narrative about legal transformation as much as it is about political, social and economic changes in the context of colonialism in Iraq. Nevertheless, historians of Iraq have never really taken the law seriously. The role of (colonial and semi-colonial) law in the transformation and the imposition of underdevelopment or what has been referred to as ‘semi-feudalism’ of Iraq is of vital importance to grasp the manner in which it happened, and yet most explanations tend to privilege a purely economic or political narrative, whether it is reliance on modernization theory, dependency theory or its critique of ‘Political Marxism’ a la Robert Brenner. Let us take one
tenure. Meek points this out when he wrote: ‘…the words ‘in theory’ or ‘theoretically’ have frequently been employed to square the presuppositions with facts. Time and again there appear such contradictions…’ See C.K. Meek, Land Law and Custom in the Colonies, (London: Frank Cass & Co, 1968), at 12.
176 TNA. ‘Note on law by Webster, former inspector-general of agriculture’ in FO 624/1428/7 (22 Dec. 1933), as quoted by Sassoon, supra, ft. 137, 169.
177 See al-Jawahiri, supra, ft. 161, at 350.
178 See Why Labour Leaves the Land: A Comparative Study of the Movement of Labour Out of
Agriculture, (Geneva: International Labour Office, 1960), at 160.
179 Critchley, A. Michael. “The Health of the Industrial Worker in Iraq,” British Journal of industrial
example from the classic Marxist work of Hanna Batatu, who seems to view the law as of mere secondary importance to social and economic ‘forces’ in understanding the transformations that occurred in Iraq. In referring to the 1932 land policy and the land settlement law, he wrote the following, ‘This policy amounted to a legal recognition of a process that had been taking place for a good many decades in Iraq’s countryside: the usurpation by the shaikhs and aghas of the communal tribal domain, their disposition of weaker neighbors, and their encroachments on virgin state land.’180 Considering Law No. 28 of 1933 he wrote, ‘…fortunately for [the peasant]…it has never been the custom in Iraq to enforce laws wholeheartedly, and anyhow legal
enactments could not in the long run have checked a movement that social reality itself impelled’.181 First, it is clear that Batatu’s definition of law is narrowly defined as a ‘legal enactment’ of certain political and economic processes occurring in social reality that could only be considered effective if properly enforced. Furthermore, law is treated as merely auxiliary to such historical transformation. In other words, his definition is confined to an instrumental and functionalist understanding of law.182 But what is more interesting for our purposes is his suggestion that what happened in rural Iraq could have happened without the law. This is an astonishing assertion considering the prevalence of law in the overall historical narrative that I’ve described above.
Batatu seems to believe that law should be considered as being separate from the social and political processes of transformation in history. However, law is so much more complex and nuanced than he suggests, for as E.P. Thompson emphasized in his study of the Black Act of eighteenth century England, ‘law was deeply imbricated within the very basis of productive relations, which would have been inoperable without this law’.183 In the same way, I would argue that the entire transformative process in Iraq described above and the imposition of a semi-feudal system of large landlordism (especially in the South and referred to as the ‘iqta system) could not have occurred and would have been ‘inoperable’ without the law. Moreover, the law was a part of the processes of transformation from the very beginning, whether it was during the Ottoman period or afterwards when the British arrived. In this sense, the law is more than merely an instrument of class (or state) power or mere ideology (which of course it is), but returning to Thompson, ‘class relations were expressed, not in any way one likes, but through the forms of
180 Batatu, supra, ft. 41, at 110. 181 Ibid, at 133, my emphasis. 182 See Robert W Gordon. “Critical Legal Histories”, (1984) Stanford Law Review, 36:57. 183 E.P. Thompson. Whigs and Hunters: The Origin of the Black Act (London: Penguin Books, 1975), at 261.
law; and the law…[therefore] has its own characteristics, its own independent history and logic of
evolution.’184
The role of law in analyzing Iraqi history therefore must not be dealt with as ancillary to other ‘forces’, for the fact that law is a part of the superstructure does not preclude its significance in relation to the economic base. The law might not be determining per se, but it is surely structurally and ideologically pertinent to the transformation in question, especially when it comes to the colonies and I would argue even more so in the semi-colonies, like Iraq. As Peter Fitzpatrick has argued, ‘law and state have a role that is more structurally central and structurally enduring in the third world,’ that is, in the colonial and semi-colonial context.185 This is because it is the law that ensures that the traditional mode of production is preserved and kept somewhat intact within a capitalist system, which if left to its own devices would completely destroy it. In other words, since these two modes – the traditional and capitalist – cannot be integrated ‘naturally,’ they must be integrated into ‘an operative combination’ by law and the policies of the state.186
The Iraqi economist Mohammed Oboosy has argued that the underdevelopment of Iraq emerged from the ‘primitive and semi-primitive methods of production,’ which in turn caused the economic structure to become overly ‘inflexible,’ further afflicting the economy with scarcities, ‘bottlenecks’, and ‘retarding’ any development plans.187 If one were to extend our analysis into this economistic argument, it becomes clear that a study of the law would certainly explain how this structural inflexibility was initiated, extended and maintained in Iraq on the ground. An extensive analysis of law in these circumstances of underdevelopment must be taken more seriously and given its proper due if one intends to get a complete understanding of the transformative nature of colonialism and imperialism in the semi-colonial Middle East.
184 Ibid, at 262. 185 Peter Fitzpatrick. Law and State in Papua New Guinea, (London: Academic Press, 1980), at 36. 186 Ibid. 187 Mohammed Jawad Oboosy. “A Study in the Theory of Economic Underdevelopment With Special Reference to Iraq,” Middle East Economic Papers, 15:2 (Beirut: American University of Beirut, 1958) at 136, 148.
VII. Conclusion
This chapter was generally an attempt to put the law at the center of the early history of socio-economic and political transformation of Iraq. The British imported certain colonial administrative and legal techniques from the North-Western Frontiers to secure their imperial interests and produce a semi-colonial Iraqi state. In so doing, they constructed an unstable positivist duality in Iraqi state law, which divided the country into two legal jurisdictions, one for the townsman and another for the tribesman. This in turn brought about the invention of a unique and modern tribal and customary law. Moreover, this duality, alongside a British land tenure policy, which institutionalized capitalist relations of production, contributed to some enormous changes in the countryside, structuring deep inequality in Iraqi society. First, it created a specific class of shaikhs who would become dependent on British patronage for their power, while their tribesmen were transformed into bonded serfs. Second, it ensured that land would be concentrated into the hands of a handful of landowners, contributing to the making of a highly exploitative (semi-feudal) capitalist system of production, and eventually forcing many of these miserable peasants to migrate into the slums of the urban cities and become wage earners. It is therefore quite clear from the narrative above that without the British uses of the law and certain legal techniques and instruments, most of these structural changes would not have emerged in the way that they did.