REBUILDING THE LAW Opinion, Wall Street Journal, April 21, 2003

By Khaled Abou El Fadl

With the fall of the dictatorship of Saddam Hussein, Iraq is confronted with the challenge of rebuilding its constitutional and legal order. Having suffered the experience of living under some of the most draconian laws known to the modern age, Iraqis are uniquely positioned to turn a new page in the annals of Middle Eastern law.

Iraq has had a long and rich jurisprudential experience. Before Saddam came to power, the country, along with Egypt, was one of the most influential in the development of the legal institutions and substantive laws of the Arabic speaking world. A high level of education was enjoyed by the Iraqi elite, and Iraqi legal thought was characterized by a lack of xenophobic nativism. Being geographically at the intersection of Arab, Persian, Kurdish, and Turkish cultures, the country has been home to both Shiite and Sunni centers of religious study.

After gaining independence from Britain in 1930, Iraq, like most Arab countries, adopted Civil Law and Criminal Law Codes, which were adapted from the French and Germanic legal systems. Iraq's personal law, however, continued to be based primarily on Islamic law, feeding a thorny relationship between Iraq's Islamic legal heritage, and the legal system borrowed from Europe. Making the situation more difficult, in Iraq, as in many other Muslim countries, there were socio-political pressures to simultaneously Islamize and modernize.

Keeping all this in mind, the evolution of Iraq's new legal system will have repercussions for the entire region. The urban centers of Iraq, Baghdad, Basra, and Kufa played central roles in the birth of Islamic jurisprudence, and they continued to play a leading role in the development of the institutions and doctrines of Islamic law. Iraq's intellectual heritage, especially as it relates to Islam's divine law, continues to carry considerable moral weight within the Muslim world.

Iraqis already have some experience in this realm. In the 1950's the country made an ambitious effort to adopt a system of law that was efficient, modern, and at the same time, Islamically legitimate. The Iraqi Civil Code of 1953 was one of the most innovative and meticulously systematic codes of the Middle East. Iraqi jurists, working with the assistance of the famous Egyptian jurist Al-Sanhuri, drafted a code that balanced and merged elements of Islamic and French law in one of the most successful attempts to preserve the best of both legal systems. In 1959 Iraq promulgated the Code of Personal Status, which on the issues of family and testamentary law was at the time the most progressive Muslim code of law. Importantly, for our purposes now, this code merged elements of Sunni and Shiite law to grant women greater rights as to marriage, divorce, and inheritance.

All creative legal activity, of course, ended when the Baath party came to power in 1968 and Saddam formally ascended to the presidency in 1979. For the most part, since coming to power, Saddam has involved Iraq in a series of wars that enabled him to declare a constant state of national emergency and to rule mostly by executive order. Legal institutions lost all vestiges of independence, and civil society was co-opted by the ruling party. Iraqi law could no longer be described as either Islamic or French, but as distinctly and uniquely Saddamian.

Iraq became one of the few nations that legally sanctioned the use of torture in pre-trial investigations, and as a punitive measure. The death sentence was prescribed for a large variety of offenses including usurpation of public money, corruption, insulting the Presidency, and treason-loosely defined. Law became whimsical and contingent on the will of the party and president. Even foreign investments were dependent on the good will of the ruling elite, often tapping into a network of businessmen sanctioned and protected by a Saddam family clique.

After the Gulf War of 1991, and especially after the rebellions in the South and North, Saddam announced that he would implement Islamic law in Iraq, but he did so primarily as a legitimacy and popularity ploy. Saddam had systematically obliterated all Islamic opposition, and gained notoriety for executing more Muslim scholars and jurists than any other leader in the modern history of Islam. But after the post-1991 rebellions were stamped out, the staunchly secular Saddam suddenly got religion: He made a point to be filmed performing his prayers, often interrupting media interviews, as he did with Dan Rather, to announce that he must pause for prayers.

Saddam's implementation of Islamic law was equally theatrical. On occasion, he would announce that a group of individuals will have their hands cut off for theft, or would be executed for adultery. The point was public spectacle. Since the charges, trials, and often even the names of the suspects were not made public, strong suspicions persisted that those being punished were actually people accused of being opposing the regime. Since the late 1970s, there has been no rule of law in Iraq, only the rule of fear.

Today, there is little doubt that many Iraqis are aspiring for a democratic order that would guard against the kind of abuses that they have had to endure. They must overcome the absolute jurisprudential impoverishment that they suffered under the Baath, while reclaiming their creative legacy. They must find justice while avoiding vengeance. And they must relearn how the law can be used as a shield and tool in the hands of the people rather than a sword of the state.

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The rule of law is a necessary condition for a democracy to exist and considering Iraq's rich civilizational heritage, Iraqis will be looking, and rightly so, into their pre-Baath legal and moral history for inspiration and guidance. American policymakers must understand that Iraq's legal and ethical history did not start with the overthrow of Saddam. A dual commitment to Islamic law and democracy is possible, but only if Muslims understand Islamic law to reinforce the same commitments made by democracy to individual human rights and dignities.

This is where Iraq's jurisprudence was heading once upon a time and this is where Iraq may reclaim its role as an inspiration to the Muslim world.

Mr. Abou El Fadl is a professor at the UCLA School of Law