By Clark B. Lombardi. E.J. Brill 2006. Pp. 318. $129.97. ISBN: 9-004-13594-4.
Clark B. Lombardi, J.D. (1998) Law, Columbia University, Ph.D. (2001) Religion, Columbia University is Assistant Professor at the University of Washington in Seattle. He teaches Islamic, comparative and constitutional law and is an expert in the role of sharīʿa in constitutional jurisprudence.
This volume explores the decision by the government of Egypt in the 1970s to constitutionalize Islamic sharīʿa and discusses its impact on Egypt’s constitutional jurisprudence. The author, who is trained in Islamic intellectual history and comparative law, begins by examining the evolution of Sunni Islamic legal theory and describes competing theories of Islamic law that co-exist in modern Egypt. The book then explores how the Supreme Constitutional Court of Egypt has developed its own approach to interrpreting sharīʿa–one that permits the Court to argue that sharī’a principles are consistent with international human rights norms. The book concludes with a discussion of the public reception of the Court’s theory.
PART ONE CLASSICAL ISLAMIC LEGAL THEORY AND THE RISE OF COMPETING MODERNIST LEGAL THEORIES
PART II ARTICLE 2 OF THE EGYPTIAN CONSTITUTION
In 1980, the Egyptian government decided to amend the Egyptian Constitution, in order to make Islamic law (sharia) “the principle source of Egyptian -legislation.” The Supreme Constitutional Court of Egypt has recently begun to interpret and apply this provision. The Author analyzes these decisions, puts them in their historical context, and evaluates whether this will help ease the tensions between Islamist and secularist factions in Egypt. The Court has interpreted this clause to mean that all future legislation respects a number of broad principles that it identifies as the “universals,” or ‘fundamental principles,” of the sharia. These principles, the Court says, are mentioned in the sacred texts of Islam and have always been accepted as essential premises of Islamic law. One of the most important of the fundamental principles of the law is the principle that no law should create hardship for people. Checking Egyptian legislation for conformity with the fundamental principles has so far turned out to be an exercise in utilitarian evaluation of the law.
The Author points out that utilitarian theories of Islamic law have appeared throughout Islamic history and they have come to be widely embraced in the last one hundred years. Nevertheless, this is one of the first times that a utilitarian theory of Islamic law has been applied in practice through the mechanism of a constitution.
The recent decisions reveal some of the problems that can arise when one tries to put a utilitarian theory of Islamic law into practice. First, the Supreme Constitutional Court has not yet fully explained how its melding of utilitarian Islamic legal theory and constitutional theory fits into the tradition of Islamic legal theories. Second, in identifying and applying fundamental principles, the Supreme Constitutional
The court has been forced to rely on subjective judgments. It is clear, then, that this theory could be abused by a faction-secularist or Islamist that took control of the judiciary. The author suggests, therefore, that the Egyptian court must convincingly display more familiarity with the Islamic tradition, and it must ground its theories more explicitly in that tradition. It should also take steps to limit the judicial discretion that is inherent in its theory as currently applied. [COLUMBIA JOURNAL OF TRANSNATIONAL LAW]
Countries that have constitutionalized Islamic law include Pakistan, Qatar, Sudan, Syria, the United Arab Emirates and Saudi Arabia. Other governments, such as Libya, while not going so far as to amend their constitutions, have undertaken to reform their laws so as to conform to the sharia. As regards the constitutionalization of Islamic law in Pakistan, see generally PAK. CONST. art. 227 (as modified up to 1990). As part of the new wave of Islamization, the government of Nawaz Sharif adopted the Enforcement of Shariah Act, the wording of which can be found in Pakistan Affairs, Senate Passes Enforcement of Shariah Bill 1991,44 PAKi AFFAIRs 1, 2-3 (1991). This bill defined the term sharia and reaffrmed it as the
supreme law of Pakistan. See generally Charles Kennedy, Repugnancy to Islam: Who Decides?, 41 INT’L & COMPARATIVE L. Q. 769, 779-80 (1992); J. Mayer, Islamic Use of Practical Reason: Case Study: Islamizing the Pre-Emption Doctrine in Pakistan, 16 SUFFOLK TRANSNAT’LL. REv. 423, 423-425 (1993). For the Constitutionalization of Islamic law in Qatar, see QATAR CONsT. art. I (PRoviSIONAL CONSTITUTION 1973). See also CIVIL AND COMMERCIAL CODE OF QATAR, reprinted in 9 COMMERcmLr LAWS OF THE MIDDLE EAST: QATAR Qatar-I, 2 (Gamal M. Badr ed., 1989). For Sudan, see SUDAN CONST. art. 4 (SUDAN
TRANSrrIONAL CONSTITUTION 1985). For an analysis, see also Nicholas B. Angell, Islamic and Western Baning: A Comparison with SelectedLegal Issues in 37 SYMPOSIUM ON PRIVATE ImESTmENTS ABROAD: PROBLEmS AND SOLUTIONS IN INTERNATIONAL BusINEss 16-1, 16-16 (Carol Holgren ed., Southwestern Legal Foundation, 1994). Saudi Arabia, which does not formally have a constitution, has passed a Basic Law of Rule, which declares both that the sharia is binding law and that all legislation repugnant to sharia is unenforceable. See Royal Decree No. A/90 art. 1, reprinted in 4 BusINEss LAWS OF SAUDI ARABIA 4.1-3, 4.1-4 (Nicola H. Karam ed., 1998). See also the analysis in David Kultgen, The Effect of Islamic Law on International Business in 37 SYMPOSIUM ON PRIVATE INVESTMENTS ABROAD: PROBLEMS AND SOLUTIONSININTERNATIONALBusINESS 15, 1, 15-4-15-6 (Carol Holgren ed., 1994). For the voluntary decisions of the Kuwaiti and Libyan governments, see Ann Elizabeth Mayer, The Shari’ah: A Methodology or a Body of Substantive Rules in ISLAMIC LAW AND JURISPRUDENCE 177, 182 (Nicholas Heer ed., 1990) [Clark B. Lombardi]
The current Constitution of Egypt was adopted by national referendum in 1971. While the 1971 Constitution was being framed, a vigorous public debate occurred on the issue of how “Islamic” the new constitution should be.'” Ultimately, the Constitution contained an article, Article 2, that made several references to Islam’s role in Egyptian society. Article 2 declared Islam the official religion of the country. Article 2 also contained a clause that stated “al-shari’a al- islamiyya masdarun ra’isiyun lil-tashri’u,” which is usually translated as “Islamic sharia is a principal source of Egyptian legislation.