Definition of the rule of law
“Compare the doctrine of rule of law as understood and applied in the Islamic Constitutional Model and the American Constitutional System”.
Despite the fact that the rule of law is globally accepted as a fundamental value, the term “the rule of law,“ is very common in the current age, and there’s no agreed term about what the law means. This law has meant different things to different people, and there is no agreement regarding how the law can be reconciled with the competing values, in particular with the need for democratic society.
It’s submitted in this essay that any definition of the rule of law must include the following principles:[1] first, the clause that power can’t be exercised arbitrarily. This provision entails rejection of law by the person and the aspect that laws should be clear, accessible and prospective. Second, is the clause of supremacy, as well as the independence of law. This provision requires acknowledgment of the aspect of division of powers; this is the concept that law covers everyone. Besides, there should be provisions for the independent bodies such as the judiciary to put the law to particular cases (Mason and Stephenson, 2015). The third clause is that law should be applied to every person equally, providing fair protection without any discrimination. This provision requires that law must be of general application as well as capable of being honored. Fourth is respect for human rights as shown in the instruments plus conventions acknowledged by the international community as a whole. The definition of the rule of law pointed in this essay results from an investigation of the status of the rule of law in the international law as well as the evolution of the rule of law in the diverse systems of the world. This paper also investigates the doctrines of the rule of law as understood and applied in the Islamic and American Constitution models
Although the actual definition of the rule of law is a subject of heated debate, various conceptions share a common significant trait. The law must be applied to everyone including the state. This is meant to ensure that everyone is limited to power and that government cannot rule arbitrarily. Brown (2006) holds that the rule of law and democracy seems similar, but they are two different concepts[2]. According to Brown Democracy is the people selecting their policies or choosing representatives to take such decisions for a given length of time (2006). A simple definition of what make a nation democratic is the majority decision making. In contrast, the rule of law puts some constraints in the political decision making. Therefore, decisions must be taken within a framework of the nation. This serves to protect the minority from the tyranny of the majority people. Irrespective of this conflict between the rule of law and democracy, the two can be considered as complements. A majority of demography is given the mandate to make political decisions provided they abide by the level of the rule of law. According to Scalia (1989) laws should not be applicable cases; instead, they should be open, and their enforcement must be predictable.[3] Besides, the law should be general, publicly promulgated, clear, consistent, not retroactive, adequately constant over time, practicable as well as congruent in respect to the behavior of government officials. To help in the enforcement of the rule of law, some instruments have proven themselves useful. They include judicial independence as well as the division of power.
The rule of law in Islamic thinking
As a matter of fact, the definition of the rule of law is not common to all scholars. For instance, Fukuyama defines the rule of law as “the acceptance of nation’s sovereignty of an already existing body of the law acting upon social consensus on the status of justice (2010). [4]Fukuyama does not mention about the requirements of the formal state of the law. This means that the basis for judging if the rule of law exists depends on whichever social consensus exists. According to Fukuyama, checks on arbitrary nation power are necessary, as well the substance of the rules governing a society are of less importance. Therefore, the rule of law is separate from other concepts including democracy[5]. Besides, other concepts can be treated as “logically intertwined “ with the rule of law in the fact that their understanding appears to be pre-condition for implementing the rule of law. These concepts include; sovereignty, the nation-state, and the individualism
Evaluating Islamic laws basing on substantial properties mentioned by the rule of law brings us to the conclusion that Islamic laws do not meet most of the requirements of the rule of law especially or the modern day states. One primary aspect of the rule of law is that all people be treated equally and fairly (Agrama, 2012).[6] Some social inequalities have not been sanctioned out since Islam inception. Such differences concern a relationship between a man and a woman, a slave and a master, and the relationship between a believer and a non-believer. The difference in treatment of women and men is still a law in most of the Islamic states, in that woman entitlement such as voting rights are quite different from men. Besides, the inequality between Muslims as well as non-Muslims has great repercussions. Historically, non-Muslims residing in Islamic states have been subjected to a legislation referred to as dhimmi consisting of poll tax, an obligatory to identify oneself as non-Muslim because of the clothing requirement, as well as exclusion from testifying in the Muslim courts. The difference between inferior as well as superior residents of a nation implies the similar difference between good & evil states, namely those of the Islamic world and those of not. From the Muslim fundamentalist perspective, it’s the Islam world against which the jihad must be fought until that moment when the world will be ruled according to the principle of Islam.
