Positioning Egypt and the Islamic Republic of Iran on the international Rule of Law Scale. A post-Luhmannian approach

Abstract

The research conducted for this thesis provides a theoretical discussion on the strengths and limitations of differentiation theories with regards to two states of the MENA , Egypt and Iran. It provides an exploratory study of varying human rights records of these two states. The original contribution of my thesis is the combination of concepts that seem to be un-related at first glance, but will be linked with a view to spelling out the reasons behind different rule of law performances of two Islamic states during the 1990s. The key contributions of this thesis can be summarised under three themes that will be combined with the intention to develop a methodologically suitable approach to explain varying levels of adherence to basic rule of law standards. Measuring these levels on a continuum, I proceed as follows: first, I employ theories of legal differentiation; second, I stress the importance of independent judicial review and judicial human rights activism; and third, I examine different deployments of ijtihad (independent reasoning) on the part of major Egyptian and Iranian figures. All three phenomena, legal differentiation, devised by the German sociologist Niklas Luhmann, judicial human rights activism (as well as independent judicial review), and progressive ijtihad, point to the significance of the separation of law, religion, and politics for processes of domestic legal and judicial reform. It is Luhmann´s achievement of having established a link between the underlying structure of different levels of differentiation in a society, and the extent to which inclusionary patterns in the form of rights, can gradually be applied in a more uniform way with the help of autonomous courts. The explanatory value of Luhmann´s theory of differentiation consists of the emphasis he puts on the differentiation of politics and law as two distinct sub-societal spheres, as well as inner-legal differentiation, implying the distinction between legislative and jurisdiction. I claim that it is the import of autonomous courts that Luhmann pointed out, which can explain variety with regard to adherence to rule of law and human rights law on the part of Egypt and Iran during the 1990s. The aspect of ijtihad exemplifies that Iranian constitutional drafters, and influential legal-political officials, often misused Islam as a tool to foster their own conservative views, deliberately undermining (especially) women’s rights. This does not mean that misuse of religion would not occur in Egypt at all. Yet, during the 1990s, a period representing the peak of judicial human rights activism, Egypt´s human rights performance was better because Egypt had progressive and strategically litigating judges in its Supreme Constitutional Court (SCC). During the 1990s, the SCC was further highly receptive towards international human rights law, just as towards inter- and transnational judicial networking. Its judges, who knew they needed to rely on Islamic Shari´a law, were not only receptive towards international norms, but also focused on the distinction between definite and non-definite Shari´a norms. Thereby, judges successfully managed to deliver prime examples for a) constructive incorporation of international human rights norms into their own domestic legal sphere, and b) a progressive deployment of ijtihad. This research conceptualises deficient levels of adherence to human rights as a continuum, which will here be devised by positioning Egyptian and Iranian human rights performances on the international rule of law scale. Deficiencies in regard to legal-judicial performances of these two states will here be examined in relation to so-called de-differentiating tendencies, involving higher levels of entanglement between law, religion, and politics. My thesis raises and answers the question to what extent de-differentiating tendencies in the form of illegitimate executive and religious intrusion into law were kept in check by independent courts en

Date of Award	1 Aug 2019
Original language	English
Awarding Institution	The University of Manchester
Supervisor	Christopher Thornhill (Supervisor) & Siavush Randjbar-Daemi (Supervisor)