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Published online by Cambridge University Press: 04 July 2014
The Turkish Constitutional Court in 1998 questioned whether values such as human rights and democracy are consistent with values raised and supported by the Shari'a. The Court's implicit assumption is that it is impossible to find a concept in Islamic law that respects human rights. With regard to the Shari'a, there are different positions concerning democracy and human rights depending on the legal corpus included in the definition of the Shari'a. The thesis of incompatibility is based on the classical definition of the Shari'a as invariable and unchanging. But once other perceptions of the Shari'a are incorporated, some of these conceptions are compatible with human rights and democracy.
Lecturer, Law Faculty, Haifa University.
1 On the Refah Party see Gülap, Haldun, Globalization and Political Islam: the Social Bases of Turkey's Welfare Party, 33 Int'l J. Mid. East Stud. 433 (2001)CrossRefGoogle Scholar. (The author maintains that the rise of the Refah Party is due to great economic changes in Turkey, mainly the effects of globalization and the diminishing role of the state in economics. The author also argues that there is also a crisis in the state's project to bring Turkey to modernity represented in the official ideology of Kemalism. The Refah party had the support of different classes in the society: the peripheral segment of the capitalist class, the professional middle class, and the working class). (See also Dokupil, Susanna, The Separation of Mosque and State: Islam and Democracy in Modern Turkey, 105 W. Va. L. Rev. 53 (2002)Google Scholar (Retracing the history of the main political Islamist parties in Turkey and more specifically the Refah Party see id., at 105-121).
2 The political patty and three political leaders lodged an application with the European Court of Human Rights against Turkey's alleged breaches of Articles 9, 10, 11, 14, 17 and 18 ofthe Convention for the Protection of Human Rights and Fundamental Freedoms, 1950 [hereinafter the Convention] available at http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-5C9014916D7A/0/EnglishAnglais.pdf (last visited September 2, 2006) and Articles 1 and 3 of Protocol No.1 to the Convention. In its decision, Case of Refah Partisi (the Welfare Party) and Others v. Turkey, (2003) 37 E.H.R.R. 1. The Court confirmed the Turkish decision. This decision raised many legal and political issues as to the limits ofthe right to association in a democratic society, and the mechanism of defense of that democracy. (On this issue see Fox, Gregory H. & Nolte, Georg, Intolerant Democracies, 36 Harv. Int'l. L. J. 1 (1995)Google Scholar; Bernadette, Duarte, Les partis politiques, la démocratie et la Convention européenne des droits de l'homme, 40 Rev. Trim. Dr. H. 301 (1999)Google Scholar Sottiaux, Stefan & De Prins, Dajo, La Cour Européenne des Droits de l'homme et les Organisations Antidémocratiques, 48 Rev. Trim. Dr. H. 1008 (2002)Google Scholar. Regarding political parties in Turkey, the Court has rendered decisions both before United Communist Party of Turkey and Others v. Turkey, (1998) 26 E.H.R.R. 121; Socialist Party and others v. Turkey, (1999) E.H.R.R. 51; and after this case Ozdep v. Turkey, (2001) 31 E.H.R.R. 27. (See press releases on Application 2514 Dicle, on Behalf of the DEP (Democratic Party) available at http://www.echr.coe.int/Eng/Press/2002/dec/DICLE(Democratic Party)judepress.htm and on application 26482/95 Parti Socialiste de Turquie, available at http://ww.echr.coe.int/fr/Press/2003/nov/Arr%C3%AAtPartiSocialistedeTurquie12novembre2003.htm). One could examine the way in which the Court acted in the other cases and ask whether, in this case, the Court deviated from its general test on outlawing political parties. Alternatively, one could compare this decision to the treatment of the same issues by other domestic courts around the world. Sottiaux & De Prins, id. The authors did not challenge the perception ofthe European Court on the Shari'a, human rights and democracy and took as granted the statement ofthe Court.
Another question is the link between freedom of association and religious freedom ( Lenhof, Lance S., Freedom of Religious Association: the Right of Religious Organizations to Obtain Legal Entity Status under European Convention, 9 B.Y.U. L. Rev. 561 (2002)Google Scholar. All these issues, although very important, will not be addressed thoroughly here.
