The Rule of Law, Islam, and Constitutional Politics in Egypt and Iran

Chapter 8: Rule of Law, Ideology, and Human Rights in Egyptian Courts

8 Rule of Law, Ideology, and Human Rights in Egyptian Courts Mustapha Kamel Al‑Sayyid Introduction What does rule of law imply for human rights? Advocates of liberalism would argue that the best guarantee for human rights is when the rule of law prevails in any country, and its government becomes a government of laws, not of men. Thus, whenever a dispute arises and its parties resort to a court, the judge who applies the law would definitely rule according to the law in such a way as to ensure respect for human rights. This conception of the rule of law implies two conditions, first, that the substance of laws in that particular country is completely compatible with the most accept‑ able understanding of human rights, which is presumably the universal concept of human rights, and second, that the judges are independent in the performance of their function, namely, not subject whatsoever to any pressures, particularly from the executive authority. Would the rule of law in this sense be not only a necessary, but also a sufficient condition for respect of human rights? This chapter argues that, even in this case, rule of law would not be sufficient for effective respect for human rights. The judge, or the judges acting independently, could interpret the provisions of the law in such a way as to give effect to violations of human rights. Only one school of thought, namely the legalist school, would claim that the judge is influenced only by the provisions of the law, which leave him very little room to make a personal judgment. This school has its own advocates, but it has its critics who would argue to the contrary that the judge is not only influenced by 211 212 Mustapha Kamel Al-Sayyid the text of the law but is also influenced by his position within the judicial structure, as well as his own personal characteristics. Of those critics of the legalist school, Richard A Posner has advanced no fewer than eight other theories, which elaborate on the considerations that would move judges away from a textual‑originalist interpretation of the law in any particular case. These eight theories refer to political, economic, sociological, psychological, organizational, strategic, pragmatic, and attitudinal influences as possible explanations of judicial behavior. Ideological influences are implied in the discussions of political and attitudinal variables that could impact judicial decisions (Posner 2008, 19–56). This chapter argues that Egyptian judges, even when acting in complete independence of the government and basing their decisions on the same legal provisions, are likely to come up with contradictory rulings that could have opposite implications for respect of human rights. Their interpretations of the same laws might lead them in some cases to expand and reinforce citizens’ exercise of civil and human rights, and in other cases, to the exact opposite: mainly, severely restricting the enjoyment of such rights. The primary explanation of such diversity of rulings on the same cases is to be found in the ideological pluralism underlying these rulings. At another level of analysis, the chapter will look into other possible explanations including the institutional environment under which Egyptian judges operate, and the incompatibility of Egyptian laws with the international bill of human rights (for details of the situation in other countries, see Brace 2000; Der Zweeder 1996; Gibson 1978; Nixon 2004; Peresie 2005; Ramsayer 2001; Van Koppen 1984). Despite the fact that both Egypt and Iran share one important feature in common, namely the reference in their respective constitutions to the shariʿa as a principal source of legislation, the institutional structure of Iran, as well as the particular trend of constitutionalism the country has gone through, limit very much the range of ideological influences on Iranian judges compared to those in Egypt. The fact that Iranian judiciary organs come under the authority of a religious chief constrain the expression of ideological positions that might be seen by the Leader or faqih to be incom‑ patible with his own interpretation of the Shiʿite sources (see Arjomand in this volume). Religious courts, on the other hand, have been abolished in Egypt since 1956, and Egyptian judges as well as Egyptian lawyers have fought successive regimes in order to attain a measure of autonomy versus the executive authority. The separation of religious and judicial institutions has been effective in the country since the adoption of the Napoleonic Code in 1883, and subsequent developments that, while not eliminating [18.118.9.146] Project MUSE (2024...