Goldenziel on Courts in Majority-Muslim Countries

In the conflict between Islamists and secularists in majority-Muslim countries, courts can play a major role. Yesterday, for example,  Egypt’s Supreme Constitutional Court issued rulings allowing a former Mubarak loyalist to run for president and effectively dissolving the country’s Islamist-dominated parliament — clear victories for executive power and supporters of the old regime. A new piece by Jill Goldenziel (Harvard), Veiled Political Questions: Islamic Dress, Constitutionalism, and the Ascendance of Courts, suggests that the situation is more complicated, however. Courts in majority-Muslim countries do not always side with executive power. Even in Egypt, there are tensions between the SCC, which the Mubarak regime brought to heel, and the High Administrative Court, which remained more independent.  Her piece makes for interesting reading. The abstract follows.

This article explains how judicial independence can develop in regimes that are not fully democratic. Conventional wisdom holds that a strong legislature and political parties are necessary for the emergence of an independent judiciary. This article challenges conventional wisdom by explaining how judicial independence may arise in regimes where these conditions are not present. It presents a theory of how judicial independence emerges and why and when other political actors will respect it. The article also explains why courts may be better poised than legislatures to counter executive power in non-democracies. The theory is developed through a discussion of cases involving Islamic headscarves and veils in Middle Eastern courts. These cases have broad political implications because of their significance to Islamists, who pose the biggest challenge to the power of traditional elites in majority-Muslim countries; and their broad legal ramifications with respect to judicial power, individual rights, constitutional convergence, religious freedom, and the relationship between shari‘a and state law. The article also explains how national courts have interpreted Islamic law and challenges the notion that courts function to secularize state-sponsored religion. To the author’s knowledge, this article contributes the most complete discussion in the English-language academic literature of recent high court cases in Egypt, Kuwait, and Turkey that were translated for the purposes of this article, thus contributing to the body of foreign constitutional case law available for comparative study.

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