Tesi etd-12182016-122738
Link copiato negli appunti
Tipo di tesi
Perfezionamento
Autore
VIRGILI, TOMMASO
URN
etd-12182016-122738
Titolo
Constitutionalism in Muslim Countries: the Struggle between Islam and Individual Liberties, with particular reference to Egypt and Tunisia
Settore scientifico disciplinare
IUS/08
Corso di studi
SCIENZE GIURIDICHE - Individual Person and Legal Protections
Commissione
relatore MARTINICO, GIUSEPPE
Presidente Prof. CARROZZA, PAOLO
Membro Prof. NICOLINI, MATTEO
Membro Dott.ssa VIVALDI, ELENA
Membro Dott.ssa COLOMBO, VALENTINA
Presidente Prof. CARROZZA, PAOLO
Membro Prof. NICOLINI, MATTEO
Membro Dott.ssa VIVALDI, ELENA
Membro Dott.ssa COLOMBO, VALENTINA
Parole chiave
- Nessuna parola chiave trovata
Data inizio appello
30/10/2017;
Disponibilità
parziale
Riassunto analitico
My work aims to assess the compatibility between provisions referring to Islamic norms and ethics and those guaranteeing individual liberties in the constitutional orders of Egypt and Tunisia.
In terms of content, I focus on a set of problematic issues where the tension between Islam and human rights is more accentuated. Such analysis is conducted on Islamic charters of rights and on the Egyptian and Tunisian Constitutions. I then select two specific case-studies, i.e. blasphemy and homosexuality, those being rarely considered in an Islamic environment as even part of the human rights discourse.
My methodological approach is a qualitative one, based on scholarship, legal texts, case-law and interviews conducted both in the field and remotely. The perspective I adopt is not a theological one (i.e., what Islam "really" says about a certain issue), but a legal one (i.e., how Islamic rules are interpreted and implemented at the legal level). Consequently, my study is not intended to verify the theoretical compatibility of Islamic law with human rights, but the concrete application of Islamic-derived norms in the legal systems of contemporary states.
The yardstick I use to assess the violations of individual rights is two-layer one, based first on the guarantees present in the Constitutions themselves of Egypt and Tunisia, and then on international human rights law.
In chapter 1 I provide a theoretical assessment of the perception of individual freedoms in an Islamic mindset. I base my study on the major Islamic charters of rights, meant to represent an ethos alternative to the Western one and compatible with religious rules. In addition, I examine the constitutional project elaborated by the University of Al-Azhar. The inductive analysis of the provisions contained therein gives a general picture of the Islamic – or to say it better, Islamist - conception of individual liberties.
In chapter 2 I address the role of Islam in the two constitutions drafted in Egypt after the ousting of president Mubarak. While the analysis of the constitution of 2012 shows how the homage paid to Islamic principles and rules may dramatically impact on individual liberties, the text of 2014 solves some of those issues but maintains art.2 with sharia as the main source of legislation, which has proved to be highly problematic.
In order to understand what is the concrete meaning of such article, one has to look at the interpretation rendered in the past by the Supreme Constitutional Court. For this reason, chapter 3 is devoted to the study of the case- law of the SCC on this topic. It will be shown that the Court has elaborated a "pastiche" method of interpretation which attempts to modernize certain aspects of sharia but at the same time fossilizes certain norms as "immutable".
With chapter 4 I move to Tunisia, starting with the analysis of the 2014 Constitution. In particular, I focus on those provisions that have witnessed a more marked clash between Islamist and secular forces within the Constituent Assembly and in the larger society. This examination will confirm the controversy surrounding certain sensitive issues highlighted in chapter 1 (Islam and the state, women's rights, freedom of conscience and religion).
In chapter 5 and 6 I concentrate on two particularly problematic topics, namely homosexuality and blasphemy in Egypt and Tunisia. It will be shown that both LGBT behaviors and the expression of atheism or criticism against religion remain punished by vague laws - used, misused and reinvented upon judges' whim, against the freedoms guaranteed by the Constitutions and international law.
In terms of content, I focus on a set of problematic issues where the tension between Islam and human rights is more accentuated. Such analysis is conducted on Islamic charters of rights and on the Egyptian and Tunisian Constitutions. I then select two specific case-studies, i.e. blasphemy and homosexuality, those being rarely considered in an Islamic environment as even part of the human rights discourse.
My methodological approach is a qualitative one, based on scholarship, legal texts, case-law and interviews conducted both in the field and remotely. The perspective I adopt is not a theological one (i.e., what Islam "really" says about a certain issue), but a legal one (i.e., how Islamic rules are interpreted and implemented at the legal level). Consequently, my study is not intended to verify the theoretical compatibility of Islamic law with human rights, but the concrete application of Islamic-derived norms in the legal systems of contemporary states.
The yardstick I use to assess the violations of individual rights is two-layer one, based first on the guarantees present in the Constitutions themselves of Egypt and Tunisia, and then on international human rights law.
In chapter 1 I provide a theoretical assessment of the perception of individual freedoms in an Islamic mindset. I base my study on the major Islamic charters of rights, meant to represent an ethos alternative to the Western one and compatible with religious rules. In addition, I examine the constitutional project elaborated by the University of Al-Azhar. The inductive analysis of the provisions contained therein gives a general picture of the Islamic – or to say it better, Islamist - conception of individual liberties.
In chapter 2 I address the role of Islam in the two constitutions drafted in Egypt after the ousting of president Mubarak. While the analysis of the constitution of 2012 shows how the homage paid to Islamic principles and rules may dramatically impact on individual liberties, the text of 2014 solves some of those issues but maintains art.2 with sharia as the main source of legislation, which has proved to be highly problematic.
In order to understand what is the concrete meaning of such article, one has to look at the interpretation rendered in the past by the Supreme Constitutional Court. For this reason, chapter 3 is devoted to the study of the case- law of the SCC on this topic. It will be shown that the Court has elaborated a "pastiche" method of interpretation which attempts to modernize certain aspects of sharia but at the same time fossilizes certain norms as "immutable".
With chapter 4 I move to Tunisia, starting with the analysis of the 2014 Constitution. In particular, I focus on those provisions that have witnessed a more marked clash between Islamist and secular forces within the Constituent Assembly and in the larger society. This examination will confirm the controversy surrounding certain sensitive issues highlighted in chapter 1 (Islam and the state, women's rights, freedom of conscience and religion).
In chapter 5 and 6 I concentrate on two particularly problematic topics, namely homosexuality and blasphemy in Egypt and Tunisia. It will be shown that both LGBT behaviors and the expression of atheism or criticism against religion remain punished by vague laws - used, misused and reinvented upon judges' whim, against the freedoms guaranteed by the Constitutions and international law.
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