Islam & Constitutionalism: A Modest Introduction

Minimally, constitutionalism means government can and should be legally limited in its powers, and that authority is derived from and depends upon those limitations. Such constitutionalism, in principle when not in practice, is part and parcel of Islamic history. Indeed, in this minimal sense, all nation-states are “constitutional” states. In the Muslim world today, however, the baseline for discussion is liberal and, therefore, democratic constitutionalism, including the exemplary relevance of the archetype of Islamic constitutionalism: namely, the Charter of Medina, Muhammad’s compact with the Muslim and Jewish communities that constituted the first Islamic polity.

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.

Further Reading:

• Amanat, Abbas and Frank Griffel, eds. Shari‘a: Islamic Law in the Contemporary Context (Stanford, CA: Stanford University Press, 2007)
• An-Na‘im, Abdullahi Ahmed. Islam and the Secular State (Cambridge, MA: Harvard University Press, 2008)
• Bayat, Asef. Making Islam Democratic: Social Movements and the Post-Islamist Turn (Stanford, CA: Stanford University Press, 2007)
• Black, Antony. The History of Islamic Political Thought: From the Prophet to the Present (New York: Routledge, 2001)
• Black, Antony. The West and Islam: Religion and Political Thought in World History (New York: Oxford University Press, 2008)
• Dahl, Robert A., Ian Shapiro and José Antonio Chiebub, eds. The Democracy Sourcebook (Cambridge, MA: MIT Press, 2003)
• El Fadl, Khaled Abou. Speaking in God’s Name: Islamic Law, Authority and Women (Oxford, England: Oneworld, 2001)
• El Fadl, Khaled Abou. et al., Islam and the Challenge of Democracy (Princeton, NJ: Princeton University Press, 2004)
• Enayat, Hamid. Modern Islamic Political Thought (Austin, TX: University of Texas Press, 1982)
• Esposito, John L. and John O. Voll. Islam and Democracy (New York: Oxford University Press, 1996)
• Fadel, Mohammad. “Public Reason as a Strategy for Principled Reconciliation: The Case of Islamic Law and International Human Rights,” Chicago Journal of International Law, Vol. 8, No. 1, p. 1, 2008; University of Toronto, Legal Studies Research Paper No. 981777. Available: http://ssrn.com/abstract=981777
• Fadel, Mohammad. “The True, the Good and the Reasonable: The Theological and Ethical Roots of Public Reason in Islamic Law,” Canadian Journal of Law and Jurisprudence, Vol. 21, No. 1, 2008; Islamic Law and Law of the Muslim World Paper No. 08-08; University of Toronto, Legal Studies Research Paper No. 977206. Available: http://ssrn.com/abstract=1085347
• Feldman, Noah. After Jihad: America and the Struggle for Islamic Democracy (New York: Farrar, Straus and Giroux, 2003)
• Hamoudi, Haider Ala. “Baghdad Booksellers, Basra Carpet Merchants, and the Law of God and Man: Legal Pluralism and the Contemporary Muslim Experience,” Berkeley Journal of Middle Eastern and Islamic Law (Inaugural Issue), Vol. 1, No. 1, 2008; University of Pittsburgh Legal Studies Research Paper No. 2008-14; Islamic Law and Law of the Muslim World Research Paper Series at New York Law School 08-26. Available: http://ssrn.com/abstract=1128293
• Hardin, Russell. Liberalism, Constitutionalism, and Democracy (Oxford, UK: Oxford University Press, 1999)
• Holmes, Stephen. Passions and Constraints: On the Theory of Liberal Democracy (Chicago, IL: University of Chicago Press, 1995)
• Kamali, Mohammad Hashim. Shari‘ah Law: An Introduction (Oxford, England: Oneworld, 2008)
• Mayer, Ann Elizabeth. Islam and Human Rights: Tradition and Politics (Boulder, CO: Westview Press, 4th ed., 2007)
• Sabet, Amr G.E. Islam and the Political: Theory, Governance and International Relations (London: Pluto Press, 2008)
• Vikor, Knut S. Between God and the Sultan: A History of Islamic Law (New York: Oxford University Press, 2005)
• Wing, Adrien K. “The Palestinian Basic Law: Embryonic Constitutionalism,” 31 Case Western Reserve Journal of International Law 383 (1999)
• Wing, Adrien K. and Hisham A. Kassim. "Hamas, Constitutionalism, and Palestinian Women,” University of Iowa Legal Studies Research Paper No. 08-21; Howard Law Journal, Vol. 50, No. 2, 2007. Available: http://ssrn.com/abstract=1130219
• Wing, Adrien K. and Hisham A. Kassim, “The Future of Palestinian Women's Rights: Lessons from a Half-Century of Tunisian Progress,” University of Iowa Legal Studies Research Paper No. 08-22; Washington and Lee Law Review, Vol. 64, 2007; Islamic Law and Law of the Muslim World Paper No. 08-40. Available at SSRN: http://ssrn.com/abstract=1130413
• Wing, Adrien K. and Varol, Ozan O. “Is Secularism Possible in a Majority-Muslim Country?: The Turkish Example,” University of Iowa Legal Studies Research Paper No. 08-17; Texas International Law Journal, Vol. 42, No. 1, 2007; Islamic Law and Law of the Muslim World Paper No. 08-33. Available at SSRN: http://ssrn.com/abstract=1130262