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Published online by Cambridge University Press: 24 December 2009
In 1947 a draft Code of Personal Law was approved by the Committee for Judicial Affairs of the 'Irāqī Chamber of Deputies. In spite, however, of the recommendation of this Committee that it should be enacted by Parliament and promulgated as law, the Code was then shelved—chiefly, no doubt, because of a change of Government and the election of a new Parliament, but partly also on account of the opposition of the more conservative elements in the country, both Sunnī and Ja'farī. With regard to the latter, I was given a copy of a letter addressed in 1948 by the President of the Ja'farī Division of the Court of Cassation to the then Minister of Justice calling attention to certain major objections to the draft Code and adding, ominously, that ‘the Ja'farī Court of Cassation cannot in future apply these provisions, so long as they do not conform to the correct precepts of the 
arī'a’; while the points most likely to have aroused the opposition of Ḥanafī purists are not hard to guess. There can be no doubt, however, that the real reasons for opposition to the Code are more fundamental than any of these detailed criticisms. The basic objection of the Sunnī conservatives almost certainly lies in their apprehension that once so many of the provisions of the arī'a have been codified the unification of the courts in 'Iraq will be yet further advanced, since any competent civil judge will be able to administer this Code, and even to dispense, in most cases, with expert opinion: so both the prestige and income of the ‘ulamā’, who alone have been trained to refer to the ancient texts, will inevitably decrease. And the still more vehement opposition of the Ja'farīs can be traced to the fact that they regard the Code as a direct infringement upon the prerogatives of those mujtahids whom their school still recognizes, and to whose decision the courts—and, still more, the public —regularly refer not only points of dispute in general but several of the matters covered by this Code in particular. But the Code has recently again been debated in Parliament, and once more referred to a Judicial Committee for further study and reflection: so this may be an appropriate opportunity to examine its scope and contents.
page 43 note 1 But making it clear that these were not intended to be exhaustive. Most of these major objections have been noted in the course of this article.
page 43 note 2 e.g. the reforms regarding the triple divorce and formulae of divorce intended only as a threat or inducement (see below)—since these innovations are contrary to the ‘consensus’ of the four schools.
page 43 note 3 Even to-day Qāḍīs' courts exist at very few centres. Elsewhere the civil Ḥākim is empowered to hear arī'a cases, with reference to an 'ālim when required.
page 43 note 4 And whose influence is still immense.
page 43 note 5 This is the explanation of the very small volume of litigation in the Ja'fari courts, for the Ja'farī Qāḍīs are not themselves mujtahids.
page 43 note 6 See below.
page 44 note 1 Pace the Ja'farīs, who still refer such cases to living mujtahids also.
page 44 note 2 e.g. by the Ottoman Law of Family Rights, 1917–which, although short-lived in Turkey, is still substantially applied in Syria and Lebanon.
page 44 note 3 The term Sunnī is not infrequently used in 'Irāq as a virtual synonym for Ḥanafī, since the Ḥanafīs represent far the most important and numerous body of Sunnīs in the country. But the Kurds and some others, particularly in the north, are āfi'īs, and as things now stand āfi'ī litigants may request that their own law should be applied (either by the court or by reference to a āfī'i 'ālim). Once, however, this Code has been promulgated, the provisions relevant to Sunnīs will presumably govern Ḥanafīs and āfi'īs alike, derived as these provisions are from a variety of Sunnī (and even non-Sunnī) schools and jurists.
page 45 note 1 But this total includes two introductory and two concluding articles, all of which fall outside the scope of the substantive law summarized throughout the remainder of the Code.
page 45 note 2 Or, indeed, in somewhat similar reforms in the Sudan, and a very recent Code of Family Law in the Kingdom of Jordan. See my ‘Recent Developments in Sharī'a Law VIII’, The Muslim World, 07, 1952.Google Scholar
page 45 note 3 ‘This Law shall be applied to every matter covered by its terms whether by express reference or by implication. Where, however, no provision therein is applicable, the Qāḍī shall apply the rules of Islamic law according to the school of the litigants.’
