An Islamic constitutionalism?

As Brown notes, “Arab constitutional texts have been written primarily to enable, organize, and justify political authority” (Brown 2002, 161): from the very start, since the 1861 Tunisian constitution, they have essentially been conceived to legitimize existing balances of power. Given this background, Brown asks two central questions: “how can constitutionalism emerge in societies in which liberalism is so far from hegemonic?” And “can Islamic principles [...] be employed to build a different kind of constitutionalism? (ibid., 162).

In the late nineteenth and early twentieth centuries, several Islamic thinkers set out principles for an Islamic constitutionalism that in the shari'a located the limits of political power. They were looking to both the Islamic and the Western traditions. This, for example, was the vision espoused by both taken by Rashid Rida and Abd al-Razzaq al-Sanhuri (ibid., 165).

In Islamic constitutionalism, a clear distinction is drawn between human-centric views—those that locate sovereignty in human beings—and Islam, which recognizes only God as sovereign, making the shari'a the foundation of the Islamic constitutional order. However, by also keeping the shari'a distinct from fiqh (Islamic jurisprudence), Islamic constitutionalists accept that the sacred sources of Islamic law are open to constant reinterpretation. Brown notes in this regard that “Islamic constitutionalists can be fairly wide-ranging in their acceptance of new interpretations of law” (ibid., 171). There are likewise other commentators who, while representing a minority voice in the Muslim world, go so far as to claim that “Shari'a is not identical with the sources of Islam as such, but rather the way those sources were historically interpreted and applied” (An-Na'im 1989, 12, quoted in Brown 2002, 175). On this view, “an Islamic political order must be based on the shari'a, but the shari'a must be reinterpreted” (Brown 2002, 175; cf. An-Na'Tm 1996). The problem, then, lies in interpretation (and this is a problem we will come back to it in the following sections).

At the core of the debate on modern Islamic constitutionalism is the concept of the shard (consultation), the ancient practice of deciding matters of public or communal interest in consultation with those who stand to be affected by the decision. The turn towards consultation therefore poses the problem of how the sovereignty of the people can be made consistent with that of God. This question of popular sovereignty became a central concern, perhaps irreversibly so, when in the season of the so-called Arab Springs of the early 2010s, a series of uprisings and protests broke out seeking to end the corruption of the power elites in the Arab world. These developments suggested an opening towards Western constitutional models, but this inevitably meant going against the Islamic tradition.

Closely bound up with the problem of constitutionalism is that of democracy, in that there can be no democracy without a constitution placing limits on the exercise of power. It is to these problems that we will therefore now turn.