Translated from Arabic by : Teeba Haitham Abdulhousain
There is no doubt that custom is one of the official sources of law and that its existence preceded the existence of written law. In ancient societies, there were no written laws except for a few, so custom was what governed disputes in that era.
Today, with the development taking place in human societies, the emergence of writing, and the issuance of many written laws and legislations, which are considered the primary source of law, we had to know the extent to which the persistence of many of these customs and traditions has affected these legal texts and whether their persistence has a positive or negative effect?.
Certainly, customs play two different roles in the field of law. The first is positive, through which many legal rules were formed, and the other is negative, represented by some incorrect (corrupt) customs that act as an obstacle to the application of legal rules, including, for example, some tribal customs in Iraq.
Here we will shed light on the negative side of customs, especially some tribal customs, and we will talk about them in four paragraphs. The first is related to the concept of custom and tribal customs. The second is about a historical overview of the existence of tribal customs in successive Iraqi laws. The third is the position of the current Iraqi constitution of 2005 on tribal customs. The fourth is about the extent to which tribal customs conflict with the principles of criminal law.
The concept of custom and tribal customs.
To reach the true concept of custom, we must refer to its concept in language and terminology...
Custom in language:
In English Custom (of doing something) is the accepted way of behaving or of doing things in a society or a community.
The word custom appeared in Arabic dictionaries with several meanings and was used by Arabs in everything that is the opposite of evil.
Custom in legal terminology:
Scholars have discussed many definitions of custom, as these definitions differed according to the point of view of that scholar. Among those definitions is the definition of A-Jurjani: “Custom is what souls have settled upon through the testimony of minds, and natures have accepted it.
Al-Zarqa’s definition of custom is “the practis of a people, in word or deed.” The definition of custom by the French jurist Planiol is “that law which was never issued by a legislative body; it consists of rules of habit, which were formed little by little over time.” In general, the best definition of custom is the one that includes the material and moral elements of custom, as if we defined it as a behavior that people continue to do for a long time until they believe that this behavior has become binding. In the first part of this definition, the material element represented by the behavior is clear, and the other part refers to the moral element represented by the belief in the binding nature of this behavior.
Tribal customs:
As for tribal customs, they mean that the tribes are accustomed to certain behaviors in dealing with each other, as they consider these behaviors binding in organizing their relationships. Examples of tribal customs include what is called (al-Fasliya), and the concept of this custom is that in the event of disputes between the tribes, they are resolved by the tribe presenting women for marriage, and this marriage is forced upon those women without their consent.
Another example of tribal customs is what is called (al-Nahwa). This custom is based on that if a woman is asked to be married from anyone, her cousin can prevent her from marring anyone other than him. Another custom is (vengeance), which means that if a member of the Tribe commits a certain mistake, such as murder, for example, the Tribe of the murdered person can take revenge on the murderer or one of his Tribe members.
These customs are among the most prominent examples of tribal customs, as there are other customs that we do not have time to mention.
A historical overview of the existence of tribal customs in successive Iraqi laws.
When Iraq was under British occupation, the British commander issued the Tribal Claims System of 1918—in English and translated into Arabic inaccurately—by which tribal customs and traditions related to disputes were transformed into legal rules, and the Minister of Interior at that time was authorized to implement it, and its texts acquired the status of law under Article 114 of the Iraqi constitutional Law issued in 1925.
The system divided tribal lawsuits, disputes and conflicts that occur between members of tribes into three categories:
The first section is the jurisdiction of the judiciary, where the courts are responsible for adjudicating it. The second section is the authority to adjudicate it by the British governor and his assistants. As for the third and final section, it is considered by the tribal council, which means that the council is responsible for a few tribal lawsuits.
The system at that time stipulated many conditions for the cases that the council would consider. Among these conditions was that the council would only consider the case that the Governor or his assistants approved, as they were the ones with the authority to refer the case to the council. They also had the authority to cancel or overturn the council’s decision, the authority to acquit the accused even if the council decided to convict him, the authority to reject the council’s decision to oblige the person proven to be liable to pay the reperations ,and the authority to transfer the case to another tribal council, in addition to other authorities and powers that make the council’s jurisdiction very limited.
The tribal lawsuit system was abolished after the establishment of the republican regime by Republican Decree No. 56 of 1958, published in the Iraqi Gazette 3 on 3/8/1958. From this, we note that this system was applied during the period of British rule and the monarchy Iraqi era only.
As for the current laws, tribal customs were mentioned in the current Iraqi Constitution of 2005, in detail, which will be mentioned in the following paragraph.
The position of the current Iraqi Constitution of 2005 on tribal customs.
The position of the Iraqi Constitution was clear and explicit regarding this issue, as Article 45, secondly, stated the following: The state is keen to advance the Iraqi tribes and clans and care for their affairs in a manner consistent with religion and law, and enhances their noble human values in a way that contributes to the development of society and prevents tribal customs that conflict with human rights.
Through this text, we notice that the constitution has prohibited tribal customs that conflict with human rights. The idea of al_ Fasliya certainly conflicts with human rights, as it is not permissible to consider women as a commodity and give them in marriage to resolve disputes between tripes. The same applies to killing an innocent person who did not participate in the crime simply because he is from the same tripe as the killer. The same applies to the Nahwa, as no one may prevent a woman from marrying without a reasonable justification.
The extent to which tribal \ustoms conflict with the principles of criminal law.
Tribal customs conflict with many principles of criminal law, such as the principle of personal punishment, where, as we mentioned, a person can take revenge on members of the tribe regardless of whether he committed the mistake or not. This is inconsistent with the principle of personal punishment, which requires that punishment be imposed on the perpetrator only.
It does not extend to others, and these customs conflict with the principle of judicial punishment, as this principle requires that punishment be imposed by judges in the courts.
These customs also contradict the principle of the legitimacy of the penal text (no crime or punishment except by text), as no one may criminalize acts and impose penalties that are not mentioned in the Penal Code No. 111 of 1969, as amended. Some of these customs also permit a husband to kill his wife merely on suspicion of her infidelity, which contradicts the principle that the accused is innocent until proven guilty, and accordingly, punishment may not be imposed on the basis of mere suspicion, as the Penal Code requires that in order to mitigate the husband’s punishment, the husband must be certain of his wife’s infidelity. Note that these principles, in addition to being criminal principles, are also constitutional principles and may not be violated.
In conclusion, I must emphasize that most Iraqi tribes have abandoned these customs, but some tribes remain committed to them, which requires taking decisive decisions in this regard, stopping holding the stick in the middle, and taking a serious stand against these customs to prevent legal violations.
Sources:
Politics and Law Notebooks, Issue 15, Chapter: Tribal Customs in the Light of the Iraqi Constitution and Laws, p. 627.
Al-Turath Magazine: The Sultan of Custom and Its Influence on Laws, p. 128.