3 Applications nos. 41340/98, 41342/98, 41343/98 and 41344/98 the Refah Party, supra note 2, at para. 123.
4 On the political program of the Refah party see Dokupil, supra note 1, at 109-16.
5 Rouseau, Jean Jacques, Du Contrat Social 83 (1973)Google Scholar.
6 The Refah Partisi, Erbakan, Kazan and Tekdal v. Turkey, (2002) 35 E.H.R.R. 3, the European Court of Human Rights held, at para. 43 [hereinafter Refah party decision of 2001].
7 The Refah party, supra note 2.
8 Id.
9 Case S.L. v. Austria (application no.45330/99), 9 January 2003 para. 39. Case of L. and V. v. Austria (Applications nos. 39392/98 and 39829/98) of 9 January 2003 para. 47. “The court has frequently held that the Convention is a living instrument, which has to be interpreted in the light of present-day conditions.” In Tyer v. the United Kingdom, (1979-1980) 2 E.H.R.R. 1. The Convention is “a living instrument which, as the Commission rightly stressed, must be interpreted in the light of present-day conditions.” Id. at para. 31:
The Court must also recall that the Convention is a living instrument which, as the Commission rightly stressed, must be interpreted in the light of present-day conditions. In the case now before it, the Court cannot but be influenced by the developments and commonly accepted standards in the penal policy of the member States of the Council of Europe in this field.
Dudgeon v. United Kingdom, (1982) 4 E.H.R.R. 149, at para. 60: “the court cannot overlook the marked changes which have occurred in this regard in the domestic law of the member states…” See also Soering v. United Kingdom, (1989) 11 E.H.R.R. 439, at para. 102; Sigurjonsson v. Iceland, (1993) 16 E.H.R.R. 462, at para. 35; Loizidou v. Turkey, (1995) 20 E.H.R.R. 99, at para. 71. See more recently Ocalan v. Turkey, (2003) 37 E.H.R.R. 70.
At para. 193, the Court reiterates that the Convention is a living instrument which must be interpreted in the light of present-day conditions and that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies (see Selmouri v. France, 2000 29 E.H.R.R. 403, at para. 101.)
10 As the Court states: “[d]emocracy thus appears to be the only political model contemplated by the Convention and, accordingly, the only one compatible with it.” (United Communist Party of Turkey and Others v. Turkey, (1998) 26 E.H.R.R. 121, at para. 45). “The principles and the structure of the state can be changed but without harming democracy itself.” (Socialist Party case, supra note 2, at para. 47; the Freedom and Democracy Party case, supra note 2 at para. 41; and the Dicle case, supra note 2 at para. 44 & para. 46).
11 Price, Daniel E., Islamic Political Culture, Democracy, and Human Rights: A Comparative Study (1999)Google Scholar.
12 Tessele, Mark, Do Islamic Orientations Influence Attitudes Toward Democracy in the Arab World? Evidence from Egypt, Jordan, Morocco and Algeria, 43 Int'l J. Comp. Soc. 229 (2003)CrossRefGoogle Scholar. For other examples of Muslim regimes and democracy see Esposito, John L. & Voll, John O., Islam and Democracy (1996)Google Scholar.
13 Entelis, Joelle, Note: International Human Rights: Islam's Friend or Foe? Algeria as an Example of the Compatibility of International Human Rights Regarding Women's Equality and Islamic Law, 20 Fordham Int'l L. J. 1251 (1997)Google Scholar.
14 See, e.g., Venkatraman, Bharathi Anandhi, Islamic Stales and the United Nations Convention on the Elimination of All Forms of Discrimination Against Women: Are the Shari'a and the Convention Compatible, 44 Am. U. L. Rev. 1949 (1995)Google Scholar.
15 For the text, see Mayer, Ann Elizabeth, Islam and Human Rights: Tradition and Politics 203–208 (1999)Google Scholar.
16 Mahiou, Ahmed, La Charte arabe des droits de l'home, in Mélanges Offerts à Hubert Thierry, L'Evolution du droit international 305–320 (1998)Google Scholar.
17 Salieh, Abu & Aldeeb, Sami A., Les Mouvements islamistes, la loi islamique et les droits de l'homme 251 (2001)Google Scholar. Mawsilli, Ahmad S., The Islamic Quest for Democracy, Pluralism, and Human Rights (2001)Google Scholar.
