Iraq’s constitution remains a source of controversy in the debate over the lasting effects of the American-led Coalition’s invasion of Iraq. The Iraqi Constitution, which was drafted in 2005, has been described by detractors as a “lost opportunity,” a document with “deep structural, legal and political failings” (Jonathan Morrow, “Iraq’s Constitutional Process II: An Opportunity Lost,” 2005; Saad N. Jawad, “The Iraqi Constitution: Structural Flaws and Political Implications,” 2013). Many of these criticisms stem from the marginalization of Sunni participants during the constitution’s drafting and their subsequent, overwhelming rejection of the document. The constitution is regarded by some as vaguely and ambiguously written, leaving critical issues, such as the authority of parties and coalitions to form governments, unresolved. In the context of this debate, Haider Ala Hamoudi, a professor of law, offers a richly detailed analysis of the constitution’s formulation and an optimistic view that the constitution is “remarkably successful.”

Hamoudi argues that under conditions of constitutional drafting and decision-making where the participants are deeply divided, the best strategy for reaching some type of agreement is one that employs “capacious” text. By capacious text, Hamoudi means constitutional language that defers controversial and divisive decisions to the future. Where for some, compromise means debate and the resolution of conflicting issues (perhaps through the trading of benefits), for Hamoudi, capacious text represents compromise; a compromise that does not resolve issues, but postpones their resolution through the consensual construction and interpretation of rules.

Constitutions created under these circumstances are aspirational and incremental by design. Participants agree to disagree. The tools for creating such constitutions through capacious text include the use of formal amending processes; ambiguity in wording; contradictions that accommodate multiple interests without clarifying outcomes; deferment of legislative action; and invitations to meet aspirations established in the text. All of these techniques allow for the constitution’s future reconstruction when the proper political moment permits. Without capacious language, Hamoudi claims there may be no agreement at all. An imperfect bargain in the case of Iraq, he says, is better than no bargain.

Hamoudi bases his detailed and uniquely informed analysis of Iraq’s constitutional deliberations on interviews with principal actors and special access to the notes and records kept during the drafting by his uncle, Sheikh Hamoudi, who chaired the Constitutional Review Committee, to which Hamoudi served as an advisor. This committee itself serves as an example of capacious text and incremental constitutionalism, as it was created to recommend amendments to the constitution following its ratification.

Iraq offers an obvious example of political divisiveness in constitution making. Hamoudi effectively identifies the religious, political, and historical differences that separate the Shia, Sunni, and Kurds, the divisions within those groups, and how these differences translated into the competing positions they took during the drafting of the constitution. As Hamoudi explains, the three groups firmly disagreed, for example, on the nature of federalism. The Sunnis advocated for a strong central government, while the Shia and Kurds called for differing degrees of central authority and regional autonomy. The Shia and Kurds triumphed over the small Sunni delegation, as the final list of nine enumerated powers in Article 110 restricted the central government to such matters as setting foreign policy, creating fiscal policy and the budget, and generating a census. Ambiguity played a critical role here, as control over Iraq’s oil and gas resources remained intentionally unclear and unresolved, although revenues would be distributed according to Article 112 on the basis of regional population in a manner that accommodated Kurdish interests. The constitution’s federalism and de-Ba’athification provisions, however, provoked the Sunnis to walk out of the deliberations and fervently oppose its ratification.

Nonetheless, Hamoudi repeatedly declares the constitution to be a success. Success is reflected in the appeals that Sunni leader Ayad Allawi made to the constitution to justify his claims for power following the 2010 elections. By doing so, Hamoudi states, the Sunnis recognized the constitution’s legitimacy. Success is reflected in the absence of constitutional amendments. The amendments proposed by the Constitutional Review Committee were never considered by the Council of Representatives. “Only a few years after the constitution was ratified in 2005, it was apparent that the Sunni population no longer viewed it as a foreign instrument imposed on them, thus rendering the formal amendments entirely unnecessary” (p. 4). Success is reflected in the Sunni protests of 2011 (associated with the Arab Spring), in that they emerged from Sunni discontent with the ineffective provision of essential public services and the corruption of the Maliki government, not from opposition to the constitution. Success is reflected in the acceptance of clarifying statutory law that stems from the constitutional aspirational invitations for additional rulemaking. Most optimistically, success is reflected in what Hamoudi describes as political stability. “That the constitution was functioning suitably well by 2009 as the foundational document of an otherwise divided and troubled state can also be shown by the reality of increased government and political stability following the spasm of cataclysmic violence in 2006 and 2007” (p. 6).

These assertions of constitutional success appear to predate the Maliki government’s worst mistreatment of both the Sunnis and the Kurds, including Maliki’s breaking the post-election power sharing agreement, the summary arrest of Sunni leaders, and denying the Kurds their constitutionally-mandated proportional share of oil revenues. Many of these abuses encouraged the rise of the Islamic State. If the purpose of a constitution is to serve as the foundation for the rule of law, then one may seriously question whether the 2005 constitution fulfills that function for all Iraqis.

Negotiating in Civil Conflict’s strength is that it offers a unique insight into the positions taken by Iraqis during the constitution’s drafting. However, the book would have benefited from a deeper analysis of the American occupation’s influence on the constitution. The Iraqis were under a severe two-month timetable set by occupation authorities to write the document. This may have contributed to the drafters’ reliance on capacious text, because they did not have sufficient time to resolve more of their differences. Although President Bush’s intervention on behalf of the Sunnis is briefly mentioned, the book is mostly silent about how the Coalition Provisional Authority’s various orders may have served as precedent for the constitution’s framing. Consider Iraq’s budgetary process that is outlined in Articles 62, 80, 106, and 110. The creation of the national budget, the roles of the Council of Ministers and the Council of Representatives in the process, as well as the right of provincial governments to raise taxes were all outlined prior to the constitution’s drafting by CPA Order 95, the Public Financial Management and Public Debt Law, and CPA Order 71, the Local Governmental Powers Law. One wonders how much the Iraqis drew from these legal sources, given that CPA 95 continues to guide their budgetary process.

That said, Negotiating in Civil Conflict provides a valuable resource for understanding the motivations and bargains that produced Iraq’s constitution, and its controversial perspective on the constitution’s success will no doubt encourage further discussion and debate on the topic. Hamoudi’s book represents an important contribution to the literature on constitutional design in divided societies, where it may be the case that some constitution is better than none.