Islamocracy and Judicial Review in Egypt
By Mohamed ‘Arafa
Introduction
Democracy and religion often intersect in complex and nuanced ways, as both play significant roles in shaping individual and societal lives. This post considers the core of democracy to be the idea of political equality and individual freedoms, where every citizen has the right to voice their opinion, choose their leaders, and practice their beliefs without fear of persecution. Religion, on the other hand, offers a framework of moral and ethical guidance, often influencing individuals’ values, behaviors, and social norms. In democratic societies, the relationship between the two can be harmonious, as democracy ensures the freedom to practice religion, while religious diversity can enrich public discourse. However, tensions may arise when religious beliefs conflict with democratic principles such as equal rights or the separation of church and state. Ideally, a democratic system provides the space for diverse religious perspectives to coexist, ensuring that no single religion dominates the public sphere, while also protecting the rights of individuals to practice or reject religion freely.
What to do with religious clause(s) in constitutions when it comes to questions of judicial review? In Muslim nations – at the very least – the growing role of religion in public life is a reality not to be disregarded. Divine law is taking a progressively constitutionalist path in significant parts of the world, from Israel to Egypt, and hence, religion becomes a “de facto and often a de jure pillar of collective identity, national metanarrative, and constitutional law.”[1] Therefore, judicial review of Shārīe‘ā law clauses becomes a vital restatement of the new constitutionalism substantial for its presence and rise in the post-revolutionary Middle East.
This post explores the intersection of democracy, judicial review, and Shārīe‘ā law, focusing on the tensions and possibilities that arise when religious legal principles interact with democratic governance. I discuss how Article 2 of the Egyptian Constitution, which asserts the supremacy of Shārīe‘ā law in certain legal contexts, interacts with democratic ideals and the practice of judicial review.

The “Secularizing Indicators” in Egypt’s Constitution
Egypt’s 2014 Constitution (and its amendments) confirms the standard role of Islamic law in state legislation and judicial review in obvious action. Egypt’s current constitution stipulates that the “principles of Islamic law are the main source of legislation.”[2]
Such clauses shake up philosophies of a required empathy between constitutionalism, liberalism, and democracy. Nevertheless, Ran Hirschl argues that, even in these frameworks, constitutionalism combines with a judicial endorsement of secularism to guarantee liberal democracy.[3] According to Hirschl, “[c]onstitutional law and constitutional courts in virtually all [states]…that face deep divisions along secular/religious lines…, have become bastions of relative secularism, pragmatism, and moderation, thereby emerging as effective shields against the spread of religiosity and garnering increased popular support for principles of theocratic governance.”[4]
Hirschl lists six mechanisms for these processes that also align with democratization of constitutional practices: (1) co-optation; (2) jurisdictional advantages; (3) strategic delegation; (4) the very nature and characteristics of constitutional law, its epistemology, and its interpretive logic; (5) constitutional delegitimation of radical religious association; and (6) political control of constitutional courts and judges. For Hirschl, the primary benefit of the constitutionalization of Islamic law is the establishment of judicial review: “[c]onstitutional courts may also be viewed as the guardians of secularism, modernism, and universalism against the increasing popularity of theocratic principles.”[5] Constitutionalism is a new sort of “civil religion,” that apply universally given tendencies toward secular cosmopolitanism in constitutional interpretation.[6]
In the Egyptian context, a key opening is provided by the Egyptian Supreme Constitutional Court’s (SCC’s) rulings interpreting Article 2 of the Constitution in a way that privileges constitutional provisions defending public rights and civil liberties above Shārīe‘ā demands.[7] Hirschl praises these “moderate, non-fundamentalist interpretation of the laws, thereby establishing a ‘modernization from within’ of traditional fiqh …[that is acceptable to] the executive branch, the military, [and] the secular intelligentsia …”[8]
The Supreme Constitutional Court and Judicial Review of Shārīe‘ā Law via the “Article 2 Test”
Hirschl’s account of a more democratic, Islamic constitutionalism in Egypt requires to be supplemented by an understanding of how the SCC operates to interpret Article 2. I argue that the Court progressively developed a jurisprudence that deals with complicated inquiries arising from the Shārīe‘ā-based constitutional tasks to state legislation. That approach entails a three-step test for Islamic law constitutionality review which could be used for democratizing purposes.
Phase 1: The Challenged Statute Violates a Law of Absolute Certainty (Meaning and Authenticity)
To begin with, the Court recognizes “universally applicable scriptural rulings”[9] by making Pronouncements about which foundational texts create rules that are “absolutely certain with respect to … of democracy,” and which are classically static concerning place and time.[10] The Court’s claim that legislation cannot violate “universally applicable scriptural rulings” raises important questions about equal rights and religious pluralism as the cornerstones of democracy. It, however, can be aligned with the idea that democracy should not be reduced to majoritarian decision making, if the latter disregards higher principles. While their method for determining which texts beyond the Qur’an were of authentic attribution is ambiguous, SCC judges draw on a mixture of traditionalist and modernist interpretive methods to make determinations about meaning.[11] This opens the possibility for a practice that facilitates equal rights despite formally deriving from religious pronouncements.
