Table Of ContentIslam, Constitutional Law and
Human Rights
This book focuses on Islamic constitutionalism, and in particular on the relation
between religion and the protection of individual liberties potentially clashing
with shariᶜa and the Islamic ethos. The analysis goes from general to particular,
starting with a theoretical overview on constitutionalism, human rights and Is-
lam, moving to the assessment of the post-Arab Spring Constitutions of Egypt
and Tunisia, and concluding with a specific focus on the rights of sexual minor-
ities and freethinkers.
Part I provides a theoretical account of the conception of constitutionalism
and human rights in Islam, compared and contrasted with Western constitu-
tionalism. A set of issues where the tension between shariᶜa and human rights
is accentuated is analysed against the backdrop of the main Islamic charters of
rights. Part II conducts a similar assessment based on the Constitutions of Tu-
nisia and Egypt – the two main epicentres of the Arab Spring. Part III moves
to two specific rights in the same countries, from the twofold perspective of the
Constitutions and international law: the freedom from interference in one’s in-
timate life, with particular regard to homosexuality; and the freedom of holding
and expressing nonconventional beliefs, deemed unacceptable from the point of
view of traditional Islam. These issues have been chosen as representative of the
most controversial, still considered taboo in both legal and social terms, hence
at the fringes of the debate on individual freedoms. Focusing on two overlooked
and underexplored issues, the work thus pushes the boundaries of the human
rights discourse in Muslim contexts.
Tommaso Virgili is a Postdoctoral Research Fellow at the WZB Berlin Social
Science Center, where he works on modernization movements and reform the-
ology within Islam in response to the challenge of fundamentalism, with a focus
on Europe and the MENA region. He received his Ph.D. in Comparative Public
Law from Sant’Anna School of Advanced Studies in Pisa, Italy. Dr. Virgili is also
a Research Associate at the Wilfried Martens Centre for European Studies and a
Visiting Fellow at the European Foundation for Democracy in Brussels.
Comparative Constitutionalism in Muslim Majority States
Series Editor: Javaid Rehman
This series encourages research into all aspects of comparative constitutionalism
within the Muslim-Majority States of South Asia and the Middle East. Key areas
of investigation include the post 9–11 implications on constitutionalism and
the consequences of the Arab Spring. The studies within the series span across
all aspects of constitutionalism, including constitutional rights, constitutional
practices, rule of law issues, human rights, sexual rights and minorities. While
the focus of the series is upon the Muslim-Majority States within the South Asia
and Middle East region, the comparative critical assessment will engage a global
analysis of constitutionalism and application of constitutional rights. Amidst the
many cases of failed constitutionalism, there are a number of positives: this series
also aims to explore and identify key successes from within the region.
Titles in the series
Security, Rights and Law
The Israeli High Court of Justice and the Israeli Settlements in the
Occupied West Bank
Rouba Al-Salem
Law and Politics of Constitutional Courts
Indonesia and the Search for Judicial Heroes
Stefanus Hendrianto
States of Emergency and the Law
The Experience of Bangladesh
M. Ehteshamul Bari
Islam, Constitutional Law and Human Rights
Sexual Minorities and Freethinkers in Egypt and Tunisia
Tommaso Virgili
Islam, Constitutional Law
and Human Rights
Sexual Minorities and Freethinkers in
Egypt and Tunisia
Tommaso Virgili
First published 2022
by Routledge
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© 2022 Tommaso Virgili
The right of Tommaso Virgili to be identified as author of this work
has been asserted by him in accordance with sections 77 and 78 of the
Copyright, Designs and Patents Act 1988.
All rights reserved. No part of this book may be reprinted or reproduced
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explanation without intent to infringe.
British Library Cataloguing-in-Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging-in-Publication Data
Names: Virgili, Tommaso, author.
Title: Islam, constitutional law, and human rights : sexual minorities and
freethinkers in Egypt and Tunisia / Tommaso Virgili.
Other titles: Comparative constitutionalism in Muslim majority states.
Description: Abingdon, Oxon ; New York, NY : Routledge, 2021. |
Series: Comparative constitutionalism in Muslim majority states |
Includes bibliographical references and index.
Identifiers: LCCN 2021007741 (print) | LCCN 2021007742 (ebook) |
ISBN 9780367200640 (hardback) | ISBN 9781032051260 (paperback) |
ISBN 9780429259418 (ebook)
Subjects: LCSH: Constitutional law (Islamic law) | Civil rights (Islamic law) |
Constitutional law—Egypt. | Constitutional law—Tunisia. | Civil rights—
Egypt. | Civil rights—Tunisia.
