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Islamic Constitutionalism Annu. Rev. Law. Soc. Sci. 2007.3:115-140. Downloaded from arjournals.annualreviews.org by SEIR on 01/24/08. For personal use only.

Sa¨ıd Amir Arjomand Department of Sociology, State University of New York, Stony Brook, New York 117946-4356; email: said.arjomand@stonybrook.edu

Annu. Rev. Law Soc. Sci. 2007. 3:115–40

Key Words

First published online as a Review in Advance on August 8, 2007

comparative constitutionalism, Islamic law, ideology, legal change

The Annual Review of Law and Social Science is online at http://lawsocsci.annualreviews.org This article’s doi: 10.1146/annurev.lawsocsci.3.081806.112753 c 2007 by Annual Reviews. Copyright  All rights reserved 1550-3585/07/1201-0115$20.00

Abstract As the first survey of the topic, this review covers Islamic constitutionalism since its emergence a century ago, showing a significant range of historical variation. The first two phases of Islamic constitutionalism are separated by a watershed, the late coming of the age of ideology, which began with the creation of Pakistan in 1947, thus predating the contemporary resurgence of Islam by some two decades. In the first phase, Islam appeared as a limitation to government and legislation, without any presumption that it should be the basis of the constitution itself. In the second phase, Islam came to be considered the basis of the constitution and the state. In the incipient third phase of postideological Islamic constitutionalism, we witness a return to the idea of limited government—this time as the rule of law according to a constitution that is not based on but is inclusive of the principles of Islam as the established religion.

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INTRODUCTION

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Islamic constitutionalism emerged in the late nineteenth and early twentieth centuries with the reception of Western constitutionalism in the Muslim world. It was elaborated and reformulated with successive waves of constitutional and political ideas. These waves gave rise to an early phase of liberal constitutionalism in the Muslim world, followed by an era of ideological constitution-making (Arjomand 1992, 2007c), and finally the current return to the rule of law and postideological constitutionalism. The conception of the place of the shari‘a (Islamic law) in the constitutional order is crucial for the definition of Islamic constitutionalism, but it was not a constant and has in fact varied considerably from one period to the next. For empirical support in this analysis, I selectively focus on the constitutional experience of the leading countries in each phase of the development of Islamic constitutionalism. This survey treats Islamic constitutionalism as a legal doctrine and does not deal with the constitutions and constitutional law of the Muslim world, except indirectly and through the impact of that doctrine. Prototypically, Islamic constitutionalism appears with the advent of modern constitutionalism from the West in the writings of a group of Islamic modernists among the reformist bureaucrats, notably Khayr alDin Pasha in Tunisia and Namik Kemal in Turkey, who participated in the drafting of the Tunisian Constitution of 1861 and Ottoman Constitution of 1876, respectively. These reformers argued that representative, constitutional government captured the spirit of Islam. This argument was also forcefully made by the Iranian diplomat, Yusof Khan Mostashar al-Dawla, in a short tract published in 1871, Yak kalama (One Word). The Tunisian Constitution itself has been fairly described as “an attempt to develop a system that is Islamic but not democratic” by introducing accountability of the ruler to the shari‘a and to an elite as the guardian of

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the public interest (Brown & Sherif 2004, p. 58). Ahmad ibn Abi Diy¯af [1872 (2005), esp. p. 75], another Tunisian bureaucrat and drafter of its constitution but writing a decade after the constitution’s promulgation, based his constitutionalist reading of Islamic history on his remarkable intuition that the shari‘a imposed a limitation upon autocratic monarchy. In his words, “monarchy limited by law (k¯anun)” was indeed the normative form of government in Islam after the pristine caliphate. It was violated in some historical periods but was restored by the great Ottoman dynasty. Similar assertions were made by the proponents of constitutionalism during the first decade of the twentieth century in Iran, albeit in a more facile and less scholarly fashion. One pamphleteer asserted that constitutional government had been founded by Prophet Muhammad and was first demanded from the rulers of Europe by the returning crusaders who discovered it as the secret of the Muslims’ success; and a leading journalist claimed it as the pristine form of government in Islam that had subsequently been forgot¯ ten by Muslims (cited in Ajud¯ ani 2003–2004, pp. 367–68, 371–72). This early constitutionalism, which could be considered implicitly Islamic or protoIslamic, found its major embodiment in the Ottoman Fundamental Law (k¯anun-e es¯asi) promulgated on December 23, 1876. It was fully compatible with Islam as institutionalized in the Ottoman Empire, but it would have seemed absurd to designate it explicitly as Islamic for that very reason. It declared the person of the sultan as sacrosanct and not answerable to parliament and entrusted him with “the enforcement of the ordinances of the shari‘a and the state law (k¯anun).” The council of ministers under the grand vizier included the highest religious official of the empire, the Shaykh al-Islam, and the judiciary power consisted of the religious or shar‘i and civil or state law systems. Although the sultan suspended the Ottoman Constitution in February 1878, when the parliamentary deputies insisted on


