Constitutional action and judicial review in America, Egypt and the shari`ah : a comparative study

Abstract

This research involves an analysis of the constitutional action and judicial review in three systems which are the American, Egyptian and Islamic legal systems, in terms of its definition, methods and conditions, as well as the effect of the ruling passed in such a suit, as being the true mechanism by which judicial control over the constitutionality of laws can be applied. The research forms an attempt at discovering whether the Islamic legal system had known the constitutional suit in its contemporary form, something which requires knowledge of the nature of such a suit in the Islamic legal system, through discovering the points of similarity and difference with regards to the suit in both the positive and Islamic legal systems as well as the possibility of the utilisation by each system of the advantages of the other in improving the application of the constitutional suit. For this purpose, the researcher applied the case study methodology by choosing America as the country in which the control over the constitutionality of laws had been established, as the court in the said jurisdiction had participated in setting basic and fundamental rules and principles in this field. Egypt was also chosen as being the first Arab country that gave to its courts, especially the Supreme Constitutional Court, the right to apply judicial control which aided in the establishment of the principles of separation of powers, the rule of law and the independence of judicial authority. The researcher has applied the historical, descriptive and analytical as well as the critical research methodologies. The researcher has also specified the different methods by which the constitutional suit can be brought before the competent court, and described its general limitations and restrictions’ on the exercise of Judicial review, as well as the effects of the ruling of constitutionality or unconstitutionality, in a detailed way in both the American and Egyptian legal systems as compared to the Islamic legal system. The researcher has also stated the role of judicial precedents in the stabilisation of legal status in America, which rendered the control system in the said jurisdiction to be a centralised system. Finally, the researcher concluded that the Egyptian legal system is very similar to the Islamic legal system in the application of the same methods for the filing of the suit, as well as its conditions, nature and the effect of the ruling passed under it. The researcher concluded that the Islamic legal system had known and applied the constitutional suit in practice, before the positive legal system had, but did not succeed in codifying these texts and cases in the form of a complete legal theory as in the positive legal system, an issue that made the Islamic legal system lacking in theory.