18 Schacht, Joseph, Introduction to Islamic Law 210 (1964)Google Scholar; Liebesny, Herbert J., Comparative Legal History: Its Role in the Analysis of Islamic and Modern Near Eastern Legal Institutions, 20 Amer. J. Comp. L. 38 (1972)CrossRefGoogle Scholar; Weiss, Bernard G., The Spirit of Islamic Law 113 (1998)Google Scholar.
19 In Sunni Islam, which represents approximately ninety percent of Muslims today, there are four schools of law.
20 For the translations of the different instances of the decisions of Egyptian courts see 34 Egypte/Monde Arabe 250–62, (1998)Google Scholar. See also Balz, Kilian, Submitting faith to Judicial Scrutiny Through the Family Trial: To The Abu Zayd Case, 37 Die Welt des Islams 135 (1997)CrossRefGoogle Scholar.
21 ‘Al-Raziq, Ali ‘Abd, Al-Islam wa-Usul al-Hukm (1966)Google Scholar.
22 Filali-Ansary, Abdou, L'Islam Est-il Hostile a la Laicité? (1999)Google Scholar.
23 ‘Abduh, Muhammad, Al-Islam, Din al-‘Ilm wa-al-Madaniyyah 10 (1998)Google Scholar.
24 On this trend see Badawi, M.A. Zaki, The Reformers of Egypt (1978)Google Scholar; Ramadan, Tariq, Aux Sources du Renouveau Musulman. D'al-Afghani a Hassan Al-Bana. Un Siècle de Reformisme Islamique (1998)Google Scholar; Hallaq, Wael, A History of Islamic Legal Theories (1997)CrossRefGoogle Scholar; Layish, Aharon, The Contribution of the Modernists to the Secularization of Islamic Law, 14 Mid. Eastern Stud. 263 (1978)CrossRefGoogle Scholar.
25 Adams, Charles, Islam and Modernism in Egypt 127 (1933)Google Scholar.
26 See, e.g., the famous commentary by Abdou, Muhammad, Rida, Rachid, & Jomier, J., Le Commentaire Coranique du Manar. Tendances Modernes de l'exegese coranique en egypte 191–235 (1954)Google Scholar.
27 Ramadan, supra note 24, at 385-446. The fundamentalist are in fact different groups with different perspectives but none of them offer a theory that conforms to human rights and democracy. See also Salieh & Aldeeb, supra note 17; Shehadeh, Lamia Rustum, The Idea of Women in Fundamentalist Islam (2003)Google Scholar.
28 5 Ibn al-Hammam, Fath al-Qadi 212 (1875)Google Scholar. See also Odah, ‘Abd il-Qadir, Islamic Criminal Law: A Comparative Study 78–79, 774–76 (1986)Google Scholar.
29 See 1 Ibn al-‘Arabi, Ahkam al-Qur’ an 427 (1957)Google Scholar; see also 4 Al-Khurashi, , 'Ala Mukhtasarat Sidi Kkhalil 414 (1997)Google Scholar. Concerning the distinction between the rights of God and the rights of Man as it applies to relations between spouses.
30 Al-Mawardi presents a third category between these two rights as a mix between the rights of God and the right of man ( Al-Mawardi, Muhammad, Al-Ahkam al-Sultaniyyah wa-al-Wilayat al-Diniyyah 9 (1978)Google Scholar). Al-Sarkhasi identifies four categories: The first category is the rights of God, the second is the rights of the human being, the third is a mix in which the rights of God are dominant and the fourth is a mix in which the rights of the human being are dominant: ( Nyazee, Imran Ahsan Khan, Theories of Islamic Law: The Methodology of Iitihad 60–62 (1994)Google Scholar). For more on the distinction between the rights of God and rights of human beings, see Johansen, Baber, Contingency in a Sacred Law: Legal and Ethical Norms in the Muslim Fiqh 200–16 (1999)Google Scholar.
31 al-Fadl, Khaled Abu, Islam and the Challenge of Democratic Commitment, 27 Fordham Int'l L. J. 4, 52 (2003)Google Scholar.
