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How Law Rules: Torture, Terror, and the Normative Judgments of Iraqi Judges

Authors


Earlier versions of portions of this paper were presented at the annual meetings of the American Sociological Association, Montreal, 2006, the joint Law and Society Association and the ISA Research Committee on Sociology of Law, Berlin, 2007, and the Society for the Study of Social Problems, New York, 2007. We are grateful to the participants at those meetings and especially to Sara Dezaley, Yves Dezaley, Lauren Edelman, Bryant Garth, Ron Levi, Jens Meierhenrich, Robert Nelson, Laura Beth Nielsen, Joachim Savelsberg, Kim Scheppele, Heather Schoenfeld, the anonymous referees, and the Editor for many valuable comments and suggestions. We also gratefully acknowledge the intellectual and financial support of the American Bar Foundation, the National Science Foundation (Grant LSS0550299), New York University, and Northwestern University. Please direct all correspondence to John Hagan, 1810 Chicago Ave., Evanston, IL 60208; e-mail: j-hagan@northwestern.edu.

Abstract

We present a factorial survey experiment conducted with Iraqi judges during the early military occupation of Iraq. Because U.S. soldiers are immune from prosecution in Iraqi courts, there is no opportunity for these judges to express their views regarding highly publicized torture cases. As legally informed representatives of an occupied nation, however, Iraqi judges arguably have a strong claim to a normative voice on this sensitive subject. We are able to give voice to these judges in this study by using a quasi-experimental method. This method diminishes social desirability bias in judges' responses and allows us to consider a broad range and combination of factors influencing their normative judgments. We examine why and how the U.S. effort to introduce democracy with an indeterminate rule of law produced unintended and inconsistent results in the normative judgments of Iraqi judges. A critical legal perspective anticipates the influences of indeterminacy, power, and fear in our research. More specifically, we anticipated lenient treatment for guards convicted of torture, especially in trouble cases of Coalition soldiers torturing al Qaeda prisoners. However, the results—which include cross-level, judge-case interaction effects—were more varied than theoretically expected. The Iraqi judges responded in disparate and polarized ways. Some judges imposed more severe sentences on Coalition guards convicted of torturing al Qaeda suspects, while others imposed more lenient sentences on the same combination of guards and suspects. The cross-level interactions indicate that the judges who severely sentenced Coalition guards likely feared the contribution of torture tactics to increasing violence in Iraq. The judges who were less fearful of violence were more lenient and accommodating of torture by Coalition forces. The implication is that the less fearful judges were freed by an indeterminate law to advance Coalition goals through lenient punishment of torture. Our analysis suggests that the introduction of democracy and the rule of law in Iraq is a negative case in the international diffusion of American institutions. The results indicate the need for further development of a nuanced critical legal perspective.

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