Constitutions and Islamic Law
Summary and Keywords
The Constitution of Madinah, written by the Prophet after his flight from Mecca and arrival in Madinah (622 ce/1 ah), is considered by many to be the first written constitution. Nevertheless, and although Islamic law has developed in rich detail since then in a number of other areas, constitutionalism remains a comparatively underdeveloped area of Islamic law. Only recently has this started to change.
Since 2011 and in part due to events of the so-called Arab Spring, the topic of Islam and constitutions has been the subject of heightened interest. In recent years, a number of Muslim-majority countries, including Tunisia, Algeria, Libya, Egypt, Yemen, and Palestine, have embarked upon constitutional processes, and the relationship between Islam and the state has been debated in each of them. A variety of models has emerged over time; whereas in Saudi Arabia the Qur’an serves as the constitution itself, in Egypt Shari’ah is the principal source of legislation. Similarly, while the 2012 draft constitution of Libya states that Islam shall be the state religion and Islamic Shari’ah the main source of legislation, the constitution of Iraq provides that no law contradicting established provisions of Islam may be enacted. Language in the Afghan constitution is even more precise and states that Afghanistan is an Islamic republic, that no law shall contravene the tenets and provisions of Islam, and that in the absence of specific constitutional or legislative language governing the disposition of a case, courts shall implement principles of Hanafi jurisprudence.
In similar fashion, academic scholarship analyzing the relationship between Islam and constitutionalism has increased in scope and vibrancy in recent years. Historically, scholarship in this field tended to focus on issues relating to governance and administrative structures in Muslim-majority countries—not on normative constitutional principles. More recently, Islamic perspectives on constitutional norms have become the focus of significant scholarship. Some constitutional issues of recent academic interest include state sponsorship of a particular religion to the exclusion of others, freedom to practice Islam and other religions, and options for articulating the role of Shari’ah within constitutional frameworks, including the use of supremacy and repugnancy clauses, the role of Shari’ah as a source of legislation, “Shari’ah checks” to ensure that legislation does not contravene Islamic law, review by Shura Councils, and the role of the judicial branch in interpreting Islamic law. Additional constitutional issues impacted by defined relationships between Shari’ah and the state include human and women’s rights, protection of religious minorities; criminal law and hudud punishments; finance law and restrictions on charging interest; rights of freedom of association, expression, and expression; and provisions governing marriage, divorce and inheritance.
Discussions about relationships among law, religion, and state are neither new nor limited to Islam. From the founding of Western countries, including the United States and France, to transitions in recent years in the Middle East, North Africa, and other regions of the world, the roles of religion and religious law with respect to state institutions have been topics of scholarly analysis and debates during almost every constitutional process.1
Within the past decade, the constitutions of approximately 130 countries have been drafted or amended, some of them numerous times.2 During the same timeframe, religious movements have also become more commonplace, many of them affecting Muslim populations.3 Although these trends have not been limited to the Islamic world, they have had a significant impact on constitutional processes in Muslim-majority countries.4 Taken together, they have generated a number of new constitutional options and models, as well as rich discussions about the roles of religion, religious law, and constitutionalism in the modern era.
It should be noted that the pace of change in the area of Islam and constitutions, especially following the Arab Spring of 2011, has increased dramatically in recent years, making it important to continually update statistics and information contained in this article.5
Islam and Constitutionalism
For many years, scholars debated whether Islam lent itself to constitutionalism at all.6 Many of these debates were highly theoretical and technical. More recently, discussions have refocused to take into account historical, social, and political contexts that have given rise to specified roles for Islam and Shari’ah in new constitutions.7
It is generally accepted that the Constitution of Medina (the wathiqat al-Madina; 11 ce/632 ah), drafted when the Prophet Muhammed and his followers fled Mecca for Medina, was one of the first written constitutions on record.8 That document, which consisted of forty-seven clauses and served as the foundation for governance for the nascent Muslim community in Medina, included a number of concepts familiar to modern constitutional scholars, including rights and obligations of Muslims and minority groups, principles of leadership and government, principles of equality and justice, and criminal justice and property ownership rights.9 The Constitution of Medina is still useful as a guide for leaders seeking to govern according to Islamic principles since it provides a pluralistic model for governance that accommodates coexistence among diverse religious groups.10
The 20th century and the first decades of the 21st century have seen marked increases in interest in the field of Islam and constitutionalism. Events in the MENA region, the product of the so-called Arab Spring, have led to explorations of new models of constitutions. Constitutional theories appear to be evolving as well. Whereas in earlier years a constitution was considered legitimate as long as it reflected consensus expressions of domestic social, political, and economic choices, some recent studies have focused on whether simultaneous convergences in constitutional reform and heightened roles for religion and religious law are resulting in increases in constitutional theocracies. 11
Debates about the roles of Islam, statehood, and constitutionalism are complex, and opinions vary. Some scholars believe it is difficult to identify any Muslim society in which concepts such as the rule of law, liberty, and democracy have successfully been incorporated.12 Others have widened their lenses and sought to examine these issues from a multi-disciplinary perspective.13 Wael Hallaq has provocatively stated that the term “Islamic state” is both impossible and inherently contradictory, an opinion some find controversial.14
On a practical level, a desire to reconcile Islam and constitutionalism is currently of interest in a number of Muslim-majority countries since many believe a more formal role for Islam can help eliminate systemic problems such as corruption and a lack of political accountability.15
Islam and Democracy
Although scholars identify a number of concepts within Islam that are consistent with democratic principles, including a commitment to the rule of law, consultation with constituents (shura), limits on and separation of governmental powers, and the notion of constitutions as social contracts, the question has surfaced repeatedly over the years as to whether Islam and democracy are inherently incompatible. However, Nathan Brown argues that this question is actually a new one since historically it was most often assumed, including by Muslim scholars, that the two were not compatible.16 Contrary views are held by other scholars, who state that those who argue that the Muslim world is unable to embrace liberty and democracy are wrong.17
Questions about the compatibility of democracy and constitutions influenced by Islam were common in Iraq during the recent constitutional ratification process,18 and interest in the issue increased even further in 2011 with the advent of the Arab Spring when protestors demanded a role for Islam alongside democracy.19 As Ahmed and Gouda state, “Islam and—not Islam or—democracy” is the rallying cry in Muslim majority countries in which recent uprisings have taken place.20 They believe that constitutional democracy may in fact appear in an entirely different form in Muslim majority countries than in other countries.21
Measuring “Islamicity”: Technical Language versus Constitutional Impact
Analyzing the role of Islam and Islamic law in constitutions can be a complex exercise necessarily encompassing a number of legal and political issues. Even definitions are not always simple or straightforward.