32 Al-Ghazali, , Al-Iqtisad fi al-I‘tiqad 186 (1962)Google Scholar.
33 Al- Raziq, supra note 21.
34 al-Mun‘im, Hamdi ‘Abd, Diwan al-Mazalim 35 (1983)Google Scholar.
35 Al-Mawardi, supra note 30, at 116.
36 Id. at 121.
37 Id. at 123-4.
38 al-Shatibi, Ibrahim, al-Muwafqa fi Usul al-Ahkam 3 (1969)Google Scholar.
39 Haj is the Pilgrimage to Mecca in Islam.
40 Huquq Allah:
Rights of God refer to such matters as relate to relations between man and God. Islamic law also includes matters relating to collective and public interests as rights of God. Seen in this perspective, Huquq al-Ibad are individual rights and Huquq Allah are collective rights. Thus Islamic law entrusts Muslim community as the custodian of Huquq Allah.
Muhammad Khalid Masud, Islamic Legal Vocabulary, available at http://www.islamset.com/env/princip.html (last visited January 11, 2007).
41 Huquq al ‘ibad:
The rights between humans. Most of fiqh doctrines deal with Huquq al-'ibad concerning marriage, divorce, property, contracts, services etc. The basic principle in these matters is social justice (la tazlimun wala tuzlamun: “you do not do injustice and you will not be treated unjustly,” and la darar wa la darar, no harm to yourself or to others).
42 The Refah party decision, 2001, supra note 6.
43 Lambton, Ann K. S., State and Government in Medieval Islam, An Introduction to the Study of Islamic Political Theory: The Jurists 315 (1981 reprinted in 1990)Google Scholar.
44 Id. at 20.
45 Id. at XIV.
46 Id. at 307.
47 Jackson, Sherman A., Islamic Law and the State, The Constitutional Jurisprudence of Shihab al-Din al-Qarafi (1996)Google Scholar; “According to Al-Qarafi, the hukm (a legal rule based on interpretations from jurists) is restricted in two ways. First, the subject matter over which it may claim jurisdiction is roughly limited (id. at 197) to civil and criminal matters, i.e., the mu'amalat.”
Religious observances” (‘ibadat) and the like lie outside government's jurisdiction. Second, within the area of the so-called mu 'amalat, only rules from the obligatory (wajib), neutral (mubah) and forbidden (haram) categories may be imposed through threat of force. Government may not impose rules from the recommended (mandub) or discouraged (makruh) categories.
48 al-Harawi, Ahmad, al-Dur al-Nadid min Majmu‘at al-Hafid 175 (1904)Google Scholar. ‘al-Najdi, Othman, Hidayat al-Raghib li-Sharh Imdat al Taleb 481 (1995)Google Scholar.
49 Chehata, Ch., La Religion et les fondements du droit en Islam, 18 Archives de Philosophie du Droit: Dimensions religieuses du droit 17–25 (1973)Google Scholar. See, e.g., the Maliki jurist Ibn Rushd:
It is necessary to know that the ahkam [the plural of hukum] of the Shari'a are divisible into two kinds. One of these kinds is adjudicated by the judges, and the majority of the ahkam we have mentioned fall under this category. The second kind is those not adjudicated by the judges, and most of these are in the recommended (mandub) category. This category of the ahkam are like responding to the Muslim greeting (salam), blessing one who sneezes, and like, which are mentioned by the jurists at the end of their books that are called “Jawami.”
2 Ibn Rushd, Bidayat al-Mujtahed 349 (1960)Google Scholar, quoted in Nyazee, supra note 30. at 238-239. An example of this distinction can be clarified by the following example: A father is obliged to pay maintenance to his poor son. But if the son is not poor, but is in fact wealthy, the father has no obligation to pay. On the contrary, if the father maintained the son while the son was in no need of maintenance, the father may get his money back from his son if the father can produce a witness to show that he spent the money on his son. The father can also get a court order from an Islamic judge before any money is spent on his son that certifies that his son is not in need of maintenance. If he does neither of these things, the court cannot force the return of the money. However, the father can claim that in the eyes of God he has a right to the money. Here we see the distinction between diyanatan (rights that will be vindicated by God) and qada'an (rights that must be satisfied by a court now). See 4 Al-Kasani, Bada 'i‘ al-Sana 'i‘ fi Tartib al-Shara 'i‘ 33–34 (1970)Google Scholar. Another example of this distinction occurs when there is no divorce between a husband and wife. The mother is not obliged to raise the children because her only marital duty is to give herself to her husband. While she may be obligated religiously to do so, she is not obligated judicially to maintain the house, wash clothes, cook, or prepare bread, and this rule applies to child rearing as well. Al-Sarkhasi, al-Mabsut V 209 (2001).
