The 2005 Iraqi elections and law: a positivist tale.

INTRODUCTION

IN CONTEMPORARY SOCIAL-POLITICAL circumstances the discourses of science and economics--based on experience, observation and perception--continue to dominate the production of truth. For politics and law this suggests the privileged position of those who understand the social as materiality and the law as a mechanism. The 'law' in particular is therefore approached as posited by the legislator, recorded and dated, backed by the might of the state and, in application, observed and measured in a scientific manner. In terms of its relation to politics, law is seen as a means of manipulation, or engineering of "societies" that are, in turn, understood as devoid of spirit e.g. as momentarily coherent measures of utility. In this article, I begin by engaging just such a positivist view of post-invasion Iraqi electoral "law," notwithstanding the many powerful criticisms to which the politics and epistemology of positivism have been subjected. This is not out of personal conviction over the value of positivism which can declare Iraq's sovereignty restored or out of indifference for human suffering. Rather my intention is to point out, first, how the occupiers' commands as to how the Iraqi elections should be held can only be considered "law" by relying on legal positivism's reductionist and fiction-based view of law as a "morally-neutral" tool. Second, I intend to show how said positivism both serves the logic of social engineering that is inherent in "nation-building" and manifested in the electoral rules, by legitimating it without concern for the impact of the rules' substance on post-Saddam Hussein Iraqi political life. Third, by discussing the relevant commands as if they are indeed "legal rules" I will avail myself of wider lessons from the literature on electoral law design and thus, gain insight as to the impact the people who selected the Iraqi electoral rules expected them to have.

IRAQ, ELECTIONS, DEMOCRACY

Let me begin with a certain uncertainty. There is little doubt that to see the ongoing Iraqi electoral process as part of a democratization process entails belief rather than reason. A quick way of ascertaining this is to rely on the technical literature on the use of electoral law design as a means of drastic political reconstitution. Indeed, since modernity is characterised by the prevalence of empirical over speculative thought, what better "authority" on the matter of the relation between elections and democracy, than a publication entitled Electoral Systems for Emerging Democracies published by the Ministry of Foreign Affairs of a post-industrial wealthy country which was destined to become part of the "coalition of the willing." Published in 1997 by the Ministry of Foreign Affairs of Denmark, Electoral Systems for Emerging Democracies, is characterised by a sharp contrast between the programmatically charged title's summary reference to "emerging democracies" on the one hand and the scholarly empirical content's use of the much more cautious term "transitional polities" throughout on the other hand. In sum, the title misleads as to the main double message of the book which is, first, that "transitional polities" is merely a shorthand for a wide spectrum of societies in varying degrees of political (dis-) organisation in which appeals to "democracy" are made, and, second, that while the periodic holding of elections is a necessary condition for the establishment of representative democracy, elections by themselves do not guarantee a successful transition to democracy (Barkan 1997). In sum, the publication's contributors reiterate an established view that "elections per se do not a democracy make" (Karl 1986, Barkan 1993).

Thus, in this essay, I remain unsure as to whether Iraq is or is not on its way to liberal democracy, irrespective of the relative success of elections and the constitutional referendum and despite assurances such as G.W. Bush's, offered in his 23rd September 2003 Address to the Nation, "America has done this kind of work before. Following World War II, we lifted up the defeated nations of Japan and Germany and stood with them as they built representative governments." Apart from this "certainty over uncertainty," however, post invasion Iraq continues to constitute quite a classificatory challenge. While it is preferable to call Iraq a "transitional polity" than an "emerging democracy" we must bear in mind that the former, seemingly abstract term was historically developed with quite specific cases in mind. Thus, on the one hand it seems a wide enough term to cover all sorts of political systems where the socio-economical and political environment is very different from that in post WWII Germany or Japan and certainly contemporary liberal industrial established democracies (Barkan 1997). Indeed, Iraq displays all of the relevant features noted by Barkan, being an agrarian and peasant-based society, a plural society and a society where political interests are identified geographically. On the other hand however, Iraq must obviously be distinguished from Cambodia, Mozambique, Nicaragua, or South Africa and all other "transitional polities" that experienced the reconstitution of their political systems following periods of civil war and the collapse of the state. Post-invasion Iraq is unlike the former USSR or contemporary Egypt each of which has been going through various stages of transition from authoritarian to democratic rule that may or may not complete their transition and where the incumbent regime presides over the transformation. In sum, the fact that "regime change" in Iraq was primarily an accomplishment of "non-Iraqis"--be it in the sense of foreigners or in the sense of unwilling Iraqi citizens--matters enormously, in that it occurred as simultaneous assaults on the Iraqi nation-state's sovereignty and also in that the ensuing political vacuum, which was initially entirely filled by occupation rule, is being seen not only as an opportunity for democratization but also, perhaps primarily, for the federalization or even dissolution of the Iraqi state, similar to what happened in the case of the USSR/CIS.

