In this paper the relationship between democracy, rule of law and human rights is developed in depth. Judaism, christianity and islam are religions that include gods commands, and those commands are evident in the mosaic law of judaism, the greatest commandment of. The rule of law is a historic ideal, and appeals to the rule of law remain rhetorically powerful. The traditional answer of jurists has been that laws have an autonomous causal efficacy. Makdisi henry ii created the common law in the twelfth century, which resulted in revolutionary changes in the english legal system, chief among which were the action of debt, the assize of novel disseisin, and trial by jury. When we say that the supremacy or the rule of law is a. These guide us into knowing what is acceptable and what is unacce. Jan 10, 2008 think how wonderful a golden rule islam would be. Also there you find a concrete set of parameters democracy international uses to analyse the situation of rule of law and democracy in nation states around the world. Religion and the rule of law have always had a somewhat incestuous relationship. In many ways, classical islamic law functioned like a constitutional law. Rule of law international journal of law and legal.
Mubarak, democracy from islamic law perspective world are supplying muslims with weapons in order to topple their regime for the establishment of democratic system to run the affairs of their state and do away with dictatorship in the state as was the case with tunisia, iraq, libya and egypt. Now that our conference on islam and the rule of law has met with such great interest and such an extraordinarily positive echo, many are left with the impression that our approach is a step in the right direction. The political foundations of democracy and the rule of law june 1997 legitimate actions and fundamental transgressions. Fourthly, we will redevelop the principles related to the constitutional rule of law by recalling the existing tensions not only between liberty and other values but also between the two concepts of. The declaration adopted on 24 september 2012 by the united nations general assembly at the highlevel meeting on the rule of law at the national and international levels reaffirmed that human rights, the rule of law and democracy are interlinked and mutually reinforcing and that they belong to the universal and indivisible core values and principles of the united nations. Democracy versus the rule of law posted on march 20, 2012 by mark friedman politicians and media commentators generally assume that democracy is an intrinsic good, i. The period thereafter will also be discussed until our present day. The rule of law and the protection of human rights are necessary for a democracy to function to exist in reality. Adherence to the rule of law is a necessary condition to the realization of a legitimate constitutional democracy in a pluralist polity. But the official story over several centuries was that the empire was ruled by sharia, the holy law of islam, augmented by a civil code and by the domestic law of the various permitted sects.
John bowen sharia, state, and social norms in france and indonesia 4. As one of the authors said, laws cannot rule because to rule needs action, and it is only humans who can act. Human rights, the rule of law and democracy are interlinked and mutually reinforcing and that they belong to the universal and indivisible core values. The rule of law is not an arid legal doctrine but is the foundations of a fair and just. Democracy is one of the universal core values and principles of the united nations. The concept of the rule of law is, like other key concepts such as liberty or equality, much praised, but its meaning is much contested. Islamic constitutionalism in theory and in practice. This contribution will appear as a chapter in the handbook on the rule of law to appear with edward elgar in 2017. Considered from this aspect the islamic state bears a kind of resemblance to the fascist and communist states. An eu mechanism on democracy, rule of law and fundamental rights value for money of eu programme funding in the field of democracy and rule of law june 2017 the study explores how far processes are in place to enable the delivery of value for money in this policy area. A itse sagay says that there can be no democracy without the rule of law 9 and by common agreement, albert venn dicey in his law of the constitution, exposed the concept of the rule of law as. The rule of law and the legitimacy of constitutional democracy. The rule of law, islam, and constitutional politics in egypt and iran draws together leading regional experts to provide a penetrating comparative analysis of the ways islam is entangled with the process of democratization in authoritarian regimes. Recently, several muslim countries have ratified new constitutions.
