Constitutional Shari’a: Authoritarian Experiments
with Islamic Judicial Review in Egypt, Iran, and
Saudi Arabia
ALEX SCHANK*
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
519
I. ISLAMIC CONSTITUTIONALISM AS CONSTRUCT . . . . . . . . . . . . . . . . .
523
II. INSTITUTIONAL VARIANCE AND STATE IDEOLOGY . . . . . . . . . . . . . . .
526
A.
IRAN: REVOLUTIONARY RULE OF THE JURIST
B.
EGYPT: NEOLIBERAL EMPOWERING OF THE SUPREME
............................
CONSTITUTIONAL COURT
C.
527
529
SAUDI ARABIA: WAHHABI ISLAMIC COURTS OF GENERAL
JURISDICTION
D.
...............
....................................
532
OBSERVATION: REGIMES INSTITUTE ISLAMIC JUDICIAL REVIEW ON
IDEOLOGICAL GROUNDS, ONLY TO LIMIT REVIEW AND
.......
535
III. “PUBLIC INTEREST” AS GUIDING CONSTITUTIONAL PRINCIPLE . . . . . .
536
CONCENTRATE POWER IN THE HANDS OF THE EXECUTIVE
A.
IRAN: MASLAHA AS A FINAL LAYER OF APPEAL
B.
EGYPT: MASLAHA AS A PROMPT FOR JUDICIAL DEBATE ON THE
SOCIAL ENDS OF THE LAW
C.
...........................
538
541
SAUDI ARABIA: MASLAHA AS A COVER FOR THE KING’S POWER
GRAB
D.
..............
.........................................
545
OBSERVATION: MASLAHA WEAKENS ISLAMIC JUDICIAL REVIEW
...........................
547
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
549
YET SPURS LEGAL CHANGE
INTRODUCTION
From public squares in Cairo and Tehran to halls of power across the Middle
East, citizens, judges, and politicians are engaged in a constitutional dialogue on
* Georgetown University Law Center, J.D. expected 2014; Georgetown University, M.A.A.S.
expected 2014. © 2014, Alex Schank. Special thanks to Professors David S. Law and Paul L. Heck, and
to all my friends and family members who reviewed this Note with care.
519
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governance and Islam. Shaped by the rise of Islamist politics1 in recent decades
and the events of the Arab Spring and Iranian Green Movement more recently,
this dialogue is centered on the role religion should play in the basic legal
charters of Muslim-majority nation-states. Although a contested term, the shari’a2
is invoked by religious leaders, Islamists,3 authoritarian regimes, and citizens as
a religious system with implications for the legal ordering of society. Indeed,
there appears to be an emerging “constitutionalist consensus” in Islamist circles
and Muslim-majority societies at large on the shari’a as a basis for governance
and lawmaking.4
From a historical vantage point, the creation of the modern nation-state
challenged classical understandings of Islamic law and led to comprehensive
legal reforms that transformed the traditional scope of the shari’a,5 while
involving Muslim jurists in the process.6 In response to the reforms of the
1. See Marina Ottaway, Democracy and Constituencies in the Arab World, CARNEGIE PAPERS:
MIDDLE E. SERIES, July 2004, at 5 (noting that Islamists in the region have increasingly engaged in
movements for political reform while maintaining a flexible commitment to the shari’a).
2. Abdullahi Ahmed An-Na’im asserts that “Islamic law” is a misleading translation of “shari’a.”
Shari’a, An-Na’im argues, is both more and less than law—more in the sense of rituals, ethics, social
norms, and legal principles, but less in the sense that it is only given positive legal force through the
political will of the state. Abdullahi Ahmed An-Na’im, Globalization and Jurisprudence: An Islamic
Law Perspective, 54 EMORY L.J. 25, 41–42 (2005).
3. Islamists range from radical theorists calling for the overthrow of political systems not based on
shari’a rules (such as Abu al-‘Ala Mawdudi and Sayyid Qutb) to “modernists” who view the shari’a as
accommodating the complexities of modern life and guaranteeing basic rights and liberties. Asma
Afsaruddin, Demarcating Fault-Lines Within Islam: Muslim Modernists and Hardline Islamists Engage
the Shari’a, in SHARI’A AS DISCOURSE: LEGAL TRADITIONS AND THE ENCOUNTER WITH EUROPE 29, 35–37
(Jørgen S. Nielsen & Lisbet Christoffersen eds., 2010). Nathan Brown notes that Islamists of all shades
should be seen as modernists in their call for a reinterpretation of classical positions (namely classical
jurisprudence, or fiqh) to suit modern needs. NATHAN J. BROWN, CONSTITUTIONS IN A NONCONSTITUTIONAL
WORLD: ARAB BASIC LAWS AND THE PROSPECTS FOR ACCOUNTABLE GOVERNMENT 168–71 (2002).
4. BROWN, supra note 3, at 168–71.
5. Codification of the law and promulgation of statutes by legislatures contrasted with the traditional
conception of shari’a as “jurists’ law.” Aharon Layish, The Transformation of the Shari’a from Jurists’
Law to Statutory Law in the Contemporary Muslim World, 44 DIE WELT DES ISLAMS 85, 85–86 (2004).
Further introduction of European legal norms, centralization of religious institutions, and restriction of
the shari’a to specific areas like family and personal-status law led to the demise of the shari’a as a
“self-sufficient system in which practice, hermeneutics, and positive legal doctrine were conjoined to
produce the legal culture.” Wael B. Hallaq, Can the Shari’a Be Restored?, in ISLAMIC LAW AND THE
CHALLENGES OF MODERNITY 40 (Yvonne Yazbeck Haddad & Barbara Freyer Stowasser eds., 2004).
6. Legal transformation in the Middle East did not necessarily occur in opposition to the shari’a;
rather, religious scholars and jurists, who generally conceived of shari’a as a legal process rather than a
rigid set of rules, were involved in nationalist projects, and elements of Islamic jurisprudence were
integrated into new national legal systems. Nathan Brown contends that in its classical form, the shari’a
meant more than legal norms and rules; it encompassed Islamic scholarship, processes for deriving law
and adjudicating disputes, and legal and educational institutions for training scholars and jurists—
altogether constituting a broader discourse that informed prenationalist political expression. In most
cases in the nationalist era, the introduction of European legal codes and civil courts was not radically
opposed, even by religious leaders, because Islamic laws and jurists were integrated into the process of
creating new civil codes and courts, and the project was a part of nationalist anticolonial movements.
The debate on Islamic constitutionalism that has emerged today, according to Brown, is the result of the
bureaucratization and centralization of shari’a institutions that has largely divorced classical shari’a
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nationalist era, Islamist political actors called for a more overt implementation
of shari’a rules. This call has played a role in mobilizing opposition politics in
the Middle East since the 1970s7 and has led regimes in several countries to
institute formal constitutional requirements that legislation comply with Islamic
law. In most cases, regimes have resorted to constitutional shari’a projects as a
means of dressing their policies up in “Islamic garb”8 and deriving legitimacy
for their continued rule. Citizens, meanwhile, look to constitutions as instruments to further their interests9 and to Islam as an essential part of their
identity.10
In authoritarian Egypt, for example, Article 2 of the constitution was amended
in 1980 to state that the principles of the Islamic shari’a are “the principal
source of legislation,” functionally tasking the Supreme Constitutional Court
(SCC) with reviewing legislation for shari’a compliance.11 In a more abrupt
transformation, Iran saw a revolution in 1979 that resulted in the constitutional
enshrining of velayat-e faqih, or the rule of the jurist, and created an apparatus
in the Guardian Council to ensure that all statutes and regulations are “based on
Islamic criteria.”12 Other states, such as Saudi Arabia, have claimed to govern
process from its content, producing a more limited view of shari’a as a system of substantive rules that
can be applied by the state in positive legislation. Nathan J. Brown, Shari’a and State in the Modern
Muslim Middle East, 29 INT’L J. MIDDLE E. STUD. 359, 364–73 (1997).
7. See Mustapha Kamel Al-Sayyid, The Other Face of the Islamist Movement 12–13 (Carnegie
Endowment, Democracy and Rule of Law Project, Working Paper No. 33, 2003), available at http://
carnegieendowment.org/pdf/files/wp33.pdf.
8. See Ibrahim A. Karawan, Monarchs, Mullas, and Marshals: Islamic Regimes?, ANNALS AM. ACAD.
POL. & SOC. SCI., Nov. 1992, at 103, 103–04.
9. ANTHONY BILLINGSLEY, POLITICAL SUCCESSION IN THE ARAB WORLD: CONSTITUTIONS, FAMILY LOYALTIES
AND ISLAM 110 (2010).
10. Talal Asad defines Islam as a rational, discursive tradition that guides the way believers live their
lives and is rooted in the founding texts of the Qur’an and the sayings and deeds of the Prophet
Muhammad (the hadith). Talal Asad, The Idea of an Anthropology of Islam, CENTER FOR CONTEMP. ARAB
STUD. OCCASIONAL PAPERS SERIES, Mar. 1986, at 14. Asad stresses that Islamic discourse is a power-laden
construct, a tradition that seeks to establish orthodoxy, but that is also reasoned and capable of
transformation without losing its authenticity. Ovamir Anjum, Islam as a Discursive Tradition: Talal
Asad and His Interlocutors, 27 COMP. STUD. S. ASIA, AFR. & MIDDLE E. 656, 671 (2007). This discursive
process informs the way Muslims discuss rights in particular contexts, often complicating liberal
understandings of freedom and identity. See Saba Mahmood, Religious Reason and Secular Affect: An
Incommensurable Divide?, in IS CRITIQUE SECULAR? BLASPHEMY, INJURY, AND FREE SPEECH 58, 64, 78
(2009). While individual agency should not be denied, it is difficult to claim that believers can simply
“exit” their religious identity in the name of liberal democratic values when religion provides a sense of
belonging, rootedness, and community. See Oonagh Reitman, On Exit, in MINORITIES WITHIN MINORITIES: EQUALITY, RIGHTS AND DIVERSITY 189, 195 (Avigail Eisenberg & Jeff Spinner-Halev eds., 2005).
11. CONSTITUTION OF THE ARAB REPUBLIC OF EGYPT, 11 Sept. 1971, as amended, May 22, 1980,
May 25, 2005, March 26, 2007 [hereinafter EGYPTIAN CONSTITUTION].
12. QANUNI ASSASSI JUMHURII ISLAMAI IRAN [THE CONSTITUTION OF THE ISLAMIC REPUBLIC OF IRAN],
art. 4, 1358 [1980] [hereinafter IRANIAN CONSTITUTION] (“All civil, penal financial, economic, administrative, cultural, military, political, and other laws and regulations must be based on Islamic criteria. This
principle applies absolutely and generally to all articles of the Constitution as well as to all other laws
and regulations, and the fuqaha’ of the Guardian Council are judges in this matter.”).
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based on the shari’a since their founding13 and restated this commitment in
foundational documents like the Saudi Basic Law of 1992.14
This Note is an investigation of Islamic judicial review—or the role courts
play in evaluating legislation for compliance with constitutionally enshrined
shari’a guarantees15—in Iran, Saudi Arabia, and Egypt. Although by no means
an entirely representative grouping of Middle Eastern states, these three states
are among the largest and most influential in the region and together span a
range of approaches to Islamic constitutionalism.16 This Note hypothesizes that
a general pattern has emerged: guided by state ideology, authoritarian regimes
create institutions tasked with engaging in Islamic judicial review of legislation
for compatibility with shari’a principles, only to limit this review in the name of
“public interest,” or maslaha.
Maslaha is both a formative constitutional principle and a site of contestation. Regime elites seek to manipulate it by claiming that it is in the public
interest to curb the power of judicial institutions. Citizen activists, meanwhile,
attempt to subvert the dominant regime discourse by rearticulating the public
interest in democratic terms. Courts also challenge regime manipulation of
maslaha by chastising executive-branch abuse of power and asserting their
jurisdiction over cases. Religion is infused throughout this discursive exchange:
it attaches particular meaning to Islamic legal terms like maslaha and informs
citizens’ demands for reform.
13. These states are primarily monarchies and include Jordan, Morocco, and the Gulf sheikhdoms.
See Lisa Anderson, Absolutism and the Resilience of Monarchy in the Middle East, POL. SCI. Q., Spring
1991, at 1, 8–9 (noting that although hereditary dynasties traditionally relied heavily on religious
leaders to confer legitimacy on their rule based on their application of the shari’a, rulers gradually
expanded the scope of their arbitrary prerogatives at the expense of religious authorities as “gunpowder
empires” arose and European colonial meddling ensued).
14. Basic Law of Governance, art. 7, 1 March 1992 [hereinafter Saudi Basic Law] (“Government in
the Kingdom of Saudi Arabia derives its authority from the Book of God and the Sunna of the Prophet
[peace be upon him], which are the ultimate sources of reference for this Law and the other laws of the
State.”).