Some modern analysts prefer to measure the “Islamicity” of constitutions according to the number of references to Islam they contain. For example, Ahmed and Gouda seek to assess Islamization through an empirical analysis of thirty “Islamic clauses” in the constitutions of fifty-seven member states in the Organization of Islamic Cooperation.22
However, analyses can be more nuanced than simply measuring the number of references to Islam since constitutions that incorporate Islamic goals and values without specifically mentioning Islam may actually better further the practice of Islam than so-called Islamic constitutions. Kamali, for example, argues that any system of government that complies with principles of consultation (shura), bay’ah (pledge of allegiance), consensus (ijma), public welfare (maslahah), and justice, and that establishes peace and order, qualifies as Islamic irrespective of terminology.23 On the other hand, political powers who ruled over Muslim-majority countries in past centuries did not always comply with Islamic principles and therefore may not truly be considered as having created Islamic societies.24
Islam and Constitutions: Principal Issues
When analyzing the role of Islam in the constitutions of Muslim majority countries, the two most commonly discussed issues are the formal role of Islam with respect to the state, which may also be linked to the basis of a state’s identity, and the position of Shari’ah within the state-sponsored legal system.
Relationship between Islam and State25
Just as diversity is an inherent aspect of Islam,26 a number of diverse constitutional models exist in Muslim-majority countries. According to the Pew Forum on Religion and Public Life,27 sixteen of the twenty-five countries with the highest percentages of Muslim populations officially declare Islam to be the state religion.28 The United Nations Human Rights Committee and the European Court of Human Rights have found that state sponsorship of a particular religion does not violate international or regional law as long as the rights of members of other religions are protected.29
Role of Shari’ah in Legal Systems
Constitutional language establishing a role for Shari’ah generally seeks to harmonize modern constitutional ideals with fundamental principles of Islamic law.30
Historically, although some 19th-century Arab constitutions appear to have implicitly recognized Shari’ah as a principal source of legislation,31 an explicit connection between Shari’ah and state legislation first appeared in 1950, when the Syrian constitution declared that “Islamic fiqh . . . shall be the chief source of legislation.”32 In 1962, Kuwait became the second country to include a Shari’ah clause in its constitution, stating that “Islamic sharia is a chief source of legislation.”33 Thereafter, the constitutions of Sudan, Yemen, Egypt, the United Arab Emirates, Qatar, Bahrain, and Iraq followed suit between 1970 and 2003, incorporating language that included some form of Shari’ah clause.34
Potential roles for Islamic law in democratic systems have become more commonplace following the Arab Spring. As of 2012, approximately 39 percent of the world’s Muslim population lived in twenty-two countries with constitutions that contained provisions formally relating to the role of Islamic law, principles, or jurisprudence.35 As of 2013, nearly half the constitutions in Muslim-majority countries contained clauses that either privileged Islamic law or invalidated legislation that contravened it.36
Specific roles for Shari’ah in legal systems may be articulated in a variety of ways, although terminology may be inconsistent or confusing. Options include:
Shari’ah as the Constitution: Saudi Arabia is currently the only state in which Shari’ah itself (in the form of the Qur’an and Sunnah) serves as the constitution.37
Shari’ah as a source of law: Eighteen constitutions provide that Shari’ah is a source of law.38
Shari’ah as a main source of legislation: An example of this language can be found in article 2 of the Constitution of Kuwait, which states, “The religion of the State is Islam and Islamic Law shall be a main source of legislation.”39
Shari’ah as the primary source for legislation: Sample language may be found in article 2 of the Constitution of Egypt, which states, “Principles of Islamic law are the principal source of legislation.”40 In similar language, article 2 of the Constitution of Bahrain states, “The Islamic Shari’a is a principal source for legislation.”41
Repugnancy clauses: First introduced in Iran in the early 20th century,42 repugnancy clauses prohibit enactment of any legislation that contravenes Islam. As of 2015, six constitutions in Muslim-majority countries included repugnancy clauses.43 For example, article 3 of the Constitution of Afghanistan states, “No law shall contravene the tenets and provisions of the holy religion of Islam in Afghanistan.”44
Hybrid clauses: Constitutional language may specify both that Shari’ah is a source of law and that no provision of law may contradict Islam. The 2005 Iraqi Constitution, for example, contains two clauses governing the role of Islam. Article 2 states that “Islam is the official religion of the State and is a foundation source of legislation,” and subsection A states, “No law may be enacted that contradicts the established provisions of Islam.”45
No role for Shari’ah: Some constitutions in Muslim-majority countries are explicitly secular. For example, article 1 of the Constitution of Kazakhstan states, “The Republic of Kazakhstan proclaims itself a democratic, secular, legal and social state whose highest values are an individual, his life, rights and freedoms.”46
Similarly, the preamble of the Constitution of Turkey states “that sacred religious feelings shall absolutely not be involved in state affairs and politics as required by the principle of secularism,” and article 2 states that “[t]he Republic of Turkey is a democratic, secular and social state governed by rule of law, within the notions of public peace, national solidarity and justice, respecting human rights, loyal to the nationalism of Atatürk, and based on the fundamental tenets set forth in the preamble.”47
Silence regarding role of Shari’ah: Although article 3 of the Constitution of Morocco, for example, provides that Islam is the religion of the state, and article 7 states that political parties may not have as their objectives the infringement of the Muslim religion,48 the constitution is silent with respect to secularity of laws and any role for Shari’ah. 49
The Role of Siyasa Shari’ah
In recent years, use of the doctrine of Siyasa Shari’ah, a legal theory of great importance during the Ottoman period, has resurfaced as a tool for harmonizing Shari’ah with state-sponsored legislation enacted by secular rulers.50 Siyasa Shari’ah, or ruler-created law, differs entirely from fiqh, or Islamic scholar-made law, which derives from scripture.51 Constitutions, which are generally not created by religious scholars, are considered to be subsumed under the doctrine of Siyasa Shari’ah, which authorizes state leaders to create laws as long as they comply with Shari’ah-oriented policies, including maslaha (public welfare).52
Asifa Quraishi-Landes proposes that use of the doctrine of Siyasa Shari’ah can help to overcome misunderstandings by Muslims and non-Muslims alike who may believe that the only way a government can promote and support a society able to live in harmony with Islamic values is by legislating fiqh rules developed by religious scholars, thereby risking the creation of a theocracy.53 Nathan Brown and Mara Revkin characterize the role of Siyasa Shari’ah somewhat differently, stating that the doctrine allows legal authorities in Muslim theocracies to supplement ambiguous Qur’anic principles and to enact public policy in the public interest.54
In addition to the relationship between Islam and state and specific roles allocated to Shari’ah in legal systems, a number of other issues relating to Islam and Islamic law may have constitutional implications. Some examples follow.
