THE BASIS FOR JUDICIAL REVIEW IN THE FEDERAL SUPREME COURT IN IRAQ: MEDIATING BETWEEN DEMOCRACY AND HUMAN RIGHTS THROUGH ISLAM'S SETTLED RULINGS

This dissertation concerns Article 2 of the Iraqi Constitution of 2005, which states that Iraq is a modern Islamic constitutional democracy. The Article contains what is commonly referred to as a "repugnancy clause,” which prohibits the enactment of any law that is contrary to Islam's settled rulings, the principles of democracy, and the rights guaranteed in the Constitution. The repugnancy clause allows the constitutional court to invalidate laws that violate the constitution and uphold laws that do not. Currently, the Iraqi Federal Supreme Court’s method for determining whether or not a particular law is repugnant to the Constitution and Islamic settled rulings as per Article 2 is inconsistent and arbitrary. The core question in this dissertation is: What is the best way to successfully implement the Repugnancy Clause of the Constitution of Iraq? I propose an approach that focuses on the classical Islamic concept of the Maqasid, an Arabic word that means intent, purpose, or objectives of Sharia. This approach will also fulfill the two other main purposes of Article 2 referred to above, which are to ensure that the law is also consistent with the principles of democracy on the one hand and the principles of human rights on the other hand.