Phase 2: The Divine “Legislative” Purpose and the Shārīe‘ā Goal(s)
In this second stage, any statute cannot obstruct the realization of the – general and specific – Shārīe‘ā Goals. The SCC justices define the general purposes that scholars design a mixture of various principles established in the medieval Islamic legal tradition.[12] This includes (a) the five core māqasīd ālShārīe‘ā (objectives/essentials): preservation of religion, life, reason, property, and honor, (b) endorsing ālmāslāh (human welfare) and issuing decisions beneficial to the public interest/good, and (c) attention to a set of commonly agreed upon qāaw‘īd fīqhīyāh (interpretive legal maxims), especially the principle of “lā dārār wā lā dīrār” (no harm and no retribution).[13]
Also, the Court draws on the common values to fill out the requirements of the law regarding particular facts and circumstances (specific goals).[14] For instance, when considering “harm”, the judges have pointed to an old typical Sunni dogmatic precept that “whatever God prohibits to us is likely to harm us, and what he requires of us or makes permissible is certainly beneficial.”[15] This means that they should deduce principles from the rules if they are vague, and should use legal reasoning to understand the purpose or the philosophy behind the rulings in certain Islamic areas and “what social results the Shārīe‘ā presumptive rulings seem to promote.” At this point, it is not only judges whose interpretations are significant. Rather, a major democratic impulse comes from the intrinsic openness of the constitutional interpretation: “who lives the norms may interpret the norms.”[16]
Phase 3: Violation of Constitutional Clause and the “No Harm” Norm
Even where judges decide that confronted law does not breach Shārīe‘ā, they ask whether it nonetheless violates some other constitutional clause(s) and hence violates the main purpose of Islamic law to avoid harm.[17] When they are incapable of locating relevant texts from the Islamic jurisprudence, the justices apply a general purposive reading of that provision to definitely require, the lawmaker to act on endorsing the public welfare and repelling general harm.[18] In this context, the SCC ruled that:
The principles of Islamic law are the major source of legislation. This imposes a limitation curtailing both the legislative and executive power, through which they are obliged, in whatever laws or decrees they enact, to avoid provisions that may contradict the provisions of Islamic law [that] are definite in terms of their authenticity and meaning. These principles are not subject to … ījtīhad (interpretation), as they represent the general principles and immutable sources of Islamic law … It is consequently not permitted to deviate from them or to depart from their meaning. Whatever legislative enactment contravenes them must be declared null and void. [By contrast], the [Islamic legal] rules subject to interpretation are those that are either uncertain in authenticity or open to change in meaning, or both. They belong to the realm of ījtīhad, (interpretation) … Their application is flexible and open to change according to time and clime, in order to ensure flexibility and dynamism, when coping with new developments in their various appearances, when regulating the affairs of people, for the sake of protecting their legally recognized interests and putting the general aims of Shārīe‘ā into practice …[19]
Conclusion: The Zero “Islamizing” Effect
This post has aspired to contribute to understanding the challenge of constitutionalizing Shārīe‘ā law in Muslim-majority states from the perspective of its democratic potential. As the discussion of the interpretive ‘phases’ of the Egyptian SCC has demonstrated, not only the SCC judges, but also Muslim jurists can be central in shaping democratic principles through their engagement with the country’s judicial system. Specifically, Muslim jurists can play a pivotal role in fostering a conception of democracy by influencing how the Egyptian Court interprets the constitution.
By critically assessing key issues such as freedom of belief, speech, and elections in Islam, Muslim jurists can help shape a framework that balances religious principles with democratic values. Their involvement could allow for such interpretations of Islamic law that also align with the evolving needs of Egyptian society to guarantee equal rights including religious rights. Moreover, jurists can bridge the gap between Islamic thought and democratic ideals by adapting the constitutional separation of state and religion to the local context. More attention needs to be devoted to how jurists can influence the Egyptian Court’s interpretive practices in ways that encourage a more democratic, rights-based approach to governance.[20]
A particular puzzle for understanding the prospect of democratic interpretations is how some Islamic thinkers use the concept of māqasīd ālShārīe‘ā (the goals or objectives of Islamic law) to challenge antidemocratic application of certain Islamic laws. Essentially, they argue that these laws, if applied literally, may not align with the core values or spirit of Islam, such as justice and the welfare of society. Other Muslim nations in the MENA region may benefit from the Egyptian experience, as they look to develop modern civil laws, yet compatible with their legal traditions, customs, and Islamic legal teachings.[21]
To “accept the existing bad arrangement and hope it will change in the future” is not a feasible choice, because choices made today shape the accessibility of options in the future.[22] For democratic interests, the best results in Islamic constitutionalism seem to emerge when the government recognizes the presence of the jurists and works with them. Doing so adds to checks and balances in shaping legal interpretations.