LEGITIMIZATION OF THE IRAQI ELECTORAL PROCESS CIRCUMVENTS INTERNATIONAL LAW

Positivist jurist Hans Kelsen, famous for his so-called "Pure Theory of Law," believed in law as science. According to his theory, legal "scientists" (in which he included both scholars and practitioners, an inclusion that has remained problematic) can point out the law in a morally neutral way on the basis of two social facts. The first fact concerns the existence or non-existence, in a given society, of a legal system that functions efficaciously as a whole. The second social fact turns on whether individual rules, say the rules over elections, are part of this legal system or not. That, according to positivists, depends on whether a given rule can be traced to an authorized social source, all the way back to what Kelsen called the "basic norm" the existence of which must necessarily be presupposed by the legal scientist as a fiction. The theory's seductive aspect is that, provided such a basic norm exists in the consciousness of lawyers in a country whose legal system functions as a whole, they can point to, and talk about, the law "objectively," namely as if they are subjectively detached from its content and function in a given socio-economical context suggesting the normative character of law without necessarily believing in its moral validity.

In what follows I will endeavour to look at Iraq's electoral law in a "positivist" spirit which may require me to be rather schizophrenic. On the one hand my task entails reference to the various texts that have served as post-invasion Iraq's electoral law. Whether I can use the word "law" depends on whether these texts are in any way connected to an efficacious legal system of post-invasion Iraq as well as presupposing their fictitious authoritative social source. There are two problems here. First, I have not found anyone, sociologist or other, who can assure me that in the aftermath of its invasion and occupation, Iraq has had a legal system which functions "efficaciously as a whole." If, as a good legal positivist, I claim this question of fact to be for others to answer, you may think that I should desist from making any study of texts that have been referred to by others as post-invasion "Iraqi law," including electoral law, or whatever I say is as good a source of information as anybody's opinion. In typical positivist spirit therefore, I will leave this problem unresolved. The second problem however, is easier for a positivist to tackle. All I have to do is to presuppose a fictitious "basic norm" or, more gaily, a "bing bang" of post-invasion Iraqi legality--and proceed to "trace" the genesis of each electoral rule back to this mythical source. Of course, given that the legitimating source in question is a product of my imagination, the verb "to trace" is a misnomer for "constructing" a link between electoral rules and their source a posteriori. Let us call this process my contribution to the legitimation of post-invasion Iraqi electoral law which, of course as everyone knows but I will need to forget, leads back not to a 'bing bang' of legality, but rather a literal bang, an act of violence and illegal warfare. Now lets see how this is at all possible.

