Sovereignty-Political Power Distinction as the Theoretical Basis of the Concept of the State of Law -A Comparative Study in the Context of Islamic and Western Legal Thought-

Authors : Talip Türcan

Pages : 336-349

Doi:/neuhfd.1433008

View : 91 | Download : 141

Publication Date : 2024-08-30

Article Type : Research Paper

Abstract :Although the concept of the state of law represents a very significant value that has been achieved for humanity over a long period in the history of legal thought, the doctrine has not yet reached a consensus on the criteria taken as basis to define it, and the criteria put forward do not seem to be sufficient as well. Establishing the concept of the state of law on a coherent theoretical basis, requires not only recognising that the term law in the phrase refers to a whole of values and principles independent of, prior to and above the sovereign will, but also clearly defining the distinction between sovereignty and political power. For, no normative order, the source of which is the sovereign will, can guarantee the limitation of state supreme authority and political power. The concept of the state of law can only be defined by adhering to the rule of law in its stated sense and the principle of sovereignty within law. In addition, it is impossible to talk about the rule of law in an order where there is no distinction between sovereign will and political power. In this study, based on the determinations mentioned above, it is argued that Islamic legal thought can contribute to the concept of the state of law on the theoretical level, since it has defined sovereignty as a limited will within the law and achieved the distinction between sovereignty and political power in a period that can be considered quite early.
Keywords : İslam Hukuk Düşüncesi, Hukuk Devleti, Hukukun Üstünlüğü, Egemenlik, Siyasî İktidar