Egyptian substantive law today, as is the case in much of the Arab world, is therefore a combination of uncodified rules of Islamic law, particularly in the area of family law, but also interstitially in other areas of the legal system; 7 transplanted and partially-modified European codes; and positive legislation adopted by the state throughout the twentieth century claiming to be in conformity with Islamic law.
The Egyptian legal system thus reflects three sources of legitimacy. The first is the uncodified tradition of Islamic law, which was a combination of scholarly interpretations of revelation and decrees of ruling dynasts, and reflects the continuity of the modern Egyptian state with its Islamic past. The third source of legitimacy of the Egyptian legal system is the positive legislation of the modern Egyptian state that has been explicitly articulated as an attempt to articulate an Islamic legal sensibility that is consistent with the modernist project.
These three traditions, however, at least from an institutional perspective, have coexisted side-by-side in an uneasy, if not tense or even competitive, relationship, rather than in an integrated, mutually reinforcing political and constitutional order.
The deposed leaders of Arab authoritarian states such as Zayn al-Abidin Ben Ali of Tunisia and Hosni Mubarak of Egypt, and their respective supporters, exploited this ideological conflict to justify authoritarian political orders on the grounds that popular democracy would inevitably enable anti-liberal and anti-modernist forces to dominate state and society in the name of Islam.
The long-standing unresolved ideological differences within the Arab world regarding modernization, the nature of state authority, and their relationship to Islam, are now on the table for democratic resolution.
- 1. One Ideal among Others?
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Successful resolution of these ideological conflicts could result in new, popularly recognized constitutions that could provide the Arab world with a constitutional template sufficiently stable to permit the consolidation of democratic institutions. One crucial question from the perspective of constitutional design that has been seldom discussed is the appropriate role for the judiciary in a system with conflicting ideological sources of legitimacy.
This article takes the view that a common law system of adjudication is better poised to mediate these internal ideological problems than a civil law system which reduces law to the command of a sovereign. This calls for a radical reassessment of the role of courts and judges in post-Revolutionary Egypt, and by extension, other post-authoritarian Arab states which also suffer from ideological conflict rooted in religion and modernity.
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While much focus has been given to substantive questions of the compatibility of the norms of Pre-Modern Islamic Law and the extent to which they are or are not capable of substantively satisfying international human rights norms, 12 comparatively little attention has been given to the particular institutional context in which Islamic State Law has been articulated.
If Islamic State Law, as a legitimating ideal, seeks to reconcile the historical tradition of Pre-Modern Islamic Law with the modernizing tradition of State Law, the question from the perspective of institutional design is what set of institutional arrangements would be most conducive to achieving legitimacy for Islamic State Law, and thereby enable the Egyptian state to pursue its goals of modernization, expansion of human rights while remaining faithful to Islamic conceptions of normativity? Legitimacy, for these purposes, means a legal system that is, simultaneously, 1 cognizably Islamic, 2 able to formulate and enforce rational public policy promoting economic and social development, and 3 responsive, even if it differs in certain details, in a meaningful way, from modern human rights norms, including, gender equality, freedom of expression and freedom of religion.
The modern Egyptian state, however, instead of integrating the modernist and Islamic sources of its own legitimacy, has maintained separate and parallel institutions which derive their legitimacy almost exclusively from the extent to which they are responsive to their own internal constituencies.
Indeed, the principal justification given in the nineteenth century for the replacement of Pre-Modern Islamic Law with State Law was the general agreement among both leading Muslim statesmen and leading Muslim jurists that Pre-Modern Islamic Law was not particularly suitable to meet the challenges posed by the increasing threat of European imperialism.
At the same time, however, displacing the role of traditional religious elites from an effective role in the formulation and application of State Law even as they remained partially incorporated into the state structure by virtue of their role in education and the continued relevance of Pre-Modern Islamic Law to family law had the paradoxical effect of increasing their power over those segments of state policy which had been tacitly reserved to them.