Indeed, the genealogy of legitimating the Iraqi electoral process might serve in the future as a particularly vivid example of how the "law of the mightiest" was being turned into national law via becoming the "law of nations" (this formulation is of course a tautology since the latter is ultimately, just the institutionalised expression of the former). On July 13, 2003, following the invasion and occupation of Iraq that a huge majority of authorities including the UN Secretary General have deemed illegal, the Coalition Provisional Authority Administrator, U.S citizen L. Paul Bremer, appointed unilaterally, a so-called Iraqi Governing Council (IGC). Could this be our "bing bang" of legality or Kelsen's "basic norm"? The next month the UN Security Council referred to this body in resolution 1500, as "broadly representative" and an "important step towards the formation by the people of Iraq of an internationally recognised, representative government that will exercise the sovereignty of Iraq." Therefore resolution 1500 provided a first step towards transforming in our imagination an act of illegal warfare and destruction of a sovereign nation's legal system into a bing bang of legality in post-invasion Iraq. Notice however, that the mandate that this resolution envisages for the new institution is much less than what has since happened. Resolution 1500 is not authorizing the replacement of Iraq's pre-invasion legal system with a new one but administering it. Consequently the appointment of the IGC cannot serve as a "basic norm" since the latter must be traced in the pre-invasion constitutional history of Iraq. It appears however, that the occupying forces that appointed the IGC did not have much sympathy for positivist jurists who, although committed doctrinally to stay disinterested in matters political, were having difficulties presupposing the appointment of the IGC as the 'basic norm.' Thus on March 8th of 2004, the IGC proceeded to issue an interim Constitution, or the Law of Administration for the State of Iraq for the Transitional Period (TAL), which reconfigured the parameters and players in the currently ongoing political process in Iraq. This "law" in quotations since the two crucial social facts of an efficacious legal system and the basic norm are missing, set out fundamental principles of governance (Preamble and Art. 1-23), set up an Iraqi Interim Government (IIG) that was later "approved" by an ad hoc Interim National Council (Art. 24- 29), envisaged an Iraqi Transitional Government (ITG) (Art. 35-42), announced elections and defined the membership qualifications, internal structure and functions of a 275 member strong National Assembly (Art. 30-34). It also anticipated and regulated the drafting of a new Constitution by the National Assembly to be ratified by a popular referendum (Art. 60-61). TAL therefore, is a text that not only establishes a new set of institutional arrangements for Iraqi governance in the period up to the recent adoption of the new constitution but, more importantly, dictated in its Preamble the principles of political morality that any new constitution should aspire to and which the recently adopted constitutional text duly embraces.

Politically therefore, TAL is the textual version of a wider policy of social engineering for a new Iraqi state that entails both procedural and substantial programmatic elements. Although in this article I will be concerned specifically with the institutional arrangements concerning the electoral process, it goes without saying that this should be seen in the light of the wider expectations the occupier has had of the new "sovereign" Iraq. For example, in the aftermath of President Bush's campaign to bring "democracy to the Middle East," it would have been inconceivable that the new constitution would not have embraced the principle of popular sovereignty realized through the periodic election of representatives to a national assembly, which explains why in the negotiations over the draft constitution Islamic law could only be either "a source" or a "basic source" of legislation, as it finally was worded, but not the main one. Fortuna of course will always upset the most meticulously planned and thoroughly executed plan of social engineering. Thus for example, in an ironic twist of fate, a provision in the TAL that any new constitution may be defeated if two-thirds of voters in three provinces reject it was initially conceived to placate the Kurds but in the constitutional referendum of October 2005, it was the major -if ultimately unsuccessful- tactical advantage for disenchanted Sunnis bent on rejecting the new constitution.

Legally the question is whether the TAL was the post-invasion Iraq's "historically first constitution" or not. For a positivist jurist this turns on the two social facts I mentioned earlier. To be sure pragmatists consider that given the lawless conditions in Iraq around the time the TAL was passed, to-date there has been no "efficacious legal system functioning as a whole" in Iraq and therefore, the TAL was meaningful only where the occupiers were capably of enforcing the new rules (at earlier times no more than the Green zone in Baghdad's centre and most of Kurdistan but which has now admittedly expanded geographically and politically to much of the Shiite populated areas). But this social fact as I noted, is something a positivist lawyer leaves to others to dispute. So the only question remains whether a positivist can presuppose the appointment of the IGC by the occupiers as the new Iraq's "basic norm." In fact, to do so a positivist must forget a norm of International Law that pre-existed the events in question by decades. Specifically, international law (the body of rules that the UN Security Council was presumably intent on respecting when it passed resolution 1500) contains the 1907 Hague "Convention Respecting The Laws And Customs of War on Land." Art. 42 specifies that "[T]erritory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised." Moreover, most crucially, Art. 43 commands that "[T]he authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country." In other words, a positivist lawyer in this case can only presuppose in good faith the existence of a post-invasion Iraqi "basic norm" if s/he has managed to repress the knowledge that International law does not authorize "nation-building." As we saw resolution 1500 cannot be read as impliedly repealing the provisions of the 1907 Convention (in fact UN security council has no jurisdiction to change Conventions), so any lawyer aware of the Convention would have no chance of presupposing the appointment of this IGC as a basic norm.

