The rule of a morally constrained law Morality, Islam, law and the judge in present-day Egypt

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B. Dupret - The Rule of a Morally Constrained Law

The rule of a morally constrained law

Morality, Islam, law and the judge in present-day Egypt

Baudouin DUPRET


1. Introduction

In this contribution, I would like to address the question of the limitations which may be put to law in the current Egyptian judicial context by invoking the moral rule.

In the Western tradition of legal philosophy, the assertion of the social and non-metaphysical nature of norms allowed to view them as positive facts. Starting from such an assessment, moral norms and legal norms have been distinguished. This can be considered one of the fundamental principles on which modern law has been built. Austin, for instance, considers law as being distinct from other normative orders because it is established on a command expressed by a de facto legitimate authority having the power to sanction. Such a theory aims at substituting a principle of predictability and reappraisal for the hold of transcendence. Hence, Herbert Hart, the leading figure of what has been called “soft positivism”, claims that there is no necessary reason to consider that legal rules are reflected in or respond to some moral requirements, even though it could have been actually the case.1 It is the non-existence of any necessary relationship between law and morality that is at stake. On the other hand, Ronald Dworkin strongly criticizes Hart’s conception2 because of his failure to consider that law is more than a mere system of rules, but the combination of rules and principles. According to Dworkin, there are general, fundamental maxims of law that, even though they do not enjoy the status of a rule, are guiding the judge in his/her decision. However, principles are not univocal; hence they are open to an interpretation process in which their weight and appropriateness must be assessed in every situation.

Dworkin makes it possible to reintroduce morality as a major component of the legal phenomenon. However, such a perspective leaves one facing a fundamental question mark. In Dworkin’s theory, the judge is acting as if there were a correct solution in which principles are framing rules, yet he gives no answer as to the ways in which such principles are constituted, mobilized and characterized. This is why we need a much more pragmatic approach to the question.

The sociological hypothesis according to which norms are assimilated and are expressed in automatic and unconscious conducts does not give any account of the way people perceive and interpret the world, recognize what is familiar and build what is acceptable.3 On the contrary, pragmatic theory starts from the idea that norms, and moral norms in particular are a public phenomenon that has no meaning but in its public construction and explanation. The meaning is something which is constructed in situ by people and is attributed so as to give its object the dimension of something which is typical, uniform and interchangeable.4 Hence, moral order is what is taken for true and fair in a given context. It means that practice is making norms, not the reverse. Moral norms enjoy what one may call a status of inquestionnabilité because they are supposedly known and expected by the many actors of a given context. Because they express what everyone supposedly knows and contain “pious allusions to presumed, deep, pre-existing moral commonalties, (…) it catapults the normative version of reality into a state of public acceptance.5 This is made possible through the action of institutional settings and languages such as law.

Law and morality are mutually related in a very intricate way. Not merging together, they can neither be considered as totally autonomous from one another. Hence, law must be formulated in the non-codified terms of what is morally acceptable. This is here that one can observe the emergence of notions such as public order or policy, custom, good moral character, inner nature of things, as well as all the legal standards, which are at play in the judge's work. One of the main assumptions of this paper is that Islamic normativity (Shari’a) constitutes one set of such moral notions and standards.

The main characteristic of invoking the moral order is that, while being postulated and not deduced, it gives the lion's share to the ascription of a norm to which it cannot be objected. This article aims at describing the ways through which restrictions are put to law in the name of morality in the Egyptian context. I will firstly describe how a new legal and judicial system was established through a process of codification and transfer of legal technology in which Shari'a fragmented into shrinking positive legal norms and inflating moral principles. Secondly, I will aim at showing how moral principles are invoked in order to restrictively constrain the implementation of the law and close its open texture. In general, it shows how morality, including Shari'a, becomes a major way for sharing in power and reshaping the public sphere. In conclusion, I will stress the fact that, though such a morality has a heteronomous legal nature, meaning that it is always outside itself that law finds the means for solving hard cases, however it is up to legal professional actors to interpret the content of these moral principles, with the consequence that they own the final word with regard to their definition and implementation.

It must be noted that this paper does not address the relationship between law and morality within the Islamic world as such, for several reasons. First of all, because I very much doubt the existence of anything such as an Islamic world. This paper adopts a position that is rather anti-culturalist and, accordingly, the Egyptian case is neither an exceptional nor a paradigmatic instance of an Islamic specific dealing with the rule of law and with the relationships between law and morality. As I put it, one cannot but note the persistence of a certain approach that refers knowledge of those societies in which Islam is present as a religion to an area rather than to a number of disciplines. This position merely indicates a priority in the manner of formulating an issue: if one wishes to avoid the trap of “geographic” specialization, it is imperative to reestablish the priority of the relevant science over the local relevance, for there is no science of the local, nor can there be. We would like here to stress the possibility of describing certain aspects of the present dynamics of Arab-Muslim societies without resorting to specific references. We also hope to show that the universality of the cognitive frameworks available to the researcher corresponds to a universality of the cognitive frameworks available to the protagonists.6

A second reason is that one of the main contentions of this paper is that what is called Shari'a is morality and that the question of the application of the model of the rule of law in Egypt is difficult not because it is located in an Arab or an Islamic context, but because the Egyptian context witnesses a strain in the relationship between law and morality. Such a strain is not per se specific to Egypt. Because Egyptian law has been built along the lines of “modern law”, in general, and of the Civil-law family, in particular, it reflects some of their specific tensions, among which the tension raising from the (denied but actual) relations existing between law and morality. This is why this paper addresses these relationships, in general and at a theoretical level, be they conceived by Western jurists and sociologists or not. In sum, if the Egyptian situation is an instance of anything, it is the one of an awkward relationship between law and morality, which is constraining the application of the rule of law. This is why the Egyptian case is worth being considered: not because it would reflect an Islamic conception of the rule of law, but because it (pathologically perhaps) reflects the fact that the notion of the rule of law is by large determined by a complex cluster of relations between the legal and the moral dimensions of the norm.

Before any attempt at describing the way morality is constraining law in the current Egyptian context, I will briefly describe some of the major changes the legal and judicial system experienced over the last two centuries, so as to relocate the formal separation of law and morality and the evolution of Shari'a (i.e. Islamic law) in their historical framework.

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