Freedom to practice religion: Constitutional language in Muslim-majority and other counties may protect the right to practice any religion. For example, article 38 of the Constitution of Nigeria states, “Every person shall be entitled to freedom of thought, conscience and religion, including freedom to change his religion or belief, and freedom (either alone or in community with others, and in public or in private) to manifest and propagate his religion or belief in worship, teaching, practice and observance.”55
Education: Despite the secular nature of the Turkish constitution, article 24 states, “Religious and moral education and instruction shall be conducted under state supervision and control. Instruction in religious culture and morals shall be one of the compulsory lessons in the curricula of primary and secondary schools. Other religious education and instruction shall be subject to the individual’s own desire, and in the case of minors, to the request of their legal representatives.”56
Human rights: The relationship between Islam and human rights is the topic of much discussion, and scholars come to different conclusions. For example, while Ahmed and Gouda found that constitutions that privilege secularism tend to contain more human rights protections than those that privilege Islam,57 Ahmed and Ginsburg come to a contrary conclusion.58 On a related note, of the ten constitutions that contain the greatest number of rights, only the Maldives has an Islamic constitution.59
Corruption: Corruption is not a subject that tends to be addressed directly in Islamic constitutions. However, some analysts have identified a correlation between authoritarian regimes and concentrations of power in specific branches of government in Muslim-majority countries and opportunities for corruption in the public sphere;60 these issues have constitutional implications.
Article 49 of the Constitution of Iran seeks to address issues of corruption directly: “The government has the responsibility of confiscating all wealth accumulated through usury, usurpation, bribery, embezzlement, theft, gambling, misuse of endowments, misuse of government contracts and transactions, the sale of uncultivated lands and other resources subject to public ownership, the operation of centres of corruption, and other illicit means and sources, and restoring it to its legitimate owner; and if no such owner can be identified, it must be entrusted to the public treasury. This rule must be executed by the government with due care, after investigation and furnishing necessary evidence in accordance with the law of Islam.”61
Ownership, management, and control of natural resources: There is a recent increase in scholarship on the topic of natural-resource management and Islamic law.62
Iran constitutionalizes Islamic values regarding protection of the environment in article 50: “The preservation of the environment, in which the present as well as the future generations have a right to flourishing social existence, is regarded as a public duty in the Islamic Republic. Economic and other activities that inevitably involve pollution of the environment or cause irreparable damage to it are therefore forbidden.”63
Holders of public office: In some countries, only Muslims may hold public office. For example, article 107 of the Constitution of Yemen states that a candidate for the post of president must “(practice) his Islamic duties.”64 Similarly, article 4.5 of the Constitution of Brunei states, “No person shall be appointed to be Prime Minister unless he is a Brunei Malay professing the Muslim religion and belonging to the Shafeite sect of that religion.”65
In Pakistan, specific numbers of seats are reserved in the National Assembly and Senate for non-Muslims and women; it is presumed that the balance of seats will be held by male Muslims.66 However, article 62 of the constitution states that members of Parliament must be “of good character and . . . not commonly known as one who violates Islamic Injunctions; and has adequate knowledge of Islamic teachings and practices obligatory duties prescribed by Islam as well as abstains from major sins.”67
Citizenship: Constitutional language may limit rights of citizenship to Muslims. For example, article 9d of the Constitution of Maldives states, “Despite the provisions of article (a) a non-Muslim may not become a citizen of the Maldives.”68
Specific Schools of Islam: Constitutions may privilege specific schools of Islam or require adherence to their jurisprudence. Article 130 of the Constitution of Afghanistan requires that in the absence of relevant specific constitutional or legal language, courts shall rule consistently with Hanafi jurisprudence.69 In Maldives, article 73 requires that holders of office in the People’s Majlis (the legislative body) must belong to the Sunni school of Islam.70 Article 12 of the Constitution of Iran specifies that the official national religion is “the Twelver Ja'farî school [in usul al-Dîn and fiqh], and this principle will remain eternally immutable.”71
Interpretation, Implementation, and Enforcement Issues
Although constitutional language is important, implementation and enforcement of constitutional language can be quite another matter. Effective implementation depends on such factors as levels of state control, the nature of governments in place, levels of judicial independence, degree of access to courts, and an ability to enforce judicial remedies.72 Both legal and political institutions may be involved in implementation and enforcement of constitutional protections.73 The variety of institutions and actors involved in interpreting, implementing, and enforcing Shari’ah can be as diverse as the roles it plays in various legal systems.
Judicial Review: Constitutional Courts
Constitutional review is a relatively new phenomenon in Muslim-majority countries and only took root following the creation of the Egyptian Supreme Constitutional Court in 1979.74 Constitutional review may be carried out in judicial systems either through ordinary court hierarchies that culminate in a supreme court or by specialized institutions with competence to review legislative and governmental action.75 Constitutional court jurisdiction may include power to review legislation, enforce protection of human rights, adjudicate conflicts between state institutions, review international treaties, settle electoral disputes, and conduct trials of public officials.76
Intisar Rabb has argued that constitutionalism in Muslim-majority countries requires designing institutions that are able to harmonize relations between secular courts and Islamic jurists.77 The result of emerging principles of constitutionalism around the world, she states, are new policies that charge judges with interpreting Shari’ah principles in post-authoritarian contexts.78 In Egypt, for example, this is a familiar role for judges of the Supreme Constitutional Court, who have historically engaged—rather than contained or secularized—Islamic law.79
Entrusting judges to interpret and apply Islamic law presupposes that they have received adequate training, which may not always be the case. Najibah Zin has analyzed the educational processes by which judges who serve on Islamic courts in Malaysia are trained and concluded that training in classical and modern texts has improved the quality of work by judges and also promoted uniformity of decision making among states.80
Judicial Review: Pakistan’s Shariat Court
Article 203 of the Constitution of Pakistan establishes a federal Shariat court composed of not more than eight Muslim Judges, including the chief justice, to be appointed by the president. The court has jurisdiction to examine and decide whether any law is “repugnant to the Injunctions of Islam, as laid down in the Holy Qur’an and the Sunnah of the Holy Prophet.”81
If the court determines that a law is repugnant to Islam, it may forward notice to the government specifying the specific provisions that violate Islam and provide an adequate opportunity for justification. If justification is not forthcoming and a final determination of repugnancy is made, the president or governor is required to take immediate steps to amend the law to bring it into conformity with Islamic principles.82
Iran’s Guardian Council
Article 4 of the Constitution of Iran states, “All civil, penal, financial, economic, administrative, cultural, military, political, and other laws and regulations must be based on Islamic criteria. This principle applies absolutely and generally to all articles of the Constitution as well as to all other laws and regulations, and the fuqaha' of the Guardian Council are judges in this matter.”83
According to article 91, the Guardian Council is composed of six ‘adil fuqaha’, conscious of the present needs and the issues of the day, to be selected by the leader, and six jurists, specializing in different areas of law, to be elected by the Islamic Consultative Assembly from among the Muslim jurists nominated by the head of the judicial power.84 The council is charged with responsibility for safeguarding the compatibility of legislation with the Qur’an and Sunnah.85
The concept of government by consultation, often cited as a core principle ensuring legitimacy of democratic institutions and processes, has deep roots in Islam. Historical reports indicate that the Prophet engaged in regular consultation with his companions on affairs of the state.86 In the modern era, the concept of shura may be incorporated into constitutions, as is the case in Saudi Arabia, where article 2 of the constitution states that the “Shura Council shall hold fast to the bond of Allah and adhere to the sources of Islamic legislation.”87 Article 18 states, “Laws, international treaties and agreements, and concessions shall be issued and amended by royal decrees after being reviewed by the Shura Council.”88 Additionally, article 23 of the Shura Council law states, “The Shura Council shall have the jurisdiction to propose a draft of a new law or an amendment of an enacted law and study them within the Shura Council. Speakers shall submit the Shura Council resolution of the new or amended law to the king.”89
Other Consultative Councils
Consultation on constitutional and Islamic legal issues is provided for in other ways in constitutions in Muslim-majority countries. Options include:
Morocco: Article 88 of the Constitution of Morocco states that the king, as guarantor of the free exercise of beliefs, may submit questions to the Supreme Council of the Ulema, which is charged with ensuring respect for Islam.90 The council is the sole body empowered to comment on fatwas before they officially take effect.