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ministerial responsibility to parliament, it was regularly reprinted in the imperial yearbook until its restoration in 1908 during the “second constitutional (‘Young Turk’) period” (Lewis 1966, pp. 11–14).

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THE EMERGENCE OF ISLAMIC CONSTITUTIONALISM IN IRAN The emergence of Islamic constitutionalism proper, however, dates from the Iranian Constitutional Revolution (1906–1911). It was the result of the first serious constitutional debates about Islam occasioned by the prominence of the Shi‘ite jurists in that revolution as the national leaders against the Shah and autocracy. All the major issues and problems concerning the place of Islam in a modern constitutional order surfaced in the process of constitution-making and judicial reforms and dominated the public debate in the lively free press. The illusion of the identity of Islam and constitutionalism was badly shaken as the secularizing implications of constitutional law and parliamentary legislation became clear in this process, but it was never given up and was in fact made more robust by being transformed into the proposal for “shar‘i” or “shari‘a-permissible” constitutionalism (mashruta mashru‘a). Although few of these problems were definitively or satisfactorily resolved by it, the idea of shar‘i constitutionalism became clearly defined and elaborated. As distinct from secular constitutionalism, this form of Islamic constitutionalism considered the shari‘a a firm limitation on government and legislation. The peculiarity of Iran as the only Muslim country where Shi‘ism was the established religion left an indelible mark on the character of Islamic constitutionalism as it developed during this first decade of the twentieth century. What distinguished the Shi‘ite from the Sunni (mainstream) branch of Islam by the nineteenth century was its firmly institutionalized clericalism and the existence of a powerful Shi‘ite hierocracy independent of the state. Unlike the Ottoman constitutionalists who

needed to persuade the sultan directly, the Iranian constitutionalist also had the option of turning to the Shi‘ite hierocracy. As a result of this conscious strategy by the constitutionalist movement to draw in the leaders of the Shi‘ite hierocracy in order to pressure the Shah into granting Iran a constitution, the aims of the movement were presented as fully consistent with Islam and implicitly with the interest of the hierocracy to limit the power of the autocratic state. As one clerical constitutionalist affirmed, Iranian constitutionalism was not to imitate foreign constitutionalism and “does not wish any (reprehensible) innovation ¯ (bed‘at) to occur in religion” (cited in Ajud¯ ani 2003–2004, p. 205). This assertion of the identity of constitutionalism and Islam often involved crude and misleading reductionism. The conflation was seriously aggravated by a double entendre with the traditional and modern meanings of mellat as religious community and as the nation. This double meaning made the leaders of the Shi‘ite community appear as the leaders of the Iranian nation as well. The double entendre was useful for securing the support for the constitutionalist movement of the clerics who thought they were promoting the interests of Islam and of the hierocracy against the state and incidentally allowing the representation of Christian, Jewish, and Zoroastrian minorities as independent constituencies in the newly established Iranian Parliament (Majles) ( just as with the Ottoman millet system). However, it also caused serious confusion as the same expression, for example “rights of the mellat/melli rights,” could be read as national (i.e., constitutional) rights by the one side and religious rights (i.e., as specified by the shari‘a) by the other, and it unintentionally inscribed the religious leaders into the constitutionalist movement and ¯ the constitutional order (Ajud¯ ani 2003–2004). The emergence of Islamic constitutionalism in this Shi‘ite form is covered in Hairi’s (1977) Shi‘ism and Constitutionalism in Iran. It was, in the first instance, elaborated in 1907 by Shaykh Fazl All¯ah Nuri (d. 1909). Nuri, one of the three highest ranking Shi‘ite jurists who www.annualreviews.org • Islamic Constitutionalism

