There are about two hundred countries in the world, and in each of them, there is a regulator of public relations – law, with its own characteristics, due to factors inherent in a particular state. The relevance of studying different legal systems is due to the fact that as globalization develops, relations between peoples and their legal systems deepen and expand. In this regard, the purpose of this paper is to compare the legal system of the US and Iraq.
The US legal system, belonging to Anglo-Saxon law, includes as its main sources customs and traditions: legislation, which is called statutory law and case law, is created by the courts. The norms of the law enter the system of law only after they are repeatedly interpreted by judges. American courts refer not to laws, but to the judicial decisions in which they were applied. However, the US Supreme Court and state appeals courts do not consider themselves unconditionally bound by their past decisions (Johns et al. 34-37). Moreover, one should also note the influence of the US federal structure on the legal system.
Within the limits of their competence, which is significant enough, the states create their own legislation and their numerous precedents. Despite the importance of federal law, citizens and lawyers primarily exercise state law (Johns et al. 57). The jurisdiction of the courts of each state is carried out regardless of the jurisdiction of another state. Decisions made by courts of one state may be completely different from decisions of courts of another state in the same case. The situation of making completely opposite decisions by courts of different states in similar cases is frequent.
One of the most important features of the US legal system is the control of courts over the constitutionality of laws. Supreme Court and Supreme Courts of states may declare a law unconstitutional. Moreover, any court decision may be annulled if it is found to be contrary to the constitutional norm. This principle is evidently different from the Iraq legal concept, determining legitimacy of any law primarily by the extent of its correspondence to Qur’an and Sunnah.
The legal system of Iraq differs from the American conceptually, as the Constitution states that Islam is the official religion of the state and the main source of legislation (no law can be adopted if it contradicts the basic norms of Islam). Thus, the Islamic law system has a pronounced religious coloring. It is based on legally relevant provisions of the Qur’an, as well as the Sunnah, and the norms formulated by the Muslim legal doctrine based on “rational” sources, primarily the unanimous opinions (Ijmas) of the most respected jurists (Chibli 26). The Muslim doctrine is used as a subsidiary source of law.
Iraqi civil law most clearly reflects the mixed nature of its legal system. Its main source is the Civil Code, containing rules on property rights and obligations only. With a gap in the norms of the Law, the principles of Islamic law should be used, that is, conclusions of the Muslim legal doctrine. Due to the wide scope for its interpretation by authoritative jurists and the freedom of judicial discretion in choosing norms, the law of Iraq is extremely flexible, well adapted to the changing conditions of modern life, while ensuring a close connection with historical traditions and maintaining its high sacred authority. Regarding its flexibility and diversity, Iraqi law is to some extent comparable to the US legal system with its difference on the states basis, while being fundamentally different in its constitutional and political foundation.
A comparative analysis of the legal systems of the US and Iraq clearly shows that the legal system is a concrete historical combination of law, the legal ideology of a particular state, and legal practice. Also, the legal system is a holistic complex of legal formation, realization of law, and legal consciousness. Among the sources of the US (Anglo-Saxon) law, as an independent source, reason stands out, while in Iraqi (Muslim) law, the only source is represented religious dogmas.
Chibli, Mallat. Iraq: Guide to Law & Policy. Aspen Publishers, 2009.
Johns, Margaret Z., et al. The United States Legal System: An Introduction, Fourth Edition. Carolina Academic Press, 2016.