How to forget the 1907 Convention? Help came with two further UN Security Council Resolutions. Resolution 1483 (2003) was bent on "[E]ncouraging efforts by the people of Iraq to form a representative government based on the rule of law ... recognizing the specific authorities, responsibilities, and obligations under applicable international law of these states as occupying powers under unified command (the "Authority") ... Calls upon the Authority ... to promote the welfare of the Iraqi people through the effective administration of the territory, including ... working towards ... the creation of conditions in which the Iraqi people can freely determine their own political future." Resolution 1511 (2003) goes even further in that it "[R]eaffirms the sovereignty and territorial integrity of Iraq, and ... [D]etermines that the Governing Council and its ministers are the principal bodies of the Iraqi interim administration, which, without prejudice to its further evolution, embodies the sovereignty of the State of Iraq during the transitional period until an internationally recognized, representative government is established and assumes the responsibilities of the Authority; ... Invites the Governing Council to provide ... a timetable and a programme for the drafting of a new constitution for Iraq and for the holding of democratic elections under that constitution; ... Takes note of the intention of the Governing Council to hold a constitutional ... and ... requests the Special Representative of the Secretary-General ... to lend the unique expertise of the United Nations to the Iraqi people in this process of political transition, including the establishment of electoral processes ..."

The highlighted words above indicate how the appointment of the IGC can be mythologically be seen as the "ground norm" of a "new Iraq." The myth concerns the authority of the Security Council to deviate from the spirit and letter of the 1907 Geneva convention and to "recognize" the IGC as being capable of making law as opposed to simply following the commands of the occupiers who appointed it.

IRAQI ELECTIONS IN 2005: OVERVIEW OF THE REGULATORY FRAMEWORK

With the help of the above resolutions let us presuppose that the 2005 elections in Iraq took place under the rule of law. What were the relevant rules and how do lawyers make sense of them? "Electoral law" stands for the family of rules governing the process of elections from the calling of the election, through the stages of candidate nomination, party campaigning and voting, right up to the stage of counting votes and determining the actual election result. In liberal western states its most basic features are typified as: (i) its commitment to the principle of a procedurally free and fair electoral process,(ii) the District (Constituency) Magnitude; (iii) the Electoral Formula and (iv) the Ballot Structure. Naturally, questions of electoral system design cannot be considered independently of the larger question of what overarching constitutional framework is most likely to sustain democratic practice in a society given the actual configuration of key players in the prospective political game. Therefore, the electoral system design reflects the array of political players who negotiate the parameters of the emerging constitutional order, including the electoral system, before the game begins. Although these are questions that a positivist jurist would be uninterested in, the reader will appreciate that by studying post-invasion Iraq's "electoral law" we understand what kind of constitutional and social engineering the occupying forces and their accessories were committed to.