Classification: LCC KBP2460 .V57 2021 (print) | LCC KBP2460
(ebook) | DDC 340.59—dc23
LC record available at https://lccn.loc.gov/2021007741
LC ebook record available at https://lccn.loc.gov/2021007742
ISBN: 978-0-367-20064-0 (hbk)
ISBN: 978-1-032-05126-0 (pbk)
ISBN: 978-0-429-25941-8 (ebk)
DOI: 10.4324/9780429259418
Typeset in Galliard
by codeMantra
To the smallest and most persecuted minorities on this
earth: the individuals.
Contents
Note on the transliteration xi
Foreword xiii
BRIAN WHITAKER
Acknowledgements xv
Introduction 1
Background: what this book is about 1
Why Egypt and Tunisia? 2
Human rights and shariᶜa: a complicated relationship 3
Sexual minorities and freethinkers: the pariahs of the
human rights debate 4
On ‘Islam and Human Rights’… again? A few
methodological clarifications 6
Book outline 9
I Constitutionalism and Islam 12
Background 12
The Western concept of ‘constitution’ 13
A brief historical overview of constitutionalism in Islam 16
‘Liberty’ in Islam 17
Political freedom and good government 18
‘Right of resistance’? 20
A theocratic state? 21
More ‘Muslims’ than ‘citizens’ 24
‘Islamic democracy’? 25
Final considerations on the inner tension between Islam
and constitutionalism 27
II The Islamic conception of individual liberties 31
Introduction 31
The Universal Islamic Declaration of Human Rights 32
viii Contents
The Cairo Declaration on Human Rights in Islam 36
The Arab Charter on Human Rights 39
The Al-Azhar Constitutional Project 42
Final Remarks 48
III What ‘shariᶜa’ in a constitution concretely means:
the case of Egypt 50
Introduction 50
Historical background 50
The uncertain meaning of the ‘principles of shariᶜa’ as ‘the
main source of the legislation’ 51
Interpretation of article 2 by the Supreme Constitutional
Court: non-retroactivity 53
Interpretation of article 2 by the Supreme Constitutional
Court: ‘absolute’ vs. ‘relative’ principles of shariᶜa 55
A critique of the SCC’s interpretation of Article 2 59
Final considerations and open challenges 62
IV Islamic law in post-Arab Spring Egyptian Constitutions 64
Introduction 64
Article 2, the untouchable 64
The expansion of Article 2 65
How should ‘principles of shariᶜa’ be interpreted? 65
The role of Al-Azhar 67
Nulla poena sine lege… or maybe not? 70
Civil, military or theocratic state? 70
Contempt for the sacred 71
Status of non-Muslim minorities 72
Women’s rights 73
Individual liberties vs. society’s will 75
Final considerations 77
V Compromises and ambiguities in the 2014 Tunisian
Constitution 79
Introduction 79
Article 1: the role of Islam 80
Article 2: The ‘civil state’, dawla madaniyya 82
Article 6, sive ‘Le pot-pourri de la constitution tunisienne’ 87
Women vs men: not equal, but ‘complementary’ 91
Light and shadows of the 2014 Tunisian Constitution: The
Code des Libertés as a crucial but unlikely step forward 94
Contents ix
Introduction to the case studies 97
VI (Il)legal persecution of freethinkers 99
Introduction 99
Tunisia 99
Statutory provisions 99
Ils ne sont pas Charlie: Muhammad’s cartoons as a
threat to social peace 101
Ni Allah Ni Maître, or ‘the crime of atheism’ 103
Mounir Baatour and Emna Chargui: ‘blasphemous
extremists’? 105
Egypt 106
Legislation criminalizing apostasy and blasphemy 106
Patterns of persecution of atheists and blasphemers 109
Islamists and (un)free speech 112
Relevant case studies 115
The ‘Abu Zayd case’: an unfortunate milestone 115
The case of Alber Saber: An example of a revolution
without freedom 119
Blasphemy, heresy, atheism … even homosexuality:
all sides of the same coin 120
Final reflections on Egyptian and Tunisian freethinkers:
public order and fitna 123
VII (Il)legal persecution of sexual minorities 125
Introduction 125
Tunisia 126
Relevant provisions 126
Relevant case law on liwāṭ 128
Non-conformist behaviours outside of the scope of
Article 230 130
Strategies for decriminalization 131
Abrogation of Article 230 131
Judgment of a prospective Constitutional Court 133
Ban on the anal test 133
Comprehensive revision of the penal code 135
Egypt 136
The witch-hunt against the ‘debauched’ 136
Elements of evidence 140
Religious grounds for prosecuting homosexuality 142
Recent trends in persecution 145
Strategies for decriminalization 147
Final consideration on anti-gay laws in Egypt and Tunisia 148
