PhD Dissertation

Kurdistan Regional Government - Iraq

Ministry of Higher Education and Scientific Research

Soran University

Faculty of Law, Political Science and Administration

Department of Law

The Philosophical Foundations and Practical Guarantees of Constitutional Governance: 

A Comparative Study of the United States, France, and Iraq (2005) 

Thesis

Submitted to the committee of Faculty of Law, Political Science and Management at Soran University as part of the requirements for achieving Ph.D. degree of Doctor of Philosophy in Public Law

Hassan Mustafa Hussein

B.A. In Law, Soran University, 2010-2011

M.A. In Public Law, Soran University, 2017

Supervised by

Assist. Prof. Osman Ali Hassan 

Legal Adviser at the Kurdistan Parliament 

2025 A.D | 2724 K | 1446 A.H

Abstract

This thesis seeks to provide an in-depth philosophical and intellectual analyzing of the principles of constitutional governance and the guarantees of its application and protection. The research addresses the philosophical background of constitutional governance and the extent to which the intellectual principles of this governance are reflected in various constitutions, such as the United States Constitution of 1787, the French Constitutional Bloc, and the Iraqi Constitution of 2005. These constitutions provide legal and practical guarantees to defend and uphold these principles.

The study relies on descriptive, analytical, and critical legal approaches, concluding that the concept of a constitution is inherently philosophical, with roots tracing back to ancient Greek philosophical theses and social contract theories. Based on this foundation, the Founding Fathers drafted the United States Constitution of 1787 under the clear influence of philosophers such as Plato, Aristotle, Hobbes, Rousseau, John Locke, and Montesquieu. Similarly, the influence of Rousseau and Montesquieu is evident in the post-revolutionary French constitution and the 1789 French Declaration of the Rights of Man and of the Citizen. Regarding the intellectual background of the Iraqi constitution, the study concludes that the 2005 constitution is a model influenced by the American Constitution, as the United States undertook the rebuilding of Iraqi institutions after the overthrow of the dictatorial regime through the 2003 American military intervention.

For governance to be considered constitutional, a set of principles must be enshrined in the constitutional text, including the sovereignty of the people, the protection of fundamental rights and freedoms, human dignity, the common good, the separation of powers, civilian control of military Forces and the independence of the judiciary. From this perspective, the constitutional systems of the United States, France, and Iraq (2005) include these principles, though they differ in how they are applied. For a constitution to be effective and hold real authority, multiple mechanisms and tools must ensure its protection. These include legal guarantees, such as the Constitutional Court, mutual oversight between legislative and executive authorities, and independent bodies. Additionally, there are practical guarantees, such as public opinion, represented through political parties, civil society institutions, civil disobedience, and the right of resistance to authoritarianism.

Given the challenges facing constitutions, including violations, the rise of populism, and unconstitutional amendments, constitutional law experts are advocating for the establishment of an international court of constitutional law to protect and defend fundamental rights. Although the implementation of this idea faces challenges due to state sovereignty, a broad global network has emerged in support of this approach, which may significantly contribute to strengthening democracy, as well as institutional and constitutional governance.