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had supported the demand for a constitution in 1905–1906, was alarmed by the secular implications of constitutional government and split from the constitutionalist camp when the discussion of the draft supplement to the Fundamental Law began in 1907. His determined opposition forced all parties in the constitutional debate to scrutinize the principles of order that underlay the Western constitutional models, while he himself launched an Islamic traditionalist movement that eventually rejected parliamentary government altogether and advocated a return to traditional autocracy. In 1907, however, he cogently formulated the idea of shar‘i constitutionalism that gained considerable currency even among the clerics who remained in the constitutionalist camp (Hairi 1977). The core idea of shar‘i constitutionalism was embodied in Article 2 of the 1907 Supplement to the Fundamental Law, which declared: “At no time must any legal enactments of the National Consultative Assembly . . . be at variance with the sacred principles of Islam . . . .” Furthermore, a committee of no less than five religious jurists (mojtaheds) was given the power to “reject, repudiate, wholly or in part, any proposal that is at variance with the sacred laws of Islam.” The most elaborate and influential justification of constitutionalism in terms of Shi‘ite jurisprudence was written in Iraq in the same period and, despite the fact that its author was in the constitutionalist camp, followed Nuri in insisting on the observance of the shari‘a as a limitation on parliamentary legislation. Tanbih al-umma wa tanzih al-milla (Admonishment of the Umma and the Purification of the Nation/Religious Community) by Mirz¯a Mohammad Hosayn Gharavi N¯a’ini (d. 1936) was published in Baghdad in 1909. N¯a’ini adopted the dichotomy of despotic and constitutional governments from the contemporary Arab thinker ‘Abd al-Rahm¯an alKaw¯akibi, modifying it into two forms of government called proprietary or patrimonial (tamallokiyya) and custodial (velay¯atiyya). He then put forward a new reconciliation of constitutional government and the Shi‘ite theory

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of the Imamate, beginning with the Shi‘ite belief that the truly legitimate government belongs to the twelfth Imam who will remain in occultation until the end of time. According to this new Shi‘ite constitutional theory, it was necessary to change a despotic regime to a constitutional one because the former consisted of three sets of usurpations and wrongdoings: (a) It was a usurpation of the authority of God and an injustice (zolm) to Him, (b) it was usurpation of the Hidden Imam’s authority and injustice to the Imam, and (c) it involved injustice to or oppression of the people. By contrast, constitutional government was only injustice to the Hidden Imam because his authority was usurped. Thus, a constitutional regime reduced the three sets of injustices to one and was therefore preferable to despotism as the lesser evil. With one condition, this qualified legitimacy of constitutional government could become categorical: If the constitutional ruler in his exercise of custodial authority “gains the approval of the ulema [as deputies of the Hidden Imam], then there will remain no usurpation and no injustice to the Imam” (Hairi 1977, pp. 193–94, translation slightly modified). Furthermore, N¯a’ini was careful to impose all the same limitations on parliamentary legislation as other Shi‘ite jurists, who had supported constitutionalism but had modified the wording of the crucial equal protection Article 8 of the 1907 Supplement to the Fundamental Law to read: “The people of the kingdom of Iran will have equal rights before the state law” (emphasis added). (The intention was to exclude from equal protection of the law the inequalities between Muslims and non-Muslims, men and women, free persons and slaves as prescribed in the shari‘a.) N¯a’ini accordingly accommodated the substance of the idea of shar‘i constitutionalism regarding the restriction of parliamentary legislation to secular or customary (‘orfi) affairs and explicitly restricted equality before the law to man-made or positive laws (qav¯anin mawzu‘a) on the assumption that they cannot override the shari‘a (Hairi 1977, p. 225).


