Ahmed Fad Sbai
The crisis of Legitimacy remains one of the most chronic issues in the modern Islamic State. Several political phenomena are related to this dilemma; Islamic political movements, democracy debate in Muslim society obedience to the legal system in western and Islamic world.
This article contributes to the rebuilding of a new historical constitutional analysis of this dilemma by highlighting the historical evolution of this issue in the constitutional documents of Islamic countries.
The Weberian typology of legitimacy can’t give us an honest translation of the perception and the meaning of legitimacy and legality in the Islamic societies.
ChapterI: Problematic of Modeling the Islamic Political System (Weberism Crisis)
A- The concept of legitimacy
The concept of legitimacy is strongly presented in political sciences as a founding study to understand the evolution of societies and to understand the nature of existing political structures. Bertrand Badie believes that Weber transferred the study of the political phenomenon from the focus on the division of labor and production relations in Marxism to a materialism based on coercive and political considerations. He has also influence social sciences to focus on bureaucracy, control, domination and subjugation in political system.
Lipset raises an important note in his presentation of the concept of legitimacy in this great debate raised by the concept of legitimacy, which produced a huge number of definitions that appear to him different according to the subjective views of their owners. For example, Herbert Kelman believes that the government is legitimate when it has the right to exercise its powers in a particular field, whether citizens like it or not.
Paul Bastide argues that legitimacy is linked to the sources of authority and the justification for obedience, while Parsons sees legitimacy as an assessment of action according to common values. On the other hand, Lipset finds that legitimacy can be understood by the ability of the political system generating and strengthen the conviction that existing political institutions are the most appropriate.
We cannot understand Max Weber's typology of legitimacy without understanding the vision in which this sociologist saw the development of the society he studied, the Western society, which according to Webber’s conception attests a process of rationalization that contributes to the transformation of politics into an objective and impersonal field.
This vision means that the Western society, which externally moves from irrationalism to rationalism, is witnessing an internal development in which the control of values disappears and where Legitimacy is getting rid of its sanctity to become more neutral in the new society.
In this conception, Weber's call for the rejection of natural law seems justified. This rationalization gives to legitimacy its ability to frame individual’s conception of law and thereby contribute to an inevitable transition to ethical neutrality.
The law has a central place within the Weberian conception of the legitimization of power. Legitimate authority does not justify itself on the basis of lofty principles, but rather in the following the bureaucratic procedures that it acquires in a legitimate manner. In other words, political justification matches legitimacy, as does legality matches law.
Thus, by joining the trend that sees the legal system as a standard for what is legitimate, Max Weber believes that, thanks to a this legal concept, the risks involved in confronting the irreconcilable demands in political system could be eliminated
One of the characteristics of the rational law in terms of formality is its internal logical coherence, its generality, its evidential nature, its ethical neutrality, and its own methodology, as law. In this context, we can understand the nature of the Weberian stereotype, which distinguishes between the three types of Legitimacy within a vision that envisages the inevitability of legal rationality as a final and evolving form of social and political relations between individuals .
The difficulty of applying this typology in Islamic political systems seems to be linked not only to the criticisms of the Weberian view on its neutral view of values and its disregard for the role of natural law and values as Leo Strauss views, but also in the procedural and bureaucratic nature of law in Western legal societies.
On the one hand, Weber believes that what legitimizes power is its respect of constitution, which is supposed representing the will of society. In contrast, the existence of constitutions in Islamic countries doesn’t mean the existence of a genuine rupture of religion power in society and politics.
The neutrality that Weber assumes in western laws is not so in Islamic State, which in addition is subject of Islamic law, the constitutions are characterized by a strong presence of religious terms and concepts that contradict the neutral character of law advocated by the Weberian thesis.
B: Weberism: Ethics neutrality or hidden liberal values? ,
Leo Strauss believes that Weber's insistence on ethics neutrality in social sciences and social philosophy expresses his denial of the existence of scientific or philosophical knowledge in the values system. Leo believes that in Max Weber's view there is no value system, there are only competing values of the same status, where the human mind dissolves its conflicts inside the system.
On the other hand, it seems that the moral neutrality and the relativity advocated by Max Weber was lacking in depth and substance, because it tried through a critic vision and dependence on the ideology of democracy to overcome the values.
