4 - Islamic Conceptions of the Rule of Law

Summary

The rule of law, it has been said, is at best a vague concept and at worst a myth. Yet as one looks at any given society, it is a notion that takes on local meaning, in the Middle East and North Africa no less than elsewhere. In this chapter, it is suggested that there is a significant reality to the concept of the rule of law in Muslim nations but that much of that local meaning turns not on substantive rules or the formal organization of institutions so much as the procedures followed and the cultural presumption that inform the finding of facts. By tracing these features through concrete cases and related sources, we can see that Islamic concepts of the rule of law are mostly about process and the assessment of persons, rather than of material evidence and the structure of judicial power. As such, we can also see that when various Muslim cultures encounter one another and the legal systems of the West, some misunderstanding of why failing to appreciate that no cases are thought to be identical and that persons take precedence overs ‘facts’ can readily lead to misperception and misguided encounters.