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This describes the theory of Islamic constitutionalism as it was formulated in relation to Shi‘ite jurisprudence in Iran in the first decade of the twentieth century. The practice was very different. The committee of five mojtaheds was never formed because the great majority of Shi‘ite jurists selected by the Second Majles (1909–1911) in several rounds considered it beneath their dignity to accept, and the majority of clerical supporters of the Majles withdrew from politics in disillusionment. Only two politically ambitious clerics in the Majles, Sayyed Hasan Modarres and H¯ajj Mirz¯a Yahy¯a, the Im¯am Jom‘ah of Khoi, did perform the supervisory role of insuring consistency of legislation with the shari‘a in a fashion, without formally instituting a committee (Arjomand 1993b). A generation later, however, as is discussed below, some of the Shi‘ite jurists inspired by it partially fulfilled the promise of Islamic constitutionalism by codifying many of the substantive norms of the shari‘a in the Iranian Civil Code. In the first phase of Islamic constitutionalism surveyed in this section, shari‘a appeared as a limitation to government and legislation. There was never a presumption that it should be the basis of the constitution itself. In this period, Islam was considered a part of the larger issue of constitutional governance and not as the basis of the constitution. The impact of Islam on constitutionalism with the late coming of the age of ideology in the Middle East was radically different from the first, and far more destructive. In this wave of ideological constitution-making,1 Islam increasingly appears as the basis of the constitution 1

The defining characteristics of the ideal type that I have called “ideological constitution,” as originally developed in the Soviet Constitution of 1918, are (a) the conception of constitution primarily as an instrument of social transformation and only secondarily as the foundation of the political order, and (b) the nullification of civil and human rights when found inconsistent with the ideological principles underlying the constitution. The interwar period is considered the highpoint of the age of ideology in Europe, with communism and fascism pushing liberal democracy into a defensive corner intellectually. The age of ideology shifted to the emerging Third World after expiring in Western Europe in 1945 (Arjomand 1992, 2007c). Developmental-

and the state rather than as a limitation to them.

PAKISTAN AND ISLAMIC CONSTITUTIONALISM The next phase of Islamic constitutionalism began after the creation of Pakistan in 1947 and continues to the present; its distinctive feature has been the ideological treatment both of Islam and of the constitution. After the partition of India, with which occurred much communal violence, the citizens of the new nation of Pakistan, including many refugees, embarked on setting up a constitutional state for the Muslims of India. Despite the declaration of Pakistan’s founder in favor of a secular state, a consensus soon emerged that this new state was to be based on Islam. The fundamentalists, led by Mawlana ` Abu’l-a` la’ Mawdudi (d. 1979), founder of the Jamaat-i Islami, who had opposed the idea of Pakistan as a secular state, now launched the movement for an Islamic constitution, calling for an ideological state that was endorsed by a convention of Sunni and Shi‘ite ulema (Maududi 1960, pp. 154–56, 354; Binder 1961). This ideological state was to be distinct from other postcolonial new states of the era because the struggle to liberate Muslim territories from foreign imperial rule had no basis in Islam. What Islam required was not a war of national liberation but the establishment of the sovereignty of Allah through jih¯ad (Ahmed 1987, p. 95). Mawdudi called his Islamic ideological state “theo-democracy” and characterized it as “the very antithesis of secular Western democracy.” It repudiated national sovereignty or sovereignty of the people, replacing it with “the sovereignty of God and vicegerency (Khilafat) of man” (Maududi 1960, pp. 147–48). This popular vicegerency, derived from the Qur’anic verse, “He will surely make you vicegerents/successors in ism and nationalism, usually claiming to be socialist, were the typical Third World ideologies. The Muslim world in addition produced a supranational Islamic ideology. www.annualreviews.org • Islamic Constitutionalism

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the land” (Q.24.54), according to Mawdudi means that “everyone is a caliph of God and an equal participant in this caliphate.” It “is the real foundation of democracy in Islam” where the ruler “is answerable to God on the one hand and on the other to his fellow ‘caliphs’ who have delegated their authority to him” (Maududi 1960, pp. 158–60). Mawdudi had written in his early writings about the Islamic revolution and considered jih¯ad as Islamic revolutionary struggle the means for achieving it. Later, however, he was a beneficiary of the rule of law and due process when his death sentence for instigating anti-Ahmadi agitation in 1954 was quashed and he was released from jail; he then reaffirmed his Islamic constitutionalism, without, however, giving up his novel idea of Islam as an ideology (Nasr 1996). In sharp contrast to the two constitutional revolutions of the first decade of the twentieth century in Iran and the Ottoman Empire (the Young Turks Revolution of 1908), the Islam that entered the constitutional debate in Pakistan was not an Islam embedded in the traditional political order under autocracy, but an abstraction set against the background of a century of the British Raj. Mawdudi (1960, pp. 226–27) thus turned not to any consideration of the institutions of the Mughal empire or of any other Muslim state, but rather to a juxtaposition of the Western constitutional blueprints, from which he extracted nine basic points, and the scriptural sources of Islam, in which he found answers to each point. The Pakistani constitutionmakers did the same on a few key issues, albeit implicitly. The result was the “comic” transfer of political sovereignty to God, first in the Objectives Resolution of 1949 and then in the 1956 Constitution (Rahman 1970, p. 277). Only in the absence of an actual Muslim sovereign monarch could the notion of national sovereignty evoke, in the minds of the Islamic ideologues such as Mawdudi, the superiority of God over the nation and result in the declaration of His sovereignty in the 1956 Constitution of the Islamic Republic of Pakistan, the first state to be so designated