Most of the above definitions of legitimacy try to debate the subject by focusing on the recognition of the will of the governed, the argue of submission and its justifications for the exercise of power. The confusion and ambiguity that accompanied the study of the concept can be found in the lack of decisiveness that links the concept to the permanent debate on democracy and the methods of good governance.
In attempting to overcome this infertility of values, Cotta, by critiquing the traditional Weberian conception, established the concept of " ideology of legitimation" in order to link the conceptual depth of the term - as Strauss calls it – to the values adopted in each social specificity. However, the legitimate ideology still locked in the procedural bureaucracy, which can’t resolve the questions of the historical roots of legitimacy and the possibility of pluralism.
The critical studies presented in the traditional Weberian model have contributed to the development of the concept of bureaucracy, to the expansion of the means of understanding the will of the people, to the transcendence of traditional institutional theses, adopting behavioral approaches in monitoring the political act, studying it and delegitimizing it from its abstract ideal to more realistic horizons with David Easton, Parsons and Kaplan .
The criticism presented by Leo Strauss , Bertrand Badie, enables them to reach a discussion of the depth of the thesis in its methodological, philosophical and epistemological aspects, and try to restore a political philosophical debate between realism and idealism.
The moral neutrality brought social science into a vacuum of values and thought, in the confusion of relativism and conflicting values. Bertrand Badie supports this view by emphasizing the transcendental nature of the social study, which has not been able to emerge from the context itself.
The real problem is not related to the application of the Weberism in its ideal nature, nor in its relativeity, but the claim of ethical neutrality which creates a reference perception of the typology and approach. Bertrand Badie is not reassured by the reviews that defended weberism in its study of outside world because the methodological obstacles are still present in defending
economic liberalism and the situation that resulted from the development of Protestantism. Here we see the Eurocentrsit complained of by the democrats. This is also one of the flaws in the legal analysis that makes democracy a neutral criterion in the study of political systems.
In his book The Two States, Bertrand Badie draws a comparison between the historical difference that the Western and Islamic countries have experienced in their perception, understanding and representations of the subject of legality. Francois Bayard defends the uniqueness of the study of societies outside Europe, which tells us about the "Transplanted State" after the’’ Imported State’’ of Bertrand Badie.
The weberian conception that reinforced the Européomania in Western centralization The historical phenomenon of political phenomena, which did not produce academic studies lacking more scrutiny, but led to negative results in the understanding of policy and perception.
Even if we go beyond the felony of the term and translate and round it, it seems that the systematic problem in the study remains unlikely, unless the historical privacy factor is sometimes taken into consideration, which sometimes rejects profiling, relativism and ethical neutrality.
When Leo Strauss returns to study natural law and social political philosophy, natural law reveals arbitrary and unjust, especially when there is religious authority. Natural law gives an external view of a social system for its assessment. Debate on legitimacy is deeper the Islamic countries have not resolved the issue of the relationship between the religious and temporal authorities, as August Conte sees.
In this article, we will focus on the historical side of the constitutional legitimacy, which represent the field of conflict between Islamic legitimacy types and western ones. By analyzing the constitutionalism in the land of Islam, we will leave the constitutional documents to express themselves in revealing to us the contradictions brought by the constitutionalism dilemma , which has not yet been able to find an appropriate formula for the relationship between religion and politics in the land of Islam.
In the Turkish, Iranian and Moroccan cases, we will focus on the crisis of legality against the Hakimiya, and National-state against Umma in these countries, and their impact in political system.
We will try to approach the concept of Presidency, Umma and Hakimiya in the Islamic countries by focusing on the constitutional texts and on the resulting representations in this context by distinguishing the status of the Umma and Nation in the Turkish and Iranian cases.
Chapter2: The Presidency Institution in the Islamic Constitution:
According to Bernard Lewis, the Turkish democracy, which he has followed the development for many years, represents an important experiment in the democratic process in the Islamic countries. However, it is noteworthy that there is a common denominator in political life: the difficulty of finding a clear distance between religious and political?
The traditional character of Moroccan political practice is justified, as many Moroccan scholars see it, in the historical continuity of the Makhzen system. This character has been institutionalized through constitutional institutions after colonization stage, through what Mohammed Muaatassim calls the institutionalization of the Makhzen traditions.