No arguments, demands, accusations, law suits, threats, pressure, hateful speech, killings, or bombings. In its truest sense, rule of law governance is called a nomocracy, from the greek nomos law and kratos rule. In its least c ontentious form, the democratic principle is that legitimate rule requires the consent of the governed. The rule of law, islam, and constitutional politics in egypt and iran said amir arjomand and nathan j. Equally important, islam is said to be antidemocratic because it vests sovereignty in god, who is the sole source of political authority and from whose divine law must come all regulations governing the community of believers. Maududi added islam wishes to destroy all states and governments anywhere on the face of the earth which are opposed to the ideology and program of islam. Democracy versus the rule of law natural rights libertarian. Constitutionalism and islam as a source of legislation. Eisenhower the bedrock of our democracy is the rule of law and that means we have to have an independent. It focuses on his work about islam and the fundamentals of power, published in 1925. The clearest way to show what the rule of law means to us in everyday life is to recall what has happened when there is no rule of law. Pdf state of democracy, human rights and the rule of law. Brown a period of global experimentation with, and enthusiasm about, constitu. Citizens may have widely different views about limits on the state.
Law, liberty and the rule of law in a constitutional. Constitutions contain the fundamental and, most often, supreme law of the state, and the rule of law dictates the enforcement of those principles above all other laws. Jun 03, 2015 now that our conference on islam and the rule of law has met with such great interest and such an extraordinarily positive echo, many are left with the impression that our approach is a step in the right direction. As with previous reports, the five chapters look at the key building blocks of democratic security. Talal asad thinking about secularism and law in egypt 3. More precisely, we are interested in the consequences of islam for institutions securing the rule of law, while taking. Democracy, the rule of law and islam edited by eugene cotran and adel omar sherif cimel book series no. Local elites, colonial authority and the making of the muslim state chicago 2016, and a number of articles on islam, law, state formation, and muslim polit. The rule of law thrives in a state when there is a separation of powers among the main organs of government, namely, the legislature, the executives and the judiciary, so that the powers of law making, execution and adjudication are not concentrated in one person or a group of persons. Global journal of political science and administration. Aug 29, 2016 iza hussin is the mohamed noah fellow at pembroke college and university lecturer in the department of politics and international studies at the university of cambridge. Although it is widely believed the rule of law and constitutional democracy go handinhand, closer scrutiny reveals that constitutionalism and democracy might not always be in harmony,5 resulting in a clash between the rule of law and democracy. Today, democracy is the most closely aligned with rule of law governance. Rule of law makes it possible for people to predict the consequences of their actions and,hence,toplantheirlives.
Aug 06, 2012 restrictive law of islam these laws are the backbone of the moral stability of the nation of islam. No tice that i define these concepts for an individual, not for the society. Restrictive law of islam by abdul khaliq muhammad issuu. After defining the rule of law, the chapter summarizes the various positions regarding the rule of law in islamic thinking. James piscatori islam, islamists, and the electoral principle in the middle east 2. The establishment of an eu mechanism on democracy, rule of. The islamic political order is based on the concept of tawhid and seeks it flowering in the form of popular vicegerency khilafa operating through a mechanism of shura, supported by the principles of equality of humankind, rule of law, protection of human rights including those of minorities, accountability of rulers, transparency of political processes and an overriding concern for justice. In five countries, only a minority wanted sharia as the only source of law. Respect for human rights and fundamental freedoms and the principle of holding periodic and genuine elections by universal suffrage are essential elements of democracy. Most prominent in this respect was the 1925 publication of the renowned book islam and fundamentals of political power by ali abdel razek, a sharia law judge and graduate of alazhar university. Populism how strong are europes checks and balances.
Law, liberty and the rule of law in a constitutional democracy. Fundamental rights to free expression, religion and association are limited with the undefined phrase in. M ubarak, democracy from islamic law perspective including saudi arabia and egypt 1, there is a deep lon ging among the people for democracy and popular government but these countries are. By comparing islam and the rule of law in these two nations, one sunni and arabspeaking, the. Islam and democracy eliane ursula ettmueller abstract. Local elites, colonial authority and the making of the muslim state chicago 2016, and a number of articles on islam, law, state formation, and muslim politics. Jul 21, 2003 this book addresses the question of why governments sometimes follow the law and other times choose to evade the law. The doctrine of the rule of law is ultimately bound with the practice of democracy. This paper proposes a short apprehension of the reflections of one of the most important progressive islamic scholars, the egyptian theologian ali abderraziq.