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in history. The legal consequences became apparent in the Asma Jilani case in 1972, when the Supreme Court, drawing on Kelsen’s pure theory of law, considered the Objectives Resolution and the Almighty Allah’s “legal sovereignty over the entire universe” as the “Grundnorm” of the constitutional order in Pakistan (Choudhry 1988, pp. 7–12). With this confusion of theological and legal categories, ideological elements were grafted upon Pakistan’s liberal, Westminster constitutional model and grew to deform its character when the declaration of the sovereignty of God in the Objectives Resolution was finally made justiciable as Article 2-A of the restored Constitution of 1985, interestingly by President Muhammad Zia ul-Haq’s executive fiat. This development, and the Islamicization of the Pakistani state and judiciary by General Zia, a member of Mawdudi’s Jamaat-i Islami who came to power with a military coup in 1977, can thus be considered the “much-delayed outcome of the country’s foundation in 1947” (Taylor 1983, p. 181). At the time, when the Pakistani founding elite was not challenged in its cozy interpretation of Islam, Binder’s (1961) assertion that the Objectives Resolution, drafted by the secular Prime Minister Liaqat ‘Ali Khan, was a perfect compromise (because it satisfied everyone by declaring that sovereignty resided not only God but also in the people of Pakistan and in the state of Pakistan) seemed reasonable. As the subsequent history has shown, however, once that interpretation was challenged by the Islamic fundamentalists and by the ulema, God had no difficulty trumping the other putative sovereigns! There is much less justification, half a century later, for Feldman (2003, p. 57) to take the sovereignty of God as the connotation of the very word Islam and find the same divine sovereignty implicit in the American Declaration of Independence!2 This ignores the ideological character of the 2

Like the contemporary Iranian reformists Sorush and Kh¯atami considered below, Feldman puts forwards the idea


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notion and its confusion of legal and theological categories. The declaration of God’s sovereignty was in fact the cornerstone for the construction of an ideological constitution purporting to be based on the Qur’an and the Islamic shari‘a. This declaration ushered in a wave of ideological constitution-making in the Muslim world, with Islam increasingly as the basis of the constitution and the state, making current constitutional problems especially intractable. The debate on the idea of an ideological state based on Islam marked the late transfer of the age of ideology from the First and Second to the emerging Third World. The constitutional debates during the long making of the 1956 Constitution of the Islamic Republic of Pakistan are covered by Binder (1961) in Religion and Politics in Pakistan. The ideological character of this debate, which stimulated various and contradictory elaborations of the idea of sovereignty of God in relation to the popular will during the three decades following the foundation of the state of Pakistan, is clearly brought out by Ahmed (1987, pp. 18– 24, 202–4), who analyzes the function of this ideology in the framework of modernization theory. I have also argued that there was a curious convergence between the fundamentalism of Mawdudi and the “Orientalism” of Gibb (Said 1978) in this period, which stems from a shared textualism (Arjomand 1996). Gibb (1955) focused on a set of eleventh-century texts in political theory, giving little systematic attention to cultural and historical context, inferring that in Islam “[t]he community exists to bear witness to God amid the darkness of this world, and the function of its government is essentially to act as the executive of the Law [meaning the shari‘a]” (Gibb 1970, p. 11). This statement is typical of the period (Khadduri 1951). The historical pic-

that constitutionalism naturally reflects the religious beliefs of the society in which it takes shape, not allowing for any development of legal institutional structure independent of religion.

