The Washington Post had an interesting article over the weekend on the tribal law system in Iraq. Without the benefit of first-hand knowledge, it sounds as if the tribal system has a lot in common with some of the methods of the alternative dispute resolution movement in the US. Essentially, when someone is wronged (the examples provided in the article suggest that the issues that arise are roughly comparable to what might come up in a tort case in the US), s/he gets a sheik, a respected member of the local tribe, to represent him in talks with the other party. The other party is, in turn, typically represented by its own sheik. After negotiations (called fasels) are finalized, the injured party receives compensation and has economic obligations to the sheik. The fasel system was heavily in use prior to 1958 at which point tribal law was banished. The stifling of the tribal law system was continued under the Hussein regime.
However, after Hussein was deposed, the restrictions on tribal law no longer existed. Under this backdrop, and with the legal system in Iraq taking time to catch up to the new freedoms enjoyed by its citizens, the fasel has made a comeback which has helped to fill voids where the state-sponsored system has come up lacking. Though this has provided benefits to citizens hopeful of quick recovery after being harmed, the return to tribal law has not been without problems. For example, the article notes that many of today's sheiks are no better than 'bullies' who can attribute their rising collective status to the US occupation during which many were paid to fight insurgents.
In addition to structural problems, (and perhaps more interestingtly from the perspective of a law/economics blog) has been the negative chilling effect that the tribal law system has had on certain professions, including the practice of medicine. In economic terms, it is becoming clear that this particular legal system provides disincentives for doctors to practice. At the root of the problem are two distinctive issues. One is the idea that, if you choose to ignore the tribal system, there is a very good chance that something bad will happen to you. Therefore, many people participate whether or not they were actually at fault rather than risk the wrath of a powerful sheik or retribution from the offended party. The other is that, with no liability insurance in the country, all expense for those deemed to be in the wrong are out of pocket.
One perverse effect of the fasel system based on the issues noted above has been doctors fleeing the country and/or refusing to return. According to one opthalmologist quoted in the Post article, “I don’t even know who my sheik is. My wife is an anesthesiologist and she wants to work [in Iraq,] but I’m telling her don’t. It’s too risky.” This particular doctor recently returned to the country from Dubai, and is now considering leaving again. So, very clearly, at least some qualified doctors are not even within the country. During the rebuilding process, to be without the expertise of even one, let alone many, skilled workers can only be bad for the nation.
Another economic impact of the negative stimuli inherent in the tribal law system in Iraq is that doctors who actually are in the country are refusing to do certain procedures that, though risky, could also be most appropriate in whatever circumstances the patient might be in. This is directly linked to the lack of liability insurance as noted above. Since the doctors cannot cover themselves for accidental deaths and injuries, they have to face the sheiks directly with out of pocket settlements being the typical result.
Though some might think at first blush that this good (after all, injuries are being avoided) it is also true that modern medicine, advanced though it is, is not without risks. However, those risks are often paired with higher rewards. In other words, sometimes many more people are saved and given the gift of life by a particular procedure than are harmed by it. Nonetheless, the possibility of that one person being harmed and all of the baggage that goes with it are putting Iraqi doctors off of the procedures which could save many others.
It is difficult for an outsider to understand cultures from afar, particularly those awash in religious and historical factors that are outside their own sphere of experience. However, it does seem to be safe to say that the return of the tribal law system in Iraq has both provided benefits and been its own source of problems since the American occupation. On the one hand, often respected leaders of the community are able to dispatch what the parties believe are logical and fair verdicts on matters in a swift and efficient manner. However, the rise of slightly less respected individuals and the legal traditions of the state have also worked to ensure that many qualified and in-demand professionals have left the country. Others who remain are not practicing the best possible medicine they can. In a nation of many problems, this is of course only one pebble in a sea of troubles. However it does make one appreciate the rule of law and well-established legal structures more, no matter what flaws they might have.
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