The first paragraph: the constitution of the mandate of the jurist in the Iranian political arena:
The existence of the institution of the Principality of the Faithful in Morocco and the institution of the supreme leader in Iran, places a deep problem in the understanding of the state in these two countries. The institution of the supreme leader in Iran has a country-wide nature that transcends the Iranian country and affects all the followers of the Jaafari doctrine in the world.
A: the Wali-Faqih in the Iranian Constitution
The Islamic Republic of Iran, as a constitutional political system, is linked in its revolutionary conception to an universal ideological outlook, in which the national state is considered as a transitional stage in the revolutionary path.
In the era of Occultation of the Imam Mahdi, the guide becomes the guardian of the Mahdi’s duties, and the national state is a transitional phase instead of the state of Imam expected, which paves the first Koranic verse, "and that this nation is one nation, and I am your Lord worship him," the Nation here does not mean the country, It includes all Muslims, politically the Islamic Republic must take into account in this Islamic unity, and become the head of the nation of the Islamic Republic, a transitional Imam, waiting for the return of other Islamic countries.
During the Occultation of the Wali al-Asr (may God hasten his reappearance), the Wilayah and leadership of the Ummah devolve upon the just ('adil] and pious [muttaqi] Faqih, who is fully aware of the circumstances of his age; courageous, resourceful, and possessed of administrative ability, will assume the responsibilities of this office in accordance with Article 107.
Article 5 of the Iranian Constitution requires the leader elected by the Assembly of Experts, integrity and justice, piety, insight and courage, and the ability to manage and manage. These qualities represent the most important attribute of imamate jurisprudence, which stands at the
top of the pyramid of the Iranian religious community. Thus, the Iranian constitution will enshrine the exclusive choice of political leadership in the elite of religious scholars who have the confidence of the Assembly of Experts, which includes most of the revolutionaries and their supporters.
Article 56 of the Iranian Constitution, we have come closer to understanding this ambiguity resulting from the overlap of the knowledge fields contributing to the drafting of the constitutional document, which distinguishes between the two basic types of sovereignty in the Islamic Republic, absolute divine sovereignty and social sovereignty over its destiny, God, and popular sovereignty in this sense becomes a sovereignty derived from religion. The three executive, legislative and judicial powers are popular authorities derived from the social sovereignty of man. In contrast, the Iranian constitution does not state the nature of the powers of the guide in this context, whether it is derived from popular sovereignty or absolute divine sovereignty.
Article 57 referred to the three authorities and merely referred to the supervisory powers of the guardian without specifying the nature or source of his authority. As for how to choose the guide, the constitution assigns this task to the Council of Experts, which selects the Council of Leadership or Leader. This Council derives its legitimacy from a general election in which the people choose among the jurists the collectors of the tapes those who are able to choose the right jurist; Social reference, which we referred to previously.
B: the crisis of the presidency and the separation of power in the Iranian constitutional system
The return to the constitutional text reveals a kind of overlap, if not the contradiction between the two types of sovereignty in selecting the guide and selecting the Council of Experts. On the one hand, the guide is selected by the Legal Expert Council. The latter is formed for the first time by the scholars of the Council of the Constitution. These jurists are chosen by the Guide (Articles 107 and 108) Experts.
The guide here is represented by Imam Khomeini, who represents the global Islamic revolution in the Iranian constitution, which was chosen as a guide by the people, but remarkable in this context is that the Iranian Constitution in Article 107 did not use in the Arabic language the term election or choice or what they mean in monitoring the process The inauguration of Imam Khomeini as a guide to the Republic, where the term recognition was used to refer to approval and confirmation does not mean the initial choice.
The recognition here of the leader does not mean an election represented by popular sovereignty, as it expresses the affirmation of the Iranian people's desire to embrace Jaafari's frontal Islam represented by the theory of the rule of the jurist. This site shows the reality of
absolute sovereignty and its representations. Here we can see a different conception of democracy and the representative philosophy of the constitution Islamic.
It is the government of the Koran that is referred to by Article 1 of the general principles of the Constitution, and the designation of Imam Khomeini in this article does not suggest only strongly Charisma man as much as the original legitimacy that does not represent the legitimacy of the people only a branch oforigin.
