The Excellence of the Emergence of the Constitutional Principle:Separation of powers in Islamic Law (Analytical Study)

Abstract

The principle of separation of powers is one of the fundamental principles of constitutional law. Many theories have emerged in the West to explain it, and constitutions have differed in their application according to that. Consequently, in their distribution of state functions among the authorities, depending on the different theories adopted by each country in its interpretation of this principle. This study aims to explain the principle in terms of theory and then analyze it in light of Islamic law. This will be done as follows: In the first section, the study will examine the 'pure theory' of the separation of powers, which is based on three mutual and independent functions. We find that this concept of separation of powers is flawed. Our study of these flaws guides us in the right direction to define and apply the principle in the right way. The study then reviews and analyzes the experiences of different countries in adopting the principle. The second part of the study presents the principle of separation of powers in light of Islamic law.