Administrative custom is considered one of the unwritten sources of administrative law. It arises when public administration habitually follows a particular course of conduct in a regular and continuous manner, accompanied by the belief that such conduct is binding and must be respected. The importance of administrative custom in the administrative field stems from the inability of legislation to encompass all the changing details arising from the exercise of administrative functions. This makes custom a means of addressing certain legislative gaps and ensuring the regular and continuous operation of public services. Iraqi legal studies have confirmed that administrative custom represents an important source of administrative law, particularly in the field of public service. The applications of administrative custom in Iraq are diverse, with its most prominent manifestations appearing in the field of public service. Within the limits of the law, an administrative authority may consistently adopt certain procedures or practices to regulate employees’ affairs, such as mechanisms for handling particular employment-related requests or administrative procedures whose details have not been specified by legislation. When such a practice fulfils the elements of custom, namely regularity, continuity, generality, and the belief in its binding nature, it may develop from a mere administrative practice into a customary rule that the administration is required to respect, provided that it does not conflict with any legislative provision in force. Recent Iraqi studies have examined the applications of administrative custom in administrative investigations and disciplinary proceedings involving public employees, considering it one of the means available to the administration for regulating its procedures when the practice becomes established and the requirements of custom are fulfilled. Administrative custom also manifests itself in the operation of public services when an administrative authority consistently adopts a particular method for carrying out its daily activities or organizing its internal procedures. When this practice continues regularly, it may become an established behavioural rule within the public service. This contributes to achieving a degree of stability and regularity in administrative work, particularly in matters that the legislator has not regulated in detail. Another application of administrative custom appears in the interpretation of certain administrative procedures and practices. An established administrative practice may help clarify how particular legal rules have been implemented. However, this does not mean that custom can amend or repeal legislative provisions. The administration may not rely on a custom that contradicts the law, as the principle of legality remains the fundamental constraint governing its activities. From a judicial perspective, administrative custom is particularly significant in disputes brought before the administrative judiciary. The administrative judge may verify the existence of a custom, determine whether it fulfils the required conditions, and examine the legality of the administration’s reliance upon it. Iraqi legal studies have indicated that the administrative judiciary’s role in determining the existence and validity of administrative custom constitutes an important mechanism for regulating administrative activity and preventing reliance on practices that have not fulfilled the elements of binding custom. In Iraq, this issue assumes particular importance in light of Article (1) of the Iraqi Civil Code No. (40) of 1951, which recognizes custom as a subsidiary source of law in the absence of an applicable legislative provision. Accordingly, administrative custom should not be understood as a means of granting the administration authority independent of the law, but rather as a supplementary source within the limits permitted by the legal system. The applications of administrative custom in Iraq are primarily reflected in the field of public service, the regulation of public service operations, the establishment of consistent administrative procedures and practices, and its role before the administrative judiciary. Nevertheless, the recognition of these applications remains conditional upon compliance with the principle of legality. Administrative custom may neither arise nor continue in a manner that contradicts a mandatory legislative provision. This makes administrative custom a supplementary instrument of law rather than a substitute for it. Assistant Professor Dr. Qasim Mohammed Hantoush Al-Haimas College of Law – Al-Mustaqbal University
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