Algeria: Article 171 of the constitution states, “A High Islamic Council shall be established under the auspices of the President of the Republic in order to: encourage and promote ijtihad; to provide its opinion on the matters submitted to it with regard to the religious rules; to present a periodic report of its activity to the President of the Republic.”91 Article 172 provides that the “High Islamic Council shall be composed of fifteen (15) members, including the President, who shall be selected by the President of the Republic from among the national elites in the different sciences.”92
Somaliland: The 2000 Constitution of Somaliland established an Ulema Council, composed of an equal number of members chosen by the Cabinet and House of Elders. The council was charged with responsibility for filing formal declarations on religious disagreements and matters in which a conflict with Shari’ah was alleged or apparent.93
Egypt: Article 4 of the 2012 constitution stated that the Al-Azhar Council of Senior Scholars was to be consulted in matters relating to Islamic Shar’ia.94
Other Implementation Issues
Successful implementation and enforcement of constitutional principles do not depend solely on language, institutions, and actors. Low literacy rates, judicial corruption, and low levels of public participation in legislative and other government processes also impact constitutional implementation.95 Successful enactment of corollary legislation to actualize constitutional principles also affects their successful implementation.
Commentators state that in current transitional contexts in which the role of Islam, the state, and Shari’ah are evolving in relation to one another, it will be necessary to watch the also evolving roles of the judiciary and other institutions charged with interpretation and implementation issues to ensure that they remain sensitive to legitimate expert opinions.96
Emerging Trends and Issues
The past decade has seen a sharp increase globally in the number of new constitutions, including in Muslim-majority countries, and discussions about potential roles for Islam and Shari’ah have been prominent during many of these processes. One result of the surge in constitutional reform is that a number of comparative options are now available from which practitioners participating in constitutional transitions can choose.
At the same time, the relatively new field of comparative constitutional law has also been growing, resulting in increased availability of empirical and comparative studies,97 which in turn facilitate conscious borrowing during constitutional processes.98 However, borrowing must be carried out with care since unless historical, social, and other contexts are taken into consideration, successful constitutional outcomes may be elusive.99
Some theories previously unquestioned are also under review. Historical beliefs that constitutions should not incorporate formal roles for religion are now being challenged by scholars who characterize those perspectives as reflecting Euro-centric narratives. These scholars point out that constitutional frameworks in premodern Muslim governments were commonly pluralist as a means of creating political and legal frameworks that successfully incorporated religious law.100
Other scholars are engaged in debates about the legitimacy of constitutions that privilege the role of religion, coming to different conclusions. Ran Hirschl states that rise of religious fundamentalism in North America and other regions of the world, along with the increased prevalence of constitutionalism, has created a new legal order, which he terms “constitutional theocracy.”101 The result, Hirschl states, is a de facto blurring of boundaries of religion and state that are continually contested in political and judicial spheres.102 Larry Cata Backer comes to a different conclusion, stating that constitutions that privilege a role for religion can be considered legitimate since they provide an alternate framework that displaces constitutionalist values presented by international systems and post-1945 constitutional theories.103
Process and public participation in constitutional exercises took on greater importance during democratic transitions of the Arab Spring. Nathan Brown has found that constitutional drafting processes in Muslim-majority countries have become more public and participatory, and that in the aftermath of social movements advocating for reform, Muslims have begun to demand that these processes reflect the will of the people instead of demands of elites.104 Abdullahi Ahmed An-Na’Im finds common ground with this perspective, arguing that legitimacy of constitutional processes is of equal importance with the content of the final document, and acceptance of a constitution in the eyes of the public depends on achieving the widest possible consensus among varying groups.105 As he states, “In the final analysis, the development and practice of constitutionalism are always achieved by citizens acting through their own normative and institutional resources in order to further develop and secure those resources over time. The underlying rationale of this approach is that constitution-making is an open-ended process of trial and error through practice, and not a once-and-for-all right or wrong, good or bad outcome.”106
In the Arab world, as is the case elsewhere, including in states where pubic participation has been stifled by the government, civil war, or other factors, the desire for broad public debate and participation will continue to shape constitutional processes in years to come.107 Just as is the case in other democracies around the world, it is increasingly evident that the Islamic system of governance derives its mandate from the population and is answerable to them.108
The Arc of Constitutionalism in the Muslim-Majority World
Over the past decade, change has come rapidly in Muslim-majority countries around the world, and rapid change continues to make the field of constitutional law challenging. Historical perspectives shaping beliefs about Islam, the state, and appropriate roles for Shari’ah are also changing. Recent democratic and constitutional transitions in the Arab world have demonstrated that experience now often trumps theory as a vehicle for developing new democratic models able to accommodate historical, political, religious, and social realities. In recent years, constitutional changes have often been driven by public uprisings and demands for increased public participation, including in decisions relating to the role of Islam and Islamic law. As Khaled Abou El Fadl states, what we can learn from constitutional theory (as opposed to events themselves) in these contexts is limited, and highly abstract doctrine has been of limited use during recent constitutional processes.109
Inductive processes now appear to be the order of the day as concrete experience drives the emergence of new constitutional theories.110 Issues traditionally decided by elites—such as power, legitimacy, citizenship, forms of government, decentralization, minority rights, separation of powers, and relationships between religion and states—are now routinely on the agenda during public debates about Islamic constitutions. Whereas previously constitutions in Muslim-majority countries tended to be analyzed, if at all, as individual case studies, constitutionalism following the Arab Spring has become a dynamic, nuanced field featuring work by new scholars alongside some who have previously been well known. Public debate is now a common event in constitutional transitions in the Arab world, and even when suppressed, peoples’ voices continue to demand space to participate in creating new visions for their countries and new constitutional frameworks for democratic regimes. As recent publications attest, contributions by constitutional scholars and practitioners from the Middle East and North Africa are increasing, and their work especially will continue to provide depth and legitimacy as democratic and constitutional movements lead the region from authoritarian rule to more open forms of government.111 Whatever the ultimate outcomes, debating these issues is essentially a political process to be resolved among Muslims themselves.