Tociteraz,incurtailingarbitrarypower, andinsecuringawellorderedsociety,subjecttoaccountable,principled government lies the value of the rule of law 1994. Democracy and the rule of law cambridge studies in the. Mar 07, 2017 this contribution will appear as a chapter in the handbook on the rule of law to appear with edward elgar in 2017. The rule of law emerges when no one group is strong enough to dominate the others and when political actors seek to resolve their conflicts by recourse to law. The rule of law and islam by jerg gutmann, stefan voigt ssrn. This is because in a democracy the people citizens are the sovereign and hence govern themselves. A living constitution is required by a government to able to maintain. The rule of law and constitutionalism in muslim countries. After law colleges became widespread beginning with the 11th and 12th century ce, a student often had to obtain an ijazat altadris walifta license to teach and issue legal opinions in order to issue legal rulings. Fourthly, we will redevelop the principles related to the constitutional rule of law by recalling the existing tensions not only between liberty and other values but also between the two concepts of liberty, i. In my research, i intend focusing on the development of islamic jurisprudence fiqh from the prophets time, the period thereafter and the subsequent formation of the schools of law and brief discussion on their methodologies. However, while muslims say they admire freedom and an open political system, gallup surveys suggest that they do not believe they must choose between islam and democracy, but rather, that the two can coexist inside one functional government. No automatic mechanism is assumed to create a societal consensus about values.
Secularism supports laws enhancing peoples welfare and only bans. With such conflicting concepts of law and legitimacy, any negotiated settlement of the syrian civil war has to be considered a longshot. Mar 20, 2012 democracy versus the rule of law posted on march 20, 2012 by mark friedman politicians and media commentators generally assume that democracy is an intrinsic good, i. The rule of law and islam by jerg gutmann, stefan voigt. A living constitution is required by a government to able to maintain civil society, which is the main occupation of the rule of. The political foundations of democracy and the rule of law. Yet the precise meaning of the rule of law is perhaps less clear than ever before.
Islamic sharia and constitutional interpretation in egypt. The discourse concept of the rule of law and democracy volume 11 2007 63 with democracy as a system of selflegislation. The rule of law, islam, and constitutional politics in egypt. We have sent down to thee the book in truth, that you might judge men as guided by god. Its built on an opposing concept, for islam is a religion and a state. Another section looks into the rule of law in countries having a muslim majority. The third issue is the source of law, it incongruently being fully secular in ideal democracy but partially divine in religions.
And indeed, the muslim world has experienced a wave of constitutionwriting. According to the quran even allah asked the children of adam to assent to his lordship. A practical example of the importance of the rule of law for democracy building is the fact that the rule of law is a fundamental principle embraced in most modern democracies. According to islam, sharia law is the principal sources of legislation. The rule of law and constitutionalism in muslim countries 1 introduction many people had high hopes that the arab spring would not only do away with oldfashioned autocrats but would also bring democracy, constitutionalism and the rule of law. Iza hussin is the mohamed noah fellow at pembroke college and university lecturer in the department of politics and international studies at the university of cambridge. All basic human rights, but iraqs new constitution isnt likely to recognize any of them. Restrictive law of islam these laws are the backbone of the moral stability of the nation of islam. This is the fourth annual report of the secretary general of the council of europe on the state of democracy, human rights and the rule of law in europe. Islam would develop a sense of shame and admit to the terrible suffering of the 270,000,000 kafirs killed in jihad.
Law, an understanding of the cultural context in which islamic law has developed and now operates is vital. In the view of some scholars, this means that islam has to be ultimately embodied in a totalitarian state. Islam, however, is actually a politicalreligious system. The rule of law, islam, and constitutional politics in. More precisely, we are interested in the consequences of islam for institutions securing the rule of law, while taking competing.