page 46 note 1 While article 14 (1) provides for one who alleges marriage to someone who denies it to prove his allegation either by adequate testimony or by the other party's refusal of an oath of denial; and article 15 for proof of marriage by acknowledgment.
page 46 note 2 Art. 38. For a discussion of this point, see ‘Recent Developments in Sharī'a Law III’, The Muslim World, 04, 1951, pp. 122–4.Google Scholar
page 46 note 3 See ibid., pp. 124–6.
page 46 note 4 e.g. matters of dower, and possibly place of domicile, among the Ḥanafīs; and of beauty, virginity, and freedom from defect, etc., among the Ja'farīs.
page 46 note 5 cf. articles 52–8. For a discussion, see ‘Recent Developments in Sharī'a Law III’, pp. 120–122.Google Scholar
page 47 note 1 For a discussion, see ibid., pp. 113–116.
page 47 note 2 For a discussion, see ibid., pp. 116–118.
page 47 note 3 cf. article 50 of the Ottoman Law (see ‘Recent Developments in Sharī'a Law III’, p. 120Google Scholar). This is scarcely relevant to the Ja'farī system.
page 47 note 4 While all agree, of course, in the prohibition in regard to two sisters.
page 48 note 1 Art. 26 (2).
page 48 note 2 i.e. one observing the 'idda period of retirement after she has been widowed or divorced (whether revocably or irrevocably).
page 48 note 3 Art. 29 (2). In regard to the consummation of the contract, only, the Mālikīs concur.
page 48 note 4 i.e. in so far as this Code is concerned.
page 48 note 5 e.g. the birth of a calf to a cow, the growth of fruit on a tree or of crops in a field, etc.
page 49 note 1 Apparently: see art. 41 (1).
page 49 note 2 Art. 16. See ‘Recent Developments in Sharī'a Law IV’, The Muslim World, 07, 1951, p. 193.Google Scholar
page 49 note 3 But here, as in certain other parts of the Law, the drafting is somewhat loose: of. art. 42,; the terms of which are considerably modified by arts. 43 and 45, but which includes no reference to either.
page 49 note 4 See ‘Recent Developments IV’, pp. 191 and 192.Google Scholar
page 49 note 5 Art. 4. For comments, see ‘Recent Developments in Sharī'a Law V’, The Muslim World, 10, 1951, pp. 279 and 280.Google Scholar
page 49 note 6 But the President of the Ja'farī Court of Cassation made no comment on this point.
page 50 note 1 cf. art. 100 of the Ottoman Law, although this does not go so far; and also art. 1 of the Egyptian Law of 1920. See ‘Recent Developments in Sharī'a Law IV’, pp. 189–192.Google Scholar
page 50 note 2 By contrast with the Ḥanafīs: cf. art. 100 of the Ottoman Law, and contrast art. 1 of the Egyptian reform of 1920 (as above).
page 50 note 3 i.e. of divorce with (
ul'), or without (ṭalāq), financial compensation to the husband from the wife.
page 50 note 4 Although this is in fact supported by a minority āfi'ī opinion. The principle was adopted in art. 130 of the Ottoman Law, and also, with certain differences, in arts. 6–9 of the Egyptian reform of 1929. See ‘Recent Developments in Shari'a Law V’, pp. 285 and 286.Google Scholar
page 50 note 5 A form of temporary marriage, concluded by use of the appropriate formula, which was permitted at the inception of Islam but is now forbidden by all except the Ja'farīs.
page 50 note 6 Art. 53 (2): cf. arts. 104 and 105 of the Ottoman Law and art. 1 of the Egyptian reform of 1929. See ‘Recent Developments in Sharī'a Law V’, pp. 274 and 275.Google Scholar
page 50 note 7 Art. 54 (2): cf. art. 2 of the Egyptian Law of 1929. See ibid., p. 276.
page 50 note 8 Art. 55 (2): cf. art. 3 of the Egyptian Law of 1929. See ibid., p. 276.
