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Islamic constitutionalism and rule of law: a constitutional economics perspective

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  • Moamen Gouda

Abstract

This study investigates the relationship between Islamic constitutionalism and rule of law. Al Azhar, one of the most respected Sunni religious institutions in the world, developed a model of an Islamic constitution. This study uses Al-Azhar’s constitution as a model of Islamic constitutionalism and examines its stance in regard to the rule of law. We find the Al-Azhar’s constitution to be incompatible with essential concepts of rule of law. For example, the powers vested in the head of the Islamic state are enormous, making the executive branch of government far superior to the legislative and judicial branches. Women and non-Muslims are explicitly discriminated against throughout the constitution. Moreover, laws stemming from this constitution are not stable since many differences exist among schools of Islamic jurisprudence (fiqh). Consequently, we show that state-of-the-art Islamic constitutionalism lacks essential components needed in any constitution based on rule of law. Copyright Springer Science+Business Media New York 2013

Suggested Citation

  • Moamen Gouda, 2013. "Islamic constitutionalism and rule of law: a constitutional economics perspective," Constitutional Political Economy, Springer, vol. 24(1), pages 57-85, March.
    • Handle: RePEc:kap:copoec:v:24:y:2013:i:1:p:57-85
    DOI: 10.1007/s10602-012-9132-5
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    References listed on IDEAS

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    1. Dani Rodrik & Arvind Subramanian & Francesco Trebbi, 2004. "Institutions Rule: The Primacy of Institutions Over Geography and Integration in Economic Development," Journal of Economic Growth, Springer, vol. 9(2), pages 131-165, June.
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    4. Stefan Voigt, 2012. "How to Measure the Rule of Law," Kyklos, Wiley Blackwell, vol. 65(2), pages 262-284, May.
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    Cited by:

    1. Niklas Potrafke, 2016. "Policies against human trafficking: the role of religion and political institutions," Economics of Governance, Springer, vol. 17(4), pages 353-386, November.
    2. Emilia Justyna Powell & Steven Christian McDowell & Robert O’Brien & Julia Oksasoglu, 2021. "Islam-based legal language and state governance: democracy, strength of the judiciary and human rights," Constitutional Political Economy, Springer, vol. 32(3), pages 376-412, September.
    3. Jerg Gutmann & Stefan Voigt, 2015. "The rule of law and constitutionalism in Muslim countries," Public Choice, Springer, vol. 162(3), pages 351-380, March.
    4. Arye L. Hillman & Niklas Potrafke, 2016. "Economic Freedom and Religion: An Empirical Investigation," CESifo Working Paper Series 6017, CESifo.
    5. Gouda, Moamen & Potrafke, Niklas, 2016. "Gender equality in Muslim-majority countries," Economic Systems, Elsevier, vol. 40(4), pages 683-698.
    6. Moamen Gouda & Jerg Gutmann, 2021. "Islamic constitutions and religious minorities," Public Choice, Springer, vol. 186(3), pages 243-265, March.
    7. Arye L. Hillman & Niklas Potrafke, 2018. "Economic Freedom and Religion," Public Finance Review, , vol. 46(2), pages 249-275, March.

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    More about this item

    Keywords

    Constitutionalism; Rule of Law; Shari’a; Islam; Constitution; H10; H11; K30; K39; Z12;
    All these keywords.

    JEL classification:

    • H10 - Public Economics - - Structure and Scope of Government - - - General
    • H11 - Public Economics - - Structure and Scope of Government - - - Structure and Scope of Government
    • K30 - Law and Economics - - Other Substantive Areas of Law - - - General
    • K39 - Law and Economics - - Other Substantive Areas of Law - - - Other
    • Z12 - Other Special Topics - - Cultural Economics - - - Religion

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