The problem of constitutional regulation of tribal custom in Iraq

Abstract

Abstract: Tribal custom in Iraq constitutes a complex legal and social phenomenon that coexists with and interacts with the formal legal system. Iraqi society is characterized by its ethnic, sectarian, and cultural diversity, which has contributed to the survival and development of tribal customs as an important source for resolving disputes outside the framework of state authority. The practice of tribal custom has continued despite the various circumstances and policies that Iraq has experienced. During the Ottoman era, it witnessed limited control and implicit recognition of customs, and partial codification through the 1916 Tribal Disputes Law during the British occupation. Under the monarchy, there was constitutional recognition of tribal courts and their organization. However, under the centralized republican regimes, there were attempts to undermine tribal influence and customs. Finally, after 2003, tribal influence returned and moved towards constitutional organization to ensure that tribal customs are not practiced outside the formal legal and judicial framework, which could create a legal duality that weakens the state\\'s authority. The 2005 constitution was distinguished by its balanced approach towards tribes and the possibility of The legislator has several options for codifying tribal custom, such as total regulation by a special law that unifies the customs and purifies them from practices that violate the constitution under judicial supervision and ensures that it is not applied in serious crimes, or adopting partial regulation by integrating the accepted customs into the existing legislation and activating effective legal mechanisms with the contribution of specialists in tribal custom, taking into account the diversity of customs among tribes and ensuring that they do not violate constitutional principles or infringe upon basic rights and freedoms.