The Rule of Law in Islam: Between Formalism and Substantivism

Abstract

What has passed as the rule of law in Islam is in fact merely the formal features of legal principle, without considering the substantive basis for law as a moral ideal. This article argues for a more substantive understanding of the rule of law that is sensitive to the shariah’s vision of the good and just society. To this end, the article evaluates the distinction between formal and substantive versions of the rule of law, examining the foundation of that distinction in legal positivism and the notion of the dualism of law and morality. The rule of law in Islam will be seen to by-pass such bifurcation and, by being rooted in the shariah, affirm a harmonious legal continuum between the individual and the state. It will also be shown that the rule of law in Islam is organically connected to the question of pluralism and multiculturalism in the context of the modern nation state. The implication this has for an area of substantive law - namely, human rights - will then be considered.