Volume 102 - Issue 2 Georgetown Law Journal

Constitutional Shari’a: Authoritarian Experiments with Islamic Judicial Review in Egypt, Iran, and Saudi Arabia

This Note is an investigation of Islamic judicial review—or the role courts play in evaluating legislation for compliance with constitutionally enshrined shari’a guarantees15—in Iran, Saudi Arabia, and Egypt. Although by no means an entirely representative grouping of Middle Eastern states, these three states are among the largest and most influential in the region and together span a range of approaches to Islamic constitutionalism.16 This Note hypothesizes that a general pattern has emerged: guided by state ideology, authoritarian regimes create institutions tasked with engaging in Islamic judicial review of legislation for compatibility with shari’a principles, only to limit this review in the name of “public interest,” or maslaha.
Maslaha is both a formative constitutional principle and a site of contestation. Regime elites seek to manipulate it by claiming that it is in the public interest to curb the power of judicial institutions. Citizen activists, meanwhile, attempt to subvert the dominant regime discourse by rearticulating the public interest in democratic terms. Courts also challenge regime manipulation of maslaha by chastising executive-branch abuse of power and asserting their jurisdiction over cases. Religion is infused throughout this discursive exchange: it attaches particular meaning to Islamic legal terms like maslaha and informs citizens’ demands for reform.
This Note investigates the development of Islamic judicial review in the historical and political context of each country. Part I surveys the literature on Islamic constitutional theory and accepts the potential for meaningful, Islamically based limits on government and protection of rights. Part II charts the institutional diversity of shari’a-based judicial review in Iran, Egypt, and Saudi Arabia, and concludes that ideology—be it revolutionary, neoliberal, or purist, respectively—has shaped regime construction and manipulation of Islamic judicial institutions. Finally, Part III traces the use of the principle of maslaha in Islamic constitutional discourse, finding that while regime-defined notions of the public interest limit the jurisdiction of bodies engaged in shari’a-based review of legislation, courts and popular reform movements are changing the terms of the debate. The result is a mixed bag: maslaha obscures the authoritarian foundations of constitutional arrangements in the Middle East but also broadens the meaning of Islamic judicial review to include deeper consideration of the law’s public utility.

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