‘Plural Sharīʿah’. A Liberal Interpretation of the Sharīʿah Constitutional Clause of the 2014 Egyptian Constitution

in Arab Law Quarterly
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This article addresses the Egyptian Constitution issued in 2014 (dustūr ǧumhūriyyah miṣr al-ʿarabiyyah). Article 2 declares that Islam is the religion of the State and that the Sharīʿah is the main source of legislation. The aim of the author is to interpret this provision considering the role that the Islamic religion plays in the cultural and legal framework of Arab countries, notably in Egypt. Furthermore, this article tries to develop a pluralistic interpretation of the norm, taking into account some foundational aspects of the Egyptian legal system including the Civil Code of 1948, the particular tradition of Arab Constitutionalism, and the former jurisprudence of the Supreme Constitutional Court.

‘Plural Sharīʿah’. A Liberal Interpretation of the Sharīʿah Constitutional Clause of the 2014 Egyptian Constitution

in Arab Law Quarterly

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References

1

C.B. Lombardi‘Constitutional Provisions Making Sharīʿah “A” or “The” Chief Source of Legislation: Where Did They Come From? What Do They Mean? Do They Matter?’American University International Law Review 28(3) (2013): 755.

2

M.A. ʿArafa‘Whither Egypt? Against Religious Fascism and Legal Authoritarianism: Pure Revolution, Popular Coup, or a Military Coup d’État?’Indiana International & Comparative Law Review 24(4) (2014): 859 ff.

3

H. Mohnhaupt & D. GrimmVervassung: Zur Geschichte des Begriffs von der Antike bis zur Gegenwart. Zwei Studien (Berlin: Duncker & Humboldt GmbH2002) (It. translation Costituzione. Storia di un concetto dall’Antichità a oggi [Rome Carocci 2008]).

5

A.R.A. al-SanhūrīLe califat (Paris: Librairie Orientaliste Paul Geuthner1926) 41.

8

C. Chehata‘Les Survivances musulmanes dans la codification de droit civil égyptien’Revue International de Droit Comparé 17 (1965): 839 ff. my emphasis.

12

T. al-BarghoutiThe Ummah and the Dawlah. The Nation State and the Arab Middle East (London: Pluto Press2008) p. 64.

19

C.B. Lombardi‘Designing Islamic Constitutions: Past Trends and Options for a Democratic Future’International Journal of Constitutional Law 11(3) (2013): 642: ‘(. . .) institutions that perform Islamic review in Islamic democracies should be staffed with people who have at least the minimum qualifications necessary to be recognized by all important Islamic factions as at the very least reasonably competent and fundamentally fair mediators of competing views. In different countries there will be different constellations of Muslims who need to be satisfied. Appointments must thus be sensitive to local religious dynamics. Second countries should recognize that in all likelihood no panel of judges will be able to issue opinions with unquestioned authority among all different groups. They should thus create procedures to ensure that judges are informed about the range of Islamic views in their country and incentivized to engage respectfully with the views that they ultimately reject. Countries could take any number of steps to do this. Some are as simple as encouraging amicus briefs. Courts could also hire research staff with expertise in all the major strains of Islamic thought in the country’.

23

ʿArafasupra note 2 at 891.

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