The author declares that no generative artificial intelligence tools (including but not limited to text generation, language models, or content creation software) were used in the research, writing, or editing of this post. All analysis, arguments, and expressions are entirely his own.
Notes
[1] Hirschl, Ran. Constitutional Theocracy, 4–10, 47 (2010) (estimating that one-half of the world’s population lives in polities where religion plays a significant role in politics, and of that, a billion people live in countries where an official religion has been constitutionalized. Also, explains that religion is a powerful force in shaping constitutional orders).
[2] Constitution of the Arab Republic of Egypt, Jan. 18, 2014 (as amended Apr. 23, 2019), art. 2 compare with Egypt Constitution, Sep. 11, 1971, art. 2 & Dec. 22, 2012, art. 219. It should be noted that Egypt 2012 de facto constitution stated “[T]he principles of Islamic law include adilla kullivya (the foundational textual sources and the qawd‘id us liyya wawawa ‘I-fiqhiyya (jurisprudential canons of construction and substantive legal maxims accepted in Sunni doctrines and by the larger [Muslim] community.”).
[3] Hirschl, Ran. Constitutional Theocracy, 51, 103.
[4] Ibid., 50.
[5] Ibid., 103 (explaining that a constitution requires that all subsidiary structures and sources of law be subsumed under its rubric).
[6] Ibid., 81. See also Mark Tushnet, “The Inevitable Globalization of Constitutional Law,” Virginia Journal of International Law 49 (2009): 985–1006; Sanford Levinson, Constitutional Faith (1988) (discussing that the U.S. Constitution has long had a near-sacred status that mimics that of foundational religious documents).
[7] ‘Arafa, Mohamed, Case 8/1996 (Egypt). In Max Planck Encyclopedia of Comparative Constitutional Law, 7–10. Edited by Rüdiger Wolfrum, Frauke Lachenmann, and Rainer Grote. Oxford University Press, 2018 (“The SCC perspective on Article 2 reveals that it adopts the theory of siyassa shari‘yya, which means that the system of governance should be consistent with Islamic law, but with some “smart” reform.”).
[8] Hirschl, Ran. Constitutional Theocracy, 51, 113–117. See also Vlad Perju, “Constitutional Transplants, Borrowing, and Migrations,” in The Oxford Handbook of Comparative Constitutional Law, 1304–1327. Edited by Michel Rosenfeld and András Sajó, 2012.
[9] Clark Lombardi. State Law as Islamic Law in Modern Egypt: The Incorporation of the Shari’a into Egyptian Constitutional Law. 2006, 184.
[10] Ibid., 185–186 (“Like a classical jurist performing ijtihad or like [modernist jurist] Rida, the Court begins its search for absolutely certain rulings by looking to revealed texts . . . From the opinions, it is clear that the Court assumes the authenticity and accuracy of the Qur’anic text. It is not clear how the Court is evaluating the authenticity of [h]adiths . . . [as] it never explains why it considers particular [h]adiths [prophetic statements] to be authentic.”).
[11] Ibid. Also ‘Arafa, Case 8/1996 (Egypt), 7–10 (arguing that the Court enforces strict standards for textual clarity, ensuring most legislation aligns with Islamic legal norms, with rare exceptions).
[12] See, e.g., Case no. 8/Judicial Year 17/Supreme Constitutional Court of Egypt (May 18, 1996) (discussing the challenges to legislation or administrative regulations restricting veiling in public schools concerning “Education Law and Religious Freedom”).
[13] Lombardi, Clark. State Law as Islamic Law in Modern Egypt, 188.
[14] See Nathan Brown & Clark Lombardi. “The Supreme Constitutional Court of Egypt on Islamic Law, Veiling and Civil Rights: An Annotated Translation of Supreme Constitutional Court of Egypt Case No. 8 of Judicial Year 17 (May 18, 1996),” American University International Law Review 21 (2006): 437 (translating Case no. 8/Judicial Year 17/Egypt’s SCC).
[15] Lombardi, Clark. State Law as Islamic Law in Modern Egypt, 189–194. See, e.g., Case no. 35/Judicial Year 9/Supreme Constitutional Court of Egypt (Aug. 14, 1994); Case no. 7/Judicial Year 8/Supreme Constitutional Court of Egypt (May 15, 1993), stating (“. . . benefits of Islamic law should be rationally discernible and coextensive with reason itself.”).
