The Rule of Morally Constrained Law: The Case of Contemporary Egypt

Abstract

This chapter will deal with the limitations that the current Egyptian judicial context may place on law by invoking morality. The Western traditional legal-philosophical belief in the social and non-metaphysical nature of norms has allowed for their understanding as positive data. On such groundings, moral norms and legal norms have been distinguished; modern law has been built upon, inter alia, such a fundamental principle. Austin, for instance, deems law to be distinct from other norms since the former is a command expressed by a de facto legitimate authority with punishing powers. Such a theory aims at affirming law’s predictability and replacing the hold of transcendence. Herbert Hart, the leading figure of “soft positivism”, claims that legal rules may, though not necessarily, reflect or respond to moral requirements.1 He argues against any necessary relationship between law and morality. Hart’s conception is strongly criticized by Ronald Dworkin,2 because it allegedly fails to appreciate that law is much more than a mere system of rules; rather, it is the combination of rules and principles. He believes that there exist general and fundamental judicial maxims, not official rules, which nonetheless guide judges in their decisions. Such principles are not univocal and are open to different interpretations, so that their weight and appropriateness need to be assessed in every individual situation. Dworkin allows morality to be introduced into the legal system as one of its major components. However, such a perspective is incomplete. In fact, he believes that judges act as if each case had its own correct solution in which principles are framing rules; yet, no suggestion is advanced as to how such principles are constituted, mobilized, and characterized. A more pragmatic approach is thus needed. The sociological suggestion that individuals assimilate and express norms through their automatic and unconscious conduct does not account for the way people interpret the world and recognize what is familiar and acceptable.3 Pragmatic theory, instead, assumes that norms,