page 50 note 9 Art. 56 (2): cf. art. 109 of the Ottoman Law and art. 4 of the Egyptian Law of 1929. See ibid., pp. 274 and 275.
page 51 note 1 Or the dissolution constituted an annulment of the marriage ab initio.
page 51 note 2 If intended to imply divorce. But here contrast art. 5 of the Egyptian Law of 1929: see ‘Recent Developments in Sharī'a Law V’, pp. 275 and 276.Google Scholar
page 51 note 3 Art. 118. See ‘Recent Developments V’, p. 277.Google Scholar
page 52 note 1 But by no means identical in phraseology, etc.
page 52 note 2 See ‘Recent Developments in Sharī'a Law V’, pp. 277 and 278.Google Scholar
page 52 note 3 i.e. the one which concerns diseases other than insanity, which is held to justify dissolution even in the Ja'farī law.
page 52 note 4 Although most Ja'farī jurists allow this only to the husband whose wife proves to be so afflicted at the time of the marriage.
page 52 note 5 This is because the dissolution of marriage in such cases is regarded by the Ja'farīs as an option of repudiating the contract, as in a contract of sale, for certain specified defects.
page 52 note 6 But the Irāda did not expressly mention tuberculosis or venereal disease, although it referred to other diseases ‘as serious as leprosy and elephantiasis …’ For comments, see ‘Recent Developments in Sharī'a Law II’, The Muslim World, 01, 1951, p. 38Google Scholar; and also, for similar provisions in the Ottoman Law of 1917 (arts. 122–125) and the Egyptian reform of 1920 (arts. 9–11), see ‘Recent Developments in Sharī'a Law V’, pp. 278 and 279.Google Scholar
page 53 note 1 But no express mention of one year was made in this Irada, or in art. 126 of the Ottoman Law which was founded thereon. For the Irāda, see ‘Recent Developments in Sharī'a Law II’, pp. 38Google Scholar; and for the subsequent Ottoman Law, and comparable Egyptian reform of 1920 (arts. 5 and 6), see ‘Recent Developments V’, pp. 279 and 280.Google Scholar
page 53 note 2 cf. art. 127 of the Ottoman Law, arts. 7 and 8 of the Egyptian Law of 1920, and arts. 21, 22, and 14 of that of 1929. For comments, see ‘Recent Developments V’, pp. 281, 282, 284, and 285.Google Scholar
page 53 note 3 Or under a general licence given by such mujtahid to a Qāḍī to dissolve any marriage in which the circumstances are as specified therein.
page 53 note 4 cf. arts. 128 and 129 of the Ottoman Law, and art. 8 of the Egyptian Law of 1920. For comments, see ‘Recent Developments V’, pp. 283 and 284.Google Scholar
page 54 note 1 This provides a good illustration of the greater cleavage between the Ja'farīs and Sunnīs than between the different Sunnī schools: for among the latter a marriage so dissolved, even contrary to the doctrine of their own school, would normally be regarded as res judicata, in the sense that the view of some other Sunnī mujtahid had been applied, and had thus become binding by decree of court.
page 54 note 2 Contrast art. 124 of the Ottoman Law, which follows the Ḥanbalī, rather than Mālikī or āfi'ī, doctrine in this matter.
page 54 note 3 Li'ān is the term for dissolution of marriage by, or as a result of, mutual imprecation, where a husband accuses his wife of adultery and she denies it; while īlā' is dissolution of marriage as a result, or on account, of a husband having taken, and kept, a vow of protracted continence.
page 54 note 4 cf. art. 3 of the Egyptian Law of 1920, the Mālikī doctrine and also art. 140 of the Ottoman Law. For comments, see ‘Recent Developments IV’, pp. 194–196.Google Scholar
page 54 note 5 This view is attributed to 'Alī and Ibn 'Abbās; while the ordinary Ḥanafī rule is delivery in all cases.
page 54 note 6 cf. arts. 150–152 of the Ottoman Law, and contrast art. 150.
