayh cites an event in the Prophet Muḥammad’s life as Sunnaic proof for the admissibility of non-Muslim testimony in court. He relays an incident in which Muḥammad apparently accepted the testimony of Jewish individuals against a Jewish couple accused of adultery. Ahmed El Shamsy notes in Justice and Leadership in Early Islamic Courts that Isḥāq b. Rāhawayh seems to be one of the only jurists of his day to employ this anecdote to permit non-Muslim testimony.

This source is part of the Online Companion to the book Justice and Leadership in Early Islamic Courts (ILSP/HUP 2017)—a collection of sources and other material used in and related to the book.  

In this historical text, Wakīʿ documents the historical feud between Qaysī and Yamanī Arabs which precluded members of each group from testifying against the other in Muslim courts due to concerns of bias. The factional tension also affected political and judicial spheres. For example, Wakīʿ relates that the governor of Basra ʿUqba b. Salm (in office 149–50/766–67) was pressured into releasing an unjustly imprisoned man by the judge Sawār b. ʿAbd Allāh b. Qudāma (in office 138–56/ 755–73). The judge complied with this order because of pressure and instability due to factional political alliances. Given the degree to which Qaysī and Yamanī rivalries influenced the political sphere, it seems understandable that their testimony against each other was not accepted in the courtroom. Ahmed El Shamsy references this source in Justice and Leadership in Early Islamic Courts as the first of many historical cases in which progressive restrictions were placed on who might be permitted to give testimony resulting from increased political rivalry.

This source is part of the Online Companion to the book Justice and Leadership in Early Islamic Courts (ILSP/HUP 2017)—a collection of sources and other material used in and related to the book.  

In this literary source purportedly recounting early episodes of judges, Abū Yūsuf (d. 182/798) issues a clever ruling for ʿAbbāsid Caliph Hārūn al-Rashīd, effectively saving his son – a prince – from an accusation of zinā (fornication or adultery) by operation of the “doubt canon,” which requires legal officials to “avoid criminal punishments in cases of doubt.” The doubt here is a judicial knowledge, rather than established evidence by a confession or witnesses. He is rewarded by being made Chief Judge (qāḍī al-quḍāt) of Baghdad.

Text of the 1925 Organic Law of the British Mandate for Iraq.

Text of the 1943 Law Amending the Iraqi Constitution of 1925 (1925 Organic Law of the British Mandate for Iraq).

English translation of the 1958 Agreement on the Arab Union of Iraq and Jordan, with related translated documents.

English translation of the 1958 Constitution of the Arab Union, the short-lived confederation between the Hashemite kingdoms of Iraq and Jordan.

English text (as originally published) of the 1964 Interim Constitution of Iraq, as amended to September 18, 1965.

Arabic text of the 1970 Interim Constitution of Iraq.

English translation of the 1974 Interim Constitution of Iraq (1970 Interim Constitution of Iraq, as amended to 1974).

English translation of the 1990 Interim Constitution of Iraq.

Text of the 2004 Interim Constitution of Iraq (Coalition Provisional Authority Law of Administration for the State of Iraq for the Transitional Period).

English text of the 2005 Constitution of Iraq.