15. NOAH FELDMAN, THE FALL AND RISE OF THE ISLAMIC STATE 120–124 (2008) (noting that effective
Islamic judicial review would engage legitimately elected legislatures in a constitutional dialogue with
courts that evaluate legislation with consistency and on the basis of “democratic shari’a”).
16. Larry Backer, for example, traces ideological strains, both theocratic and transnational, running
through each country’s approach to constitutionalism. He finds that Iran’s constitution largely follows
emerging models of transnational constitutionalism in its separation of powers and limits on government, but it does so on the basis of Islamic rather than secular norms; Saudi Arabia, meanwhile, is a
theocracy that lacks a meaningful theocratic constitutionalism that would limit government; finally,
Egypt wavers between secular and religious transnational constitutionalisms as the regime attempts to
secularize Islam by co-opting Islamist values and manipulating the religious establishment. Larry Catá
Backer, Theocratic Constitutionalism: An Introduction to a New Global Legal Ordering, 16 IND. J.
GLOBAL LEGAL STUD. 85, 140–60 (2009). In his institution-focused analysis, Chibli Mallat concludes
that these three countries lie on a spectrum of Islamic constitutionalism with Iran representing the
“most concrete Islamic challenge to classical constitutionalism in the Middle East” through its
empowering of Islamic jurists as interpreters of the constitution, while Saudi Arabia falls on the
opposite end of the spectrum as a state with few, if any, representative institutions and no selfproclaimed formal constitution. Chibli Mallat, On the Specificity of Middle Eastern Constitutionalism,
38 CASE W. RES. J. INT’L L. 13, 34–35 (2006).
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This Note investigates the development of Islamic judicial review in the
historical and political context of each country. Part I surveys the literature on
Islamic constitutional theory and accepts the potential for meaningful, Islamically based limits on government and protection of rights. Part II charts the
institutional diversity of shari’a-based judicial review in Iran, Egypt, and Saudi
Arabia, and concludes that ideology—be it revolutionary, neoliberal, or purist,
respectively—has shaped regime construction and manipulation of Islamic
judicial institutions. Finally, Part III traces the use of the principle of maslaha in
Islamic constitutional discourse, finding that while regime-defined notions of
the public interest limit the jurisdiction of bodies engaged in shari’a-based
review of legislation, courts and popular reform movements are changing the
terms of the debate. The result is a mixed bag: maslaha obscures the authoritarian foundations of constitutional arrangements in the Middle East but also
broadens the meaning of Islamic judicial review to include deeper consideration
of the law’s public utility.
I. ISLAMIC CONSTITUTIONALISM AS CONSTRUCT
Comparative constitutional study of Muslim-majority societies in the Middle
East is a delicate scholarly endeavor. On the one hand, there is a degree of
“specificity” to constitutionalism in the Middle East given a shared colonial
history, the existence of pan-Arab and pan-Islamic political trends, and the
recurring question of Islam and governance in the region.17 On the other hand,
however, comparative constitutional analyses that only focus on difference
threaten to essentialize the Oriental other as despotic and irrational (in contrast
to presumably superior Western constitutional norms and practices).18
Today, blatantly modernist studies have generally fallen out of favor in the
academic literature on Islam and constitutionalism, and the emergence of
Islamism and public-piety movements19 in the Middle East has made it clear
that shari’a has not been entirely defeated by secular law in the eyes of many
Muslim believers. Nonetheless, a scholarly debate on the compatibility of
shari’a and constitutionalism, and more broadly, Islam and democracy, persists.
This Note identifies two broad camps of theorists and refers to them as
secularists and reformists.
17. See Mallat, supra note 16, at 16 (arguing that Middle East constitutionalism must be seen on its
own terms, even as comparative studies are done, due to the uniqueness of colonial history, pan-Arab
regional dynamics, and the question of Islam).
18. See Teemu Ruskola, Legal Orientalism, 101 MICH. L. REV. 179, 229–31 (2002). Earlier scholars
of constitutionalism in Muslim-majority countries, for example, explicitly asserted the backwardness of
Islamic constitutionalism, arguing that “the elaboration and promulgation of a constitution represented
a victory for the partisans of progress over the conservatives entrenched behind the [shari’a].” B. Lewis,
៮ : A SURVEY OF THE CONSTITUTIONS OF THE ARAB AND
Ch. Pellat, & J. Schacht, Conclusion, in DUSTUR
MUSLIM STATES 119, 122 (E.J. Brill ed., 1966).
19. See generally CHARLES HIRSCHKIND, THE ETHICAL SOUNDSCAPE: CASSETTE SERMONS AND ISLAMIC
COUNTERPUBLICS (2009); SABA MAHMOOD, POLITICS OF PIETY: THE ISLAMIC REVIVAL AND THE FEMINIST
SUBJECT (2005).
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The secularist view of Islamic constitutionalism assumes that the shari’a
lacks an appropriate hermeneutical framework to effectively derive constitutional principles that would limit government, guarantee human rights, and
promote the rule of law. Mark Gould, for example, says that Muslims are
incapable of deriving such principles from the shari’a because Islam is inherently opposed to the principle of sovereignty of the people and man-made law.20
The only solution Gould sees is for Muslims to adopt constitutional norms from
liberal democracies and make a “civil religion” out of Islam, even if a “double
consciousness”—one Islamic and one civil—is to emerge as a result.21
In contrast to the secularist rejection of an Islamic basis for constitutionalism,
reformists assert that the shari’a is central to Muslim believers as the divinely
ordained path, and it is therefore indispensable. They stress that the shari’a is a
source for rich interpretive possibility on the question of constitutional governance.22 Khaled Abou El Fadl, for example, argues that shari’a can be the basis
for democratic constitutionalism if understood not as a rigid collection of
rulings, but as a “set of principles, methodology, and a process of discourse that
searches for the Divine ideals. . . . [A] work in progress, never complete.”23
Lama Abu-Odeh criticizes the reformists for engaging in historical anachronisms that confuse medieval Islamic law with law as practiced today in Muslimmajority countries, which she says is primarily an evolving version of the
colonial European legal transplant.24 For Abu-Odeh, the real constitutional
20. Mark Gould, Islam, the Law, and the Sovereignty of God, POL’Y REV., June–July 2008, at 3, 16.
Such hesitance to recognize the potential for a constitutionalist shari’a seems to stem from the
assumption that Islamic society—in contrast to Christendom—has conceived of political legitimacy
primarily in terms of religious authority and has yet to realize a civil society. Muslims are therefore
incapable of replicating the tolerance afforded by secular law and instead demand its repeal in favor of
an exclusivist legal framework based on the shari’a. See, e.g., Bernard Lewis, State and Society Under
Islam, WILSON Q., Autumn 1989, at 39, 50. Under this view, calls for shari’a implementation are not
only anticonstitutional because they see the constitution as forever inferior to divine law, GEORGE N.
SFEIR, MODERNIZATION OF THE LAW IN ARAB STATES: AN INVESTIGATION INTO CURRENT CIVIL CRIMINAL AND
CONSTITUTIONAL LAW IN THE ARAB WORLD 244–45 (1998), but their rigid political understanding of
Islamic law stands in contrast to the historical flexibility of fiqh (or Islamic jurisprudence) over the
centuries, Bassam Tibi, The Return of the Sacred to Politics as a Constitutional Law: The Case of the
Shari’atization of Politics in Islamic Civilization, THEORIA, Apr. 2008, at 91, 113–14. The only hope
then of making shari’a a basis for constitutionalism is to strip it down to a purely ethical understanding
compatible with secularism—a “civil Islam.” Id.
21. Gould, supra note 20, at 16.
22. Abdullahi An-Na’im argues that Islam can serve as a hermeneutical tradition that realizes human
dignity and liberty. Principles of citizenship can be derived from an expanded notion of nation, or
umma, that includes Muslims and non-Muslims as equals, and limited government can find a basis in
the Islamic conception of consultation, or shura, if it is construed as a binding cap on authority. In
contrast to Gould and Tibi, An-Na’im concludes that Muslims may “retain the central role of Islam in
their lives” without necessarily abandoning shari’a and pursuing Western-inspired secularization.
Abdullahi Ahmed An-Na’im, Civil Rights in the Islamic Constitutional Tradition: Shared Ideals and
Divergent Regimes, 25 J. MARSHALL L. REV. 267, 293 (1992).
23. Khaled Abou El Fadl, Constitutionalism and the Islamic Sunni Legacy, 1 UCLA J. ISLAMIC &
NEAR E. L. 67, 100 (2001).
24. Lama Abu-Odeh, The Politics of (Mis)Recognition: Islamic Law Pedagogy in American Academia, 52 AM. J. COMP. L. 789, 810 (2004).
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dilemma is not that Muslims feel alienated by foreign constitutional notions
like separation of powers and individual rights (she contends people accept
these notions because it is in their interest), but rather that autocratic elites are
unwilling to give up power.25 A reconstructed Islamic constitutionalist project
will not convince elites to give up power and is thus really beside the point.
Abou El Fadl has asserted that reconciliation between Islam and constitutional democracy is a feasible and necessary process26—a proposition for which
other scholars have come to his defense. Anver Emon says that Abou El Fadl’s
project is not an apologist attempt to reconstruct an inherently democratic
Islam, but rather a forthright recognition that Muslims must make a moral
commitment to democracy if democratic institutions are to thrive in Muslimmajority societies.27 Further, Muslims do not constitute a categorical exception
to the global phenomenon of constitutionalism (in fact millions live and participate in electoral democracies), but the shari’a has a particular dynamism in the
Islamic world that must be reckoned with and not ignored by assuming a
“wholesale convergence toward what are perceived to be international standards
of behavior.”28
Comparative constitutional scholars attempt to derive meaningful insights
from cross-cultural analyses based on the assumption that there are indeed
global constitutional trends worth investigating. One insightful study finds,
however, that while there is a global constitutional convergence occurring with
the inclusion of rights in written constitutions, the convergence is happening in
ideological pockets.29 The implication, then, is that particular attention must be
paid to difference as well as similarity in comparative analyses of legal traditions, especially when investigating the role the Islamic legal tradition plays in
modern constitutions.30 Indeed, the constitutional experience with religion in
the Islamic world may suggest a complex process of “glocalization,” or hybrid
global-local constitutional dynamics.31
In an effort to strike a balance in the debate on the coherence of “Islamic
constitutionalism,” epitomized in the scholarly exchange between Abou el Fadl
and Abu-Odeh, this Note maintains both a theoretical openness to the possibility
25. Id. at 811 n.48.
26. Khaled Abou El Fadl, Islam and the Challenge of Democratic Commitment, 27 FORDHAM INT’L
L.J. 4 (2003).
27. Anver M. Emon, On Democracy as a Shar’i Moral Presumption: Response to Khaled Abou El
Fadl, 27 FORDHAM INT’L L.J. 72, 78 (2003).
28. Erik G. Jensen, Confronting Misconceptions and Acknowledging Imperfections: A Response to
Khaled Abou El Fadl’s “Islam and Democracy,” 27 FORDHAM INT’L L.J. 81, 84–85 (2003).
29. David S. Law & Mila Versteeg, The Evolution and Ideology of Global Constitutionalism,
99 CALIF. L. REV. 1163, 1241 (2011); see also Nancy J. Davis & Robert V. Robinson, The Egalitarian
Face of Islamic Orthodoxy: Support for Islamic Law and Economic Justice in Seven Muslim-Majority
Nations, AM. SOC. REV., Apr. 2006, at 167 (finding that Islamic orthodoxy measured as the desire to
implement Islamic law is associated with a commitment to broad economic communitarianism).
30. See An-Na’im, supra note 2, at 49.
31. Ran Hirschl, Holy Glocalization: Constitutions and Sacred Texts in the “Non-secular” World,
HARV. INT’L REV., Summer 2010, at 38, 42.
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of a meaningful Islamic constitutionalism and an awareness of the dynamics of
political manipulation by autocratic elites that shapes lived constitutional realities in Egypt, Iran, and Saudi Arabia. Both perspectives are crucial in gaining a
fuller picture of the intersection of shari’a and constitutionalism in the region
because Islamic constitutional precepts often shape political dynamics on the
ground, and vice versa.
II. INSTITUTIONAL VARIANCE AND STATE IDEOLOGY
Constitutional scholars theorize that the institutional structure of courts engaged in judicial review is a function of political calculation and concession by
powerful hegemons.32 Judicial review can have positive effects such as promoting judicial independence and discouraging the political branches of government from overreaching.33 In the Middle East, judicial review has been
susceptible to political manipulation by regime hegemons who concentrate
power in the executive branch and are reluctant to cede much authority to the
judiciary.34 Nonetheless, courts in the region possess various levels of independence, often depending on the degree of space there is for political pluralism to
operate.35 Courts are not totally passive institutions and have used their power
32. Ran Hirschl, for example, posits that hegemons fearing political disempowerment at the hands of
“peripheral groups” in majoritarian arenas invest courts friendly to their policy preferences with the
power of judicial review as a means of preserving their influence. Ran Hirschl, The Political Origins of
Judicial Empowerment Through Constitutionalization: Lessons from Four Constitutional Revolutions,
25 LAW & SOC. INQUIRY 91, 95 (2000).
33. Once established, judicial review tends to produce a “judicialization” of politics, for like a
“junkyard dog” that will bite whomever approaches it, courts inevitably get involved in areas they were
not originally expected to enter. Martin Shapiro, The Success of Judicial Review and Democracy, in ON
LAW, POLITICS, AND JUDICIALIZATION 149 (Martin Shapiro & Alec Stone Sweet eds., 2002) (noting that
court involvement in settling disputes regarding separation of powers between political actors often
opens the door to later constitutional rights adjudication). Furthermore, legislators who know that
courts can strike down legislation as unconstitutional may themselves engage in a form of preenactment judicial review during the lawmaking process, thus imposing court-speak on the politics of
policymaking. See generally ALEC STONE SWEET, GOVERNING WITH JUDGES: CONSTITUTIONAL POLITICS IN
EUROPE (2000).
