This comparative philosophy of law book aims at formulating a new analytical approach to constitutional comparisons, assuming as a starting point the different legal perspectives implied in the (Sunni) Islamic outlook on the juridical phenomena and the Western concept of law, with particular reference to constitutionalism. Rather than comparing systems based on substantive legal contents, such as the protection of human rights or the functioning of the State apparatus, this book adopts a wider and comprehensive viewpoint, comparing the different ways in which the Islamic sharīʿa and Western legal categories interact. Such an analysis is carried out avoiding the Westernization of Islamic legal constructs, and bearing in mind the conceptual difference in comprehending juridical realities. By doing so, the book explores the various dynamics subtended to the interactions between sharīʿa and Western constitutionalism, providing a new classification to the different contemporary models.
The philosophical and legal comparisons are analyzed in a dynamic way, based on a wide range of contemporary constitutional systems, virtually encompassing all the States in which Sunni Islam plays a major cultural role, and taking also into consideration non-State actors and non-recognized actors. The categorization hereby provided divides the different constitutional systems in four distinct groups, based on the conceptual dynamics in which sharīʿa and Western law interact in a single legal framework, starting from the systems in which the Islamic legacy plays no direct role into the legal system but represents however a powerful cultural element, and going as far as examining a de facto system like ISIS’ dystopian legal order in which the Western conception of law is totally rejected. For each category, one or two countries will be held as primary examples: for the first category, the book will focus on Morocco and Turkey, for the second category of Egypt, for the third category on Saudi Arabia. The fourth category, embodying the radical view of Islamic fundamentalism, is exemplified by ISIS. A further chapter explores the possibility of sharīʿa playing a role in Western legal systems, with particular attention being paid to the United Kingdom, Greece and the borderless world of the cyberspace.
While contributing to legal philosophy, this project intends also to develop and define a new interdisciplinary approach, aiming to provide a starting point for novel analyses in research fields such as legal comparativism, legal pluralism, and constitutional law. Finally, by formulating a new interdisciplinary approach, this project will provide a foundational discussion of a continuously evolving subject that will never be exhaustively explored. As such, it aims at broadening scholarly reflections on the relationship between the West and Islam, eventually placing these concepts within a suitably comprehensive and contextualized framework.
01. A new approach to comparativism: a general overview
02. Islam and constitutionalism
03. Methodology of research
04. Terminology and definitions
05. On Islam and sharīʿa: a few preliminary remarks
06. On sharīʿa and the West: a comparison between two worlds
06.1. State and ummah
06.2. Law, power, authority
06.3. Human reason between two worlds
06.4. Sharīʿa, law, space, time
06.5. Conceptual perimeter and direct applicability
06.6. Between secular and religious
01. Historical overview
01.1. Turkey between multinationalism, universalism and the Western approach
01.2. The Kingdom of Morocco between Islam and the Nation-State
02. Sharīʿa and law in a system without sharīʿa
02.1. From qānūn to law, and from root to source: a fundamental transition
02.2. Sharīʿa and national legislation
02.3. The case of Morocco between law, fatāwā and ʿulamāʾ
02.4. Law and sharīʿa without official recognition: a possible coexistence?
03. State, Islam and ummah without sharīʿa
03.1. State and Islam in the constitutional framework
03.2. State and ummah in a constitutional system
03.3. Head of State and amīr al-mu’minīn: the case of Morocco
01. Premise
02. Historical overview: the case of Egypt
03. The sharīʿa-clause in the constitutional discourse
03.1. Sharīʿa-clause, repugnancy clause andconfessional clause
03.2. History and evolution of the sharīʿa-clause in Egypt
03.3. Other examples of sharīʿa-clauses
03.4. Particular cases
04. Three implications of the sharīʿa-clause
04.1. Sharīʿa as source of legislation
04.2. Sharīʿa as parameter of constitutionality
04.3. Direct application of sharīʿa in judgment
04.3.a. Direct application of sharīʿain national courts
04.3.b. Direct application of sharīʿain religious courts
04.3.c. Conclusive remarks on direct applicability of sharīʿa
05. Conclusions, and an open question on a hybrid model
01. Premise
02. Historical overview
03. Constitution, basic law and sharīʿa in Saudi Arabia
03.1. Islamic sharīʿa as constitution
03.2. The Saudi model and the sharīʿa-clause
03.3. Basic law, sharīʿa and niẓām
04. The direct effect of sharīʿa in the Saudi model
05. State and sharīʿa in Saudi Arabia
05.1. Nation-State and universalism in Saudi Arabia
05.2. State,Islam and power in Saudi Arabia
01. Premise
01.1. About Islamic fundamentalism
01.2. ISIS as a fundamentalist movement and as a legal order
01.3. ISIS’ historical evolution and ideology
02. Rejecting law: the aspiration to sharīʿa alone
02.1. The centrality of sharīʿa in ISIS’ agenda
02.2. ISIS and manmade law, between sharīʿa and apostasy
02.3. The aspiration to sharīʿa alone
03. Rethinking the ummah: a return to universalism
03.1. ISIS between statehood and khilāfah
03.2. The return of the ummah as a political subject
03.3. The bayʿah in a borderless world
04. Conclusive remarks about ISIS as a legal order
02. Sharīʿa in the West between conflict and coexistence
03. Internet and fatāwā in a global world
04. The sharīʿa in the West: the case of the UK
05. The sharīʿa in the West: the case of Greece
06. The sharīʿa-police as a radicalization of ḥisbah
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