On the other perspective, sharia law does not conform to the rule of law to the point that it sanctifies some inequalities. This implies discrimination against certain social groups. Besides, it can be pointed out that the growth towards the rule of law hasn’t been a long intellectual process, but it took a while to put the aspect into use. According to Kuran (2009) it is the pursuit of supreme by radical Muslim that abhors Islamic states from adopting institution such as the rule of law that would boost the well-being of Islamic demography[7]. In simple terms, the interpretation of sharia law as divine together with the resistance to adopting the current interpretation of the Quran is the primary reason for concerns regarding the incompatibility of Muslim and the rule of law.
One core function of the rule of law is to maintain order among a group of people, thus enabling them to follow their goals in life. According to Dworkin (1999) rules are set to prevent conflicting individual goals from leading to conflict as well as chaos[8]. In Islamic perspective, the aspect of people holds a vital place. It’s usually described as every Muslim coming into unison in which the interest of a community comes first before that of an individual. Concepts which holds that the precedence of a state over a person lend themselves to harsh applications of the utilitarian beliefs where a small group of people might be sacrificed to benefit the larger group.
Such notions might be in conflict with the aspect of human right that every person enjoys in relation to everyone else in the society. Therefore, it constitutes opposite of individualism. Besides, alienation from people is condemned in the Quran and usually seen as apostasy, and is sanctioned by murder. In case an essential starting point of the Islamic belief is collective as well as the rule of law is based on individualism, then the latter is hard to reconcile (Brown, 2016).
The majority of Muslims use the notion of “rule of God “as contrary to the rule of law[9]. This concept brings the notion that only God can be sovereign. Also, they believe that “there’s no God than Allah.” This implies that Muslims should have a submission to God alone since he is the one with the power of legislation. However, Muslims believe that Christians and Jews do not accept the rule of God; instead, they establish men who have absolute power to legislation thus ignoring the right which belongs to the creator alone.
As mentioned above, the divine origin of Islam and Islamic law creates a problem since it makes sharia not to adapt to the inherent time variant traits needed by the rule of law. Therefore, some mechanisms are necessary to modify Islam law. According to Cotran and Sherif (1999) this implies that people should have the power to choose rules as per the interactions to be made in the society.
The rule of God is also hard to reconcile with the idea of a state. We have come to realize of societies as state nations, as well as social order as state order. A group of people usually occupying definite areas conforms to a set of principles where this practice does not conform to the beliefs of Islam. In other words, a Muslim has no place except that region where the sharia of God is made, plus people relations depend with the foundation of a relationship with God. It’s believed that a Muslim has no nationality except his religion /belief, no brothers or sisters expect those who share the same faith in God (Kuran, 2009)[10]. Hence a connection is made between him and other believers through the relationship with their God, who is Allah.
The aspect of nation states has harsh implications which are orthogonal to Islamic perspective. One good example concerns legal opinions pronounced by professional in the Islamic law. Often, they contain harsh judgments that call for murdering of individuals. Legal opinions undermine the notion of a nation-state to the extent that some Muslims feel that it’s their task to enforce such judicial matters.
[11]Kuran believes that the results of Muslims rejection to the nation state aspect it due to continuing overdependence on tribalism. If a nation is not delimited by its borders but defined basing on religious brotherhood, religious equity cannot be conceived. Although non-Muslims might be given some basic right, they won’t be allowed into the political offices as well as role in the administration, military commands, plus judiciary should be limited.
