The issue of requiring the principles of Islamic Sharia to be the main, and sometimes the sole, source of legislation in Egypt arose immediately after the Supreme Council of the Armed Forces suspended the 1971 constitution. This issue is expected to surface again by the time the new constitution is drafted. I will examine the ramifications of this insistence on making Sharia the main source of legislation on Egypt’s political arena.
One camp, mainly composed of secularists and non-Muslims, claims that adopting Sharia as the major source of law is discriminatory and ignores religious minorities. It seems that this group’s main concern is that the Islamic parties, which already have a strong presence in the Egyptian political arena, will impose their own interpretation of Sharia, particularly infringing on minority rights, women’s rights, and advocating a firm application of Islamic criminal penalties (hudud) and Islamic commercial and financial rules such as Islamic banking. A fair and neutral evaluation of this attitude from a scholarly point of view finds this fear to be deficient. This is particularly true because the absence of a provision establishing Sharia as a source of law does not guarantee religious equality or justice. Human rights violations are mainly committed by authoritarian or semi-authoritarian regimes for political reasons and do not relate to Sharia in and of itself.
On the other hand, Islamists and their supporters do seek to reaffirm that Sharia is the main source of legislation, and some of them are trying to elevate it to be the sole source of legislation. Islamists are in fact trying to codify that Egypt is an Islamic country, and to guarantee a role for Sharia in the workings of the Egyptian state. To support this argument, Islamists suggest that that since the 19th century, the Egyptian legal system has been Westernized to reflect European rather than Islamic legal norms. This point of view is also deficient. Merely stating that Sharia is the source of legislation is neither a guarantee of the Islamic identity of the country nor does it assure the respect of the rule of law. The same provision, which stipulated that Sharia is the source of legislation, existed during Mubarak’s era, an era that witnessed a notable absence of the rule of law and grave breaches of human rights.
Accordingly, the dilemma does not seem to be over adopting Sharia as a source of law, but rather over which interpretation will prevail when it comes to reading substantive legislation in light of the constitutional provisions of Islamic law. What supports this analysis is the fact that although the majority of the fifty Muslim countries in the Organization of the Islamic Conference, which represents the collective voice of the Muslim world, do consider Sharia as the main source (or at least one source) of legislation, the legal impact of Sharia on a country’s national law varies depending on the interpretation of Islamic law and the political attitude of the governing regime. For instance, some countries such as Yemen, Algeria, and Jordan establish Sharia as the principal source of their legislation, while the religion of the state does not have a significant impact on the functioning of public institutions.
From a legal point of view, the establishment of Sharia as the main source of legislation does not necessarily pose a problem for creating a democratic legal system — it’s the politicization of Sharia that serves as an obstacle to this same process. The threat of the politicization of Sharia arises during the stages of drafting and interpreting laws.
Though Islam has a number of fixed principles, Islamic law is rather malleable if compared to other legal systems. The Islamic legal system developed extra-textual legal principles that can provide a basis for a modernizing process of legal reform. Examples include qias (analogy), istihsan (juristic approval of certain rules), sadd al-dharai (blocking the lawful means to an unlawful end), ijtihad (legal reasoning), and maslaha (public interest). Competent parliamentarians can use these various methodologies that place the public interest as a priority, along with the guidance of competent Islamic jurisprudence, to establish efficient forms of modern constitutional, commercial, and other legal theories. Hence, the body of Sharia does not pose a threat to the process of democratic legal reform unless its interpretation is politicized to serve the end goals of a dominating political party.
In addition, the effect of Sharia as a source of law lies in the hands of the body with the power to interpret the constitution. Since the Supreme Constitutional Court is the sole competent body to interpret constitutional provisions, it plays a crucial role in interpreting any such provision that considers Sharia the main source of legislation. Because the president appoints the constitutional court’s judges, there is a possibility that the court could be used to the advantage of the political party that dominates this executive position. In essence, the fact that Mubarak opposed Islamic legal reform explains why the court’s interpretation of Sharia was in line, to some extent, with the Western modern codes. The question that arises here is whether an Islamist-dominated political climate would change the court’s approach to interpreting Sharia. The answer depends on the degree of independence of the judicial and legislative branches form the executive branch.
In summary, there is no straight answer to the question of whether adopting Sharia as a source of law would affect the process of democratic legal reform. The question is neither a purely legal nor religious one; it is mainly political. The role of Sharia in the post-revolutionary Egypt depends on which political group would win the upper hand in the current political sphere, and accordingly impose their own interpretation of Islamic law.
Radwa Elsaman teaches commercial and business law at Cairo University School of Law. She received her LLM and PhD in law from the American University Washington College of Law in Washington D.C.