Chapter3 : the crisis of the Umma and State in the constitutional documents
In contrast to the national citizenship, belonging to the Umma is related to the standards of belief , which is completely different from the ethnic or territory, that binds the people of the Western state. The Iranian constitution stipulates that the supreme Guide should be from Ja'fariyah doctrine, and the Moroccan one should be a descendant of the former king Hassan II.
The concept of the Umma is in contradiction with the concept of Nation which creates a mixture of inconsistent institutions. The democratic legitimacy is incompatible with this system, where there is a supra-legitimacy which transcends the written constitution.
The Umma and the national State are two different conceptions of the contemporary State in Islamic countries. These differences are in fact representing a dilemma for both; the royal regimes and the Islamic republics as well.
There is another tendency that emerges in the religious field which attempts to establish an Islamic vision based on historical religious specificity. In the context of creating a National Islam that enables the political system to confront the current phenomenon of religious globalization. The internal sphere, which we find has crystallized more in the Turkish model since the era of Kemalism.
In contrast to Kemalist's exclusive vision of trying to find a National Islam in the Western way, the political system in Erdogan’s era was more flexible in dealing with the religious issue, but there is an attempt to find some kind of continuity that ensures the renewal of religious legitimacy without being affected by external factors.
A: the Iranian constitution, the transition to the Umma through the National-State
The term "Umma" has been repeated in the Iranian constitution 16 times, and it seems that the ideological loading of the preamble came to provide a historical account of the success of the Islamic revolution and its objectives to defend the vision of a global vision that predominates over the preamble discourse, where the Iranian revolution represents a transitional period in the establishment of the Islamic State.
The preamble of the Iranian Constitution refers to the nature of the revolution which is a movement aims at the victory of all the oppressed against the tyrants, and the preparation of conditions for the continuation of this revolution inside and outside the country, especially in the other Islamic countries.
« In the view of Islam, government does not derive from the interests of a class, nor does it serve the domination of an individual or a group. It rather represents the crystallization of the political ideal of people who bear a common faith and common outlook, taking an organized form in order to initiate the process of intellectual and ideological evolution towards the final goal, i.e., movement towards Allah. Our nation in the course of its revolutionary developments has cleansed itself of the dust and impurities that accumulated during the taghuti past and purged it of foreign ideological influences, returning to authentic intellectual standpoints and world-view of Islam. It intends to establish an ideal and model society on the basis of Islamic norms. The mission of the Constitution is to realize the ideological objectives of the movement and to create conditions conductive to the development of man in accordance with the noble and universal values of Islam. »
With due attention to the Islamic content of the Iranian Revolution which has been a movement aims at the triumph of all the Mustad'afun over the Mustakbirun, the Constitution provides the necessary basis for ensuring the continuation of the Revolution at home and abroad. In particular, the development of international relations, the Constitution will strive with other Islamic and popular movements to prepare the way for the formation of a single world community (in accordance with the Qur'anic verse "This your community is a single community, and I am your Lord, so worship Me" [21:92]), and to assure the continuation of the struggle for the liberation of all deprived and oppressed peoples in the world.
Noting the essence of this great renaissance, the constitution guarantees the demise of all kinds of intellectual dictatorship; social and economic monopoly, seeking salvation from the tyrannical system, and granting the people the right to self-determination.
The role of the supreme political leader is to guarantee of the implementation of this project, which is represented in the philosophy of the Iranian Constitution - Part VIII - Representative of the absent Imam absolute guardian of the Muslims in accordance with Article 105, and
emphasizes the preamble on the pivotal role of the military contract which represents one of the tools to achieve the final project Through the transitional project.
In this context, it becomes a part of the Iranian constitution in front of an ideology that typifies the Islamic political system in general, in which the National and international spheres are divided in the constitutional philosophy of the constitutional document. As the preamble of the Constitution of the revolution demonstrates, the ideological project of the Republic is not linked to the Presidency of the nation.
The constitution adopts a doctrinal vision in building an army that will furnish the Islamic revolution and support the international project of revolution. The protection of the country's borders and independence (Articles 143 and 144) which is a national institution with distinction as not being a foreign citizen (A.145) and the establishment of foreign military bases within the country.
However, it is possible to discern some sorts of distinction that the constitution has made between the army and the Revolutionary Guards, which is meant to legitimize it, leaving the law to regulate and define its responsibility in defending the gains of the revolution.
