Ornamental Repugnancy: Identitarian Islam and the Iraqi Constitution

Nearly six years after the enactment of Iraq’s final constitution, the Federal Supreme Court of Iraq has yet to render a single ruling respecting the conformity of any law to the “settled rulings of Islam” despite being empowered to do precisely that under Article 2 of the Iraqi Constitution. This so-called repugnancy clause is swiftly devolving from a matter that was of some importance during constitutional negotiations into one that is more symbolic than real – an assertion of identity, primarily of the Islamic variety (though when combined with Article 92, to some extent of the Shi’i Islamic variety) – more than a phrase of legal substance. Iraqis appear to have reached a careful, unspoken consensus, that irrespective of the extent to which Islam or Islamic law is to be relevant in Iraq, the judiciary is not the institution best equipped to address questions of Islamicity of law, and thus Article 2, and indeed the very notion of repugnancy, is, at best, marginal in terms of its legal effect. The purpose of this Article is to explain how this came to be