Altogether, as Mohammad Hashim Kamali states,112 “The Islamic concept of constitutional law remains open to development and reform without necessarily negating its own religious and ideological heritage.” This continues to be an exciting field.
Review of the Literature
Until recently, the history of scholarship in the field of Islam, Shari’ah, and constitutions was one of incremental development over the course of many decades.
During the first half of the 20th century, two seminal scholars, Joseph Schact and Noel Coulson, dominated the field of Islamic law. Although their work remains respected in large measure, some amount of controversy arose due to a belief that they analyzed Islamic legal issues according to Western perspectives, concluding that Islamic law was ill suited to addressing issues relating to political power, governance, and constitutional theory. Relationships between Islam and the state were not otherwise the subject of routine scholarship during this period; discussions that did take place tended simply to address the question of whether Islam and constitutions were compatible at all.
Principally as a result of political developments in the Arab world, a new period of scholarship began in the second half of the 20th century. With few exceptions, scholarship between 1960 and 1998 largely addressed constitutional issues in Muslim-majority countries as discrete case studies and not examples of emerging constitutional theory. Political scientists were active during this period; scholarship by jurists was notably absent from the field. Apart from descriptive country studies, academic discourse tended to focus on basic questions such as whether Islam and constitutionalism were compatible and whether concepts such as the rule of law were relevant at all in Islamic states.
The early 21st century saw heightened interest in issues relating to Islam, Shari’ah, and constitutions by legal scholars, many of whom are still active in the field. Although individual case studies continued to appear during this period, scholarship in general gravitated toward in-depth examinations of issues such as constitutionalism, democracy, the relationship between Islam and the state, the role of Shari’ah within constitutional and legal orders, and whether constitutions empower authoritarian regimes to the detriment of their Muslim constituencies.
In the first decade of the 21st century, democratization and constitutional reform movements, along with efforts to update codes and courts, brought discussions about relationships among Islam, constitutions, and Shari’ah to center stage; academic scholarship followed suit. Due to high-profile international interventions in Iraq and Afghanistan and constitutional exercises that followed, case studies from those countries tended to dominate the field during this period and included a number of articles written by international legal advisors who served during these processes. By the end of the decade, scholarship began to focus on new and traditional constitutional theories and included empirical and comparative analyses. Important works on roles for Shari’ah, secularism, theocratic constitutionalism, and the doctrine of Siyasa Shari’ah appeared.
Protests and civil unrest beginning in 2011 in the North Africa and Middle East regions ushered in new constitutional movements, and the relationship between Islam and states, along with roles for Shari’ah in newly created legal orders, were central points of debate during these movements. The quantity and quality of related legal scholarship grew exponentially during this period. New country studies included analyses of constitutional issues and processes in Egypt, Nigeria, Iraq, Indonesia, Afghanistan, Malaysia, Turkey, and Iran. Analytical studies focused on empirical and comparative analyses of constitutions in Muslim-majority countries, relationships between Islamic and international law, and the role of international actors promoting and supporting constitutional development in Muslim-majority countries.
During the second decade of the 21st century, efforts to analyze constitutional experiences and theories from within Arabic contexts increased, and compilations included articles by a number of Muslim scholars newly active in the field. Areas of inquiry have included whether constitutionalism in Islamic contexts incorporates issues inherently different from those in other circumstances. Rich debates continue, and the field of Islam, Shari’ah, and constitutional law promises to remain vibrant and consequential, in both practice and theory, for some time to come.
Links to Digital Materials
Constitute Project. “Constitute: The World’s Constitutions to Read, Search, and Compare.”
Islamic Legal Studies Program at Harvard Law School. “SHARIAsource.”
Ahmed, Dawood I., and Moamen Gouda. “Measuring Constitutional Islamization: The Islamic Constitutions Index.” Hastings International and Comparative Law Review 38.1 (Winter 2015): 1–76.Find this resource:
Ala, Hamoudi Haider. “Ornamental Repugnancy: Identitarian Islam and the Iraqi Constitution.” University of St. Thomas Law Journal 7.3 (Spring 2010): 692–713.Find this resource:
An-Na’im, Abdullahi Ahmed. Islam and the Secular State: Negotiating the Future of Shari’a. Cambridge, MA: Harvard University Press, 2008.Find this resource:
Brown, Nathan J. Constitutions in a Nonconstitutional World: Arab Basic Laws and the Prospects for Accountable Government. Albany: State University of New York Press, 2002.Find this resource:
Brown, Nathan J., and Mara Revkin. “Islamic Law and Constitutions.” In The Oxford Handbook of Islamic Law. Edited by Anver M. Emon and Rumee Ahmed, 1–33. Oxford University Press, 2015.Find this resource:
Emon, Anver M. “Reflections on the ‘Constitution of Medina’: An Essay on Methodology and Ideology in Islamic Legal History.” UCLA Journal of Islamic and Near Eastern Law 1.1 (Fall/Winter 2001–2002): 103–133.Find this resource:
Feldman, Noah R. The Fall and Rise of the Islamic State. Princeton, NJ: Princeton University Press, 2008.Find this resource:
Grote, Rainer, and Tilmann J. Röder, eds. Constitutionalism in Islamic Countries: Between Upheaval and Continuity. New York: Oxford University Press, 2012.Find this resource:
Grote, Rainer, and Tilmann J. Röder, eds. Constitutionalism, Human Rights, and Islam after the Arab Spring. New York: Oxford University Press, 2016.Find this resource:
Hallaq, Wael B. The Impossible State: Islam, Politics, and Modernity’s Moral Predicament. New York: Columbia University Press, 2013.Find this resource:
Lombardi, Clark B. “Constitutional Provisions Making Sharia ‘A’ or ‘The’ Chief Source of Legislation: Where Did They Come From? What Do They Mean? Do They Matter?” American University International Law Review 28 (2013): 733–774.Find this resource:
Lombardi, Clark B. “Designing Islamic Constitutions: Past Trends and Options for a Democratic Future.” International Journal of Constitutional Law 11.3 (2013): 615–645.Find this resource:
Quraishi-Landes, Asifa. “Islamic Constitutionalism: Not Secular. Not Theocratic. Not Impossible.” Rutgers Journal of Law and Religion 16.3 (Summer 2015): 553–579.Find this resource:
Quraishi-Landes, Asifa. “The Sharia Problem with Sharia Legislation. Ohio Northern University Law Review 41.3 (2015): 545–566.Find this resource:
Rabb, Intisar. “The Least Religious Branch? Judicial Review and the New Islamic Constitutionalism.” UCLA Journal of International Law and Foreign Affairs 17 (2013): 75–132.Find this resource:
The United States Commission on International Religious Freedom (USCIRF). “The Religion-State Relationship and the Right to Freedom of Religion or Belief: A Comparative Textual Analysis of the Constitutions of Majority Muslim Countries and Other OIC Members.” August 2012.