The first constitution aims at establishing a government in which the president and prime minister share power by defining areas of employment, especially after the revolution, in which many political currents contributed , While all the Salt remain under the supervision of the Leadership Foundation.
After the adoption of the 1989 amendments that ends the bilateral executive power, to make the latter more coherent in the exercise of its vital political activity has become a clear relationship between the three powers and the authority of supervisory leadership over everyone.
Although all the constitutional institutions are linked to the leader, two types of associations or institutions can be distinguished, through which the dual nature of legitimacy can be distinguished in the State project in Iran:
The revolution kept the institutions of the modern State inherited from the revolution from the Shah's regime. Modern institutions; the legislative, judicial and executive branches.
This type of institution translates the important features of the philosophy of the Islamic government as called by the scholars of revolution, where we find the Council of Experts, and the diagnosis of the regime and the Revolutionary Guards in addition to traditional religious institutions,
- Council of Experts.
These institutions are characterized by their great connection to the thought that frames the Islamic revolution and the theory of the wilayat-faqih. Thus, we find that it was associated with the ideological project of the nation adopted by the revolution.
The two institutions are characterized by their pre-constitutional nature. Before the constitution was written, the Guards contributed to the success of the revolution. The Council of Experts contributed to the drafting of the document itself and the selection of the first guide.
This process makes the two institutions above constitutional in the sense, and their association with the doctrinal concept of "jihad" and religious knowledge represent a fundamental symbol of legitimacy on which the regime was founded (revolution and religion).
The Revolutionary Guards as an institution will have a radical development in the nature of its work after the revolution. It remains an important element of influence, especially during and after the war in Iraq which finds its answer in the nature of the Umma project. The existence of these institutions in the pre-revolutionary stages, and their subordination to the leader make them supra-national, because they are linked to the field of Islamic religious legitimacy, which does not recognize the regional sphere or the international borders that entrench the concept of national sovereignty.
B: the Turkish constitution and the transition from the Umma to the National-state
Since the proclamation of the Kemalist Republic, the constitution will be characterized by the Turkish constitution in the presence of a national tendency in the face of Khilafah trend which is linked to the Ottoman rulers. The presidency of religious affairs announced by the Turkish constitution will be one of the most important new alternatives. It attempts to restructure the religious field in the country by building a new perception.
The establishment of this institution dates back to 1924, under the Law 429 which replaced the Ottoman sheikh of Islam headed by religious affairs that managed the places of worship and appointed the staff and clerics associated with it.
One of the most important objectives of the establishment of this institution was to reconstruct a new conception of the Islamic religion through a clear-cut attitude consistent with Kemalist ideology which was divided into seven main sectors:
1.Supreme Council for ReligiousAffairs
2.Center of VulagteStudies.
3.Department of Religious Education.
4.Department of Hajj.
5.Department of ReligiousPublications.
6.Department of Foreign and LocalRelations
In 1965, a new narrow law was passed on the Enlightenment's social and educational role. This may justify the desire of the Kemalist elite to rein in conservative currents that benefited from the policies of Prime Minister Adnan Menderes, whowasexecutedafter the 1960 coup. In Article 136 which opens the door to a new expansion of the role of the institution in the formation of religious and political, which can be returned to the seventies and fueled conflicts with leftists and Kurds, and the desire of the regime in the face of protests Alawin growing.
On the other hand, the new tendency of the ruling Islamic currents by establishing new strategic policies adopts a comprehensive vision in creating a set of policies inspired by the spirit of the UN and its objectives within the country model
This dual vision raises in the history of the Islamic constitutionalism, an important transition from a historian political Hakimiya to a real legal crisis.
C :Transition From the Hakimiya to the modern judicial and legal system
The three cases examined (Morocco, Turkey and Iran) differed in their view of the legal system and its working mechanisms.
The Ottoman constitution, adopted the requirements of the Belgian Constitution of 1876, the authors of chapters VI and VII related to the institutionalization of the Ottoman legal system were influenced by the principle of separation of powers.
It was not surprising that the Ottoman constitution was disrupted for a long time due the paradox created by this sudden shift towards legal legitimacy. The institutionalization of the Ottoman judiciary, which came under the new constitution, tried unsuccessfully to apply a positive law legislated by Parliament.