ture of the normative principles of government, however, bears no resemblance to this Islamic state that is a modern ideological construction or myth (Arjomand 2007a). The ancient Middle Eastern idea of justice as the core of political ethics and a basic norm of statecraft was integrated with Islamic concepts of governance in the medieval period, often conceived as a circle of justice encompassing the ruler and the ruled through the just organization of government and the army resulting in economic prosperity of the realm (Darling 2007). The function of government, conceived as monarchy, was the maintenance of this just order so that the subjects could attain salvation through the guidance and the shari‘a of the prophets as divine messengers (Arjomand 2007a). The convergence of Orientalism and fundamentalism finds a striking proof in the most cogent formulation of Islamic constitutionalism in Pakistan in this period: Principles of State and Government in Islam by Muhammad Asad (1961) (d. 1992), who, born Leopold Weiss in Austria and converted from Judaism to Islam in Saudi Arabia, can be considered an Orientalist and an Islamic fundamentalist in one. Asad had moved to India to become an editor of an academic journal, the Islamic Culture, and had been interned by the British in India as a citizen of Austria during World War II. He moved to Pakistan after the partition to become the director of the Government of Punjab’s Department of Islamic Reconstruction and publish an essay on “Islamic Constitution-Making” under its auspices in 1948, which was later revised as the book under discussion. The historic challenge to be met by the people of the new state of Pakistan, according to Asad (1961, p. 1), was to create an Islamic state by incorporating “the sociopolitical tenets of Islam . . . in the basic constitution of the country.” Just as for the Orientalist Gibb, for Asad the first guiding principle of the Islamic state is the following: “The foremost duty of such a state consists in enforcing the ordinances of the shari‘ah in the territories under its www.annualreviews.org • Islamic Constitutionalism

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jurisdiction” (Asad 1961, p. 34). This is because “the real source of all sovereignty is the will of God as manifested in the ordinances of the shari‘ah” (Asad 1961, p. 39). The implication is that, “if the government fulfills the requirements imposed by the shari‘ah, its claim to the allegiance of the citizens is absolute.” And further, “So long as the state conforms in its principles and methods to the demands of the shari‘ah, a Muslim citizen’s duty of obedience to the government is a religious obligation” (Asad 1961, pp. 69, 75). Each generation should undertake its own independent endeavor (ijtih¯ad) in law-finding and legislation in the area where there are no firm ordinances of the shari‘a, although it could also learn from the endeavors of the earlier generations of Muslims, and here political difference should be tolerated as they are a divine mercy. Within the framework, the fourth and lowest principle of the Islamic state is popular consent, embodied in the principle of consultation (shur¯a) and to be institutionalized as parliaments. This Islamic state need not correspond to any historical precedent (Asad 1961, p. 17)! And because it is an ideological state similar to the communist states, “as in Islam, an ideology is placed over and above the people’s freedom to legislate for themselves” (Asad 1961, p. 20). The qualification of the Republic of Pakistan as Islamic also created a serious constitutional problem, as had Israel’s as the Jewish state. The constitutional proposals by Mawdudi and Asad to treat religious minorities as “the protected people” (dhimmis) according to the shari‘a would have made nonsense of the constitutional guarantee of equality before the law. The Pakistani Constitutions of 1956 and 1962 categorically recognized the principle of equality before the law, but without eliminating legal pluralism completely.3 There were good

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reasons for considering the provisions of the shari‘a concerning the dhimmis inapplicable to the public law of Pakistan. Commenting on the first address of the founder of Pakistan to the Constituent Assembly on August 11, 1947, Chauduri Muhammad ‘Ali, who had served as prime minister in the 1950s, stressed the point that “Pakistan came into being not by conquest but as the result of a negotiated agreement between the representatives of the Hindu and Muslim communities,” and therefore the “life, property and religious beliefs” of all citizens were guaranteed full and equal protection by the state (cited in Rahman 1978, p. 169). A former chief justice of Pakistan, Rahman (1978, pp. 2–3) similarly stated that the relationship between the Muslim and non-Muslim citizens of Pakistan was a contractual one, and the provisions of the shari‘a concerning the dhimmis did not apply to the latter whose “position is assimilable to that of mu‘ahids—the beneficiaries of a binding pact.” President Zia ul-Haqq’s 1984 Ordinance No. XX, on un-Islamic activities, which lent considerable momentum to a series of laws that have become known as blasphemy laws, ignored these legal arguments, and these laws have been enforced by the Shariat benches (introduced in 1978) and the Federal Shariat Court (set up in May 1980). The constitutionality of Ordinance No. XX of April 26, 1984, especially notorious for making the Ahmadis liable to prosecution for engaging in activities associated with Islam, was confirmed by the Supreme Court of Pakistan in 1993 (Zaheeruddin v. State) (Arjomand 1996). The nonideological core idea of Islamic constitutionalism, namely the idea of shari‘a as a limitation to legislation, was embodied in the so-called “repugnancy clause”4 [Article 205 (1)] of the 1956 Constitution of Pakistan that stated that “no law shall be enacted which is repugnant to the Injunctions of Islam as laid down in the Holy Qur’an and the Sunnah,”

