2 - Shari'a and Constitutionalism

Summary

Constitutionalism in the West is mostly identified with secular thought. In recent years, there has been a growing interest in Islamic constitutionalism. For instance, the Bush administration's response to the 11 September 2001 attacks on New York and Washington has radically transformed the situation in Iraq and Afghanistan as both countries are rewriting their Constitutions. Ann Elizabeth Mayer has pointed out that Islamic constitutionalism is “constitutionalism which is in some form based on Islamic principles”.

Several Muslim scholars such as Muhammad Asad and Abul A'la al-Maududi have written on several aspects of constitutional issues such as human rights and the separation of powers. However, in general their works fall into apologetics, as Chibli Mallat points out:

Whether for the classical age or for the contemporary Muslim world, scholarly research on public law must respect a set of axiomatic requirements. First, the perusal of the tradition cannot be construed as a mere retrospective reading. By simply projecting present-day concepts backwards, it is all too easy to force the present into the past either in an apologetically contrived or haughtily dismissive manner. The approach is apologetic and contrived when Bills of Rights are read into, say, the Caliphate of ‘Umar, with the presupposition that the ‘just’ qualities of ‘Umar included the complex and articulate precepts of constitutional balance one finds in modern texts.

Going further back in history, the fall of the Ottoman Empire also contributes to the lack of Islamic constitutional thought since the empire was the last caliph state. It is also worth considering that books on political law (fiqh siyasa) written in the twentieth century, such as those by ‘Abdurrahman Taj, and Ahmad Syalabi, refer to the idea and the practice of the Islamic state more than a thousand years ago. This suggests that their works are simply repetitions of opinions from fiqh books written several centuries ago without making modification through ijtihad (reinterpretation) and without trying to link the revelation, which was sent down fifteen centuries ago, to modern problems in a nation-state. In other words, what Islamic constitutionalism entails remains contested among Muslims and also Western scholars who study the topics.