Instead, he thought that Pre-Modern Islamic Law could be used to make that project more effective. To do so, however, Pre-Modern Islamic Law would have to be transformed into a body of rules consistent with the standards of contemporary legal science.
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His impact, moreover, was not limited to Egypt: he also served as the primary draftsman for the codes of other Arab countries, including Iraq and Kuwait, thus allowing him to export his vision of a uniquely Arab legal system that would be a synthesis of Pre-Modern Islamic Law and the civil law system. Pre-Modern Islamic Law received its legitimacy by virtue of a combination of the religious legitimacy of its representatives and their mastery of the complex discursive practices that constituted Pre-Modern Islamic Law.
The next section will consider the relative success of Article 2 as construed by the Egyptian Supreme Constitutional Court SCC in garnering legitimacy for its interpretations of Islamic law. As a result, decisions of civil law courts have the appearance of simply being a tool for the enforcement of pre-determined sovereign commands without regard to the understandings of the parties before the court.
Indeed, from this perspective, even the Article 2 jurisprudence of the SCC must be viewed as deficient, whatever its merits or its relative degree of legitimacy.
It understands Article 2 solely as prohibiting the Egyptian state from adopting laws that violate what the SCC deems to be incontrovertible and immutable rules of Islamic law. As for those rules that are amenable to legal interpretation and evolution in the light of changed circumstances, the SCC has held that Article 2 is simply not relevant because the lawgiver, in these cases, is free to fashion its own rules without regard to the historical norms of Pre-Modern Islamic Law.
Yet, this is precisely what seems to be required if Egyptian law is to effect a reconciliation between its commitment to modernism and Islamic authenticity.
A Taie of Two Légal Systems: The Interraction of Common Law and Civil Law in Hong Kong
The common law and Pre-Modern Islamic Law share many structural features which give good reason for thinking that a common law system of adjudication is better situated to reconcile the competing and at times contradictory claims of legitimacy that are characteristic of the modern Egyptian state. A common law culture of reasoned opinion giving would also force Egyptian courts to take into account modern challenges to other statutory provisions of the legal system taken from Pre-Modern Islamic Law that are facially inconsistent with various modernist commitments of the Egyptian state, including gender equality.
To the extent that Egyptian courts would be required to hear claims challenging the legitimacy of various substantive rules, and provide written reasons defending their decisions whether to uphold or strike down the challenged statute, Egyptian courts could provide an institutional forum for dialogue between the heretofore competing sources of legitimacy within the Egyptian political and legal order.
A few examples are in order to illustrate the point. This mismatch between the remedy set out in Article 6 of Law no. Law No. While this statute was hailed as progressive insofar as it greatly facilitated the ability of at least some Egyptian women to exit undesirable marriages relatively efficiently, the statute is not without its problems. Suppose an Egyptian woman has legal grounds for a divorce based on harm under Article 6 of Law no. But note that in this paradigmatic case, the result is unjust as a matter of distributive justice: the woman had a legal right to a divorce in which case she would have been able to exit the marriage and keep her dower.
The best opportunity for the integration and reconciliation of Pre-Modern Islamic Law with State Law, however, remains in cases challenging the constitutionality of particular statutes or regulations. Lombardi has provided an exhaustive analysis of many of these cases and the manner by which the SCC has dealt with these challenges. I will use the example of one such case, Minister of Health v.
The politics of the common law :perspectives, rights, processes, institutions
Shaykh Yusuf al-Badri 54 which was actually resolved by the Supreme Administrative Court, not the SCC , to illustrate how the court should have made use of Pre-Modern Islamic Law to strengthen its decision and reinforce the modernist character of the Egyptian legal system. In Minister of Health v. Badri , the complainant brought a suit challenging the constitutionality of certain regulations promulgated by the Minister of Health that prohibited, except in limited circumstances, female circumcision in government and privately owned medical facilities, and criminalizing the procedure if it was performed by non-physicians.
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