(1.) See, for example, Jeremy Patrick, “Religion and New Constitutions: Recent Trends of Harmony and Divergence,” McGeorge Law Review 44.4 (2013): 903–905.
(3.) Clark B. Lombardi, “Designing Islamic Constitutions: Past Trends and Options for a Democratic Future,” International Journal of Constitutional Law 11.3 (2013): 616; and Ran Hirschl, “The Rise of Constitutional Theocracy,” Harvard International Law Journal Online 49 (October 16, 2008): 72–73.
(4.) Lombardi, “Designing Islamic Constitutions,” 616; Hirschl, “Constitutional Theocracy,” 72–73; and Rainer Grote and Tilmann J. Röder, eds., Constitutionalism, Human Rights, and Islam after the Arab Spring (New York: Oxford University Press, 2016).
(5.) Rainer Grote, Tilmann J. Röder, and Ali M. El-Haj, preface to After the Arab Spring, xxxi–xxxii.
(7.) Khaled Abou El Fadl, “The Centrality of Shari’ah to Government and Constitutionalism in Islam,” in Constitutionalism in Islamic Countries: Between Upheaval and Continuity, eds. Rainer Grote and Tilmann Röder (New York: Oxford University Press, 2012).
(8.) Mohammad Hashim Kamali, “Constitutionalism in Islamic Countries: A Contemporary Perspective of Islamic Law,” in Between Upheaval and Continuity, 20. Kamali argues that it was in fact the first constitution. See also Anver M. Emon, “Reflections on the ‘Constitution of Medina’: An Essay on Methodology and Ideology in Islamic Legal History,” UCLA Journal of Islamic and Near Eastern Law 1.1 (Fall/Winter 2001–2002): 103–105.
(9.) Emon, “Reflections,” 105–106; Jeremy Kleidosty, The Concert of Civilizations: The Common Roots of Western and Islamic Constitutionalism (Surrey, U.K.: Ashgate, 2015), 73–95; and Kamali, “Constitutionalism in Islamic Countries,” 20. A more recent conception of a model Islamic constitution potentially useful as a framework for governance is the Al-Azhar Islamic Constitution, the product of a 1977 conference sponsored by the Islamic Research Academy at Al-Azhar University. See Dawood I. Ahmed and Moamen Gouda, “Measuring Constitutional Islamization: The Islamic Constitutions Index,” Hastings International and Comparative Law Review 38.1 (Winter 2015): 36.
(10.) Kleidosty, Concert of Civilizations, 76.
(11.) Larry Catá Backer, “Theocratic Constitutionalism: An Introduction to a New Global Legal Ordering,” Indiana Journal of Global Legal Studies 16.1 (Winter 2009): 86–93. Even so, Abdullah Ahmed An-Na’im states that consensus and legitimacy remain of paramount importance. See An-Na’im, “The Legitimacy of Constitution-Making Processes in the Arab World: An Islamic Perspective,” in After the Arab Spring, 29–31.
(12.) Mohammad Rasekh, “Sharia and Law in the Age of Constitutionalism,” Journal of Global Justice and Public Policy 2.2 (Spring 2016): 260.
(13.) Brown and Revkin, “Islamic Law and Constitutions,” 7.
(14.) Wael B. Hallaq, The Impossible State: Islam, Politics, and Modernity’s Moral Predicament (New York: Columbia University Press, 2013), ix.
(15.) Ahmed and Gouda, “Measuring Constitutional Islamization,” 9–10.
(16.) Brown and Revkin, “Islamic Law and Constitutions,” 18. Stating that Abdul A’la Mawdudi, the founder of Jamaat al-Islami in Pakistan, reportedly said that Islam was the antithesis of popular democracy.
(17.) Suhail Hussein Al-Fatlawi, “Islam’s Attitude towards Democracy: Comparative Study in International Human Rights Law,” Journal of Politics and Law 9.1 (2016): 76–78; and Mark Green and Hallam Ferguson, “Islam and Democracy,” Fletcher Forum of World Affairs 39.1 (Winter 2015): 28–29.
(18.) Forrest Hansen, “The Iraqi Constitution: Upholding Principles of Democracy While Struggling to Curtail the Dangers of an Islamic Theocracy,” Roger Williams University Law Review 12 (Fall 2006): 1. Interestingly, Noah Feldman and Roman Martinez found that increases in democracy during constitutional processes in Iraq resulted in “more explicit and powerful provisions oriented to Islamic law . . . To put it simply, more democracy meant more Islam.” Noah Feldman and Roman Martinez, “Constitutional Politics and Text in the New Iraq: An Experiment in Islamic Democracy,” Fordham Law Review 75.2 (2006): 884.
(19.) Ahmed and Gouda, “Measuring Constitutional Islamization,” 6–7. Using this matrix, the authors found the ten countries considered the most Islamic are (in order): Iran, Saudi Arabia, Maldives, Pakistan, Somalia, Afghanistan, Yemen, Bahrain, Iraq and Algeria. See p. 50.
(20.) Ahmed and Gouda, “Measuring Constitutional Islamization,” 35.
(21.) Ahmed and Gouda, “Measuring Constitutional Islamization,” 68.
(22.) Ahmed and Gouda, “Measuring Constitutional Islamization,” 42–43. The authors claim that the usefulness of this index is that it allows a more nuanced understanding of various layers and degrees of constitutional Islamization. See p. 52.