34. Nearly all Middle Eastern states have institutionalized judicial review in their constitutional
systems, mostly in the form of specialized constitutional courts; however, few courts have effectively
defended a constitutionalist balance of powers due to regime tactics of interference, including manipulation of judicial appointments and limiting courts’ subject-matter jurisdiction. Nathan J. Brown, Judicial
Review and the Arab World, 9 J. DEMOCRACY 85, 89–93 (1998) (noting that Qatar, Oman, and Saudi
Arabia are notable exceptions of states that do not formally accord courts the power of judicial review).
Although judicial review may also be limited in democratic countries by restricting the judiciary’s
independence and power to hear cases, see David S. Law, Why Has Judicial Review Failed in Japan?,
88 WASH. U. L. REV. 1425, 1426 (2011), limitations are particularly severe in an authoritarian context in
which the executive branch maintains sweeping constitutional powers vis-à-vis other departments of
government. See SFEIR, supra note 20, at 236 (noting that although nearly all of the Arab states have
nominally independent judiciaries and individual rights written into their constitutions, judicial review
remains highly restricted by limiting who has access to constitutional courts—often by limiting review
to requests by ministers or members of parliament).
35. See BROWN, supra note 3, at 97.
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527
of judicial review to promote constitutionalism in some authoritarian
contexts.36
This Part traces the political and historical construction of institutions that
engage in Islamic judicial review in Iran, Saudi Arabia, and Egypt. It argues that
although the institutional structure of judicial review in the Islamic constitutional context varies significantly depending on historical circumstances peculiar to each country,37 state political ideology has played a powerful role in
shaping institutional arrangements.
State ideology only accounts for part of the story, however. While ideology
spurred authoritarian regimes to craft institutions that engage in Islamic judicial
review of legislation, the same regimes have proven adept at limiting review
(often in a bid to strengthen the executive’s hand at the judiciary’s expense). As
Part III hypothesizes, these regimes place limits on Islamic judicial review in
the name of the “public interest,” or maslaha.
A. IRAN: REVOLUTIONARY RULE OF THE JURIST
Iran’s experiment with Islamic constitutionalism has roots in the 1906–1907
Constitutional Revolution that led to the creation of the first representative
institutions in the country. Religious leaders had joined popular demonstrations
against the Shah, taking up bast, or asylum, in Qom to protest the Shah’s failed
promises to promulgate a code of laws.38 In the end, the constitution that
resulted emphasized a strict separation of powers into legislative, judicial, and
executive functions, created shari’a and civil tribunals, affirmed judicial irremovability and independence, and provided in Article 2 that a committee of experts
in Islamic jurisprudence would be established to reject legislation at variance
with the shari’a.39
36. See Gretchen Helmke & Frances Rosenbluth, Regimes and the Rule of Law: Judicial Independence in Comparative Perspective, 12 ANN. REV. POL. SCI. 345, 356 (2009) (discussing the logic of
strategic defection).
37. Scholars disagree on the historical uniformity of Islamic judicial institutions. For example, on
the question of procedures for appeal to higher courts in classical Islam, Martin Shapiro says that the
Islamic legal system “stands alone among major legal cultures in its failure to employ appellate
mechanisms.” Martin Shapiro, Islam and Appeal, 68 CALIF. L. REV. 350, 350 (1980). David Powers
disputes this claim by pointing to various historical examples of nonhierarchical appellate procedures in
the form of Islamic successor review and informal hierarchical appellate review by the chief qadi, or
judge, of capital cities. David S. Powers, On Judicial Review in Islamic Law, 26 LAW & SOC. REV. 315,
317 (1992).
38. A.K.S. Lambton, Mahkama: Iran, in JUDICIAL PRACTICE: INSTITUTIONS AND AGENTS IN THE ISLAMIC
WORLD 91, 111 (Boğaç A. Ergene ed., 2009).
39. Id. at 111–12. Underlying such a constitutional transformation was a core of Islamic theory
justifying popular representation and limits on government. Thinkers such as Muhammad Hussayn
al-Na’ini had written treatises opposing autocracy on religious grounds in the late nineteenth century,
effectively dismantling the notion of the “just sultanate” in which even an autocratic leader maintains
legitimacy so long as he executes the shari’a as found by the jurists. AMIRHASSAN BOOZARI, SHI’I
JURISPRUDENCE AND CONSTITUTION: REVOLUTION IN IRAN 6 (2011). A constitution is conceived in Na’ini’s
thinking as crucial to limiting the power of the ruler who exercises wilaya, or political trusteeship, over
the people. ABDELILAH BELKEZIZ, THE STATE IN CONTEMPORARY ISLAMIC THOUGHT: A HISTORICAL SURVEY OF
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The constitution produced by the 1979 Islamic Revolution was similar to the
1906 constitution in the sense that it established an effective—if layered and
cumbersome—separation of powers; however, it differed from its earlier counterpart ideologically. The revolutionary ideology of rule of the jurist, or velayat-e
faqih, aimed to create a government led by Islamic clerics and operating
according to the ahkam, or rules, of Islam.40 Said Arjomand argues that in
contrast to previous constitutional eras in Iranian history in which jurists viewed
the shari’a as a limitation on government—not the basis for the constitution
itself—Ayatollah Ruhollah Khomeini’s ideology created a virtual “kingdom of
jurists,” in which the head jurist (faqih) maintained sweeping powers of appointment, and ultimate political power resided with the jurists rather than the
people.41 The new constitutional order stressed Islamization of society and
sought to reorganize the judiciary to consolidate regime control,42 albeit with
limited success.43
The most significant constitutional reform affecting the judiciary was the
creation of the Council of Guardians, which is empowered to strike down
legislation found incompatible with the shari’a. Structurally, the Council’s
composition is heavily influenced by the faqih, who appoints half of the
Council’s members directly. Although the other half of the Council is technically elected by the parliament, parliamentarians can only consider candidates
who are selected by the head of the judiciary, who is himself appointed by the
faqih.44 The result of such an institutional arrangement is that a largely unelected body of jurists engages in judicial review of statutes passed by the
popularly elected parliament.45
After several years of deadlock in which the Council of Guardians routinely
THE MAJOR MUSLIM POLITICAL THINKERS OF THE MODERN ERA 55 (2009). Religious reformist voices like
that of Na’ini were not unopposed, however. Other Islamic scholars at the time, such as Shaykh
Fadlallah Nuri, argued against constitutionalism on the basis of the impossibility of creating equality of
citizenship for Muslims and non-Muslims, male and female, rich and poor. John L. Esposito & James P.
Piscatori, Democratization and Islam, 45 MIDDLE E. J. 427, 435 (1991).
40. BELKEZIZ, supra note 39, at 232 (noting that wilayat-e faqih stands in contrast to notions
articulated by al-Na’ini stressing that wilaya over other human beings should be without compulsion).
41. Saı̈d Amir Arjomand, The Kingdom of Jurists: Constitutionalism and the Legal Order in Iran, in
CONSTITUTIONALISM IN ISLAMIC COUNTRIES: BETWEEN UPHEAVAL AND CONTINUITY 147, 169 (Rainer Grote &
Tilmann J. Röder eds., 2012).
42. MAJID MOHAMMADI, JUDICIAL REFORM AND REORGANIZATION IN 20TH CENTURY IRAN: STATE-BUILDING,
MODERNIZATION AND ISLAMICIZATION 259 (2008).
43. Arjomand, supra note 41, at 165 (arguing that the Islamization of the judiciary has been a
relative failure and, in the past decade, the head of the judiciary has largely reversed the “general
courts” presided over by a single Islamic judge-prosecutor without established avenues of formal
appeal).
44. Foroud Shirvani, A Different Approach to the Control of Constitutionalism: Iran’s Guardian
Council, in CONSTITUTIONALISM IN ISLAMIC COUNTRIES: BETWEEN UPHEAVAL AND CONTINUITY 279, 283
(Rainer Grote & Tilmann J. Röder eds., 2012).
45. Id. at 285. In addition to reviewing parliament’s statutes, the Council of Guardians limits the
candidates who are allowed to run for parliament, thereby retaining significant control over its
membership.
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found statutes incompatible with the shari’a and struck them down, Iran witnessed another constitutional milestone. In 1988, Khomeini declared that the
Islamic government, operating under velayat-e faqih, could issue policies with
the authority of a religious injunction even if such policies were at odds with
long-standing religious obligations such as prayer, fasting, and pilgrimage.
Furthermore, Khomeini declared the creation of a new body, the Maslahat
(Expediency) Council, to resolve disputes between the parliament and the
Council of Guardians.46 Nathan Brown comments that although the declaration
strengthened elected offices of government, including the President and the
parliament, it did so at the cost of relying on the faqih’s personal authority, not
any established grounds for constitutional amendment.47 On the ideological
level, Khomeini’s creation of a body that could reverse the ruling of jurists
represented backtracking from the revolutionary principle of velayat-e faqih, or
rule of the jurist.
B. EGYPT: NEOLIBERAL EMPOWERING OF THE SUPREME CONSTITUTIONAL COURT
The Egyptian constitutional experience differs from the Iranian experience
both in terms of state ideology and the governmental institutions tasked with
Islamic judicial review. Egyptian shari’a courts operated concurrently with civil
courts in the nineteenth century, although legislation in 1883 and later in 1956
would ultimately fold them into the national court system and largely confine
them to personal-status matters.48 In terms of constitutional reference to the
shari’a, the 1964 text (created at the time of Gamal ‘Abd el-Naser) remained
silent on the question of Islamic judicial review, and it was not until 1971 that
the constitution would be amended to declare the “principles of shari’a” to be
“a” chief source of legislation.49 Finally, the 1980 constitutional amendment to
Article 2 made shari’a principles “the” chief source and tasked the Supreme
Constitutional Court (SCC) with judicial review of legislation for shari’a compliance.50
Such a shift was not the product of an ideological revolution, but the result of
a self-interested regime’s attempts to boost its Islamic credentials in the face of
Islamist opposition.51 As evidence of the regime’s ideological ambivalence
toward governance by the shari’a, it is worth noting that following the assassina-
46.
47.
48.
49.
BROWN, supra note 3, at 187.
Id. at 191.
Brown, supra note 6, at 362.
A. Layish & J. Schacht, Mahkama: The Arab Lands and Israel in the Modern Period, in JUDICIAL
PRACTICE: INSTITUTIONS AND AGENTS IN THE ISLAMIC WORLD 114, 117 (Boğaç A. Ergene ed., 2009); see
also Jakob Skovgaard-Petersen, Shari’a and the Constitutional Debate in Egypt, in SHARI’A AS DISCOURSE: LEGAL TRADITIONS AND THE ENCOUNTER WITH EUROPE 199, 200 (Jørgen S. Nielsen & Lisbet
Christoffersen eds., 2010) (noting that shari’a in the 1971 constitution was invoked “in a referential
way, as a proclamation of national identity, without precise definition as to its constitutional and legal
impact”).
50. BROWN, supra note 3, at 181.
51. See id.
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tion of President Anwar al-Sadat in 1981, the regime cracked down on Islamists
and backed away from its earlier tentative support for proposals by the Shaykh
of Al-Azhar and a parliamentary committee for the integration of the shari’a
into new civil, penal, evidentiary, commercial, and procedural codes.52 Yet
Article 2 remained unchanged as Hosni Mubarak seized the reigns of the
presidency in 1981.
One explanation for the durability of Article 2 is the neoliberal economic turn
Sadat initiated in 1974 with the “open door,” or infitah, policy which at once
exposed Egypt to the pressures of the international market economy and
attracted external assistance.53 Several scholars have noted that economic pressures from the outside tend to produce domestic judicial centralization and
reform, including granting courts the power of judicial review.54 In the case of
Egypt, the regime had an economic incentive to expand the powers of the SCC,
as the regime wanted to attract private investment from global markets with the
theoretical promise of consistent application of the law.55 Before 1979, courts
could only exercise limited judicial review by refusing to apply a law deemed
unconstitutional to particular cases, and courts could only do so in a nonbinding
fashion.56 Article 2’s grant of the power of Islamic judicial review to the SCC
was thus part of a larger institutional transformation of constitutional law in
Egypt driven by neoliberal economics.
