Twisting the Rule of Law into Rule By Law in MENA Countries: The Role of Religion
This control is facilitated by constitutional ambiguities surrounding Islam and secularism in post-independence MENA. In Morocco and Algeria, the recognition of Islam as the state religion raises questions about whether these declarations are symbolic or carry legal weight. Tunisian constitutions have been even more ambiguous, leaving unclear whether Islam or its “objectives” hold symbolic, sociological, or legally binding significance. Such vagueness allows regimes to control religion and its authorities, resembling a pseudo-secularism termed “Maghrebian Gallicanism” (Fregosi).
In multi-confessional Lebanon, religion’s institutional role is even more pronounced, as the state architecture is organized along religious lines, and Christian and Muslim laws are granted exclusive authority over family matters (Messarra, Gannagé). This shows how religion affects not only institutional dynamics but also individual rights, with statutes and case law restricting gender equality, sexual self-determination and freedom of conscience under the guise of religious orthodoxy. This use of religion opposes the rule of law, which upholds individual liberties and procedural safeguards. Instead, it reflects an instance of rule by law – specifically, a divine law that defines the substantive limits of government and legislation (El Fadl).
Our analysis will thus explore the interplay between positive law and religion: 1) how states exploit religion to reinforce their authority; and 2) how they bend the rule of law to uphold religious dogmata. We will work on: a) historical debates on the place of religion from the colonial and post-colonial periods; b) contemporary scholarly debates; and c) empirical evaluation of secular and religious elements in the institutional architecture, legislation and case law of Algeria, Morocco, Tunisia and Lebanon.