Sociologically speaking, a constitution is a “co-ordinating convention” that establishes “self-regulating” institutions that both “enable” and “constrain” democratic behavior (indeed, the ‘enabling’ function of ‘constraints’ is well explained by Stephen Holmes in Passions and Constraints: On the Theory of Liberal Democracy, 1995). As Russell Hardin has made clear, social contract theories or analogies invoked to explain the mechanisms of constitutional construction are misleading inasmuch as “agreement” or “tacit consent” is not a condition for accepting the constitutional order; mere acquiescence will suffice (cf. the response of the anti-Federalists to the U.S. Constitution). This renders the conception of “popular sovereignty” a fictional rhetorical contrivance or metaphor which, in turn, has important consequences for Islamic political theory: one oft-cited reason for Muslim hostility to liberal constitutionalism is the notion of popular sovereignty, seen as infringing upon or contradicting the sovereignty that properly belongs to God. In any case, the doctrine of sovereignty as such has never had the “absolutist” implications sometimes imputed to it and thus should not be construed as contradicting the sovereignty of God. A democratic political and/or legal notion of sovereignty can play a role in constitutionalism if the Islamic conception of God’s conferral of “vice-regency” implies some sort of individual sovereignty. Here sovereignty (in a distributive sense) entails according man theological/metaphysical freedom (e.g., free will), which is logically prior to any notion of rights/liberties set forth in a constitution. The citizen-sovereign in a democracy—through delegation or representation—would thus make the laws, be bound by those laws, and yet somehow remain “above” the law: in acts of civil disobedience, in amending or reforming the constitution, or in a constitutional revolution. Conceding this account, the literal reading of popular sovereignty (in a collective sense) commits the (informal) logical fallacy of composition.
Among the criteria for a liberal constitution are limits on majority decision-making; recognition of human and civil (and increasingly, social and economic) rights (liberties); an independent and impartial judiciary to guarantee and protect these rights (including judicial review); and separation of executive, legislative and judicial powers. And among the concepts within the Islamic tradition suggestive of or compatible with constitutionalism are shūrā (consultation), ijmā‘ (consensus), ijtihād (as independent legal reasoning), maslahah (public welfare), majlis (tribal council; public audience granted the caliph), bay‘ah (an unwritten contract or pact involving the recognition of, and allegiance to, political authority), and wilāyah (custodianship, guardianship, trusteeship).
In the 19th century Ottoman Empire, Egypt and Tunisia, constitutions were honored in the breach. Autocracy, patrimonialism, tribalism, and colonialism have left their indelible marks on periodic and protracted efforts at liberal reform and the democratic aspirations of Muslims. In the second half of the 20th century, socialist and nationalist ideologies were added to the mix. That said, and keeping the Islamic Middle East and North Africa in mind, one can endorse Noah Feldman’s remark “that the world is littered with beautifully drafted constitutions that have been ineffective or ignored in practice.” The Iranian Constitutional Revolution (1905-11) prefigured much of the potential and some of the problems that were to attend later democratic experiments, most conspicuously, the Iranian Revolution of 1978-79. The Constitution of the Islamic Republic of Iran contains ostensibly democratic features: in Malise Ruthven’s words, it is a “hybrid of Islamic and western liberal concepts.” But Ayatollah Khomeini’s conception of the “guardianship of the jurist” (vilayāt-i faqī) ensconced in the Constitution by way of the “chief jurisconsult” and the 12-member Council of Guardians, has blocked democratic methods and processes, enshrining an insidious form of religious authoritarianism.
Feldman contends the constitutional monarchies of Jordan and Morocco “represent the best hope for development of Islamic democracy in the Arab world.” The machinations of the military in Pakistan, Algeria, and--less frequently and less confidently--in Turkey, can make mincemeat of constitutional law; nonetheless, Turkey is rightly described as an “emerging democracy.” The constitutional monarchy of Malaysia is betwixt and between authoritarianism and democracy, while Indonesia’s democratic evolution has relied on well-crafted and well-timed constitutional reform.
Constitution-making has been taking place in Iraq, Afghanistan, and in the Palestinian occupied territories courtesy of the Palestinian National Authority. With regard to the latter, after enacting the proto-constitutional and provisional Basic Law, a constitutional committee has completed its third draft [when this was first written] of the Constitution for an independent and sovereign Palestinian State (subject to further amendments). Islam is declared the official religion of the future Palestinian State, while the Constitution guarantees “equality in rights and duties to all citizens irrespective of their religious beliefs.” The “principles” of “Islamic sharī‘ah” are termed “a major source of legislation;” perhaps not unlike the way in which principle(s) of Natural Law have functioned in some Western constitutions.
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