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Veiled Political Questions: Islamic Dress, Constitutionalism, and the Ascendance of Courts


Jill I. Goldenziel


Harvard Law School

May 17, 2012

American Journal of Comparative Law, Vol. 16, 2013

Abstract:     
This article explains how judicial independence can develop in regimes that are not fully democratic. Conventional wisdom holds that a strong legislature and political parties are necessary for the emergence of an independent judiciary. This article challenges conventional wisdom by explaining how judicial independence may arise in regimes where these conditions are not present. It presents a theory of how judicial independence emerges and why and when other political actors will respect it. The article also explains why courts may be better poised than legislatures to counter executive power in non-democracies. The theory is developed through a discussion of cases involving Islamic headscarves and veils in Middle Eastern courts. These cases have broad political implications because of their significance to Islamists, who pose the biggest challenge to the power of traditional elites in majority-Muslim countries; and their broad legal ramifications with respect to judicial power, individual rights, constitutional convergence, religious freedom, and the relationship between shari‘a and state law. The article also explains how national courts have interpreted Islamic law and challenges the notion that courts function to secularize state-sponsored religion. To the author’s knowledge, this article contributes the most complete discussion in the English-language academic literature of recent high court cases in Egypt, Kuwait, and Turkey that were translated for the purposes of this article, thus contributing to the body of foreign constitutional case law available for comparative study.

Number of Pages in PDF File: 50

Keywords: judicial independence, courts, constitutional law, comparative law, comparative constitutional law, law and religion, religion, church and state, Islam, Islamic Law, Egypt, Kuwait, Turkey, Middle East, institutions

JEL Classification: I20, I21, K10

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Date posted: May 18, 2012 ; Last revised: February 4, 2013

Suggested Citation

Goldenziel, Jill I., Veiled Political Questions: Islamic Dress, Constitutionalism, and the Ascendance of Courts (May 17, 2012). American Journal of Comparative Law, Vol. 16, 2013. Available at SSRN: http://ssrn.com/abstract=2061928

Contact Information

Jill I. Goldenziel (Contact Author)
Harvard Law School ( email )
Cambridge, MA 02138
United States
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