3

The Constitution of 1973 finally ended this element of pluralism in personal law for the Muslim citizens of Pakistan de jure (Rahman 1974, p. 40). This was reversed in General Zia’s Islamicization measures, however.

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4

The term comes from the British colonial policy of recognition of native, customary law so long as it was not “repugnant” to constitutional and statutory law.


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without, however, giving any organ the authority for constitutional review. It is interesting to note that the Pakistani ulema’s amendment, reiterated by Mawdudi, that added “and the Qur’an and Sunnah be the chief source of the law of the land” failed to carry (Maududi 1960, p. 367; Arjomand 1993b). Since 1980, the Federal Shariat Court, whose judges held office at the discretion of the president, has assumed jurisdiction over determination of the conformity of laws with the Qur’an and the Sunnah. The Shariah Bill of 1991 gave the judiciary power to interpret the shari‘a irrespective of constitutional and statutory law, thus exacerbating the chaos of legal pluralism and severely limiting the protection of constitutionally entrenched rights (Newberg 1995, p. 242). Moving beyond Pakistan, one must admit more generally that in the religiously designated states of the Middle East, the issue of equal protection of law for those citizens who do not wish their primary identity to be religious has not been worked out in constitutional theory or practice (Mallat 2007, ch. 3).

THE SHARI‘A IN CODIFICATION AND IDEOLOGY The short-lived Syrian Constitution of 1950 grafted a novel ideological element destined to become a staple in Islamic constitutionmaking by declaring the shari‘a the main source of legislation (Brown & Sherif 2004, p. 63, n. 19). The Kuwaiti Constitution of 1962 (its second) adopted much of the Ottoman Constitution of 1876, but it also followed the example of Syria and declared the principles of the shari‘a “a main source of legislation” (Article 2). Egypt eagerly followed this method of preemptive appropriation of fundamentalist ideological notions by Muslim authoritarian regimes and incorporated the phrase into Article 2 of its Constitution of 1971, thus adding Islam to the syncretic socialist-liberal-nationalist ideological foundations. In 1978, al-Azhar Islamic University in Cairo published a “Proposal for the

Islamic Constitution” whose Article 1(b) specified the shari‘a as the sources of all legislation (cited in An-Na’im 1990, p. 96). In 1980, the Egyptian government once more preemptively amended the same Article 2, changing “a” to “the” to read in translation “the principles of the Islamic shari‘a are the chief source of legislation”5 (Brown 2002, pp. 30, 56, 82– 84). The gambit was followed by one country after another, and by 2000, constitutions of some 24 Muslim states had declared the shari‘a (or its principles) “a” or “the” source of legislation.6 And the new millennium opened with the stampede of the 12 northern federal states of Nigeria declaring shari‘a the state law. The turning of shari‘a from a source of legislation into a slogan was the consequence of the spread of politicized Islamic fundamentalism generally referred to as political Islam or Islamism. It was built on the myth of the Islamic state whose primary function is the execution of the shari‘a—whatever the meaning of execution with respect to a law without codes that Weber called a jurists’ law and that includes rules for acts of worship, ritual, diet, and cleanliness. It seemed oblivious to the undeniable historical fact that, with the exception of Turkey after the adoption of the Swiss family law, the shari‘a is a major source of the most important acts of legislation, namely the Civil Code of Iran, which was enacted in 1928 and 1935, and that of Egypt, which was enacted in 1948 and served as the model for those of many other Arab countries. During the decade just preceding the drafting of the Ottoman Constitution, 1869–1876, 16 books of the Mecelle—or, to give its full title, the Books of Judicial 5

The word for legislation itself is derived from shari‘a in Arabic, unlike the Persian word that stems from q¯anun, so the Arabic text reads: mab¯adi al-shari‘a al-islamiyya almasdar al-ra’si li’l-tashri’.