As we saw TAL envisaged a "transfer of sovereignty" to an Iraqi Interim Government (IIG) and eventually an Iraqi Transitional Government (ITG) to oversee free elections. All these things have since happened according to plan while of course Iraq is intuitively understood by most people, apart from positivist lawyers, to be still under occupation. Notably, however, the greatest part of the electoral rules for these anticipated elections was created prior to the "transfer of sovereignty" to the I.I.G. by means of commands of the Coalition Provisional Authority (C.P.A) (for the sake of continuity with my earliest observations remember that while for some commands backed by force is all that law consists of this is not the case for positivists who must be able to trace any rule to a fictitiously authoritative source, as discussed above). Thus, C.P.A./ORD/31 MAY 04/92 established an 'Independent Electoral Commission,' C.P.A./ORD/7 JUNE 04/96 promulgated an "Electoral Law," C.P.A./ORD/7 JUNE 04/96 promulgated a "Political Parties and Entities Law." Even more characteristic is the fact that the Annex to the TAL, 1st JUNE 2004 made TAL immune to repeal by the "sovereign" I.I.G. Consequently the "sovereign" I.I.G. had its job cut out for it and proceeded to issue a series of regulations and orders merely implementing the C.P.A's commands (remember however, from my earlier discussion of the various UN resolutions, that with time, the forgetting of international law gradually allows a positivist to presuppose, fictitiously, that behind these commands lie "laws").

So what was the essence of these unilateral orders that can now be fictitiously thought of as laws? I will mention them in sequence as befits my positivist "scientific" pretensions reserving a separate paragraph for brief comments. C.P.A./ORD/7 JUNE 04/96, S.3 (1) commands that Iraq be governed by a legislature elected according to western liberal democratic principles: "The election for the National assembly shall be by direct, universal and secret ballot." C.P.A./ORD/31 MAY 04/92, S1) established "... the Independent Electoral Commission of Iraq ... and empowers [it] to organize, oversee, conduct, and implement all elections set forth in the TAL. [It] is structured to ensure complete independence from political influence ..." According to S3 (1) this institution was conceived to be "... [an] autonomous, non-partisan, neutral and professional government office [with authority] to promulgate, implement, and enforce regulations, rules and procedures with the force of law in connection with elections during the transitional period ... [I]ndependent of the executive, legislative and judicial branches of government. [It is] made up of the Board of Commissioners ... and the Electoral Administration." S3 (3) outlined its principal functions: to determine etc the voting roll; to help build popular support for the electoral process; regulate and conduct the registration and certification of candidates for office; accredit election observes; manage the polling and ballot tabulation activities; adjudicate electoral disputes; certify election results. Last but not least S5 of this order concerns the new independent organ's composition. Accordingly all seven voting members were appointed by the U.S. citizen Administrator, from a list ranked by the Administrator-appointed IGC and submitted by the UN, having been nominated by Iraqi nationals and organisations.

Logically, there may be questions regarding the internal consistency of the above mentioned principles of Iraqi electoral "law." How can an Iraqi electoral commission whose members are appointed by the US Administrator be thought of as "independent?" The answer the Administrator would probably give is that they were "ordered" to be independent while for a positivist lawyer they were henceforth "legally bound" to act "independently." Now, for the reader who is not a positivist lawyer there is still the whole issue of whether these commands by an occupier who is neither showered with flowers on the streets of Iraq legally entitled to change the legal system of the occupied state, can be thought of as "law" as discussed above. If they can, then we need not ask the otherwise obvious question, why should Iraq be governed according to political principles that historically belong to the West? Islamic political morality is too rich in normative ideas of "good governance" to have been so easily brushed aside in one of the geographical areas where much of it developed. (1) The answer a pragmatist would give is that at this point in history most of the world is being westernized at various levels and through different mechanisms of which occupation is one. A clue is actually given to us by section 1 of the C.P.A./ORD/7 JUNE 04/96 "Political Parties and Entities Law." Under "Purpose" we read: "This Order forms part of the legal framework for genuine and credible elections that fairly reflect Iraq's rich diversity of political thought by encouraging and impartially regulating the development of political entities across Iraq." The key point here is whether at that time the Order's purpose was actually to "reflect" or indeed construct or promote a western-style party-political pluralism in Iraq as the word "encourage" clearly suggests. A further clue is provided by the fact that the Order key requirement for certification of new parties is a relatively small number of eligible voters/founding members (no more than 500). Further clues to the question whether the adopted electoral law "reflected" or "engineered" Iraqi political realities is given to us by three other substantive features that I will now discuss in order: district magnitude, electoral formula and ballot structure.

