By Nadia Sayed and Helena Swanson-Nystrom
Citation: Nadia Sayed & Helena Swanson-Nystrom, Review of Intisar A. Rabb, The Least Religious Branch? The New Islamic Constitutionalism after the Arab Spring [17 UCLA Journal of International Law and Foreign Affairs 75 (2013)], Islamic Law Blog (Mar. 2017)
Following the uprisings that began in 2010 known as the “Arab Spring,” Egypt’s new Constitution expanded the status of Islamic law and thereby raised questions about the role of courts in what might be called the era of “new Islamic constitutionalism.” Even before the Arab Spring, Egypt’s Constitution stated that the “principles of Islamic law are the main source of legislation” (Article II). Some constitutional law scholars have argued that courts in Islamic constitutional countries have a secularizing effect: they act as the “least religious branch” by issuing rulings that constrain Islam by essentially excluding consideration of religion altogether. Countering that narrative, Intisar Rabb contends that the past practices of Egypt’s Supreme Constitutional Court (SCC) show a pattern of engaging with Islamic law rather than seeking to contain or secularize it. In its judicial review of statutes challenged on the basis of Islamic law, the SCC adopted a three-step test to determine the Islamic law constitutionality of challenged legislation. Rabb further argues that, in addition to the empirical inaccuracy of the “least religious branch” designation, the secularizing effects theory may also be undesirable. Engagement with Islamic law on Article II-related cases helped balance the Constitution’s bill of rights with its religious clauses, in a process that increased the legitimacy of the Court’s judicial review and thereby added strength and stability of the courts and the country.
Do Courts Secularize Islamic Law?
After the Arab Spring uprisings that began in 2010 and the formation of a Constituent Assembly to draft a new Constitution, Egypt’s 2012 Constitution retained the clause about the “principles of Islamic law” being “the main source of legislation.” In addition, the new Constitution gave authority to review legislation to al-Azhar, the millennium-old religious school in Cairo (Article 4), and (in Article 219) defined Islamic law “to encompass the traditional modes of interpretation developed by medieval Muslim jurists.” This expanded definition and reach of Islamic law called the SCC’s jurisdiction over interpretation of sharīʿa into question. The inflation of Islamic law was not to last; the 2012 Constitution reverted to its 1980 counterpart not long after brief experiment. But the period teaches lessons that are illuminating for the role of Islamic law in constitutions, whether thick or thin.
Some scholars of comparative constitutional law have suggested that courts have “secularizing effects,” even in Islamic constitutional jurisdictions like Egypt. As articulated by Ran Hirschl, this thesis posits that constitutional courts serve as the guardians of secularism, modernity, and universal values. However, Rabb argues that this thesis is not persuasive in the context of Egypt, where Islamic law has widespread appeal with the public and has been incorporated into the country’s constitution since 1971.
Judicial Review of Islamic Law in Egypt, 1980-2008
Far from containing and secularizing sharīʿa, a survey of SCC decisions from 1980 to 2008 shows the Court closely considering Islamic law to determine the constitutionality of the legislation in question. The Court elaborated a three-step test: first, does the challenged law violate any universally accepted scriptural ruling? Second, does the challenged law derogate from the general rules of sharīʿa? Third, does the challenged law violate the Islamic law requirement to do “no harm”?
Rabb’s article discusses applications of this test with an analysis of three prominent cases that have been adjudicated by the Courts. On their face, these three SCC cases—relating to veiling in public schools, a ban on female circumcision, and a woman’s ability to initiate no-fault divorce—appear to support the “secularizing effects” thesis. But with closer analysis, Rabb illustrates that the Court’s interpretive process considered Islamic law in each case in ways that only partially could be considered to secularize, as they also engaged questions of religion and law to arrive at accepted and legitimate outcomes in the popular and judicial eye.
New Islamic Constitutionalism and the Role of Courts
Instead of constraining Islamic law, promoting courts as vehicles to impose secularizing effects (prescriptively) may in fact limit the role of courts in Muslim-majority countries following the Arab Spring. The SCC’s approach offers a better framework for understanding the possibilities for judicial review of legislation relating to Islamic law. Moreover, the case on banning the practice of female circumcision illustrates that consulting jurists may bolster the legitimacy of court decision called upon to consider the constitutionality of state laws challenged on secular or Islamic law grounds under Article II’s sharīʿa clause. While the inflated presence of Islamic law was not lasting (after Mohamed Morsi’s government fell, the Constitution returned to having a single clause on Islamic law), it may yet be the case that going forward, continued judicial engagement with Islamic law may in fact strengthen the court and the perceived legitimacy of its decisions.