Although the 1980 amendment to Article 2 was significant from an institutional standpoint because it functionally tasked the SCC with Islamic judicial
review, in practice, the SCC has only ever struck down one law on shari’anoncompliance grounds and generally gives both the executive and legislature
wide latitude.57 The SCC has found that Article 2 Islamic judicial review has no
retroactive effect for legislation passed before 197958 and has ruled that any
Article 2 claim will fail if it is not based on a clear and permanent injunction of
the shari’a around which Islamic jurists have consensus.59 The SCC has been
creative with its decisions, however. In 1985, for example, the court declined to
52. Skovgaard-Petersen, supra note 49, at 201.
53. See Marvin G. Weinbaum, Egypt’s Infitah and the Politics of U.S. Economic Assistance,
21 MIDDLE E. STUD. 206, 206 (1985).
54. E.g., STONE SWEET, supra note 33, at 154–60 (discussing the economic motivation of members of
the European Community to comply with supranational legal arrangements and the resulting tendency
of national constitutional courts to appeal to European law in adjudicating disputes); Erika de Wet, The
Constitutionalization of Public International Law, in OXFORD HANDBOOK OF COMPARATIVE CONSTITUTIONAL LAW 1209, 1220–21 (Michel Rosenfeld & András Sajó eds., 2012) (noting that judicial review
reassures member states of international economic regimes that other parties will act within agreedupon limits).
55. Tamir Moustafa, Law Versus the State: The Judicialization of Politics in Egypt, 28 LAW & SOC.
INQUIRY 883, 885 (2003).
56. See SFEIR, supra note 20, at 247.
57. BROWN, supra note 3, at 182–83 (noting that in 1996 the SCC upheld a Ministry of Education
ban on niqabs in state schools).
58. SFEIR, supra note 20, at 249.
59. BROWN, supra note 3, at 184.
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strike a progressive domestic-relations law (declared as an emergency decree by
the President) on Article 2 grounds but struck it down nonetheless on formal
grounds by finding that the president had failed to demonstrate a nexus between
state security and the emergency decree.60
Overall, the SCC’s Article 2 jurisprudence demonstrates the court’s liberal
orientation and general unease with declaring laws incompatible with the
principles of the shari’a.61 Although such a position maintains the potential for
the shari’a to be used as corrective to legislation, it divorces the shari’a from its
historical processes and institutions because the justices are not trained in
shari’a, and the court has traditionally not involved the state mufti or the ‘ulama
(religious scholars) in its decision making.62 The co-optation of the shari’a by
the liberal judicial organ of the state has triggered some debate in Egyptian
society, earning praise from liberals and criticism from some Islamists who see
the SCC as watering down the shari’a and failing to accord it the primacy it
deserves as divinely inspired law.63 Islamists, however, have engaged in an
exchange that is encouraging from a constitutionalist perspective: the SCC’s
involvement in Article 2 cases forced some Islamists to consider concessions
they could make on ideological grounds to liberals in exchange for protection
offered by the court for their political and social activities.64
Although the SCC remains largely independent, it is not entirely immune to
executive interference. By 2001, following a string of rulings in favor of civil
society and political actors at the expense of the executive in the 1990s, the
regime reigned in the court by replacing the deceased chief justice with a
regime ally and expanding the size of the SCC to reduce the influence of
liberal-activist judges.65 Further, the Egyptian judiciary at large is subject to the
regulation of the Supreme Judicial Council, which appoints judges recommended by prosecutors who are themselves appointed by the President; the
reassignment, discipline, and payroll of judges are all handled by the Ministry
of Justice.66 Thus the Egyptian regime’s commitment to neoliberal ideals of
judicial independence and neutral application of the law has proven to be
60. Clark B. Lombardi, Egypt’s Supreme Constitutional Court: Managing Constitutional Conflict in
an Authoritarian, Aspirationally “Islamic” State, 3 J. COMP. L. 234, 243–44 (2008).
61. From an institutional perspective, the SCC’s self-restraint and strategy of striking laws on
procedural rather than Article 2 grounds may reflect the judiciary’s weak position vis-à-vis the
legislature and executive and its attempt to avoid undesirable attacks on the court. Nathan J. Brown &
Adel Omar Sherif, Inscribing the Islamic Shari’a in Arab Constitutional Law, in ISLAMIC LAW AND THE
CHALLENGES OF MODERNITY 55, 73 (Yvonne Yazbeck Haddad & Barbara Freyer Stowasser eds., 2004).
62. Skovgaard-Petersen, supra note 49, at 203.
63. See Bernard Botiveau, Contemporary Reinterpretations of Islamic Law: The Case of Egypt, in
ISLAM AND PUBLIC LAW: CLASSICAL AND CONTEMPORARY STUDIES 261, 262 (Chibli Mallat ed., 1993).
64. Clark B. Lombardi, Constitution as Agreement to Agree: The Social and Political Foundations
(and Effects) of the 1971 Egyptian Constitution, in SOCIAL AND POLITICAL FOUNDATIONS OF CONSTITUTIONS
34 (Dennis Galligan & Mila Versteeg eds., 2012).
65. Lombardi, supra note 60, at 250–51.
66. INT’L FED’N FOR HUMAN RIGHTS, JUDICIAL COUNCIL REFORMS FOR AN INDEPENDENT JUDICIARY:
EXAMPLES FROM EGYPT, JORDAN, LEBANON, MOROCCO, AND PALESTINE 10 (2009).
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limited in application.
C. SAUDI ARABIA: WAHHABI ISLAMIC COURTS OF GENERAL JURISDICTION
Like Iran, Saudi Arabia claims an Islamic state ideology; however, unlike
both Egypt and Iran, it claims to have no formal constitution other than the
Qur’an and Sunna (sayings and deeds of the Prophet). The notion of establishing a basic law for Saudi Arabia was proposed at the founding of the kingdom
in 1932, but these promises went unfulfilled and only resurfaced during moments of political crisis such as the pan-Arab threat in the 1960s, the Iranian
revolution in 1979, and the Gulf War in the 1990s.67 Although demands for
the creation of a consultative council had been voiced by religious authorities
and liberal elites as a pragmatic limit on government, other more conservative
religious actors—seeking to guard the purist Wahhabi ideology of the state—
saw a written constitution as a threat to the ideal Islamic government in which
the just political leader enforces the shari’a as found by the ‘ulama.68
Finally, in 1992, in the face of particularly vehement domestic criticism
stemming from royal permission for U.S. troops to enter Saudi territory, and
after sixty years of unfulfilled constitutional promises, the King promulgated
three documents: the Basic Law of Governance, a statute creating the Consultative Council, and a statute creating regional assemblies.69
Rather than instituting meaningful Islamic constitutionalism, these documents formalized the King’s grip on power. While the Basic Law professes to
recognize a separation of powers in executive, judicial, and legislative branches
of government, it adds that such a separation is only made with the King as
the marja’ (reference point or authority) for each of these powers.70 This notion
of monarchical dominance is also reflected in the creation of a Consultative
Assembly. Though modeled on a conventional parliament, the Consultative
Assembly is entirely appointed by the King and can only pass nonbinding
67. Rashed Aba-Namay, The Recent Constitutional Reforms in Saudi Arabia, 42 INT’L & COMP. L.Q.
295, 298–300 (1993).
68. Id. at 300–02.
69. Although these documents may be significant in that their “writtenness” makes the rules of the
political game more explicit in Saudi Arabia, see JEREMY WALDRON, THE LAW 5 (1989) (arguing that
Britain’s largely unwritten constitution is nonetheless supplemented by several foundational written
documents such as the Magna Carta that add an element of explicitness that facilitates political life),
their juridical importance should not be overstated. The Basic Law articulates the Islamic ideology of
the state, but it expressly pronounces in Article 7 that the constitution of the state is the Qur’an and
Sunna, thus dulling the law’s use as a constitutional tool. SFEIR, supra note 20, at 166. Further, much of
the law simply lists expansive powers the King always held, codifying fragmented constitutional
principles already at play. Mallat, supra note 16, at 36. The document does claim to protect human
rights “in accordance with the Shari’a” in Article 26; however, this rhetorical line has been used by the
Saudi regime to regularly disregard international human rights law on shari’a-based culturalist grounds.
See id. Some rights are spelled out, such as due process of law and a prohibition on arbitrary arrest,
Aba-Namay, supra note 67, at 323–24 (speculating that the rights that made the list were intended to
reign in the religious police who had been taking invasive steps to regulate public decency), though
there are significant absences from the list, including the freedoms of expression and association.
70. Saudi Basic Law, supra note 14, art. 44.
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resolutions on laws submitted to it by the executive branch.71
The judiciary, and particularly its power of Islamic judicial review, is also
limited by the constitutional weight accorded the monarchy. The Basic Law
says in Article 46 that there is no power over judges except that of shari’a.72
Article 51, however, subjects the judiciary to the supervision of the Supreme
Judicial Council,73 which can recommend Royal Orders to appoint and remove
judges per the 1975 Law of the Judiciary.74 On its face, this constitutional
inconsistency appears to be rationalized as a necessary arrangement for organizing the bureaucracy of the judiciary. A deeper inquiry, however, reveals a great
deal of tension between the Islamic ideal of judicial independence and the
centralizing power of the administrative state.
The story is one of the executive gradually reducing the power of shari’abased courts to hear cases. Shari’a courts, which were the primary adjudicatory
bodies at the founding of the kingdom,75 retain general jurisdiction to hear
cases, except in areas involving codified Islamic law (where the Board of
Grievances76 typically adjudicates) and in areas excluded by a regulation, where
jurisdiction is conferred to civil administrative tribunals, per Article 26 of the
Law of the Judiciary.77 Such administrative tribunals are attached to executivebranch ministries and are not bound by shari’a;78 their decisions are generally
71. Article 17 of the Consultative Council law specifies that the Council of Ministers, which actually
produces the legislation, recommends review by the Assembly. Once made, the Assembly’s resolutions
are passed back to the Council of Ministers, which must provide its consent before resolutions move on
to the final step of royal approval or rejection. The Consultative Council, art. 17, 2 Mar. 1992; Ali M.
Al-Mehaimeed, The Constitutional System of Saudi Arabia: A Conspectus, 8 ARAB L.Q. 30, 35 (1993).
Besides its formal lack of legislative power, the Consultative Assembly suffers from an official culture
that is hesitant to publicly label it a “legislative” body for fear that the Saudi regime’s political
legitimacy as classical protector of the shari’a would be questioned. In his public endorsement of the
Consultative Assembly, for example, the King refused to describe it as a “legislative” body, for the
implication of positivist legislation based on popular sovereignty would have potentially clashed with
the professed Islamic ideology of the state as one upholding the shari’a and legal opinions of religious
scholars. Instead, the King described the body as fulfilling a basic Islamic tenet to seek consultation.
Aba-Namay, supra note 67, at 310.
72. Saudi Basic Law, supra note 14, art. 46.
73. Id. art. 51.
74. Al-Mehaimeed, supra note 71, at 34.
75. A. Layish, Mahkama: Saudi Arabia, in JUDICIAL PRACTICE: INSTITUTIONS AND AGENTS IN THE
ISLAMIC WORLD 133, 133–34 (Boğaç A. Ergene ed., 2009).
76. The Board of Grievances is a classical Islamic institution that the Saudi state has integrated into
its modern legal system. The Board receives complaints from anyone who believes injustice has been
done. Its chairman is appointed by the King and given the status of minister. Id. at 136. The Board
occupies a tenuous place in the Saudi judiciary, straddling the shari’a and administrative courts. Dorthe
Bramsen, Divine Law and Human Understanding—The Idea of Shari’a in Saudi Arabia, in SHARI’A AS
DISCOURSE: LEGAL TRADITIONS AND THE ENCOUNTER WITH EUROPE 157, 158 (Jørgen S. Nielsen & Lisbet
Christoffersen eds., 2010).
77. Law of the Judiciary, art. 26, 25 Sept. 1975 (“Courts shall have jurisdiction to decide with
respect to all disputes and crimes, except those exempted by law. . . . Specialized Courts may be formed
by Royal Order on the recommendation of the Supreme Judicial Council.”).
78. Administrative tribunals may still draw on the shari’a, in addition to other sources such as
foreign and international law. Layish, supra note 75, at 137.