[16] See Mohamed ‘Arafa. “The Prohibition of Wearing Veil in Public Schools in Egypt: An Analysis of the Egyptian Supreme Constitutional Court Jurisprudence,” Revista de Investigações Constitucionais 4 (2017): 81.
[17] ‘Arafa, Case 8/1996 (Egypt) (“The Court thus introduced a moderate, non-fundamentalist interpretation of Islamic law, moving forward from traditional fiqh. Thus, the SCC, a principally secular institution, has taken it upon itself to conserve Egyptian Islamic law, committing to the Sharie’a constitutional principles. Though its decisions often take the views of significant religious leaders (mufti/al-Azhar Grand Shiekh) into account, the SCC tends towards a moderate interpretation of the Islamic rules, developing practical strategies for daily life and working as a bulwark against radicalism.”).
[18] Ibid. (discussing that the Islamic legal tradition as pointing to respect for the constitutional law clauses and vice versa).
[19] See, e.g., Minister of Health v. Shaykh Yuisuf al-Badri et al., Appeal No. 527/43, al-Mahkama al-‘Iddriyya al-‘Ulya (Dec. 28, 1997); Prime Minister and Minister of Health v. Muhammad Fawzi al-Haww et al., Appeal Nos. 5204/43; 5834/43; 6091/43, al-Mahkama al-‘Iddriyya al-‘Ulya (Dec. 28, 1997).
[20] See generally Khaled Abou El-Fadl. “The Centrality of Shari’ah to Government and Constitutionalism in Islam,” in Constitutionalism in Islamic Countries: Between Upheaval and Continuity, 60-61. Edited by Rainer Grote & Tilman Röder, 2012. See also ibid., 55–56. (“To propose secularism as a solution in order to avoid the hegemony of Shari‘ah and the possibility of an abuse of power is unacceptable. [and the truth lies somewhere in the middle]”). He also argues (“Shari‘ah is a construct of limitless reach and power, and any institution that can attach itself to that construct becomes . . . validated and empowered….The fact that secularism is a word laden with unhelpful connotations in the Islamic context should not blind us to the fact that the discourse of Shari‘ah enables human beings to speak in God’s name, and effectively empowers human agency with the voice of God.”).
[21] Khaled Abou El-Fadl. “The Islamic Legal Tradition,” in The Cambridge Companion to Comparative Law, 295–312. Edited by Mauro Bussani & Ugo Mattei, 2012. It should be noted that Muslim jurists are central to legitimacy, flexibility, and legal change notions on questions of Islamic law where Shārīe‘ā has been incorporated into state constitutions (“Shārīe‘ā has been central […] to the conception of government in Islam”). Ibid., 312.
[22] Ali Gomaa, Fatwā on Female Genital Mutilation, Egypt’s Dar Al-Ifta (Nov. 24, 2006), https://www.dar-alifta.org/en/article/details/40/female-genital-mutilation; Reuters, ‘Egypt mufti says female circumcision forbidden’ (Reuters, Aug. 9, 2007), https://www.reuters.com/article/economy/egypt-mufti-says-female-circumcision-forbidden-idUSL24694871/ (this fatwa was part of an international conference held at Al-Azhar University in Cairo, organized by German human rights defenders. The conference concluded that FGM is incompatible with Islamic teachings and issued a fatwa declaring it forbidden.).
About the Author
Mohamed ‘Arafa is a Professor of Law at Alexandria University (Egypt) and an Adjunct Professor & Clarke Initiative Visiting Scholar at Cornell Law School. In 2025, he is teaching Comparative Law at the Brazilian Institute of Education, Development and Research (IDP). He has held visiting positions worldwide, including Monash University (Australia), Chandigarh University (India), Prince Sultan University (Saudi Arabia), Indiana University McKinney School of Law, Holy Spirit University of Kaslik (Lebanon), and the University of Brasília (Brazil), and is an affiliate faculty member at Rutgers Center for Security, Race, and Rights. He earned his LL.B. from Alexandria University, LL.M. from the University of Connecticut, and SJD from Indiana University. His scholarship focuses on criminal law, white-collar crime, human rights, Islamic law, transitional justice, and comparative and Middle Eastern law. His work has appeared in journals including the Cornell Journal of International Law, Seattle Law Review, Indiana International & Comparative Law Review, George Mason Civil Rights Law Journal, Oxford, Cambridge, Routledge, and Edward Elgar. He served as Managing Editor of the Arab Law Quarterly (London) and contributes regularly to academic blogs including JURIST, the American Society for Comparative Law, and the LSE Religion and Global Society.
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Citation: Mohamed ‘Arafa, Islamocracy and Judicial Review in Egypt, in: TRAFO – Blog for Transregional Research, 21.10.2025, https://trafo.hypotheses.org/61941
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