page 55 note 1 i.e. in accordance with the Ḥanafī doctrine: contrast the afi'īs, Mālikis. and the recent Egyptian reforms. See ‘Recent Developments IV’, p. 197.Google Scholar
page 55 note 2 This represents the ‘middle’ Ja'farī view, as between nine months and one year, respectively.
page 55 note 3 cf. art. 15 of the Egyptian Law of 1929. See ‘Recent Developments IV’, pp. 195–7.Google Scholar
page 55 note 4 In wording, at least.
page 55 note 5 cf. art. 83 (3), referred to at p. 45 above.
page 55 note 6 Art. 20. See ‘Recent Developments IV’, pp. 197 and 198.Google Scholar
page 55 note 7 For although the prevalent view limits the time of ḥaḍāna to two years for a boy and seven for a girl, a variant opinion extends this to seven and nine years respectively, while it is also emphasized that no ḍarar (injury) must be caused to the child. It is noteworthy, too, that the mother's right regularly continues beyond such limits, in the Ja'farī view, when in competition with anyone other than the father.
page 55 note 8 But the President of the Ja'farī Court of Cassation made no comment on this omission.
page 56 note 1 See ‘Recent Developments II’, p. 47Google Scholar, and ‘Recent Developments VI’, The Muslim World, 01, 1952, p. 36.Google Scholar
page 56 note 2 i.e. as the maximum proportion which a testator may bequeath.
page 56 note 3 Contrast, in this respect, art. 125 below, regarding intestate succession.
page 56 note 4 But one for which recent reforms in Egypt and the Sudan provide precedents: cf. art. 37 of the Egyptian Law of Testamentary Dispositions, 1946, and art. 1 of the Sudanese Judicial Circular No. 53 of 1945. See ‘Recent Developments VI’, pp. 33–6.Google Scholar
page 56 note 5 For a discussion of this topic, see ibid., pp. 40 and 41.
page 57 note 1 For discussion, see ibid., pp. 36 and 37.
page 57 note 2 Whose view has been adopted here for Sunnīs in general.
page 57 note 3 Presumably because even such relics of slavery are regarded as too remote in 'Irāq to-day. Sed quaere.
page 57 note 4 For a discussion, see ‘Recent Developments in Sharī'a Law VII’, The Muslim World, 04, 1952, pp. 1 and 2.Google Scholar
page 57 note 5 This is a Ḥanafī distinction.
page 57 note 6 For a brief discussion, see ‘Recent Developments VII’, pp. 139–140.Google Scholar
page 57 note 7 Contrast the recent Egyptian legislation: see ‘Recent Developments VII’, p. 133.Google Scholar
page 58 note 1 While for the corresponding, but different, Sunnī doctrine reference must be made to article 61 above (see p. 51).
page 58 note 2 Here the text reads ‘before’; but this is clearly a mistake.
page 58 note 3 By the doctrine of istiṣḥāb, on the Ja'farī and afi'ī interpretation.
page 58 note 4 This represents Abū Yūsuf's fatwā, which has been widely followed.
page 59 note 1 For while the Sunnīs have regard to the minimum period of gestation where the infant's parents were still married when the propositus died, they have regard to the maximum period from the date of death or divorce in all other cases: whereas the Ja'farīs make no such distinction, and always apply the minimum period if pregnancy was not believed to have begun, and the maximum if it was.
page 59 note 2 Arts. 21 and 22. See ‘Recent Developments VII’, p. 125.Google Scholar
page 59 note 3 This is attributed in the Sirājīya to Ibn 'Abbās. It is contrary to normal Ḥanafī practice, and to article 46 of the Egyptian Law of Inheritance, 1943.
page 59 note 4 This represents a disputed point in the Ja'farī doctrine: for on one view qua si-deliberate homicide is to be equated with deliberate homicide in this respect; on another it is to be equated with accidental homicide; while on a third various distinctions are to be introduced.
page 59 note 5 Art. 130.
page 59 note 6 Art. 134.
page 60 note 1 Art. 134.