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not subject to any form of judicial review.79 While the regime justifies the
creation of these executive branch civil tribunals as a matter of institutional
competence, arguably the real reason for their creation is their willingness to
rule favorably to the executive branch on issues like bank shares and insurance
contracts, which the shari’a courts and Board of Grievances would likely find
contrary to shari’a.80
The shari’a courts have contested the administrative tribunals by ruling in
certain instances on matters normally reserved for the tribunals; the Board of
Grievances likewise has reviewed and overturned some administrative decisions
on grounds of lack of jurisdiction, procedural error, and misinterpretation of the
law.81 On the whole, however, the shari’a courts and the Board lack the ability
to declare executive regulations invalid—they can merely refuse to apply the
regulation in the case before them.82 Furthermore, efforts in recent years to
transfer matters currently under the jurisdiction of administrative tribunals to
the shari’a courts have failed.83
The Higher Judicial Council, which oversees the judiciary and controls
judicial appointments, may engage in pre-enactment judicial review for compliance with general shari’a principles, but it may only do so at the request of the
Minister of Justice, a member of the executive branch.84 Indeed, the Higher
Judicial Council itself is largely under executive control: members are appointed by royal order, the Deputy Minister of Justice sits on the Council, and
the Ministry of Justice retains control of the judiciary’s budget despite the
Council’s mandate to administer the courts.85
The judiciary, it would seem then, is at a significant disadvantage vis-à-vis
the executive given its weak power of judicial review and the executive’s
sweeping power to legislate by decree. George Sfeir comments that a possible
avenue for reform would be empowering the Board of Grievances, which can
maneuver through both the shari’a and statutory realms of Saudi law, to engage
in post-enactment review akin to the French Conseil d’Etat.86 At the end of the
day, however, the Saudi constitutional system is so heavily skewed toward the
monarch’s near absolute executive and legislative control that it seems unlikely
that even a judicial body armed with strong judicial review would be in an
institutional position to strike down royal legislative decrees.
79. George N. Sfeir, The Saudi Approach to Law Reform, 36 AM. J. COMP. L. 729, 741–42 (1988).
80. See Ayoub M. Al-Jarbou, Judicial Independence: Case Study of Saudi Arabia, 19 ARAB L.Q. 5,
30–32 (2004).
81. Id. at 34–38.
82. Id. at 51.
83. AHMED ABDELKAREEM SAIF, ARAB GULF JUDICIAL STRUCTURES 39 (2004).
84. Sfeir, supra note 79, at 746.
85. SAIF, supra note 83, at 40.
86. Sfeir, supra note 79, at 747.
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D. OBSERVATION: REGIMES INSTITUTE ISLAMIC JUDICIAL REVIEW ON IDEOLOGICAL
GROUNDS, ONLY TO LIMIT REVIEW AND CONCENTRATE POWER IN THE
HANDS OF THE EXECUTIVE
The Iranian, Egyptian, and Saudi Arabian institutions for implementing
Islamic judicial review vary greatly from shari’a courts of general jurisdiction to
supreme constitutional courts made up of either secularly trained justices or
Islamic jurists. Yet in all three cases, state ideology—ranging from the marketoriented reactionism of the Egyptian regime, to the Iranian concept of velayat-e
faqih, to the Wahhabi purism of Saudi Arabia—sparked Islamic judicial review
and shaped the contours of the reviewing institutions.
Islamic judicial review did not develop without limits, however. In Saudi
Arabia, the king designates whether subject matter is “administrative” and thus
off-limits for shari’a courts; whereas in Egypt, review is limited by executive
interference with the high court’s composition and a deferential rule the high
court has set for itself in evaluating legislation’s shari’a compliance. In Iran,
Khomeini, by the force of his authority as the supreme jurist, created a body
capable of overturning the Guardian Council’s adverse rulings on the shari’a
compliance of legislation.
In all three cases, the limits placed on Islamic judicial review ran counter to
the prevailing ideologies at play, suggesting that ideology can only go so far in
explaining Islamic constitutional developments. In the Saudi case, the monarchy’s transfer of broad swaths of law from the shari’a courts to administrative
tribunals deviated from the Wahhabi purist view of the just ruler who implements the shari’a as found by religious scholars. Similarly in Iran, Khomeini
went against the core premise of velayat-e faqih—respect for the rulings of
shari’a (ahkam) as mediated by the jurists—when he created the Maslahat
Council to review the jurists on the Council of Guardians. Finally, the Egyptian
regime betrayed its neoliberal commitment to judicial independence by tampering with the composition of the SCC, which had assumed an activist role in the
1990s and challenged the Egyptian executive.
What motivates regimes to betray their professed ideologies and limit Islamic
judicial review? On the surface, the answer appears to be simple: authoritarian
politics. That is, unrepresentative regimes dominated by strong executives have
an incentive to curb the independence of judicial institutions, interfere with their
internal composition, and restrict their power to hear cases, because ultimately
the regime’s hand is stronger when the judiciary’s authority is diminished.
Although the authoritarianism of the Egyptian, Iranian, and Saudi regimes is
undeniable and certainly informs a proper understanding of the limitations
placed on Islamic judicial review, it is not a complete answer. As this Part has
demonstrated, the constitutional picture is nuanced in these countries: courts
endowed with the power of Islamic judicial review have retained a degree of
independence despite the institutional limits imposed on them in authoritarian
contexts. The Egyptian SCC, for example, has creatively maneuvered through
Article 2 cases in rebuking the executive, even though the court has generally
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utilized bases other than noncompliance with the shari’a for overturning the law
in question. The Saudi shari’a courts likewise have protested executive tampering with their jurisdiction by ruling on cases handed to administrative tribunals
and occasionally overturning the tribunals’ decisions.
This Note hypothesizes that beyond state ideology and authoritarian politics,
a complex societal dialogue on “public interest,” or maslaha, is driving Islamic
constitutional change. This dialogue is certainly not devoid of political overtones, for Islamic norms and institutions are manipulated by regimes seeking to
sustain their authoritarian power.87 Nevertheless, the dialogue on maslaha is an
intricate one in which courts and citizens weigh in to influence institutional
arrangements.
III. “PUBLIC INTEREST” AS GUIDING CONSTITUTIONAL PRINCIPLE
Regimes seeking to limit Islamic judicial review in Iran, Saudi Arabia, and
Egypt justify their project on the grounds that maslaha, or the public interest, is
best served by allowing the state to legislate and implement beneficial policies
without undue interference by the judiciary. The regimes’ invocation of maslaha
is significant for three primary reasons. First, maslaha is a term made meaningful in the Islamic context as the intellectual fruit of debate among Muslim
thinkers on the ultimate goals or purposes of the law (maqasid al-shari’a).88
Second, the discussion of public interest and judicial review helps to frame
central questions in modern constitutional law. For instance, what institutional
arrangement of governmental power best serves the public interest?89 And
which rights are protected by constitutional references to the public interest?90
87. See Jakob Skovgaard-Petersen, A Typology of State Muftis, in ISLAMIC LAW AND THE CHALLENGES
MODERNITY 81, 81 (Yvonne Yazbeck Haddad & Barbara Freyer Stowasser eds., 2004).
88. Maslaha is linguistically related to the Islamic legal term istislah (bearing the same Arabic root,
s-l-h)—a form of legal interpretation (or ijtihad) in which rules of law are not strictly deduced from
authoritative texts such as the Qur’an or Sunna but are formed out of consideration for public interest.
R. Paret, Istiខhsa៮ n and Istiខsla៮ hខ , in ENCYCLOPEDIA OF ISLAM (2d ed. 2012). Founders of Islamic legal
schools of thought such as Malik b. Anas and later influential thinkers like al-Ghazali identified
universal principles underlying the law, or maqasid al-shari’a (including protection of life, mind,
religion, private property, and offspring), and asserted that these principles should guide decisions in
cases. WAEL B. HALLAQ, THE ORIGINS AND EVOLUTION OF ISLAMIC LAW 145 (2005). Maslaha also
functions as a quasi-legislative norm allowing laws to be enacted according to the public interest of the
time and circumstance, so long as no explicit textual injunctions control. MOHAMMAD HASHIM KAMALI,
PRINCIPLES OF ISLAMIC JURISPRUDENCE 353 (2003).
89. In approaching public-interest litigation, a judge is limited by the power afforded to her in her
country’s constitutional structure and the “legally available range of constitutional ethics,” but she is
also capable of influencing others’ understanding of the constitution and thereby shapes legal and
political discourse. David Feldman, Public Interest Litigation and Constitutional Theory in Comparative Perspective, 55 MOD. L. REV. 44, 44–45 (1992).
90. From a comparative standpoint, “public interest” law varies across countries and constitutional
systems. The ability of citizens to bring public-interest suits claiming their fundamental constitutional rights have been violated may be restricted or expanded, often depending on dominant constitutional ethics. In Australia, for example, prohibitive standing rules limit public-interest claims,
reflecting an ethic of liberal individualism; meanwhile, in India, the courts’ permissive interpretation of
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Third, regimes recognize the religious and constitutional import of maslaha, as
evidenced not only by regime attempts to control political speech and religious
discourse, but also by manipulation of references to maslaha in constitutional
texts.91
This Part posits that maslaha is an Islamic principle that propels constitutional reform today.92 In the Iranian, Egyptian, and Saudi cases, reform has had
mixed results. On the one hand, regimes have limited Islamic judicial review in
the name of maslaha by claiming that curbing judicial authority is in the public
interest. On the other hand, the discussion of maslaha has opened up the
floor—first, for citizen-activists to subvert the dominant regime discourse by
redefining the public interest in democratic terms, and second, for courts to
challenge overreaching by the executive. Thus maslaha is a site of contestation
in which regime elites, legislators, high courts, political activists, and ordinary
citizens debate what good governance and the separation of powers should look
like in their countries.
The debate between secularist and reformist theorists on the nature of Islamic
constitutionalism also arises in the discussion of maslaha. Secularists tend to
view regime invocation of maslaha to restrict Islamic judicial review as evidence of the failure of the Islamic constitutionalist experiment and the inevithe “any other purpose” clause in Article 226 has facilitated public-interest litigation aimed at
combating socioeconomic inequalities. Feldman, supra note 89, at 53. The sociopolitical climate in
India has provided the space for judicial activism, and as a result, public-interest actions have
established several rights, including rights to legal aid, a livelihood, protection from industrial hazards,
and human dignity. Jamie Cassels, Judicial Activism and Public Interest Litigation in India: Attempting
the Impossible?, 37 AM. J. COMP. L. 495, 497 (1989).
91. Egyptian, Saudi, and Iranian constitutional texts reference maslaha discursively with the goal of
restricting citizens’ rights and legitimizing executive dominance. The 2012 Egyptian Constitution, for
example, labels the President as the protector of the “people’s interests” and uses “public interest” as a
limit on press freedoms and local autonomy. EGYPTIAN CONSTITUTION, supra note 11, arts. 132, 190, 215.
Likewise, the Iranian Constitution invokes “public interest” as a basis for the powers of the Supreme
Leader (faqih) and as a limit on the right to an occupation, freedom of expression, and use of public
resources. IRANIAN CONSTITUTION, supra note 12, arts. 28, 45, 110, 175. Finally, the Saudi Basic Law
states in its preamble a determination by the king that what is to follow is in line with “public interest,”
implicitly cementing royal authority to determine the contours of the public interest. Saudi Basic Law,
supra note 14, pmbl.
92. Although maslaha is a tool of the shari’a that legitimizes legal change and flexibility, Islamic
legal scholars contest the scope of its use, fearing that maslaha could destabilize the substantive
uniformity of the law. Felicitas Opwis, Changes in Modern Islamic Legal Theory: Reform or Reformation?, in AN ISLAMIC REFORMATION? 28, 44 (Michaelle Browers & Charles Kurzman eds., 2004) (“In
general, enlarging the scope of the concept of maslaha in deriving law elevates substantive reasoning
over formal procedures. While this enhances the law’s flexibility and adaptability, it also has the
potential to destabilize any uniformity within Islamic law. Since maslaha differs not only according to
time and place but also by individual assessment, what constitutes a legally valid maslaha might largely
be determined by subjective factors.”). It is not always clear where a textual injunction ends and public
interest begins, or whether the two may be seen in isolation of one another in the first place.
Nonetheless, in the modern era, thinkers such as Jama៮ l al-Dı៮n al-Qa៮ simı៮, Muhammad Rashı៮d Rida៮ ,
‘Abd al-Wahhab Khallaf, and Subhi Mahmasani have turned to maslaha as a means of rationalizing
legal reforms while preserving an Islamic frame of reference. Felicitas Opwis, Islamic Law and Legal
Change: The Concept of Maslaha in Classical and Contemporary Islamic Legal Theory, in SHARI’A:
ISLAMIC LAW IN THE CONTEMPORARY CONTEXT 62, 71 (Abbas Amanat & Frank Griffel eds., 2007).
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table secularization of the shari’a. Reformists, meanwhile, see maslaha as a
constitutional principle infused with Islamic legal meaning that can help construct an Islamically based model of democratic governance. From this latter
perspective, institutional reform of Islamic judicial review does not represent a
decline of the shari’a, but an evolution.
Adopting the reformist school’s openness to Islamic constitutionalism, this
Part highlights the role that nonstate actors play in reimagining the political
landscapes of their polities and shaping the “public interest.” The Arab Spring
represents a particularly potent challenge to regimes in the region because it
questions the foundations of authoritarian power and posits in their place a new
“political imaginary.”93 Reform movements are nothing new to the region,
however, and in all three countries analyzed in this Note—Iran, Egypt, and
Saudi Arabia—reformists have worked toward more accountable government
and constitutional change, often by articulating their demands in the language of
Islam. The implication of such political action by nonstate actors is that
maslaha need not be seen solely as a tool regimes use to rationalize existing
arrangements, but also as a constitutional precept with the inherent power to
influence structure. Indeed, the norm’s flexibility suggests that it can justify a
wide range of results.