The aspect that a country facilitates the implementation of the rule of law is therefore not shared by every scholar. With the view to its growth in Europe, Fukuyama argues that the rule of law was “embedded in the European states even before the advent not just because of democracy, as well as accountable state, but of the modern states building process itself.”[12] He also goes on to state that people should admit to themselves that they have a little historical knowledge in constructing the rule of law in states where such pattern is reversed as well as where a strong nation precedes the law (2010).
Most interestingly, Fukuyama doesn’t hold on to the claim that rule of law is practiced anywhere prior to the advent of a state but just that it had been “embedded.” In addition, a fully fledged implementation of the concepts as currently defined it would have been difficult without a nation state. All in all, a constitutionally entrenched division of power between the legislature, an executive, as well as the independence judiciary is one of the well-established mechanisms to protect the rule of law.
To sum it up, we have shown that a few aspect of Islamic law that is by the formal patterns of the rule of law. We have also discussed that Islamic law sanctifies some of the inequalities which do not conform to the rule of law. Also, it should be noted that we have examined the content of Islamic model constitution as well arrived at similar points of conflict. Moreover, the absence of a well-accepted mechanism to change parts of Muslim laws was seen to be the greatest relevant factor preventing large congruence between Islam as well as the rule of law. Finally we have discussed some of the aspects that may be suitable to the rule of law do not appear in the Islam doctrine.
The America of the 17th century inherited from western societies the idea of the rule of law that is usually expressed as “a government of laws and not of men.” One might trace the origin of this law in English history from the signing of Magna Charta in the 12th century, to guarantee his compliance to English laws. As a result, ancient English writers on law obtained the rule of law knowledge from the Roman jurisprudence (Scalia, 1989). [13]However, the king chose not to be under any man, but God as well as under the Law since Law makes the King. Hence let the king give back to the Law what the Law renders him. The aspect that law is above any other human ruler has passed many generations and still applies in the current American constitutional model. This doctrine that no one is above the law applies to everyone including the king, judges, as well as the legislative bodies. Sir Edward boldly rested on the effort by King James to translate the law for himself, but also the acts of parliament that breached the common law. Edward asserted that “the king should not be under any person, but under God plus the law.”
The Supreme Court made other arguments after the 17th century. Their efforts to do away with legislative laws through judicial review were futile since the majority of the early state constitutions like the English constitution were following doctrines of legislative supremacy. Laws passed by the state legislatures were then supposed to abide by the state constitutions. [14]Scalia (1989) holds that there were no provisions requiring supremacy of the states constitution over the laws in the house of legislature would the judiciary chose that a law and the nations constitution were conflicting. Therefore, the lack of supremacy sections in such constitutions made the judiciary review power weak as well as ineffective.
Besides, the Federal Constitution of the 17th century gradually changed the idea of the state constitution by putting the law of constitutional supremacy. Therefore, clause VI of the article declared the constitution to the highest law of the state. The laws that Congress passed through supreme in conjunction with the state laws, as well as state constitutions were not highly ranked in the constitution. However, section VI of the article mentioned that such laws should relate to, plus be made following the constitution. [15]Showing the need for supremacy section, Justice John Marshall ruled in the 18th century the case of Madison and Madbury than every act of Congress that does not conform to the constitution is not law.
It might appear that the Constitution of America, as well as judicial power review, is part of the rule of law. The Constitution is the highest law, the federal judiciary; the Congress and the President are bound by its policies. Hence a state of laws is the guiding principle of the American legal as well as the political system. This meant that no one was allowed to act as superior to the state laws. Public decisions were to be made upon the aspect of the law. Besides, the laws were to be general rules such that every person would obey. A law which contravenes with the Constitution is not a law and cannot be enforced. Marshall followed this principle in the case of Madison and Madbury. Similarly, the rule of law implies equality. Any law which singles out a specific group of people for discriminatory treatment is uncertain and indistinct that person can’t understand what it requires, won’t be taken as a law.
