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

50 Pages Posted: 18 May 2012 Last revised: 4 Feb 2013

Jill I. Goldenziel

Marine Corps University-Command and Staff College; University of Pennsylvania; Harvard University

Date Written: May 17, 2012

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.

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

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: https://ssrn.com/abstract=2061928

Jill I. Goldenziel (Contact Author)

Harvard University ( email )

1737 Cambridge St.
Cambridge, MA 02138
United States

Marine Corps University-Command and Staff College ( email )

2076 South Street
Breckinridge Hall
Quantico, VA 22134
United States

HOME PAGE: http://scholar.harvard.edu/jill

University of Pennsylvania ( email )

Philadelphia, PA 19104
United States

Paper statistics

Downloads
268
Rank
94,022
Abstract Views
1,300