A. IRAN: MASLAHA AS A FINAL LAYER OF APPEAL
Secularist observers of Iran argue that the creation of the Maslahat (or
Expediency) Council was an admission of the failure of government under
shari’a.94 Reformists do not deny that the Iranian regime often appeals to Islam
in justifying human rights violations,95 or that the complex legacy of fiqh, or
jurisprudence, is manipulated for power ends in the Islamic republic.96 But
reformists do object to the assumption that Iran’s constitutional quandaries will
be automatically resolved through secularization. Instead they seek to investi93. Benoit Challand, The Counter-Power of Civil Society and the Emergence of a New Political
Imaginary in the Arab World, 18 CONSTELLATIONS 271, 271 (2011).
94. Saı̈d Arjomand, for example, concludes from his observation of Iran’s conflicting political
institutions that the Iranian experience proves that there exists too much tension between legislation and
Islamic jurisprudence for a shari’a-based Islamic state to be “a modern constitutional state without
serious contradictions.” Saı̈d Amir Arjomand, Islam and Constitutionalism Since the Nineteenth
Century: The Significance and Peculiarities of Iran, in CONSTITUTIONAL POLITICS IN THE MIDDLE EAST:
WITH SPECIAL REFERENCE TO TURKEY, IRAQ, IRAN AND AFGHANISTAN 33, 61 (Saı̈d Amir Arjomand ed.,
2008). Going further, Reza Afshari argues that a façade of Islamic rule in Iran masks a secularized and
individualistic society in which the regime relies on a cultural appeal to Iranian heritage above all else
in enacting “Islamic” law. See Reza Afshari, An Essay on Islamic Cultural Relativism in the Discourse
of Human Rights, 16 HUM. RTS. Q. 235, 238 (1994). Afshari’s conclusion is that the secularization of the
Iranian system must be encouraged by appealing to a universal human rights discourse rather than a
reformed articulation of Islamic constitutionalism that the regime could use to legitimize their “Islamic”
rule. See id. at 275.
95. See Ann Elizabeth Mayer, The Respective Roles of Human Rights and Islam: An Unresolved
Conundrum for Middle Eastern Constitutions, in CONSTITUTIONAL POLITICS IN THE MIDDLE EAST: WITH
SPECIAL REFERENCE TO TURKEY, IRAQ, IRAN AND AFGHANISTAN 77, 82 (Saı̈d Amir Arjomand ed., 2008).
96. BELKEZIZ, supra note 39, at 291.
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CONSTITUTIONAL SHARI’A
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gate the constitutional dialogue that is occurring on its own Islamic terms,97
recognizing the possibility that “Islamic law is such that it can operate as an
organic law, even when the big tree of the organisation collapses and fails to
function.”98
In Iran, substantive changes in the shari’a have been increasingly articulated
in light of the Islamic principle of maslaha.99 Mehran Tamadonfar argues that
Khomeini’s declaration in 1988 that the state’s maslaha could supersede even
the ritualistic obligations of worship in Islam presumed that the government
could make any law it wishes—including restrictions on freedom of association
and the press—“as long as it serves the interests of the regime, which naturally
coincide with Islam.”100 At the same time, however, appeal to maslaha has
given lawmakers and courts greater flexibility and interpretive freedom in areas
where traditional rulings of the shari’a may have been restrictive—allowing the
state to validate private contracts and design laws for farmers to occupy
abandoned lands, for example.101 The Iranian experience thus appears to demonstrate both the flexibility of the shari’a to adapt to present-day circumstances
and the potential for authoritarian regimes to abuse the interpretive freedom
maslaha affords.
From an institutional perspective, the regime’s creation of the Maslahat
Council, which tempered the shari’a-based judicial review of the Council of
Guardians, has also produced mixed results. On the one hand, the Maslahat
Council complicates the separation of powers by adding yet another layer to an
already layered and complex constitutional system, obscures which shari’a
criteria should be used in Islamic judicial review, and cements the supreme
leader’s power of appointment.102 On the other hand, the creation of the
Maslahat Council would seem to have the institutional advantage of offering a
final avenue for appellate review that weighs the positions of both parliament
and the government. Furthermore, it creates an incentive for lawmakers and
lower courts to consider public interest while crafting or reviewing legislation.103 In practice, the Maslahat Council has reviewed dozens of laws per year
but has struggled to cope with the caseload and address particularly complicated
bills contested by parliament and the Council of Guardians.104
97. See Baudouin Dupret, Legal Pluralism, Normative Plurality, and the Arab World, in LEGAL
PLURALISM IN THE ARAB WORLD 29, 39 (Baudouin Dupret, Maurits Berger, & Laila al-Zwaini eds., 1999).
98. MAWIL IZZI DIEN, ISLAMIC LAW: FROM HISTORICAL FOUNDATIONS TO CONTEMPORARY PRACTICE 155
(2004).
99. Mehran Tamadonfar, Islam, Law, and Political Control in Contemporary Iran, 40 J. FOR SCI.
STUD. RELIGION 205, 214 (2001).
100. Id.
101. Id.
102. See IRANIAN CONSTITUTION, supra note 12, art. 112 (providing that all the members of the
Maslahat Council are appointed by the leader).
103. ASGHAR SCHIRAZI, THE CONSTITUTION OF IRAN: POLITICS AND THE STATE IN THE ISLAMIC REPUBLIC
235 (John O’Kane trans., 1997).
104. Id. at 236.
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Beyond formal institutions and elite politics, popular grassroots reform
movements have played a crucial role in shaping maslaha discourse and
reimagining constitutionalism in Iran. Constitutional politics have been particularly dynamic since the election of Saı̈d Muhammad Khatami as president in
1997.105 Reformists have attempted to reformulate Islamic terms of reference
to support human rights and responsible government,106 actively employing
religion as a means of democratic transition.107 As one example, the Green
Movement, which led large-scale protests in 2009 following the allegedly
rigged presidential election, called for an overhaul of the political system in
Iran while remaining committed to an Islamic framework.108 The regime meanwhile has crushed popular demonstrations by force and sought to silence critics
among the clerical ranks by establishing special courts for their trials.109
Criticism among Shi’ite scholars has nonetheless persisted and offers a serious
challenge to the regime on theological grounds.110 The result has been the
spread of a wide-ranging public discourse on interpretations of Islam and good
governance.111
The election of Hassan Rohani as President in 2013 is emblematic of the
power of grassroots reform movements to shape formal political realities in
Iran. Although the faqih, Ali Khamenei, had undemocratically restricted the
candidates eligible to run for the presidency, prior to the opening of polls,
reform-minded youth and activists rallied in large numbers behind Rohani—a
candidate who declared that he had come to “destroy extremism,” institute
greater freedoms, and reduce government interference in citizens’ private lives.112
In contrast to the blatant rigging of the 2009 elections, the 2013 elections were
105. Saı̈d Amir Arjomand, Civil Society and the Rule of Law in the Constitutional Politics of Iran
Under Khatami, 67 SOC. RES. 283, 299 (2000).
106. Alireza Najafinejad, Zaid B. Ahmad & Jayum A. Jawan, Human Rights in Iranian Juridical
Approach, 6 CROSS-CULTURAL COMM. 10, 16 (2010).
107. Ray Takeyh, God’s Will: Iranian Democracy and the Islamic Context, 7 MIDDLE E. POL’Y 41, 41
(2000).
108. Farhang Morady, Who Rules Iran? The June 2009 Election and Political Turmoil, 35 CAP. &
CLASS 39, 56 (2010). Contra Reza Afshari, A Historic Moment in Iran, 31 HUM. RTS. Q. 839, 839
(2009) (arguing that the Green Movement shows the lack of a need to develop a humanistic Islam given
that young Iranians are more concerned with practical needs than religious meta-narratives).
109. Charles Kurzman, Critics Within: Islamic Scholars’ Protests Against the Islamic State in Iran,
15 INT’L J. POL., CULTURE & SOC’Y 341, 341 (2001).
110. See Paul L. Heck, Common Ground: Islam, Christianity, and Religious Pluralism 156 (2009)
(describing the challenge Iranian intellectual Abdolkarim Soroush has posed to the regime by arguing
that equating the state’s interests with the interests of Islam problematically turns political dissent into
disobedience to God and violates the theological freedom of the nation); Nader Hashemi, Religious
Disputation and Democratic Constitutionalism: The Enduring Legacy of the Constitutional Revolution
on the Struggle for Democracy in Iran, 17 CONSTELLATIONS 50, 55 (2010).
111. BEHROOZ GHAMARI-TABRIZI, ISLAM AND DISSENT IN POSTREVOLUTIONARY IRAN: ABDOLKARIM SOROUSH, RELIGIOUS POLITICS AND DEMOCRATIC REFORM 246 (2008).
112. Scott Peterson, Hassan Rohani Is Iran’s Next President. What Will Change?, CHRISTIAN SCI.
MONITOR, June 15, 2013, http://www.csmonitor.com/World/Middle-East/2013/0615/Hassan-Rohani-isIran-s-next-president.-What-will-change.
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generally seen as transparent and fair: Rohani won over fifty percent of the vote,
avoiding a runoff and stunning the ruling establishment.113
It remains to be seen whether and to what degree Rohani, a cleric with
Islamic status and a high level of post-election democratic legitimacy, will be
able to reform institutional arrangements of power in Iran.114 Nevertheless, the
maturation of the movement that enabled his election demonstrates that, for
many Iranians, Islam and legal-political reform are not mutually exclusive
categories. Rather, they intersect in a societal dialogue on good governance and
the public interest.
B. EGYPT: MASLAHA AS A PROMPT FOR JUDICIAL DEBATE ON THE
SOCIAL ENDS OF THE LAW
In the Egyptian context, the SCC outlined its theory on Article 2 and legislation’s adherence to shari’a principles in a monumental 1993 ruling.115 The
ruling sets two requirements: first, a law must be consistent with universally
applicable shari’a rules, and second, it must advance the goals of the shari’a.116
Secularist scholars see the court’s ruling as a secularized understanding of
the divine law, given that Article 2 violations only occur in the rare event that
a law goes against a universal principle around which there is little disagreement among jurists.117 Although it is tempting to view the SCC’s understanding of Islamic judicial review in a purely secular light, particularly given
the liberal bent of the court, an investigation into the court’s employment of
maslaha as Islamic legal precept reveals a more nuanced engagement with
Islamic principles.
113. Id.
114. Regime repression of political/religious dissent persists under Rohani. Iran’s Press Supervisory
Board banned a reformist newspaper in October 2013 after it published an article arguing that the
religious role of Ali, the first Shi’ite imam, was more important than his political role. Reformist
Newspaper in Iran Shut Down over Imam Ali Article, AL-MONITOR, Oct. 28, 2013.
115. Case No. 7 of Judicial Year 8/1993/5-2 S.C.C. 265.
116. Clark B. Lombardi & Nathan J. Brown, Do Constitutions Requiring Adherence to Shari’a
Threaten Human Rights? How Egypt’s Constitutional Court Reconciles Islamic Law with the Liberal
Rule of Law, 21 AM. U. INT’L L. REV. 379, 385–86 (2006) (arguing that the SCC has interpreted Islamic
legal norms to be consistent with democracy, international human rights, and economic liberalism).
117. According to Kilian Bälz, the SCC’s ability to choose which Islamic legal rules it wants to
elevate to the position of “definite” provisions makes the nominally religious judicial review process an
“internal construction of the order of secular law” rather than a “set of ‘supra-legislative norms’ derived
from a body of ‘natural law.’” Kilian Bälz, The Secular Reconstruction of Islamic Law: The Egyptian
Supreme Constitutional Court and the “Battle over the Veil” in State-Run Schools, in LEGAL PLURALISM
IN THE ARAB WORLD 229, 238 (Baudouin Dupret, Maurits Berger & Laila al-Zwaini eds., 1999). Bälz
finds evidence for his thesis in the SCC’s later rulings. A 1994 case brought against a ban on niqabs in
public schools, for example, was dismissed on the basis that there was a divergence of opinion among
jurists on the subject of face-veiling. Id. Other scholars offer less nuanced praise of the SCC’s alleged
secularization of religious law. Ran Hirschl, for example, describes the SCC as pursuing a “secularizing
policy by adopting a relatively liberal, middle-of-the-road approach in its interpretation of the Muslim
Shari’a rules” that allows it to serve as a buffer between the secular authorities and the Islamist street.
Ran Hirschl, Constitutional Courts vs. Religious Fundamentalism: Three Middle Eastern Tales, 82 TEX.