(23.) Kamali, “Constitutionalism in Islamic Countries,” 22. References to an Islamic way of life are included in article 31 of the Constitution of Pakistan: “Steps shall be taken to enable the Muslims of Pakistan, individually and collectively, to order their lives in accordance with the fundamental principles and basic concepts of Islam and to provide facilities whereby they may be enabled to understand the meaning of life according to the Holy Quran and Sunnah.” Pak. Const. of 1973 art. XXXI (revised 2015). Available online.
(24.) Kamali, “Constitutionalism in Islamic Countries,” 19–20.
(25.) The United States Commission on International Religious Freedom (USCIRF), “The Religion-State Relationship and the Right to Freedom of Religion or Belief: A Comparative Textual Analysis of the Constitutions of Majority Muslim Countries and Other OIC Members” (August 2012). The USCIRF published two reports in 2005 and 2012 containing comparative textual analyses of the constitutions of forty-six Muslim majority countries and ten other OIC members. The analyses include data on relationships between religion and state, guarantees of religious freedom, remedies for violation of rights, and issues relating to human rights and international law. However, the data have not been updated since 2012.
(26.) Asifa Quraishi-Landes, “Islamic Constitutionalism: Not Secular. Not Theocratic. Not Impossible,” Rutgers Journal of Law and Religion 16.3 (Summer 2015): 559–560.
(27.) Pew Research Center, “The Future World Religions Population Growth Projections, 2010–2050,” (April 2, 2015); and Pew Research Center, “Global Religious Futures Project”.
(28.) These countries are Morocco, Somalia, Afghanistan, Iran, Tunisia, Mauritania, Yemen, Iraq, Maldives, Comoros, Algeria, Jordan, Djibouti, Libya, Pakistan, and Egypt.
(29.) USCIRF, “Religion-State Relationship,” 8–9.
(30.) Lombardi, “Designing Islamic Constitutions,” 637.
(31.) Nathan J. Brown and Adel Omar Sherif, “Inscribing the Islamic Shari‘a in Arab Constitutional Law,” in Islamic Law and the Challenges of Modernity, eds. Yvonne Y. Haddad and Barbara F. Stowasser (Lanham, MD: Rowman & Littlefield, 2004), 57–59.
(32.) Clark B. Lombardi, “Constitutional Provisions Making Sharia ‘A’ or ‘The’ Chief Source of Legislation: Where Did They Come From? What Do They Mean? Do They Matter?,” American University International Law Review 28.3 (2013): 737.
(33.) Lombardi, “Constitutional Provisions,” 747.
(34.) Lombardi, “Constitutional Provisions,” 751–767.
(35.) USCIRF, “Religion-State Relationship,” 6.
(36.) Dawood I. Ahmed and Tom Ginsburg, “Constitutional Islamization and Human Rights: The Surprising Origin and Spread of Islamic Supremacy in Constitutions,” Virginia Journal of International Law 54.3 (Summer 2014): 634–635.
(37.) Article I states that the “Constitution [comprises] The Holy Qur'an and the Prophet's Sunnah.” Saudi Arabia Const. of 1992 art. I (revised 2013). Available online. See also Frank E. Vogel, Islamic Law and Legal System: Studies of Saudi Arabia (Boston: Brill, 2000), 3. A formal written constitution has been debated at various points since the kingdom was founded in 1932, but the idea has consistently been rejected by religious actors who desire to promote and protect Wahhabi doctrines. See Alex Schank, “Constitutional Shari’a: Authoritarian Experiments with Islamic Judicial Review in Egypt, Iran and Saudi Arabia,” Georgetown Law Journal 102.2 (January 2014): 532.
(38.) Ahmed and Gouda, “Measuring Constitutional Islamization,” 47; USCIRF, “Religion-State Relationship,” 10.
(42.) Nathan J. Brown, Constitutions in a Nonconstitutional World: Arab Basic Laws and the Prospects for Accountable Government (Albany: State University of New York Press, 2002), 30.
(43.) Ahmed and Gouda, “Measuring Constitutional Islamization,” 19.
(49.) Morocco Const. of 2011 art. VII. Other examples can be found in Ahmed and Gouda, “Measuring Constitutional Islamization,” 46.
(50.) Ahmed and Gouda, “Measuring Constitutional Islamization,” 14–17.
(51.) Quraishi-Landes, “Islamic Constitutionalism: Not Secular,” 557. See also Amr A. Shalakany, “Islamic Legal Histories,” Berkeley Journal of Middle Eastern and Islamic Law 1 (2008): 16.
(52.) Kamali, “Constitutionalism in Islamic Countries,” 24–25; and Lombardi, “Designing Islamic Constitutions,” 618.
(53.) Asifa Quraishi-Landes, “The Sharia Problem with Sharia Legislation,” Ohio Northern University Law Review 41 (2015): 558–562.
(54.) Brown and Revkin, “Islamic Law and Constitutions,” 5.
(56.) Turk. Const. art. XXIV.
(57.) Ahmed and Gouda, “Measuring Constitutional Islamization,” 2, 61–62.
(58.) Ahmed and Ginsburg, “Constitutional Islamization and Human Rights,” 639–645; and Clark B. Lombardi and Nathan J. Brown, “Do Constitutions Requiring Adherence to Shari’a Threaten Human Rights? How Egypt’s Constitutional Court Reconciles Islamic Law with the Liberal Rule of Law,” American University International Law Review 21.3 (2006): 424–425.
(59.) Ahmed and Gouda, “Measuring Constitutional Islamization,” 62.
(60.) Sujit Choudhry, I. Michael Heyman, and Richard Stacey, Combating Corruption: Constitutional Frameworks for the Middle East and North Africa. (Center for Constitutional Transitions, International Institute for Democracy and Electoral Assistance and the United Nations Development Project, 2014).
(62.) See, for example, Karim Handy, “Islamic Perspectives on Natural Resources Management and Sustainability.” (paper presented at Tenth Biennial Meeting for International Institute for Fisheries Economics and Trade, Corvallis, Oregon, July 10–14, 2000).
(63.) Iran Const. art. L.
(65.) Brunei Const. of 1959 art. IV, § 5 (revised 2006). Available online. Ahmed and Gouda found fifteen constitutions containing requirements that candidates running for head of state must be Muslim. “Measuring Constitutional Islamization,” 47.
(66.) Pak. Const. arts. LI, LIX.
(67.) Pak. Const. art. LXII.
(69.) Afg. Const. art. CXXX.
(70.) Maldives Const. art. LXXIII.
(71.) Iran Const. art. XII.
(72.) USCIRF, “Religion-State Relationship,” 7.
