Personal Status law is the term applied to those provisions in a state’s constitution that refer to the areas of marriage, divorce, custody, and inheritance. In many countries these laws are constructed as part of a secular, civil code, with independent courts adjudicating disputes. Historically women have been much more sensitive to personal status laws, also referred to as family law, because of their position in the household as caregivers and matriarchs. The laws that pertain to personal status in Iraq have undergone three main periods of transformation; in pre-Gulf War Iraq, the original law of personal status was set in place on December 30, 1959; several of the provisions (articles) were then amended, a few dropped, and several more added throughout the 1970’s; post-Gulf War Iraq was a crucial turning point in the transformation of the code when women began to see a decline in their personal status rights; the laws were altered yet again as a consequence of the U.S. led invasion in 2003 and the drafting of a new Iraqi Constitution. By looking at these three time periods and the prevailing political atmospheres, we can then see the negative transformation and state manipulation of the personal status law. The future of the status of women in Iraq and their rights as recognized in a personal status code will also be discussed. It will be clear from this examination that while women have been successful in exerting some influence on laws of personal status in Iraq, more often than not the laws have been manipulated as a political tool by those in power, irreverent of the needs or wants of the country’s female population.
It is important to consider the development of international human rights perceptions in relation to the current debate in the Middle East. The purpose of this framework is to provide a foundation from which we can understand the source of significant tension between Shari’a Law and Personal Status Law.
Human rights formed in the West during the European Enlightenment. The idea that “the rights of the individual should be of paramount importance in a political system” emerged and the emphasis on “individualism, humanism, and rationalism” (Mayer, 44) is the basis for contemporary international human rights principles. These Western foundations do well to explain the cause of tension between the West and Islam over human rights but to understand where the source of tension lies, we must look at Islam as an institution.
Islam is the cornerstone of Middle East culture and tradition. Regardless of modernization efforts, Islamic primacy still remains. The dominance of religion affects all aspects of life including the human rights discourse and, as a result, the Muslim position on human rights is complex. “Muslims do not have a common belief about what the Islamic position on human rights is or the relationship of their cultural tradition to international human rights norms” (Mayer, 11). The Middle East, by nature, is a deeply penetrated region dealing with the impact of Western persuasion throughout its history. Human rights concepts are just another standard that the Middle East has had to assimilate and apply to their countries. However, these concepts are also part of accepted international law and by acknowledging “international law as the law of nations” (Mayer, 12), Muslims are bound to these norms. Thus, Muslim rejection to international human rights on the basis of Islam is contradictory.