50 Qur'an verse (49:13).
51 Qur'an verse (4:1). For more on the position of equality in Islamic law, see Kamali, Muhammad Hashim, Freedom, Equality and Justice in Islam 47–61 (2002)Google Scholar.
52 For examples to illustrate this distinction on these two levels, see, e.g., Sa‘id, Subhi ‘Abduh, Al-Islam wa-Huquq al-Insan 55–56 (1994)Google Scholar. The author deals with the right to equality in general, quoting many verses from the Qur'an and traditions from the Prophet that seem to support the idea of full equality for all human beings. However, when he moves away from the general to the specific, for instance in dealing with relations between spouses, classic discrimination against women reappears. He claims that it is the duty of a woman to obey her husband and the right of a husband to beat his wife (Id. at 291-296). For other examples of the distinction between the two levels see Mughith, Kamal Hamid, Huquq al-Insan fi al Fikr al-Islami Munakasha awaliya, 1 Rawaq Arabi 35–47 (1996)Google Scholar.
53 For an overview of the legal status of women in family law in Muslim countries see Esposito, John L. & Delong-Bas, Natana J., Women in Muslim Family Law (2nd ed. 2001)Google Scholar; An-Na‘im, Abdullahi A., Islamic Family Law in a Changing World—A Global Resource Book (2002)Google Scholar.
54 Discrimination against women is not limited to medieval scholars. It is also evident in current Islamic fundamentalism: Shehadeh, Lamia Rustum, The Idea of Women in Fundamentalist Islam (2003)Google Scholar. Examining the discourse of Muslim fundamentalist scholars, radical as well as moderate, Sunni as well as Shi‘i, the author arrives at the conclusion that all of the fundamentalist streams discriminate against Muslim women:
All of the ideologies studied here agree on the central role the patriarchal family plays in creating the ideal integrated Islamic ummah. They also consider unsatisfied male sexuality to be a social danger and female seductive powers as conducive to fitnah or social anarchy and chaos. Due to physical and psychological gender differences, they all envision a sexually segregated society, as ordained by the Qur'an and the Shari'a, as enhancing productivity. Men are viewed as having an insatiable sexual desire aroused by the sight, smell, or voice of a woman, thereby distracting and diverting their energy from productive endeavors to wasteful sexual activity. This is best curtailed through gender segregation. Women, on the other hand, are seen as sexual beings with no social role outside the confines of the marital home, unless, of course, it meets with the interest and approval of the husband. While fundamentalists differ on methodology, they all agree on the pivotal role the traditional Muslim family plays in bringing the ideal Islamic state to fruition.
55 4 ‘al-Midani, Abd Alghani, al-Lubab fi Sharh al-Kitab 56 (1980)Google Scholar.
56 Id. at 55.
57 Qur'an verse (4:11); ‘Othman, al-Zaila ‘i, al-Haqa'iq, Tabyin, 6 Sharh Kanz al-Daqa'iq 234 (1991)Google Scholar; al-Faradiyy, Ibrahim, 1 al-‘Adhb al-Fa'id fi Sharh'Imdat al-Fared 66 (1999)Google Scholar; al-Kalbi, Muhammad Ibn Juza', al-Qawanin al-Fiqhiyyah 385 (1989)Google Scholar; 2 al-Mukri’, Isma ‘il, Ikhlas al-Nawi 498 (1989)Google Scholar.
58 Qur'an verse (4:34); Muhsen, Muhammad Bin ‘Ali Bin, Fath al-Mannan Sharh Zubad Ibn Raslan 358 (1988)Google Scholar.
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62 Id.
63 3 al-Banna, Ahmad Bin, Almuqni‘ fi Sharh Mukhtasar al-Kharqi 915 (1994)Google Scholar.
64 2 Al-Kasani, , Bada 'i‘ al-Sana 'i‘, fi Tartib al-Shara'i 271 (1970)Google Scholar.