L. REV. 1819, 1826 (2004).
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Clark Lombardi’s analysis of Islamic constitutionalism in Egypt demonstrates
that the SCC’s method of defining broad legal principles involves exploration of
divinely ordained social ends of law and has roots in the classical Mu’tazili
school of law, which stressed rational inquiry.118 He notes that even prior to the
1980 vesting of Islamic judicial review powers in the SCC, Egyptian courts,
such as the Court of Cassation, had asserted the need for review of public policy
to be informed by Islamic legal principles.119 Oussama Arabi adds that the SCC
has engaged in a “neo-Sha៮ fi‘i” project that taps into the creative impulse in
Islamic law, even as it transforms the “pious desire of the religious jurists of
old” into a “happy metaphor for constructive Islamic lawmaking under the
institutional constraints of the Egyptian nation-state.”120
In practice, the SCC has integrated maslaha into its Article 2 adjudication. In
one case involving review of child-support legislation, for example, the court
rejected the mainstream classical ruling against retroactive child support, reasoning that the prevailing public interest in eleventh-century Baghdad might not be
relevant to the public interest of twentieth-century Cairo due to societal change.121
It would be a mistake, however, to assume that the SCC’s treatment of maslaha
has been entirely sophisticated from an Islamic scholarly perspective. SCC
judges generally lack classical training in Islamic jurisprudence and fail to engage critically with the complex legal reasoning employed by classical Islamic
jurists.122
The debate on maslaha and prospects for legal and political reform in Egypt
has not been limited to the elite chambers of the SCC. Rather, for decades,
political groups, human rights activists, labor unions, and students mobilized
against the Mubarak regime’s authoritarian grip on power in the country in
recent decades, arguing on religious123 and political grounds that democratic
reform was in the country’s best interest. The reform movement reached new
heights with the “revolution” of January 2011 that removed President Hosni
Mubarak from power after only eighteen days of demonstrations in which
millions of citizens demanded “bread, freedom, . . . social justice,” and the fall
118. Clark Benner Lombardi, Note, Islamic Law as a Source of Constitutional Law in Egypt: The
Constitutionalization of the Sharia in a Modern Arab State, 37 COLUM. J. TRANSNAT’L L. 81, 96 (1998).
119. CLARK B. LOMBARDI, STATE LAW AS ISLAMIC LAW IN MODERN EGYPT: THE INCORPORATION OF THE
SHARI’A INTO EGYPTIAN CONSTITUTIONAL LAW 128 (Ruud Peters & Bernard Weiss eds., 2006).
120. Oussama Arabi, Beyond Power: Neo-Sha៮ fi‘ism or the Islamic Constructive Metaphor in Egypt’s
High Constitutional Court Policy, 17 ARAB L.Q. 323, 353 (2002).
121. LOMBARDI, supra note 119, at 223.
122. LOMBARDI, supra note 118, at 96.
123. In general, religious reformers have moved beyond claims to monopoly of religious truth and
exclusivism toward a “post-Islamist” acknowledgement of religious ambiguity and the need for a
politics of inclusion. ASEF BAYAT, MAKING ISLAM DEMOCRATIC: SOCIAL MOVEMENTS AND THE POST-ISLAMIST
TURN 13 (2007). Members of the Muslim Brotherhood are generally included in this group. In its admittedly vague 2007 platform, for example, the Brotherhood called for democratic reform and asserted
a willingness to enhance the independence of the judiciary. Kristen Stilt, “Islam Is the Solution”:
Constitutional Visions of the Egyptian Muslim Brotherhood, 46 TEX. INT’L L.J. 73, 104 (2010).
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of the regime.124 Religion was hardly absent from Tahrir Square. Rather, some
of the revolution’s most iconic images include protestors praying while the
regime’s water cannons doused them,125 Coptic Christian demonstrators linked
hand in hand guarding their Muslim compatriots as they prayed,126 and Salafis
meeting with liberal activists in cafes to show their diverse range of perspectives on the intersection of religion and politics.127
Grassroots political activism ushered in a new constitutional order in Egypt;
however, thus far it has proved to be a flawed order struggling to deliver on the
promises of the revolution. A controversial, Islamist-dominated drafting committee released the draft text of a new constitution in October 2012. Although the
committee’s draft ultimately passed in a popular referendum in December 2012,
human rights groups criticized it for barring review of the military’s budget and
operations and for failing to enshrine sufficient protections for women, minorities, and civil society and media organizations.128
Prior to the referendum, a full-fledged constitutional crisis erupted in November 2012 when President Muhammad Morsi issued a unilateral decree that
courts lacked the power of judicial review over sovereign matters, including the
constitutionality of the controversial drafting committee and any laws passed
since he assumed office.129 Although Morsi ultimately annulled the decree, his
administration nevertheless rushed the referendum ahead in December130 and
later clashed with judges over proposals to reorganize the judiciary that many
saw as a means of extending Brotherhood influence over the courts.131
The crisis came to a head in July 2013 when the military ousted Morsi from
power—a move that has divided reform-minded activists between a desire to
correct Morsi’s mistakes and discomfort with the way the military forcibly
124. Paul Sedra, The Revolution and History, JADALIYYA, Jan. 25, 2013, http://www.jadaliyya.com/
pages/index/9764/the-revolution-and-history.
125. Egypt Protesters Pray in Front of Water Cannon, BBC, Jan. 31, 2011, http://www.bbc.co.uk/news/
world-africa-12330773.
126. Images of Solidarity as Christians Join Hands to Protect Muslims as They Pray During Cairo
Protests, DAILY MAIL, Feb. 3, 2011, http://www.dailymail.co.uk/news/article-1353330/Egypt-protestsChristians-join-hands-protect-Muslims-pray-Cairo-protests.html.
127. Lauren E. Bohn, Inside Egypt’s Salafis, FOREIGN POL’Y (Aug. 2, 2011, 6:15 PM), http://mideast.
foreignpolicy.com/posts/2011/08/02/inside_egypts_salafis.
128. Rights Groups: Draft Constitution Would Entrench Despotism, EGYPT INDEP. (Nov. 5, 2012, 3:57
PM), http://www.egyptindependent.com/news/rights-groups-draft-constitution-would-entrench-des
potism.
129. Peter Beaumont, Mohamed Morsi Bars Court Challenges and Orders Hosni Mubarak Retrial,
GUARDIAN, Nov. 22, 2012, http://www.guardian.co.uk/world/2012/nov/22/mohamed-morsi-mubarakretrial-egypt.
130. Egypt Crisis: Morsi Offers Concession in Decree Annulment, BBC, Dec. 9, 2012, http://www.
bbc.co.uk/news/world-middle-east-20655412.
131. Heba Saleh, Egypt’s Legal Reforms Caught Between Judges and Ruling Islamists, FIN. TIMES,
June 4, 2013, http://www.ft.com/cms/s/0/1e9cc414-cc61-11e2-bb22-00144feab7de.html#axzz2XHPn
4dZe.
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deposed Egypt’s first democratically elected president.132 The constitution was
suspended, and a military-backed interim government led by the head of the
SCC, Adly Mansour, currently rules the country—prompting concerns about
judicial acquiescence in the silencing of political dissent.133 As of publication of
this Note, the Muslim Brotherhood has refused to recognize the interim government, and violence continues to erupt on the streets between pro- and anti-Morsi
demonstrators and security forces.
Despite the constitutional crisis between the executive and the judiciary that
has plagued Egypt in its post-revolution transition, the institution of Islamic
judicial review has remained constitutionally in place. Ahead of the 2012
referendum, there was a consensus among leading religious actors that Article 2
Islamic judicial review should remain in the constitution-to-be. Both the Coptic
pope134 and scholars at al-Azhar University supported maintaining the preexisting wording of Article 2 (“the principles of Islamic shari’a” are the main source
of legislation) and opposed calls by Salafi groups to change the wording to
make the “rules of Islamic shari’a” the basis for all legislation.135
Following the July 2013 military overthrow of Morsi, the interim government introduced a constitutional declaration that also maintains the current
wording of Article 2.136 Significantly, however, the declaration removes Article
4 of the 2012 Constitution, which required that “Al-Azhar Senior Scholars are
to be consulted in matters pertaining to Islamic law.”137 Although this consultation requirement did not create a new institution akin to the Iranian Council of
Guardians in which Islamic scholars would review the shari’a compliance of
132. See, e.g., Sarah Carr, On Sheep and Infidels, JADALIYYA (July 8, 2013), http://www.jadaliyya.com/
pages/index/12779/on-sheep-and-infidels.
133. The position of the judiciary following the military overthrow is precarious. Not only has
Mansour’s presence in the government arguably served as judicial endorsement of the new militarybacked order, but courts have outlawed the Muslim Brotherhood as a political organization and
overseen prosecution of senior Brotherhood officials. Hadeel Al Shalchi, Egyptian Court Upholds
Muslim Brotherhood Ban, REUTERS, Nov. 6, 2013; Patrick Kingsley, Mohamed Morsi Trial Adjourned
as Chaos Breaks Out in Egyptian Court, GUARDIAN, Nov. 4, 2013. Liberal defectors from the new
regime, including Mohamed ElBaradei, are also being targeted with prosecution. Fady Ashraf, ElBaradei to Face Trial in September, EGYPT DAILY NEWS, Aug. 20, 2013. Critics meanwhile accuse the interim
authorities of justifying attacks on enemies of the new order on the basis of defending liberalism and
secularism, while also manipulating religious rhetoric. See Egypt’s Liberals Are as Intolerant as
Islamists: Bassem Youssef, AHRAM ONLINE, Oct. 29, 2013.
134. Pope Approves Constitutional Article on Sharia, EGYPT INDEP. (Dec. 11, 2012, 8:40 PM), http://
www.egyptindependent.com/news/pope-approves-constitutional-article-sharia.
135. An Endless Debate over Religion’s Role: In Egypt and Elsewhere the Drafters of Constitutions
Wrangle and Tangle, ECONOMIST, Oct. 6, 2012, http://www.economist.com/node/21564249.
136. To the dismay of activists, the declaration maintains several other controversial provisions from
the 2012 Constitution such as sweeping executive powers, military trials for civilians, and limited
recognition of freedom of expression and association. Egypt’s Interim Constitutional Declaration
Draws Criticisms, AHRAM ONLINE, Jul. 9, 2013, http://english.ahram.org.eg/NewsContent/1/64/76110/
Egypt/Politics-/Egypts-interim-constitutional-declaration-draws-cr.aspx.
137. CONSTITUTION OF THE ARAB REPUBLIC OF EGYPT, 26 Dec. 2012, art. 4, available at http://www.
egyptindependent.com/news/egypt-s-draft-constitution-translated.
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legislation, it did introduce unelected religious scholars into the constitutional
framework. Even without Article 4, Egypt’s recent constitutional experience
suggests that Islamic judicial review is here to stay despite the country’s struggles to define the system of governance that best serves the public interest.138
C. SAUDI ARABIA: MASLAHA AS A COVER FOR THE KING’S POWER GRAB
The significance of maslaha as a driver of Islamic judicial review in Saudi
Arabia lies primarily in its association with the institution of the monarchy. In
Saudi political ideology, governance falls within the neat categories of either
siyasa (governance), which is the realm of the king, or fiqh (jurisprudence),
which is the realm of the ‘ulama; however, in the case of a conflict between
the two or the absence of a textual basis for the application of fiqh, it is the
prerogative of the King to take action for the maslaha ‘amma, or public interest,
and to legislate in the orbit of siyasa.139 If one assumes that much of fiqh is
ill-equipped to address modern legal dilemmas, maslaha would seem to support the monarch’s ability to issue decrees restricting the jurisdiction of shari’a
courts and removing areas of the law to the dockets of executive branch
administrative tribunals. Maslaha would thus contribute to a legal dualism in
which positivist man-made law competes with shari’a in an unpredictable tug of
war140—vindicating secularist scholars’ assertions that shari’a is not compatible
138. The committee tasked with redrafting the constitution following the military overthrow of
Morsi has been divided over Article 219, which was included in the 2012 constitution and states that
the “principles of Islamic Shari’a include its commonly accepted interpretations, its fundamental and
jurisprudential rules, and its widely considered sources, as stated by the schools of Sunna and Gamaa.”
Waleed Abdul Rahman, Egypt: Constitution Committee Source Says Islamic Articles Disputed, ASHARQ
AL-AWSAT, Oct. 26, 2013. Liberal committee members oppose inclusion of Article 219 in the new
constitution, as do al-Azhar scholars, one of whom has stated that the article “does a lot of injustice to
Islamic Sharia itself because it imposes a strict code of Islam, or rather creates a kind of religious
dogmatism on society.” Gamal Essam El-Din, Egypt’s Constitution Drafters Defend Eliminating
Controversial Sharia Article, AHRAM ONLINE, Sep. 4, 2013. Salafi Nour Party representatives on the
committee initially insisted that Article 219 remain as a means of preserving the Shari’a from a Sunni
interpretative standpoint, but have since agreed to its removal and accepted the SCC’s Article 2
jurisprudence on shari’a “principles.” Al-Masry Al-Youm, Nour Party Announces End of Conflict over
Sharia in Constitution, EGYPT INDEP., Nov. 3, 2013.