(73.) Lombardi, “Chief Source of Legislation,” 767–772. Brown and Revkin discuss potential causes of increased judicial activism and initiative in interpreting Shari’ah and Islamic principles. “Islamic Law and Constitutions,” 14.
(74.) Rainer Grote, “Constitutional Review in Arab Countries: Dawn of a New Era?” in After the Arab Spring, 677.
(75.) Rainer Grote, “Models of Institutional Control: The Experience of Islamic Countries,” in Between Upheaval and Continuity, 221.
(76.) Grote, “Models of Institutional Control,” 227–235.
(77.) Intisar Rabb, “The Least Religious Branch? Judicial Review and the New Islamic Constitutionalism,” UCLA Journal of International Law and Foreign Affairs 17 (Spring 2013): 77.
(78.) Rabb, “The Least Religious Branch?,” 79–80.
(79.) Rabb, “The Least Religious Branch?,” 94–98.
(80.) Najibah M. Zin, “The Training, Appointment, and Supervision of Islamic Judges in Malaysia,” Pacific Rim Law and Policy Journal 21.1 (2012): 131.
(81.) Pak. Const. art. CCIII.
(82.) Pak. Const. art. CCIII(d)(3).
(83.) Iran Const. art. IV.
(84.) Iran Const. art. XCI.
(85.) The preamble to the Iranian constitution states, “Legislation setting forth regulations for the administration of society will revolve around the Qur'an and the Sunnah. Accordingly, the exercise of meticulous and earnest supervision by just, pious, and committed scholars of Islam (al-fuqaha' al-'udul) is an absolute necessity.”
(86.) El Fadl, “The Centrality of Shari’ah,” 49.
(87.) Saudi Arabia Const. art. II.
(88.) Saudi Arabia Const. art. XVIII.
(90.) Morocco Const, art. LXXXVIII.
(92.) Algeria Const. of 1989 art. CLXXII.
(94.) Egypt Const. of 2012 art. IV (abolished). Available online. The consultative role of Al-Azhar was eliminated in the 2014 constitution, which simply states in article VII that “Al-Azhar is an independent Islamic scientific institution, with exclusive competence over its own affairs. It is the main reference for religious sciences and Islamic affairs. It is responsible for calling to Islam, as well as disseminating religious sciences and the Arabic language in Egypt and all over the world.” Egypt Const. of 2014 art. VII. Available online.
(95.) Shannon Daley, “Closing the Gap between Law and Reality: Women’s Constitutional Rights in Afghanistan,” Connecticut Journal of International Law 29 (Spring 2014): 329–351.
(96.) Rabb, “The Least Religious Branch?,” 115. See also Lombardi, “Designing Islamic Constitutions,” 640–644.
(97.) David M. Mednicoff and Joanna E. Springer, “The Rule of Law and Political Liberalization in the Arab Gulf,” in Gulf Politics and Economics in a Changing World, eds. Michael Hudson and Mimi Kirk (Hackensack: World Scientific Publishing, 2014). Ahmed and Gouda, “Measuring Constitutional Islamization”; Ahmed and Ginsburg, “Constitutional Islamization and Human Rights”; Nimer Sultany, “Religion and Constitutionalism: Lessons from American and Islamic Constitutionalism,” Emory International Law Review 28.1 (2014): 349–350. Increases in empirical and comparative data also allow, for example, forecasting of popular opinion about Islamic constitutions, contributing to increased levels of public participation in constitutional processes. See Nazri Muslim and Ahmad Zul Hakimi Hassim, “Student Perceptions on Islamic Provisions in the Federal Constitution in the Context of Ethnic Relations in Malaysia,” Middle-East Journal of Scientific Research 21.9 (2014).
(98.) Brown and Revkin, “Islamic Law and Constitutions,” 9–10. Evidence of conscious borrowing has become evident, indicating conscious comparative work at play. Additionally, detailed case studies and comparative analyses have become more common. See generally Grote and Röder, eds., After the Arab Spring.
(99.) Grote and Röder, eds., After the Arab Spring.
(100.) Quraishi-Landes, “The Sharia Problem with Sharia Legislation,” 564.
(101.) Hirschl, “The Rise of Constitutional Theocracy,” 73–74.
(102.) Hirschl, “The Rise of Constitutional Theocracy,” 74; see also Ran Hirschl, Constitutional Theocracy (Cambridge, MA: Harvard University Press, 2010).
(103.) Backer, “Theocratic Constitutionalism,” 134–137. Haider Ala Hamoudi discusses both theories in “Ornamental Repugnancy: Identitarian Islam and the Iraqi Constitution,” University of St. Thomas Law Journal 7.3 (Spring 2010): 692–694.
(104.) Brown and Revkin, “Islamic Law and Constitutions,” 8. They state that following the 2003 Iraq war, Ayatollah Ali Sistani issued a fatwa stating that the constitutional drafting committee should be democratically elected and that the draft constitution should be submitted to the public for approval by way of referendum.
(105.) An-Na’im, “Legitimacy of Constitution-Making,” 29.
(106.) An-Na’im, “Legitimacy of Constitution-Making,” 30. Outcomes deriving from participatory processes do not necessarily produce specific or predictable outcomes. As constitutional process in Iraq became more democratic, the constitution itself became more Islamic in orientation. See Feldman and Martinez, “An Experiment in Islamic Democracy,” 884.
(107.) Grote and Röder, introduction to After the Arab Spring, 5.
(108.) Kamali, “Constitutionalism in Islamic Countries,” 32.
(109.) El Fadl, “The Centrality of Shari’ah,” 35.
(110.) As Nathan Brown and Mara Revkin state, “The study of the intersection of Islamic law and constitutionalism was initially richer in its focus on broad intellectual themes but is increasingly showing signs of focus on actual practice,” demonstrating that the era of “textual analysis of laws that ignore political context and history or for political understandings that ignore (internal) debates” is over. Brown and Revkin, “Islamic Law and Constitutions,” 19. Abdullahi Ahmed An-Na’im is in agreement, stating, “In each case, the question should be about how the country’s experience relates to the underlying rationale or purpose of constitutionalism as a general principle. Since any definition of this concept is necessarily the product of the experiences of specific societies in their various settings, it is neither reasonable nor practicable to insist on a single approach to the definition or implementation of one understanding of constitutionalism to the exclusion of all others. A more globally accepted broad understanding of the term may evolve over time, but that should be the outcome of comparative analysis of practical experiences, rather than the projection of an exclusive definition based on liberal or other ideological or philosophical tradition.” An-Na’im, “Legitimacy of Constitution-Making,” 49.
(111.) See, for example, Grote and Röder, After the Arab Spring in which a substantial percentage of contributions reflect Muslim perspectives.
(112.) Kamali, “Constitutionalism in Islamic Countries,” 20.