C.P.A./ORD/7 JUNE 04/96, S.3 (3) provided that: "Iraq will be a single electoral constituency ..." By most accounts based on comparative data this is a generally exceptional arrangement and indeed an unprecedented one for a country of Iraq's size. Other countries where the whole national territory constitutes one constituency are Israel, the Netherlands and Iceland. Moreover, when considered in combination with the electoral formula adopted (Hare quota/natural threshold as discussed below) the Iraqi case of a single national constituency appears to be unique (e.g. in much smaller Israel there is an artificial, legal threshold of 1.5 per cent of votes for a party to qualify for seats). Overall, the effect is to maximize proportionality (i.e. minimise "wasted-votes"). Now, while in general proportionality sounds good it does not necessarily mean greater representation, which is why there exist arguments in favour of "functional representation" where candidates are drawn at different levels of social organisation (by region, religion, class, sex, etc, e.g. the new House of Lords in Britain). A lot depends on who the political actors are, e.g. are they established political parties with deep grassroots or not? The Iraqi electoral arrangements taken as whole, were designed to eliminate contact between representatives and voters. Moreover, with a single constituency there is a danger that the geographical location of candidates (either by birth or residence) may be concentrated in the urban, more populated areas, leaving whole swathes of the population "un-represented" (In Holland, for example, this is resolved by having party lists drawn up at a regional level). In addition, let us remember that as late as January 13th 2005, Iraqi parties had only revealed a fraction of the candidates' identities on their lists (Christian Science Monitor, 13/01/2005). Consequently, the question is far from resolved whether the elections in early 2005 brought about a "representative" Iraqi "National Assembly." For example the National Assembly does not reflect the extent to which the country's ethnic/religious pluralism is geographically organised even as territory remains an important basis for opposition to centrally determined policy-making. The political implications of this are clearly shown in relation to the debate over the issue of federation. As we saw after its election, the National Assembly was expected to draft a constitution, which has now been accepted by popular referendum, which it dully did after endless negotiations on the thorny issue of federalism. Had we had a district-based election, the Assembly would have been representative of the geographic location of the various ethnic/religious groups and would have reflected, by its very composition, the divisions over the issues of federalism. Instead we got a "national" Assembly that has now been accused by some of reneging on national "unity." A district-based system might have attracted more participation by Sunnis who would thus be sure of appearing clearly on the post-electoral map as a distinct minority force. Instead we got a Sunni boycott.

It is highly likely that the choice over district magnitude was strategically part of a process of social engineering and "nation building" where the aim was a western-style nation-state, even if this was to take the federal shape that it did. One electoral district here was meant to signify "one nation." What the eventual embrace of federalism shows however, is that the political desire of the powers that unilaterally created the electoral law for Iraqi "national" unity and power hoarded in the hands of the Baghdad based Assembly, was and is not shared by all. Indeed, people understand the ease with which certain interests gain access to central government through a globalized neo-corporatist system and the importance of retaining structures which potential opposition can mobilize. Of course the choice of district magnitude was never going to be a severe problem for the representatives of the two large majorities along confessional and ethnic lines who could and do function as such from within the "national" assembly, but it was a problem for the geographically concentrated Sunni/Arab minority.

Let me now turn to the electoral formula chosen by the occupying forces. C.P.A./ORD/7 JUNE 04/96, S.3 (3) stipulated that all seats in the National Assembly "will be allocated among Political Entities through a system of proportional representation." As is well known the basic concept of proportional representation systems is to allocate seats in the legislature in a proportional relationship with the votes cast at the election. To achieve this requirement a number of different and quite complex computational arrangements have been devised which may or may not include the use of a legal quota (i.e. the minimum number of votes legally required to obtain a seat) in order to discourage the emergence of splinter parties (thresholds vary from jurisdiction to jurisdiction). In Israel parties must receive a minimum of 1% of the popular vote in order to qualify for seats in the Knesset. In Germany, on the other hand, parties must win a minimum of 5% of the national vote or win seats in three single-member constituencies before they are given seats on a proportional basis. Iraqi electoral law opted for the simplest method of determining a quota, namely to divide the number of valid votes by the number of seats to be allocated (this method is often referred to as the Hare quota). (2) Once again, this was obviously designed to maximize proportionality, presumably as part of a long-term strategy to facilitate the emergence of a Western-style multi-party political culture while working against "traditional" affiliations (confessional, ethnic etc). This however, must be considered alongside what was said above about the elimination of contact between voters and candidates. I will return to this again below.

