The Crisis of Constitutional Reference in Iraq's 2005 Constitution: Between the Concepts of Islamic Immutables and Democratic Principles as Two Sources of Law

Document Type : Original Article

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10 Rue du Général Mignot

10.22091/ijicl.2026.15901.1248

Abstract

Article 2 of Iraq's 2005 Constitution establishes a structurally unstable normative architecture by enumerating two parallel sources of legislative validity—"the immutable provisions of Islam" (thawābit aḥkām al-Islām) and "the principles of democracy" (mabādiʾ al-dīmuqrāṭiyya)—without supplying a hierarchical ordering, a definitional anchor, or an institutional adjudication mechanism for managing their inevitable collisions. This article diagnoses the constitutional reference crisis that this dual-source clause has produced, traces its three foundational defects in the Islamic-source provision and four in the democratic-source provision, and proposes a methodological solution grounded in what the author terms the System of Lisān and Taʾwīl: a framework that treats the Qurʾānic text as a structural-linguistic source operating independently of doctrinal mediation, governed by tawqīfī (textually constrained) rather than iʿtibārī (conventional) interpretive rules. The argument unfolds in three parts. The first part anatomizes the constitutional clause and exposes the conceptual incoherence introduced by the term "immutables." The second part examines the parallel incoherence in the term "democratic principles," which the constitutional text invokes without specifying which democratic school it adopts. The third part presents the methodological solution and its institutional implications, including a proposed redrafting of Article 2 and the creation of a Constitutional Interpretation Commission empowered to operationalize the System of Lisān and Taʾwīl. The article concludes that Iraq's constitutional crisis is not a textual deficiency but a methodological one, and that its resolution requires neither the abandonment of the Islamic reference nor the abandonment of the democratic reference, but a structural reframing of how each is read.

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Iranian Journal of International and Comparative Law

Articles in Press, Accepted Manuscript
Available Online from 10 October 2026

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