The Resolution of Disputes in State and Tribal Law in the South of Iraq

Abstract

Do we wish to have more disputes enter the official system and proceed further toward definitive resolution? Is the utopia of access to justice a condition in which all disputes are fully adjudicated? Do we want a world in which there is perfect penetration of norms downward through the pyramid so that all disputes are resolved by application of the authoritative norms propounded by the courts? We know enough about the work of courts to suspect that such a condition would be monstrous in its own way. – Marc Galanter If every working matter comes to the law, believe me, neither the Iraqi courts nor the religious authorities could handle it … There are a lot of things the state doesn't know, and we solve it among ourselves mutually. … What, every suit, every working matter is going to go to court? – Shaykh Mazen Falih Muhammad Al-'Araiby If we adopt a conventional, but by no means unchallenged, definition of legal pluralism as the existence of two or more legal systems operating within the same social field, is it necessarily the case that these legal orders are in perduring and well-nigh irresolvable conflict? Based on our own work among Iraq's Shi'i tribes, we answer the question emphatically in the negative, and assert that more attention needs to be paid to the possibilities of some form of cooperation between seemingly inconsistent legal systems. Although these have been discussed before, all too often the study of the relationship between state and non-state law presumes a high level of competition that may well be accurate in some contexts, but is fundamentally misplaced in others. Our work in Iraq has demonstrated that far from resenting state law, or regarding its rules as ineffective, alien or inferior, Iraq's Shi'i tribes often embrace Iraq's state law, and quite often regard the tribal law as being in broad cooperation with it in the maintaining of order within their respective social field.

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