Another feature of proportional representation systems is that they are normally grouped into two broad categories: List systems and the Single Transferable Vote systems. Iraqi electoral "law" [C.P.A./ORD/7 JUNE 04/96, S. 3 (4) & S. 4 (1-2)] opted for a list system of 12-275 candidates. Candidates received their National Assembly seats according to the order in which they were ranked on the party list (subsection 2). In combination with the single national constituency, this means that candidates might feel as much obligated to their Party leaders, as they may be alienated from local voter interests. Once elected, seats in the new N.A. may not be withdrawn from the candidates to whom they were allocated by Party initiative (subs. 5). Further, the "law" imposes a quota for female participation (1/3, 2/6 etc) (subs. 4) irrespective of the actual number of politically prominent women in the country (another key indication of social engineering through electoral law).

Moreover, "list systems" are usually further divided into Largest Remainder and Highest Average categories. Iraqi "law" endorsed the Largest Remainder system, which is less common worldwide. Seats were allocated by subtraction (as opposed to division) during two rounds of counting. In the first round, parties with votes exceeding the natural quota (number of valid votes/275) were awarded seats and the natural quota figure was subtracted from their total vote. In the second round, those parties left with the greatest number of votes (the "largest remainder") were awarded seats in order of vote size. This system produces proportional results: smaller parties had an easier task in winning seats than under alternative systems--another indication of how the "law" was probably drafted as a piece of social engineering.

Finally, I turn to the chosen ballot structure. List systems may or may not allow the elector to choose between candidates of the same party. List systems can be either closed, allowing no choice at all; flexible, where the voter can vote for the party or a candidate; open, where there is no party vote but candidates listed in order; or free where the candidates are not placed in any order by the parties. Historically, the "closed" system has been used for the most part in "newer democracies" (Argentina, Columbia, Israel, Turkey). In Iraq, the system was "closed" or non-preferential. In fact, as I noted earlier, the very identities of all but the most prominent candidates were unknown to most voters due to security concerns. This means that for the most part, voters had no say over who represents them. On the other hand, the expectation should have been that such a system works against a clientelist culture and would allow party elites to maximize the chances of election of their preferred candidates with a view perhaps, of achieving an ethnically/confessionally heterogeneous representation. The hope must have been that in the long run, these new political formations would gain cross-cutting appeal. That said, the enormous power this system concentrated in the hands of party leaders was used by some of them in order to consolidate their power precisely on the basis of confessional/ethnic divides--organised in coalitions--at the expense of minor rivals. This was the case with the United Iraq Alliance and the Kurdistan Alliance who in the event came first and second in votes and have dominated developments since by their charismatic leaders.

CONCLUSIONS

Empirically, there are no hard facts on which to base the view of Iraq as an emerging democracy notwithstanding the successful conduct of relatively free and fair elections. Iraq is Iraq and its political future remains as uncertain as it will be unique. To assume the opposite would be philosophical speculation, a "historical necessity" explanation or an expression of ideological commitment that is indifferent to truth. Therefore, lacking historical or sociological evidence and not wishing to be driven by ideology alone, speculation as to whether the elections in Iraq can perform the function they normally play in established liberal democracies must confront the issue of the rule of law as all philosophers do, specifically of the status of the rules under which the 2005 elections were held.