[16]In that case, the rule of law is not rule of the law, but just a doctrine where laws need to conform (Mason and Stephenson, 2015). Just because an oppressive ruler refers to his commands, as well as irrational rulings as the law doesn’t necessarily make them such. The test here is whether the law is applied equally as well as for future conduct. These are the vital trait of a good law, law that gives every person enough space to be thinking, valuing individual as well to execute his goals and techniques of doing things. This doesn’t mean that a person can do as he wants. Like the framers knew ultimate liberty would bring to an end the freedom thus making it hard for the society to be safe from crimes, orderly, secure from attacks, plus efficiently responsive spiritual, physical, as well as material needs of the members
Besides, the framers of Philadelphia wanted to establish a federal state where the rule of law would apply, and people with authority would be kept under control that they may not overlook the law of the state. According to Mason and Stephenson (2015), the supreme court of America was therefore meant to monitor the constitution that may protect the laws as well as point out violations of the law by men in the public offices or by other sectors of the government
The Framers understood the need for ascertaining that the head of state would be under the law. As a matter of fact, the president’s principal role is to apply and uphold the law and ensure that the law is practiced. Hence, a nation sees the head of state as the person who is supposed to uphold the rule of law and the supremacy of a constitution. By giving the president power to head different departments of the executive as well as commander in chief, the Constitution also bestows the head of state ways through which he can fulfill the law enforcements. Therefore, American people have enjoyed the rule of law, and neither of its presidents has tried to rule by dictatorship or to extend his term in office as against the law. No party that has ever seized control over Federal government through violence or by force. The Constitution of America has never been defied or suspended on a large scale. Therefore, the rule of law has been governing this nation since 17th century.
Separation of powers, federalism and the rule of law are the backbone of the American constitution. However, there are other significant principles that contribute towards the realization of liberty justice, as well as order. Looking at the constitution from the Americans perspective, we note that it includes the following features. First, the American constitution model is based on the fact that only the real constitution is greater than the body of given rules as well as principles. Scalia stated that “the constitution is not the act of a nation, but of the people comprising of the government, plus a state without the constitution is the power without right.” This principle is therefore proclaimed in the Constitution, and it states that the constitution is decreed plus established by the people and not the state
Second, the American constitution holds to the view that the state in all aspects must be responsible both to the governed and to the state itself. This is realized through the impeachments as well as election procedure where the members in the house of representative are only responsible to the electorate. Besides, the government exercises a few of influence by the aspect of control of franchise, Electoral College, as well as the amendment procedure
[17]Before the adoption of the 17th amendment in the 19th century, the government was also capable of protecting their interests by the virtue that members of the House of Senate were not elected by the nation legislature directly but directly by the citizens. Third, the constitution of America settled on the aspect that all constitutional state is limited by the government. The constitution is legal and not a political limitation on the state; it’s considered by most people the antithesis of arbitrary rule; besides, its opposite is the despotic state, the state of will rather than the law. Parliamentary supremacy associating all the rules with legislation is hence hostile to the constitution of America, that points out that the Constitution is the supreme law of a nation
Next, the constitution holds the view that so as to achieve limited state, the powers of a state should be defined as well spread. This means they must be separated, enumerated as well as divided. A centralized and unitary state was a stat that allowed despotism and at the end would become dictatorial as well as corrupt. Such behavior towards the tyranny in the head may have been discouraged or prevented though the separation of power wasn’t given to the federal government. On the contrary, the framers were aware that to be limited, it didn’t follow that the state should also be weak. Very little power was too dangers same as too much of it and if unattended may lead into a state of disorder where the person on a white horse could ride in order to tyranny emanated from the chaos. The remedy to curbing such extreme powers was to balance order as well as liberty allocating to citizens as well as to each branch of the government a part of the sovereignty of the states
Lastly, the American constitution was hence supported on the undeniable presumptions that freedom and right of citizens could be covered since the state powers were limited and a different declaration of rights of people would be not necessary as well as a statement of the obvious truth (Scalia, 1989).[18] Since the American government was to be on the enumeration of powers, it was perceived well by the Philadelphian delegates to add to the bill of rights in the provision of the constitution. If the powers conferred, there would not be any that would empower the state to deprive its citizens of any of the basic rights which it’s a mandate of the state to protect as well as defend. In simple terms, the constitution was a bill of rights since it held the power of federal government
Conclusion
To sum it up, it’s good to know that within the idea of the rule of law, America has put in the hands of its judiciary, neither in its executive nor legislature. The supreme court of America has become the absolute controller in conflicts between values and goals. This has not only required the judiciary put the law into force, but also develop such laws. In the process of developing law, the aspect of reasoning in the court’s decisions has been of great significance. It’s usually questioned whether the courts seek to find the “original intent “of a constitution as well as give effect to that. The American Supreme Court held that to know whether a process is “due process” the initial step to look at the Constitution itself is to check whether such process conflicts with any of its provisions. Other people hold on to the fact that courts must treat the Constitution like an evolving tool to be adapted to the transforming circumstances as well as transforming values. In such scenario, judicial review might include techniques that balance the need for the nation’s interest being served as well as the propriety of the nation’s technique of implementing from the emerging infringement of people’s rights. First, if the state’s action breaks the basic right, the highest hierarchy of judicial review is then applicable.
