Judicial institutions, the legitimacy of Islamic state law and democratic transition in Egypt: Can a shift toward a common law model of adjudication improve the prospects of a successful democratic transition?

• Autores: Mohammad Fadel
• Localización: International journal of constitutional law, ISSN 1474-2640, Vol. 11, Nº. 3, 2013, págs. 646-665
• Idioma: inglés
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• Resumen

  • Egyptian law has undergone radical institutional change over the last 150 years, evolving from a decentralized system of largely uncodified Islamic law, into a highly centralized, positivist system modeled along the civil law system of France. The last quarter of the nineteenth century witnessed the wholesale adoption of European law, including the Napoleonic Code. After regaining independence, however, the Egyptian legal system has been steadily attempting to re-Islamize itself, beginning with the Sanhuri Code that replaced the Napoleonic Code in 1949 and the adoption of Article 2 in the Constitution in 1980 recognizing the Shari’a as the source of legislation for the Egyptian state. This article contrasts the jurisprudence of Egypt’s Supreme Constitutional Court (SCC) construing the meaning of “shari’a” with the practice of ordinary Egyptian courts construing Egypt’s civil code. It argues that the SCC has been able to garner a relatively high degree of legitimacy than the Sanhuri Code because its practice in construing the “shari’a” in constitutional challenges requires it to adopt common law style reasoning, while the ordinary courts are dominated by a positivist outlook on law which undermines its ability to claim Islamic legitimacy. This article argues that a broader shift to a common law culture would increase the Islamic legitimacy of Egypt’s overall legal system; facilitate Egyptian courts’ reconciliation with the constitutional commitments to Islamic authenticity, modernization, and human rights; and assist in Egypt’s democratic transition.