Historical and Political Background of Judicial Review in the Islamic Legal System

Abstract

The main reason behind writing this article is because many Western and some Arab writers deny that Islamic law recognizes the principles of judicial control over the constitutionality of law in it present form. Alternatively, they allege that the concept of judicial control is simply contrary to Shariah. Therefore, the main question is: Does the Islamic legal system recognize the exercise of judicial review of the constitutionality of laws, especially when it comes to issues relating to constitutional matters, in their present form? Further, if this question is answered in the affirmative, what is the nature of such judicial control? This article examines judicial control over the constitutionality of laws in Islamic legal system, studying the potentiality and availability of judicial review in the Islamic legal system and civilization and investigating the historical significance of some its most important applications. This article studies the elements that have helped to establish the idea of judicial review of law in the Islamic legal system, which are the principle of separation of powers, the doctrine of the rule of law, and the independence of judicial authority in the Islamic legal system. It is limited to the study of judicial review under the Islamic legal system within Sunni Islamic jurisprudence schools, namely Hanafi, Hanbali, Shafii and Maliki. This article will also study judicial judgments and events that took place in Islamic history especially during the time of Prophet Muhammad (622-632 C.E.), the Pious Caliphs (632-661), the Umayyad (661-750), Abbasids (750-1258), the Ayyubid dynasty (1169-1252) and the Ottoman Periods (1517-1921).