Islamic law as a source of constitutional law in Egypt: The constitutionalization of the Sharia in a modern Arab state

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 hers 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 Court has been forced to rely on subjective judgements. 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 if must ground its theories more explicitly in that tradition. It should also fake steps to limit the judicial discretion that is inherent in its theory as currently applied.