북부아프리카 이슬람 국가의 기본권 비교연구

The targeted countries in this study are Egypt, Libya, Tunisia, Algeria, and Morocco. The area was home to famous Roman cities such as Carthage and Alexandria, and Christianity flourished until it was occupied by the Umayyad Dynasty (661-750). These factors provide a sufficient perspective to study the relationship between culture and law. Most Islamic countries stipulate Islam as a state religion in the constitution instead of the principle of separation of religion and state, which is familiar to western legal system. For this reason, the ‘unity of the constitution (Einheit der Verfassung)’ and the ‘systematic legitimacy (Systemgerechtigkeit)’ of the constitutional order must be understood from the perspective of unity between religion and state, which is very different from the method - a convergent view of between jurisprudence and Islamic theology is needed. Moreover, the difficulty of considering a legal system called Shariah, which has developed over 1,400 years, is added. Islamic countries can be largely divided into Central Asia, Southeast Asia, the Middle East, Northern Africa, and Africa. In general(in perspective of the religious influence of Islam), the Middle East and Southeast Asia can be classified as relatively strong Islamic countries and Central Asia and Africa can be classified as relatively weak Islamic countries. North Africa can be seen as occupying an intermediate position. Although the same term “dignity of man” is used, it is necessary to confirm that the implied concept may be different from Western “human dignity” that has developed from the Middle Ages to modern times based on Christian ideas. It is necessary to be careful because it can lead to the interpretation of dignity or relatively more dignity only in the case of Muslims, not all humans. The list of basic(or fundamental) rights in the constitution of Islamic countries, on the surface, is not much different from the list of basic rights of the Western legal system. But carefully, it has a way of thinking that understands basic rights centered on the community rather than the individual appearance (compared to the development of modern Western legal ideas centered on individual rights against the medieval Christianity). To understand the public welfare or public interest in the constitution of the Islamic world, Shariah's methodology is necessary. That is the concept of Shariah called ‘Maslahah (مصلحة)’. The scope of the public interest is classified into the areas of religion, life, intelligence, bloodline, and property, and the basic purpose of legislation is to promote human interests, protect damage, and secure welfare. It occupies an important position about the interpretation of public interest.