139. FRANK E. VOGEL, ISLAMIC LAW AND THE LEGAL SYSTEM: STUDIES OF SAUDI ARABIA 174 (2000);
Bramsen, supra note 76, at 158. While Saudi discourse is clear in its placement of the King at the center
of maslaha-guided, positivist lawmaking, it is hesitant even to refer to the process the King engages in
as lawmaking or “legislation” for fear of calling into question the legitimacy of the Saudi system, which
claims to operate on the classical Islamic model of a just ruler implementing the law as found by the
‘ulama. See Sfeir, supra note 79, at 734 (noting that the word marsum (decree) is used in place of
qanun (law) and nizam (ordinance) in place of tashri’ (legislation)). Indeed, Saudi national identity and
the legitimacy of the political system rest to a significant degree on the fabled eighteenth-century alliance of Wahabbi scholars’ religious ideology and the House of Sa’ud’s military might and political influence. Joseph Nevo, Religion and National Identity in Saudi Arabia, 34 MIDDLE E. STUD. 34, 36
(1998).
140. In a secularist critique, George Sfeir asserts that this Islamic legal dualism denies the law
stability and predictability, for the threat always exists that conduct seemingly permitted by statute
could be in violation of the shari’a. Sfeir, supra note 79, at 751. He thus proposes codification of the
shari’a in a comprehensive treatise and exclusion of shari’a provisions that fall outside of it. Id. at
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with modernity.
This secularist conclusion is hardly necessary, for three primary reasons.
First, it assumes that fiqh is ill-equipped to address modern needs. In actuality,
fiqh covers a much broader range of issues than does the administrative tribunal
system, and shari’a court judges not only insist on exercising general jurisdiction over all cases brought before them but also assert their ability to make
maslaha determinations when adjudicating cases.141 Thus, shari’a courts resist
the monarch’s monopolistic claim to maslaha and the restriction of the judiciary’s power of Islamic judicial review.
Second, even if shari’a courts submit in some instances to the monarch’s
maslaha-backed expansion of administrative court jurisdiction,142 the secularist
framing of the Saudi legal system as dualist and fraught with religious-secular
tensions obscures the real dilemma with the system: authoritarianism. Upon
cursory glance, the shari’a courts’ culture of only adjudicating cases involving
uncodified fiqh matters might seem unproblematic. After all, were federal
Article III courts in the United States to develop in their judicial culture a
practice of deferring to specialized administrative tribunals for adjudication of
certain areas of law designated by an elected legislature, one might hardly
question the system’s constitutional credentials. What this analogy misses,
however, is that in the Saudi system, it is not an elected legislature, but an
unelected monarch with binding legislative powers who attempts to remove
entire fields of law from the scope of judges and into the dockets of civil
administrative tribunals that his ministries control. Furthermore, the monarch’s
pronouncements of legislation may be subject to no judicial review at all and
face scrutiny only in the form of nonbinding resolutions issued by a consultative
assembly whose members he appoints. The autocracy of this constitutional
arrangement, which lacks a meaningful separation of powers, is nonetheless lost
on secularists who blame Islam for the failure of good governance rather than
analyzing institutions of power and looking beyond the monarch’s superficial
claim to be ruling in the public interest.
Finally, a secularist lens fails to take into account the existence of a grassroots reform movement in Saudi Arabia challenging the king’s sweeping,
maslaha-rooted powers. Several reformers, for example, have argued that Islam
requires no particular formula for government, but rather supports democracy as
a political system in which justice prevails.143 While activists have pushed the
752–53. Most Saudi ‘ulama have long resisted shari’a codification, however, asserting that their ability
to draw legal guidance from the shari’a depends on their reading of the batin (inner) and zahir (outer)
meanings of canonical texts, and furthermore, that their right to practice ijtihad (independent reasoning)
in a flexible manner would be threatened were the shari’a to be codified. See Bramsen, supra note 76, at
178.
141. VOGEL, supra note 139, at 344.
142. See Soliman A. Solaim, Saudi Arabia’s Judicial System, 25 MIDDLE E. J. 403, 407 (1971).
143. See Stéphane Lacroix, Between Islamists and Liberals: Saudi Arabia’s New “Islamo-Liberal”
Reformists, 58 MIDDLE E. J. 345, 347 (2004) (noting that ‘Abd al-‘Aziz al-Qasim—a former judge at
the High Court in Riyadh who was removed from his position in 1991 when he joined fifty-two other
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regime to make limited political concessions,144 the regime has largely responded to any expression of political dissent with suppression. It has adeptly
avoided institutional reforms that would create meaningful checks and balances
and instead pursues a corporatist model of patronage in which certain interests
receive limited representation only if they are willing to cede administrative
control and censorship power to the regime.145 Unlike Islamically inspired,
grassroots reform movements in Egypt and Iran, which have had tangible (if
incomplete) effects on formal politics and government institutions, the reform
movement in Saudi Arabia has thus far failed to alter significantly the distribution of power in the kingdom.
D. OBSERVATION: MASLAHA WEAKENS ISLAMIC JUDICIAL REVIEW,
YET SPURS LEGAL CHANGE
In all three case studies, powerful state actors utilize conceptions of maslaha
to alter, and often limit, shari’a-based judicial review. As this Part has demonstrated, the manners in which the Iranian, Egyptian, and Saudi regimes have
used maslaha to curb Islamic judicial review may be criticized for being
self-serving (Saudi Arabia), inauthentic (Egypt), or cumbersome (Iran). In each
of the case studies, however, maslaha has been contested in a constitutional
dialogue between multiple actors and has had mixed results.
In the Iranian context, for example, the creation of the Maslahat Council
weakened the strong Islamic review enjoyed by the Council of Guardians but
also widened the basis for judicial review to include consideration of public
interest and encouraged legislators and jurists alike to take public interest into
account. In Egypt, the SCC based its restrictive test for whether cases fall within
the purview of its Islamic judicial review on a broad reading of the ultimate
social goals of shari’a, but the court also actively engaged in consideration of
public interest in Article 2 cases that did come under its jurisdiction. Finally, in
Saudi Arabia, the monarchy expanded the administrative tribunals under its
direct control at the expense of shari’a-based courts by using its prerogative as
Islamic ruler to define the public interest. At the same time, however, shari’a
courts have continued to assert their power to rule in uncodified areas of law
and exercise independent jurisprudential reasoning, or ijtihad.
If a general pattern can be drawn from these cases, it would seem to be that
the greater the separation of powers in the constitutional arrangement of the
state, the less arbitrary and self-serving is the use of public interest as a
religious figures in presenting a “Letter of Demands” to the King—argues that democracy is the best
political system for realizing justice today).
144. See Camille Ammoun, The Institutionalization of the Saudi Political System and the Birth of
‘Political Personnel,’ in CONSTITUTIONAL REFORM AND POLITICAL PARTICIPATION IN THE GULF 213, 216
(Abdulhadi Khalaf & Giacomo Luciani eds., 2006).
145. Steffen Hertog, The New Corporatism in Saudi Arabia: Limits of Formal Politics, in CONSTITUTIONAL REFORM AND POLITICAL PARTICIPATION IN THE GULF 241, 243 (Abdulhadi Khalaf & Giacomo
Luciani eds., 2006).
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justification for altering the judiciary and its power of Islamic judicial review.
Hence, maslaha serves as a more meaningful basis for development of Islamic
judicial review in the semipluralistic Iranian and Egyptian cases than in the
monarchical Saudi case, where maslaha thinly veils a royal power grab.
Engagement with maslaha has not been limited to the formal organs of the
state. Rather, maslaha informs citizens’ understanding of constitutionalism in
city squares and bustling cafes as much as it does judicial logic in the courtroom. In such informal places, ordinary people and outspoken activists ask what
institutional arrangements are in the public interest. Believers discuss the role
religion should play in regulating public life and emphasize the consistency of
Islam and democratic representation of the interests of the people in government.146 These countless private conversations and public demonstrations challenge the legitimacy of the established constitutional order and pave the way for
systemic change, in part by creating a constitutional ethic that courts can tap
into when adjudicating public-interest cases.147
If maslaha is indeed being diffused beyond the halls of power and into the
public’s constitutional consciousness, one could argue that the Islamic nature of
maslaha threatens to become diffused and disconnected from the term maslaha
itself. This argument is consistent with secularist contentions that regimes only
resort to Islamic principles to obscure their authoritarianism by dressing the
system up in religious garb.
While this Part acknowledges that authoritarian regimes manipulate maslaha
to limit judicial review for power ends, it stresses that maslaha is a dynamic
Islamic principle that is both flexible and capable of maintaining its religious
authenticity. This dynamism is evident in courts’ efforts to resist executive
maslaha-based interference by asserting their power to hear cases and engage
critically with Islamic sources and jurisprudence. It is also apparent in citizenactivists’ formulations of Islamo-democratic understandings of maslaha and
constitutionalism that differ radically from the regimes’ authoritarian manipulation of these terms.148 Such dynamics are lost on the secularist critique, which
seeks to confine maslaha to the authoritarian grab bag of faux-religious tools of
political repression and to frame a secular understanding of democracy as the
only solution. Ultimately, secularists fail to see the full extent of maslaha’s
constitutional reach as a principle with religious significance for citizens at large
and for judges specialized in Islamic judicial review.149
146. HECK, supra note 110, at 147.
147. See Feldman, supra note 89, at 45–46.
148. Even if not all citizens are practicing Muslims or assign religious meaning to their understanding of public interest, Islamic meanings have attached to constitutional principles like maslaha in public
discourse and must therefore be wrestled with. Furthermore, for many citizens in the Middle East,
political participation and constitutionalism are informed by their faith. Therefore, engaging in a
fruitful, civil dialogue that is inclusive of citizens from all ideological paths requires an awareness of
the religious significance maslaha bears.
149. As a point of comparison to the nominally secular U.S. constitutional paradigm, scholars have
pointed out that principles in the U.S. Constitution are accorded quasi-religious respect by American
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Maslaha remains a meaningful Islamic constitutional principle despite the
variety of ways in which regime elites, courts, political activists, and ordinary
citizens utilize it to alter, legitimize, or discredit the distribution of power in
their polity. It bears a particular historical legacy of fostering legal change in
Muslim societies by encouraging believers to consider the social purposes of
divine law. Given such flexibility and religious legitimacy, it is reasonable to
accept the potential for maslaha to promote democratic governance and meaningful constitutionalism from an Islamic frame of reference.
CONCLUSION
This Note examines Islamic constitutionalism in three Middle Eastern states,
finding that where Islamic judicial review has been constitutionally enshrined,
courts have risen to the task of adjudicating disputes and reviewing legislation
based on shari’a principles. Institutional design of the courts varies significantly
based on state ideology and historical circumstances; however, in all three
cases, regimes alter the institutional design or jurisdictional scope of the courts
as a means of limiting Islamic judicial review. Justifications rooted in the
Islamic precept of public interest, or maslaha, accompany these limitations. At
the same time, invocation of maslaha spurs a constitutional dialogue on reform
with mixed results: in some cases maslaha obscures the autocracy of the
executive-heavy regimes, while in other cases it broadens the scope of Islamic
judicial review by encouraging consideration of the public utility and public
interest underlying the law.
The Note confirms comparative constitutional literature asserting that hegemons seek to preserve their power by endowing courts with judicial review but
adds that in the authoritarian context and absent an effective separation of
powers, hegemons may also seek to recoup power initially ceded to courts. The
Note also engages with scholarly perspectives on the coherence of “Islamic
constitutionalism” and suggests that if self-professed Islamic constitutional
arrangements are to be understood, they must be analyzed on their own terms
with reference to Islamic precepts and historical, ideological, and linguistic
nuances. It remains open to the possibility of Islamically based constitutional
limits on government and demonstrates several instances in which courts resisted co-optation by authoritarian executives.
Finally, this Note asserts that citizens’ engagement in a societal dialogue on
public interest and constitutionalism has the potential to transform formal
institutions of government. The effects of popular constitutional engagement
citizens, who reference the Constitution with reverence in public discourse and conduct pilgrimage-like
visits to Washington, D.C., to see the Constitution. See Ann Elizabeth Mayer, Clashing Human Rights
Priorities: How the United States and Muslim Countries Selectively Use Provisions of International
Human Rights Law, 9 SATYA NILAYAM: CHENNAI J. INTERCULTURAL PHIL. 44, 57 (2006) (arguing that the
U.S. Constitution has assumed a sacred character in the eyes of American citizens akin to that of the
shari’a).
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have already been felt in Egypt, Iran, and Saudi Arabia, particularly since the
launch of mass movements in the region calling for political reform in 2009 and
2011. While regimes have been reluctant to reform state institutions, citizens
have increasingly been willing to challenge autocracy and often do so using
language rooted in Islamic conceptions of justice and the public interest.
Therefore, maslaha need not be viewed solely as an authoritarian political ploy
to restrict judicial review. It is also a principle that could just as easily be used
to delegitimize authoritarian undermining of judicial authority and centralization of power in the executive’s hands.