65 He cites Surah II, verse 221, the Qur'an (translated M.H. Shakir, 12th ed. 2001) to prove that a Muslim can marry only a Jew or Christian and not an infidel.
66 The Food, Surah V, verse 5.
67 2 al-Shuwaqi, Ahmad, al-Tawdih fi al-Jam‘ al-Muqni‘ wa-al-Tanqih 970 (1997)Google Scholar.
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69 There is also discrimination against non-Muslims.
70 17 Taymiyyah, Ahmad Bin, Majmu‘ at al-Fatawa 9 (1998)Google Scholar.
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80 See, e.g., the reservation of Algeria on Article 2: “The Government of the People's Democratic Republic of Algeria declares that it is prepared to apply the provisions of this article on condition that they do not conflict with the provisions of the Algerian Family Code.” See also the Egyptian reservation concerning Article 16:
Reservation to the text of article 16 concerning the equality of men and women in all matters relating to marriage and family relations during the marriage and upon its dissolution, without prejudice to the Islamic Sharia's provisions whereby women are accorded rights equivalent to those of their spouses so as to ensure a just balance between them. This is out of respect for the sacrosanct nature of the firm religious beliefs which govern marital relations in Egypt and which may not be called in question and in view of the fact that one of the most important bases of these relations is an equivalency of rights and duties so as to ensure complementary [sic.] which guarantees true equality between the spouses. The provisions of the Sharia lay down that the husband shall pay bridal money to the wife and maintain her fully and shall also make a payment to her upon divorce, whereas the wife retains full rights over her property and is not obliged to spend anything on her keep. The Sharia therefore restricts the wife's rights to divorce by making it contingent on a judge's ruling, whereas no such restriction is laid down in the case of the husband.”
Available at http://www.unhchr.ch/html.menu3//b/treaty9_asp.htm (last visited at April 20, 2006). Instead of the equality between men and women mentioned in the Convention, the Egyptian reservation speaks about equivalency, complementarity, “just balance,” “true equality.” It seems that according to Egypt, there are two kinds of equality, “the false one,” which is the formal equality, and the true equality that takes into account the different roles of spouses. The Shari'a, according to Egypt, cannot be called into question and cannot be changed. The Egyptian view, as I understand it, is that this fact of its immutability does not harm women because Shari'a is applying a notion of equality, different from the Western idea of equality, but nevertheless equality.
81 The European Court in paragraph 72 mentioned above in the Refah Party case 2001, supra note 6 stated the “regime is based on Shari'a, which clearly diverges from Convention values, particularly with regard to its criminal law and criminal procedure.”
82 Qur'an verse (24:2)
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85 Al-Haskafi, Al-Dur al-Mukhtar, id., at 313; 3 Muhammad Ibn Rushd al-Qurtubi & Al-Muqaddimat al-Mumahidat Dhakhira 271 (1988); Al-Mukhtar, supra note 83, at 296; Al-Tafri‘, supra note 83, at 225; 4 Al-Mawta', supra note 83, at 243; Al-Dimyati, supra note 83, at 243.
86 Qur'an verse (24:4).
87 Qur'an verse (5:90).
88 Criminal Law of Islam, vol. III at 45.
89 3 Al-Midani, Al-Lubab fi Sharh al-Kitab, supra note 55, at 195; Al-Dalhawi, supra note 83, at 299; Al Taleb, supra note 48, at 532.
90 Al-Dimyati, Hashiyat I'anat al-Talibin, supra note 83, at 254; Al-Mukri', Ikhlas al-Nawi, supra note 57, at 187. Criminal Law of Islam, vol III, at 45.
91 Qur'an verse (5:38)
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93 Qur'an verse (5:33).
94 Qur'an verse (5:45).
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I am not suggesting that there was a conspiracy among classical jurists to undermine women, or that they deliberately sought to ignore the voice of revelation (wahy). Rather I argue that, in their understanding of sacred texts, these jurists were guided by their outlook, and in discerning the terms of the Shari'a, they were constrained by a set of legal and gender assumptions and theories that reflected the state of knowledge and normative values of their time. These theories, which are the product of either juristic speculations or social norms, continued to be treated by subsequent generation of jurists as though they were immutable and part of the Shari'a.
