The rule of morally constrained law

Baudouin Dupret (1)

1 ISP - Institut des Sciences sociales du Politique

The main characteristic of invoking the moral order is that, while being postulated and not deduced, it gives the lion's share to the ascription of a norm to which it cannot be objected. This article aims at describing the ways through which restrictions are put to law in the name of morality in the Egyptian context. I will firstly describe how a new legal and judicial system was established through a process of codification and transfer of legal technology in which Shari'a fragmented into shrinking positive legal norms and inflating moral principles. Secondly, I will aim at showing how moral principles are invoked in order to restrictively constrain the implementation of the law and close its open texture. In general, it shows how morality, including Shari'a, becomes a major way for sharing in power and reshaping the public sphere. In conclusion, I will stress the fact that, though such a morality has a heteronomous legal nature, meaning that it is always outside itself that law finds the means for solving hard cases, however it is up to legal professional actors to interpret the content of these moral principles, with the consequence that they own the final word with regard to their definition and implementation.

Mots clés: law; rule of law; legal theory; praxiological sociology; morality; Egypt

Domaines: Sociologie

Baudouin Dupret. The rule of morally constrained law: The case of contemporary Egypt. Pietro Costa, Danilo Zolo. The Rule of Law: History, Theory and Criticism, Kluwer, pp.543-564, 2007. ⟨halshs-00178953⟩