All in all, the American Law led to the concept of the rule of law, in regard to where the constitution is a basic law that entitles courts to put on holds the laws passed by democratic legislatures that contravene the constitution. On the other hand, the majority of scholars acknowledge that modern democracy is in line with the Islamic law. In the current world, Islamic law provides for the review of the Islamic legislation by a judiciary that practices the functions held by Muslim scholars of the ancient times. Besides, the Islamic rule of law is not the same as the rule of law. In the western constitution, democracy, as well as separation of powers requires secularism hence this is unlawful to the Islamic constitution. This helps to explain the reason as to why Muslim Democrats see western democracy a doctrine of dispensing, sharing, as well as controlling political mileage and secularism to mention just a few
References
Agrama, H. A. (2012). Questioning secularism: Islam, sovereignty, and the rule of law in modern Egypt. University of Chicago Press.
Brown, N. J. (2006). The rule of law in the Arab world: Courts in Egypt and the Gulf (Vol. 6). Cambridge University Press.
Cotran, E., & Sherif, A. O. (Eds.). (1999). Democracy: The Rule of Law and Islam (Vol. 6). BRILL.
Dworkin, R. (1999). Freedom’s law: the moral reading of the American Constitution. OUP Oxford.
Fukuyama, F. (2010). Transitions to the Rule of Law. Journal of Democracy, 21(1), 33-44.
Kuran, T. (2009). The rule of law in Islamic thought and practice. Global perspectives on the rule of law, 71.
Mason, A. T., & Stephenson, G. (2015). American constitutional law: introductory essays and selected cases. Routledge.
Scalia, A. (1989). The rule of law as a law of rules. The University of Chicago Law Review, 56(4), 1175-1188.
Mason, A. T., & Stephenson, G. (2015). American constitutional law: introductory essays and selected cases.
Brown, N. J. (2006). The rule of law in the Arab world: Courts in Egypt and the Gulf (Vol. 6). Cambridge University Press
Scalia, A. (1989). The rule of law as a law of rules. The University of Chicago Law Review, 56(4), 1175-1188.
Fukuyama, F. (2010). Transitions to the Rule of Law. Journal of Democracy, 21(1), 33-44Ibid
Agrama, H. A. (2012). Questioning secularism: Islam, sovereignty, and the rule of law in modern Egypt. University of Chicago Press.Kuran,The rule, 71.
Dworkin, R. (1999). Freedom’s law: the moral reading of the American Constitution. OUP Oxford
Brown, The rule Vol. 6Kuran,The rule,71.ibidFukuyama, Transitions to the Rule of Law. 33-44Scalia, The rule of law 1175-1188.ibid
Mason, A. T., & Stephenson, G. (2015). American constitutional law: introductory essays and selected cases.
Mason & Stephenson, American constitutional law: introductory essays and selected cases.
Dworkin, the moral reading of the American Constitution. OUP OxfordScalia, A. (1989). The rule of law, 56(4), 1175-1188
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