In exchange of the absence of the legislative Hakimiya in the Ottoman Constitution influenced by the new cultural and political currents, Iran 's Constitution and Moroccan constititional project were more closer to the Islamic vision.
In the Iranian supplementalary fundamental laws of 1907, we see duplicity in the source of sovereignty. In chapter 35 we find that sovereignty, which is a ‘’gift from God’’, was shared between the king and his people, mixing in came between the divine and the positive legitimacy in the perception of the Persian State, which reminds us of the same duality in the Iranian constitution of 1979 after more than eighty years.
For the judiciary, the fingerprints of the clerics and the references are prominent in the establishment of two parallel judicial systems deriving their drafts from the Shahnashi power’s, even if they differ on their mechanisms.
The civil courts as stipulated in Article 27 are related to the application of the positive law, while the Islamic courts are linked to the authority of the scholars and the religious system of references in the Imami’s sect, which the Iranian Constitution considers the doctrine of the state.
The Article 80 gives the king the jurisdiction to appoint judges2, and the appointment of ‘’the Public Prosecutor is within the competence of the King, supported by the approval of the ecclesiastical judge’’.
In contrast to the attempts of the Ottoman and Persian models to distinguish the Islamic legal system and the positive law, the Moroccan constitution project of 1908 did not allocate an independent chapter to the judicial authority.
In contrast to the Iranian duality between law and Sharia, the Moroccan one was characterized by a lack of reference to the relationship between legislation and the judiciary, which may suggest the absence of a real vision of the separation of powers in this distinctive document.
Article 57 gives the king the right to appoint a Master Judge from Fez and his representatives in Marrakesh and Tangier, while the article 66 of the magistrates' court is entrusted with the assistance of the Senate to appoint scholars. This project was devoted to a Sultanian judicial system.
Chapter4 : Duplicatication of the Islamic legal system (crisis of interpretation)
The legal system applied in the land of Islam suffers from a clear conflict between sharia and law. When we refer to the first constitutional documents adopted by these countries, we find that the obsession of legislative Hakimiya was clear to most of the pioneers of the Constitutional Movement, and the first constitutional documents have always been divided between positive and Islamic law.
A. Iran, at the roots of legal legitimacy
In Iran, a conditional constitution was established for a type of bilateralism in the judicial system and the law through the creation of Sharia courts alongside other civil and military branches.
The Shari'a Courts Branch deals with issues related to the legal aspects.
In the Iranian experience, a set of constitutional institutions has been created, emanating from the doctrines of the mandate of the jurist seeking to arbitrate the Sharia through the appropriateness of the legal and administrative measures to “reaplly Hakimiya”, the slogan of the revolution.
We find that the Iranian political system, far from the enthusiasm of the revolution, collided with a disturbing constitutional crisis in achieving the basic constitutional requirement (the arbitration of divine sovereignty in the society).
The dynamism adopted by the system has been reflected in the revitalization of the role of religious institutions and graduates of religious institutes in the political process and in the decision-making stages. Religious and innovative institutions will play an important role in restoring the reapplying of Shari'a and in re-producing the legal structure in which Shari'a replace the civil law.
The movement of political change adopted the achievements of the 1906 Revolution to consolidate the status of the religious establishment in the political system and to preserve the importance of the field of religious legitimacy and the prevalence of religious thesis in the political system .
The Constitution of Mashrooteh, adopted a dual judicial system (civil, military and legal) that exceeded the role of religious institutions in an important role, as it contributes to the legislative process on the one hand, in the other hand it made the judiciary practically in the hands of the clerics.
After the Islamic revolution in Iran, the demand for applying sharia was an important political slogan for the religious currents, which tried to establish a revolutionary religious system in the new republic.
In contrast to the dualism of Turkish society in the application of the laws as we shall see later, we find that the legitimacy of conciliation marked the Iranian legal system, which was established in a society with a consistent sectarian majority, and in a religious domain controlled by a religious elite that enjoys great social legitimacy.
The system of imitation and reference, which requires the existence of social legitimacy of the jurist, opens religious institutions to the dynamic of permanent economic legitimacy and socio- cultural, which makes the official religious institutions, headed by the institution of the guide linked to two modes of legitimacy different channels:
- Institutional legitimacy: linked to the Constitution and the legal system.
