International Journal of Constitutional Law & Center for Constitutional Transitions

Judicial institutions, the legitimacy of Islamic state law and democratic transition in Egypt: Can a shift toward a common law model of adjudication improve the prospects of a successful democratic transition?

By Mohammad Fadel

Egyptian law has undergone radical institutional change over the last 150 years, evolving from a decentralized system of largely uncodified Islamic law, into a highly centralized, positivist system modeled along the civil law system of France. The last quarter of the nineteenth century witnessed the wholesale adoption of European law, including the Napoleonic Code. After regaining independence, however, the Egyptian legal system has been steadily attempting to re-Islamize itself, beginning with the Sanhuri Code that replaced the Napoleonic Code in 1949 and the adoption of Article 2 in the Constitution in 1980 recognizing the Shari’a as the source of legislation for the Egyptian state. This article contrasts the jurisprudence of Egypt’s Supreme Constitutional Court (SCC) construing the meaning of “shari’a” with the practice of ordinary Egyptian courts construing Egypt’s civil code. It argues that the SCC has been able to garner a relatively high degree of legitimacy than the Sanhuri Code because its practice in construing the “shari’a” in constitutional challenges requires it to adopt common law style reasoning, while the ordinary courts are dominated by a positivist outlook on law which undermines its ability to claim Islamic legitimacy. This article argues that a broader shift to a common law culture would increase the Islamic legitimacy of Egypt’s overall legal system; facilitate Egyptian courts’ reconciliation with the constitutional commitments to Islamic authenticity, modernization, and human rights; and assist in Egypt’s democratic transition.

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About the Special Issue

Symposium – Constitutional Transitions in the Middle East

In March 2012, Constitutional Transitions held a symposium on the constitutional reformation of the Middle East and North Africa region in the wake of the Arab Spring. The papers presented at the symposium are collected in this special edition of the International Journal of Constitutional Law (I•CON), with an introduction by Constitutional Transitions Faculty Director Sujit Choudhry. For more information and videos from the 2012 symposium, click here.

Constitutional Transitions generates and mobilizes knowledge in support of constitution building. Constitutional Transitions generates knowledge by identifying issues of critical importance to the success of constitutional transitions, where a lack of adequate, up-to-date research impedes the effectiveness of technical assistance for constitution building, and assembles and leads international networks of experts to complete thematic research projects that offer evidence-based policy options to practitioners. Constitutional Transitions mobilizes knowledge through an innovative clinical program that provides “back office” research support to constitutional advisors in the field, and deploys faculty experts and field researchers for support on the ground. We meet existing field missions’ needs for comprehensive research, dramatically enhancing their effectiveness and efficiency in their role as policy advisors and actors.

The International Journal of Constitutional Law (I•CON) is published in association with the New York University School of Law, and is dedicated to international and comparative constitutional law. I•CON has international editorial and advisory boards and an international focus. It examines an array of theoretical and practical issues and offers critical analysis of current issues and debates. In addition, I•CON looks at global trends that carry constitutional implications. It features scholarly articles by international legal scholars, judges, and people from related fields, such as economics, philosophy, and political science.