101 Chaudhry, Zainab, The Myth of Misogyny: A Reanalysis of Women's Inheritance in Islamic Law, 61 Alb. L. Rev. 511 (1997)Google Scholar.
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103 Id. at 126-7.
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105 On the theories of abrogation see Burton, John, The Sources of Islamic Law—Islamic Theories of Abrogation (1990)Google Scholar.
106 An Egyptian professor of Arabic currently working at the Islamic Institute in Leiden, the Netherlands.
107 Hallaq, Wael B., Was al-Shafi‘ i the Master Architect of Islamic Jurisprudence?, 4 Int'l J. Middle East Stud. 587 (1993)CrossRefGoogle Scholar challenges the idea that al-Shafi'i received immediate recognition after writing his book, al-Risala, and maintains that this recognition came later.
108 The Prophet Muhammad's customary path. See, e.g., Kaamaki, Mohammad Hashim, Principles of Islamic Jurisprudence 58–116 (2003)Google Scholar.
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110 Id. at 15.
111 Id. at 39.
112 Id. at 60-1.
113 Id. at 40.
114 Zayd, Nasir Hamid Abu, al-Nass, Al-Sulta, al-Haqiqa: al-Fikr al-Dini Bayna Iradat al-Ma'rifa wa-Iradat al-Haimana 16–17 (1995)Google Scholar.
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116 On Asarite theology see McCarthy, Richard J., The Theology of Al-Ash'ari (1953)Google Scholar (containing some of al-Ash'ari's Arabic texts and their translation into English); Gimaret, Daniel, La Doctrine d'al-Ashari (1990)Google Scholar; Frank, Richard, Al-Ghazali and the Ash'arite School (1994)Google Scholar.
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118 Abu Zayd, supra note 109, at 4-5; Abu Zayd, supra note 111, at 31-2.
119 Id. at 28-29. Here I would like to point out two things to the reader: First, there is no doubt that Al-Ghazali was helping to justify the current Muslim political regime, but did he have any choice in the matter? There was no democracy then (or now for that matter). ( Feldman, Noah, After Jihad, America and the Struggle for Islamic Democracy (2003)Google Scholar). Al-Ghazali sometimes expressed his mistrust of political power in general without specifying any particular individual or institution. Second, some scholars doubt whether Al-Ghazali should be classified as an Asharite and maintained that he was even anti-Asharite: Makdisi, George, The Non-Ash'arite Shaft 'ism of Abu Hamid al-Ghazali, 54 Revue des Etudes Islamiques 239 (1986)Google Scholar.
120 Abu Zayd, supra note 117, at 38-9. On the relationship between human freedom and political power, see Boumrane, supra note 117, at 8-9, 15-6, 21-2, & 25.
121 Abu Zayd, Al-Nass, al-Sulta, al-Haqiqa: Al-Fikr al-Dini, supra note 114, at 19; Abu Zayd, supra note 116, at 32. The principle of causality in Al-Ghazali's writings is not as clear as Abu Zayd described. Al-Ghazali was not as consistent as Abu Zayd believed, there was in fact an evolution in Al-Ghazali's conception on the principle of causality. See Abrahamov, Binyamin, Al-Ghazali's Theory of Causality, 67 Studia Islamica 75 (1988)CrossRefGoogle Scholar. He writes: “But whereas noone doubts that Ibn Rushd propounds the philosophical theory of causalities, the scholar's views concerning alGhazali differ. Some of them agree that al-Ghazali rejects causality, while others hold that alGhazali abandoned the Ash'arite theory of the denial of causality.” id. at 77.
122 Abu Zayd, supra note 117, at 19-66.
123 Id. at 26-27.
124 See Fabre-Alibert, Véronique, La notion de “société démocratique” dans la jurisprudence de la Cour Européenne des droits de l'homme (33) Rev. Trim. Dr. H. 465 (1998)Google Scholar; Duarte, Bernadette, Les partis politiques, la Démocratie et la Convention Européenne des droits de 1'homme (40) Rev. Trim. Dr. H. 314 (1999)Google Scholar; Sottiaux, Stefan & De Prins, Dajo, La Cour européenne des droits de l'homme et les organisations antidémocratiques, (48) Rev. Trim. Dr. H. 1008 (2002)Google Scholar.