- Social legitimacy: linked to the elite of religious scholars and the “marajiaa” with their followers whose organize according to the tradition of Imamism is necessary with thereligious elite.
This hierarchical religious system, which dominated politically, created a constitutional system consistent with its thesis through the constitutional institutions that we referred to in a previous chapter, which protect the application of Sharia and give Islamic legitimacy its place within the legal system.
On the contrary, the Kemalist religious policy attempted to establish alternative civil institutions, which contributed to the creation of a national religious authority unified for all and linked to the Sunni religion, in which Kemalism ignored local religious and cultural differences, Alawites, christians and others.
The crisis of the dual legal system on the one hand, and the crisis of the state and nation on the other, put the contemporary Islamic political system in the face of a new problem of interpretation, which was strongly proposed by influential elements both inside and outside the system.
B. Turkey, the evolution of legal legitimacy.
Bernard Lewis believes that 1851 was the year of recognition of a legal and judicial system independent of the clergy, with the adoption of a modern trade law, but despite the reforms that developed during the last two centuries of empire, the laws and educational institutions were subject to the rule of scholars.
Although the slogan and political discourse sought by the Kemalist state in Turkey since 1924 was "secular", Turkey's secularization was much different from the western version.
In the context of the growth of European fascism and the Middle East conflicts, the Turkish Kemalist regime was born after the War of Independence, in which the revolutionary elite emerged, bearing the legitimacy of victory in the “glorious” name of Ataturk.
Despite the extreme radicalism promoted politically in the rejection of "Ottoman heritage" and "Asian tradition," the nascent political system could not go beyond the existence of religious and social factors, so the regime would resort to reformulating the new Turkish society through new religious policies structuring the field and building a national religious vision, in harmony with the secular system.
Ataturk, influenced by the thought of Diaa Kolb, the inspiration of Young Turks , did not look for removing religion from the political system as he seek to build a new Turkish religion based in rationalization and modernization through reform.
In this context, Kemal Ataturk considers that "our religion is not advised to be lazy. On the contrary, Allah and the Apostle ordered people to uphold their honor and dignity. Some people think that modernization is opposed to Islam and that it is a religious blasphemy. This is not true, but true blasphemy is the belief that Muslims Slaves to others.
In contrast to secularism as a religious and linguistic pluralistic system, Kemalist policies sought to unify the nation's religious language, to ban non-Turkish religious languages, and to recognize mutual autonomy between religious and political fields through the manufacture of a "national religion".
Ataturk abolished the post of Sheikh of Islam and the Ministry of Sharia inherited from the Sultanate, as well as the abolition of private Koran institutions, and the prevention of angles and religious and ceremonial activities after the revolution of Sheikh Sufi Said Piran.
In contrast, several institutions have been created that contribute to the restructuring of religious awareness and the construction of an Islamic vision consistent with the principles of Kemalism:
- Presidency of Religious Affairs.
- House of Arts and Religions.
Religious institutionalization has contributed to deepening the interreligious and political relationship. Religious activities have been closely scrutinized, leading to the emergence of a phenomenon of "disguised religiosity" of a variety of institutions and the emergence of rebellious currents of power, especially in the Kurdish areas.
Although the rebel revolution was confronted with great violence and weakened, the religious issue remained a key player in Turkish politics, which would explain the widespread spread of the religious slogan at the earliest stages of political pluralism in the mid-1950s.
The new opposition political parties have raised in their electoral program a kind of desire to tolerate religious practices, which has since become an important indicator in the tilting of the ballot box. On the other hand, the policies of structuring the radical religious field will lead to several profound sociological and socio-cultural consequences, which have contributed to the development of a distinct Turkish identity in the political-religious relationship. The policy of secularization led to the emergence of a new vision for the rulers in the religious and political cultural currents that inspired their experiences. The strict application of the Kemalist policies will have important implications for Turkish society and for two visions of religious, legal and cultural legitimacy.
In Turkey, strict religious policies have created a growing degree of duplication in the Shari'a practice within society, particularly with regard to legally and legitimately restricted behavior.
Turkish society, which has not lost its deep links to along religious history, has not be enable to exercise a clear break with the Islamic legal system that lacks the legitimate power of violence, to which the new law has become the property.
