Abstract

0 Normal 0 false false false EN-US X-NONE X-NONE /* Style Definitions */ table.MsoNormalTable {mso-style-name:Table Normal; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-priority:99; mso-style-qformat:yes; mso-style-parent:; mso-padding-alt:0in 5.4pt 0in 5.4pt; mso-para-margin:0in; mso-para-margin-bottom:.0001pt; mso-pagination:widow-orphan; font-size:11.0pt; font-family:Cambria,serif; mso-ascii-font-family:Cambria; mso-ascii-theme-font:minor-latin; mso-fareast-font-family:Times New Roman; mso-fareast-theme-font:minor-fareast; mso-hansi-font-family:Cambria; mso-hansi-theme-font:minor-latin; mso-bidi-font-family:Times New Roman; mso-bidi-theme-font:minor-bidi;} This Article addresses this omission with a review of Iraqi judicial practice over the past half decade. The Article argues that Iraq's judiciary is generally (though not entirely) independent of overweening executive influence, and its rulings are generally (though not entirely) heeded by the political classes and the broader polity. As such, most centrally, this Article maintains that the judiciary's emerging practice does not differ from contemporary scholarly accounts of the history of the United States Supreme Court . Or, better stated, the differences are of degree rather than quality. This Article does not suggest that a nation unable to form a government until more than eight full months after elections were held precisely for that purpose is particularly stable. Nor should one be excessively sanguine about Iraq's future simply because of its largely effective judiciary. Nevertheless, the story of the Iraqi judiciary is largely a reassuring one to date, and any suggestions to the contrary arise either out of a failure to appreciate the extent to which Iraq's judiciary is both independent and respected, or perhaps more commonly, out of a failure to understand the nature of the judicial task in any nation, be it emerging or developed, Iraq or the United States. This Article proceeds in three parts. Part II addresses the independence of the Iraqi judiciary from direct executive interference, and provides limitations on the thesis that the judiciary is able to work largely without threat of reprisal from the executive. Part III deals with the legitimacy of the judiciary's decision making and the broad (though by no means unlimited) extent to which its rulings are heeded by other political institutions and the broader public. Part IV acknowledges that the Iraqi courts, particularly at the higher level, perceive themselves as constrained enough to proceed cautiously and carefully. They are therefore anxious to issue rulings that will not be broadly rejected by the political classes, and they do not desire to enter into divisive disputes that could lead to a loss of the judiciary's prestige. Part IV goes on to argue that, far from being some sort of anomalous example of judicial failing, the Iraqi judiciary is, in so doing, conducting itself precisely as any judiciary would, including that of the U.S. Supreme Court-at least according to contemporary scholarly accounts, particularly that of Barry Friedman's The Will of the People .

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