125 Handyside v. United Kingdom, (1979-1980) 1 E.H.R.R. 737. With regard to pluralism, see also, the Socialist Party case, supra note 2, at para. 41; the Freedom and Democracy Party case, supra note 2, at para. 37; and the Dicle case, supra note 2, at para. 43.
126 The United Communist Party of Turkey case, supra note 2, at para. 57, the Socialist Party case, supra note 2, at para. 45; and the Freedom and Democracy Party case, supra note 2, at para. 44.
127 The Freedom and Democracy Party case, id. at para. 43.
128 Id. at para. 44.
129 Id.
130 Sottiaux, Stefan & De Prins, Dajo, La Cour européenne des droits de l'homme et les organisations antidémocratiques, (48) Rev. Trim. Dr. H. 1008 (2002)Google Scholar.
131 See the case of the United Communist Party of Turkey, supra note 2, at para. 44.
132 On this question of political legal theory in Islam see, 1,2 Tyan, Emile, Institutions de droit public musulman (1954)Google Scholar; Ibish, Yusuf, The Political Doctrine of Al-Baqillani (1966)Google Scholar; Erwin, I. & Rosenthal, J., Political Thought in Medieval Islam, An Introductory Outline (1958)Google Scholar; Lambton, supra note 43; Jackson, supra note 47; Black, Antony, The History of Islamic Political Thought: from the Prophet to the Present (2001)Google Scholar; al-Fadl, Khaled Abu, Constitutionalism and the Islamic Sunni Legacy, 1 UCLA J. Islamic & Near E. L. 67–101 (2000)Google Scholar; Mawsilli, supra note 17. 2 Bleuchot, Herve, Droit Musulman. Essai d'Approche Anthropologique 531–584 (2002)Google Scholar.
133 Al-Raziq, supra note 21, at 22-23 (1995).
134 Khomeini, Ayatollah Ruhollah, Islamic Government 6 (1979)Google Scholar.
135 Al-Mawardi, supra note 30.
136 Muhammad Ibn al-TAYYIB Baqillani, Kitab Tamhid al-Awa'il wa-Talkhis al-Dala'il, 442-558 (1987); Al-Ghazali, supra note 32, at 185-93.
137 Ibish, supra note 132, at 88.
138 Bernard G. Weiss, The Search For God'S La: Islamic Jurisprudence in the Writings of Sayf al-Din al-Amidi (1992).
139 Al-Mawardi, supra note 30, at 6.
140 Shaban, Muhammad, Islamic History: A New Interpretation A.D. 600–750 (1971)CrossRefGoogle Scholar.
141 Shaban, Muhammad, History: A New Interpretation (1976)CrossRefGoogle Scholar.
142 Al-Mawardi, supra note 30, at 6.
143 Id. at 14.
144 Ibish, supra note 132.
145 Abu Zayd, supra note 114, at 22, 61.
146 Literally it means consultation, Mawsilli, supra note 17.
147 Id. at 29.
148 Id. at 45.
149 Id. at 44.
150 Id. at 45.
151 For more on usul al-hukm, see Abderraziq, Ali, L'Islam et les Fondements du Pouvoir (1994)Google Scholar; Filali-Ansari, Abdou, Erwin, I., &Rosenthal, J., Islam in the Modern National State 85–102 (1965)Google Scholar. Delanoue, Gilbert, Les ‘Ulama’ D'Egypte et le Califat (1800-1926), 2 Les Annales de l'Autre Islam 36, 57 (1994)Google Scholar. Binder, Leonard, Islamic Liberalism: A Critique of Development Ideologies 128 (1988)Google Scholar.
152 Al-Raziq, supra note 21, at 7.
153 Id. at 10.
154 Id. at 11.
155 Id. at 17.
156 Id. at 23.
157 Abu Zayd, supra note 114, at 139-151. This view is similar to Henri Laoust's, who wrote a half century ago and maintained that the reason that the great jurist Al-Mawardi wrote his book alahkam al-sultaniya was to enhance the position of the Caliph vis-à-vis the military leaders.
158 Id. at 165.
159 Id. at 138.
160 Id. at 64.
161 Id.
162 Id. at 65.