Instead of choosing one of the two legal systems, we will find a growing double legalism in Turkish society, a double vision of legitimacy between two areas that are strongly present in society. Legitimacy of conviction and legitimacy of coercion.
The great importance that Ataturk will attach to the religious issue and its social and political role is linked to the great fear of the rebellious tendencies that followed the abolition of the Caliphate represented by Turkish and Islamic religious and political legitimacy in general.
In contrast to the policy that sought to abolish the writing of the Arabic alphabet, changing the language of the call prayer ( Adan) and banning traditional dress, Turkish society found itself confronted with new taboos unfamiliar to religious scholars.
The Turkish family law model remains one of the most prominent themes that still strongly refer to the conflict of legitimacy in which the Turkish political and social system lives. The family legal system in Turkey dates back to the beginning of the Kemalist Revolution, which adopted a series of European laws. The new Turkish Family Code has endeavored to clarify the secular character of the family in exchange for the traditional law, which in many respects relies on Islamic law.
The new obligations oblige the Turks to document marriage contracts and criminalize legal marriages if they do not respect the legal procedures, raise the age of marriage, A special civil procedure for divorce.
Despite these radical changes, religious marriages remain present. Statistics show that a large proportion of rural and urban dwellers are more convinced of the legitimacy of an Islamic marriage than of civil marriage.
Legal duplication illustrates the multiple natures of the areas of Sharia in the Turkish political culture, which, despite their early secularism, attempted to eradicate religious laws and associated cultural practices. However, it was unable to curb the crystallization of the religious trend in political culture, socially and politically. These policies will continue to enrich the religious character of the elections, Religious in electoral programs in addition to economic and political programs.
- Anshori ,Ibnu . Mustafa Kemal and Sukarno: A Comparison of Views regarding Relations between State and Religion. These Doctorat . McGill University, Montréal, 1994.
- Badie, Bertrand, Culture et politique, Paris, Economica, 1983/ 1987 et 1993/ 3 édition.
- Badie, Bertrand, Les Deux Etats, Paris, Fayard, 1987 Coll. Point, Le Seuil, 1997.
- Badie, Bertrand, Les deux Etats. Pouvoirs et société en Occident et en terre d'Islam, Paris, Fayard, 1986.
- Badie, Bertrand, L'Etat importé. Essai sur l'occidentalisation de l'ordre politique, Paris, Fayard, 1992, - La fin des territoires, Paris, Fayard, 1995
- Badie, Bertrand, Pierre Brinhamm, The sociology of the State, traduit par Arthur Goldhammer, University of Chicago Press, Chicago, 1983. p. 17
- Hisham Ahmed Awad Jaafar, dimensions Political situation The concept of governance vision of knowledge, Al-Ma'had Al-'Alami Lil-Fikr Al-Islami, first edition, 1995.
- Javad JAVID, Mohammad, Droit naturel et droit divin comme fondements de la légitimité politique: une étude comparative du christianisme et de l'islam, Thèse de Doctorat en droit, Université des Sciences Sociales Toulouse, 2005
- Lewis, Bernard, Islam et laïcité : la naissance de la Turquie moderne; traduction Philippe Delamare . Paris ,Fayard, 1988
- Samir Sbaitan, Turkey at Covenant, Recep Tayyip Erdogan , Dar Janadriah, Amman , 1st Edition, 2012 .
- Strauss, Leo , Natural right and history, University of Chicago Press, Chicago.
- Strauss, Leo, La persécution et l’art d’écrire, Traduction Olivier Sedyen, Gallimard, coll. Tel, 2009
- Ünsaldi Levent, Le militaire et la politique en Turquie, Paris, l’Harmattan, 2005.
- Vaner, Semih. État, société et partis politiques en Turquie depuis 1902. In: Revue de l'Occident musulman et de la Méditerranée, N°50, 1988. pp. 86-108.
- WEBER, Max , Économie et société, 2 vol., Paris, Pocket ; 1992.
- WEBER, Max Sociologie du droit, trad. J Grosclaude, Paris, PUF ;1987.
- Weber, Max, Le savant et le politique, Paris, Union Générale d’Éditions, 1963.
- WEBER, Max, Sociologie des religions, éd. et trad. J.-P. Grossein, Paris, Gallimard ; 1992.