Here I concentrated on legal philosophy and specifically Kelsen's legal positivism because this is the legal theory with the most abstract view of law and the least interested in whether laws actually achieve the objectives they were meant to attain. While other conceptions of law analytically involve facts (inter alia, the existence of power to enforce commands, or the substantive agreements of legal rules with certain principles of morality), positivists' "pure law" is nothing but an instrument of legislation, and legal theory creates its own subject matter by distinguishing the "law" on the basis, not of facts, but on the contrary, of forgetting facts. Thus, I showed how a positivist can retrospectively consider the commands of the occupying authorities on the issue of Iraqi elections to be "law" only on condition that international law is forgotten. Once considered "law," Iraq's electoral system of rules was then analysed in terms of the usual expectations that are attached to such laws from an international perspective.

I paid less attention to the fact that the choice of its general principles--a direct, universal and secret ballot overseen by an autonomous, non partisan electoral commission--is intuitively at odds with the harsh realities of post-invasion Iraq. Instead, I focused on the internal contradiction between the abstractness of such liberal principles--which evoke a desire for the electoral law to act merely as a technical process that would enable Iraqis to freely redraw the terms of their country's political game--and the specific substantive features of such law which I argued, can be seen as a direct attempt to configure the key political players before the game's rules are redrawn.

Specifically, the combination of rules on political parties, district magnitude, electoral formula and ballot structure was meant to facilitate, in the long-term, the appearance of a Western-style multi-party political culture while working against 'traditional' confessional/ethnic affiliations and gender exclusions. Tactically the intention appears to have been to maximize proportionality and therefore, the feeling of "ownership" of the electoral process among the voting population while minimizing the contact between representatives and voters and cementing representatives' loyalty to the new party leaders. The overall effect was to disengage "democracy" from representation and instead, put it to the service of legitimating the rapid emergence of a new party-political system. While the long term success of this social engineering cannot be foreseen we are in a position to say that tactically it has not worked as planned. As we witnessed, many of the newly registered parties chose to contest the election in coalition formations along confessional and ethnic lines. Thus, the two major winners of the elections are basically Shiite and Kurdish alliances although they may be sitting in parliament under different party names. By contrast, because of the choice of a single electoral district, many Sunni voters boycotted the process knowing that as a minority, they would be functionally un-represented in such a constitutional "National Assembly." This obviously makes the Assembly even less representative in producing a new draft constitution that would address the country's divisions.

REFERENCES

Barkan, Joel D., "Can Established Democracies Nurture Democracy Abroad?" in Axel Hadenius (ed.), Democracy's Victory and Crisis. New York, NY: Cambridge University Press, 1997.

Barkan, Joel D., "Elections in Agrarian Societies", Journal of Democracy, Vol. 6, No 4 (October), pp. 106-116, 1995.

Barkan, Joel D., "Kenya; Lessons from a Flawed Election", Journal of Democracy, Vol. 5, No 3 (July), pp. 85-99, 1993.

Elklit, Jorgen (ed.) Electoral Systems for Emerging Democracies. Copenhagen, Denmark: Ministry of Foreign Affairs, 1997.

Karl, Terry Lynn, "Imposing Consent: Electoralism and Democratization in El Salvador" in Paul W. Drake and Eduardo Silva (eds.) Elections and Democratization in Latin America, 1980-1985. San Diego, CA: La Jolla, Center for International Studies, University of California, 1986.

(1) For example in the 'Abbassid period the idea attributed to the Prophet Mohammed that "my community cannot err" was used to resist state dominance and defend a conception of pluralism. Specifically Caliph Al-Mansur (754-75) fashioned an imperial ideology with universalist claims and attempted to create a canonical legal text that would be used uniformly by asking the founder of the (2) The threshold, therefore, was the "natural" threshold, which is calculated by dividing the total number of valid votes by 275 (the number of seats in the N.A.). Thus, the figure of 8,456,266 (number of Iraqis who registered a vote) was divided by 275 to give 30,750 which is the number of votes before each seat allocated to the various party lists.

Maliki school of law to have his (Malik's) book adopted as the standard book on (acceptable) hadiths but crucially, Malik declined citing not only the existence of, but also his respect for, the variety of Muslim practice in different places beyond Baghdad.

Marinos Diamantidis is Senior Lecturer in Law at Birkbeck College, University of London, England.