Continuità e discontinuità nell’islam contemporaneo: linee per una lettura dei rapporti tra politica, diritto ed economia

The relationship between Islam and the West has been characterized by a strong mutual influence, especially in the Mediterranean area, which has led to a deep change and development in the relevant social and historical contexts. A particular role has been played by the so-called acculturation process which has taken place in the Islamic world during the XIX century, due to the contact with the European culture, exported or imposed through the colonization process. As a matter of fact, the western model of State, i.e. the ideal of the modern state, with a constitutional basis, founded on the legality principle, has been exported in the Arab world, substituting both the traditional form of feudal state pre-existing in the context of the political collapse of the dàr al-islàm, and the universal and abstract ideal of the umma, based on the sharing of a same religion, whose role has been confined in isolated constitutional declarations. Furthermore, the legal acculturation has led to the reception of a new normative model, based on a western conception of law, code, and jurisprudence, which has stressed the dichotomy between sharì’a (religious law) and qànùn (man made law), reflecting the dialectic between sharì’a and siyàsa (policy functions exercised the by the caliph, in the respect of the sharì’a). While on a theoretical level the conflict between the two concepts of State may appear radical and insurmountable, attempts have been made in order to conciliate these different conceptions, for instance in the “Islamic democracy” proposed in Iran in 1979. Moreover it must be stressed that the Islamic States of the Mediterranean after achieving independence have not rejected the European constitutional experience, but have tried to adapt these institutions to the specific ideological and cultural context. Principles such as national sovereignty, representative democracy, citizenship, protection of individual and collective rights, protection of human rights etc. in facts have all been imported from the West, through the legal acculturation process, and have been either acknowledged or adapted by the Islamic constitutions and declarations (see for instance the Islamic Universal Declaration on Human Rights, elaborated by the Organizations of the Islamic Conference in 1990). However it must be kept in mind that these constitutions insert the shari’a among the sources of law, see for instance the Egyptian constitution which has been modified in 1980 by an amendment stating that sharì’a was no longer a source of law, but the source of law. The formal profile of these statements should imply as a consequence the prominent role of Islamic law towards codified, man-made law, but this is not the case: the dichotomy sharì’a –qànùn must be considered with a positive approach, according to which the main role is played by the constitutional law of the legal system (on this point, see Ballantyne, Mallat), while religious law is just an expression of the legal background, of the common core of the Islamic society and of the traditional asset of values. Nevertheless, the religious factor still plays an important role, considering that the western principle of separation of powers has been received in the Islamic world only on a formal point of view, while in the practice there is a constant interference of religion and state. Actually, the classical principle “islàm dìn wa dawla” has found different applications, for instance by calling “Islamic” the Republic of Iran, or by declaring Islam the State religion (Egypt, Algeria) or by stating that the president of the Republic must be a Muslim (for instance in Syria). Finally, the religious aspect is a main factor also of the so-called Islamic Economic System, which aims at realizing an economy based on the principles of the sharì’a, by prohibiting any form of unjust enrichment and proposing social justice and equity, cooperation and solidarity