6 Meanwhile, shari‘a began to trump positive law sporadically. In November 1983, for instance, the Supreme Federal Court of the United Arab Emirates decided in a case of drunkenness that the shari‘a is the supreme law of the federation and therefore its penalty should be applied over and above that prescribed by a 1976 law of the Emirate of Abu Dhabi (Mallat 2007, ch. 4).

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Enactments (ahk¯am ‘adliyya)—had created the first shari‘a-based modern code of law and set the pattern for all future codifications of the shari‘a. Muhammad Qadri Pasha published a similar civil code in Egypt in the last years of the nineteenth century, which was taken to have demonstrated the “translatability of the Islamic jurisprudence into legislation” (q¯abiliyat al-fiqh al-isl¯ami li’l-taqnin). In the meantime, the famous movement for Islamic reform (isl¯ah) had been launched (Kerr 1966). Its leader, Muhammad ‘Abduh (d. 1905), the chief mufti of Egypt, endorsed the methodology (taught in the school for the training of judges established by Sa’d Zaghlul in 1907) of selecting among the opinions of the jurists of the four schools (Botiveau 1993, pp. 265– 66). ‘Abduh’s successor, Muhammad Rashid Rid¯a (d. 1935), stated that the recovery of the pristine Islam of the pious ancestors (salaf ) was the goal of the reform movement, which was thus increasingly called Salafi. He also interpreted the concept of maslaha, a previously somewhat marginal category in Islamic jurisprudence, as public interest and made it the guiding political and policy principle in Islamic reform. The legal methodology of ‘Abduh’s followers in Egypt was the same as that of the Ottoman Mecelle, except that it was not restricted to the opinions of the Hanafi schools but was expanded to include all the four orthodox schools. Meanwhile, during the second constitutional period, the codification of those areas of the shari‘a was resumed, with its methodology expanded beyond the jurisprudence of the Hanafi school to include European secular law as well as Jewish and Christian religious laws. The result was the Ottoman Family Law of 1917 (Berkes 1964, p. 417). Although the Ottoman Family Law of 1917 remained in force in some of the Arab provinces after the disintegration of the empire, in Turkey itself it was replaced, in February 1926, by a new civil code based on the Swiss Civil Code of 1912. The Egyptian family law of 1929 (R`eglement des Mehkemehs Nr. 25) followed this method. It was followed in 1931 by the R`eglement des

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Mehkemehs Nr. 78 that greatly restricted the shar‘i rules of process and evidence, while giving primary importance to documentary and circumstantial evidence (Schacht 1932, pp. 231–33). The process culminated in the construction of the Egyptian Civil Code of 1948 under the direction of ‘Abd al-Razz¯aq Ahmad al-Sanhuri (d. 1971) (Hill 1987). With a curious combination of Islamist sentimentalism and postmodern despair, Hallaq (2004) disparages this major legal achievement of a generation of Muslim jurists of the era of liberal constitutionalism by juxtaposing it to his idealized version of a perfect, traditional, Islamic legal system, only to arrive at the conclusion that it is impossible to restore the shari‘a as the basis of the legal system of a modern nation-state. I reached the same conclusion by simply examining the attempt at such restoration in the Islamic Republic of Iran (Arjomand 2007b), without the nostalgia for the imagined Islamic legal tradition and without ridiculing the highly successful codification of important legal sections of the Shi‘ite shari‘a by Iranian clerical jurists who saw their effort as the consolidation of the constitutionalist achievements of the 1906– 1911 period (Arjomand 2007a). The pathos of the situation consists not in the impossibility of restoration of the shari‘a, as Hallaq implies, but in the willful amnesia of the earlier generation’s reasonable solution of the problem of the place of Islam and Islamic law in a modern constitutional order and the consequent Islamist urge to reinvent the wheel.7 In contrast to this blindness, the great merit

7

Article 1 of the Egyptian Civil Code provides for residual resort to Islamic jurisprudence in the absence of a statutory provision or an applicable custom. Afghanistan under monarchy followed a similar method of codification based on Islamic jurisprudence in Iran and Egypt, and its Constitution of 1964 (Article 69) allowed residual resort to Hanafi jurisprudence in the absence of statutory law. The corresponding article in the 2004 Constitution of the Islamic Republic of Afghanistan confirms this (Article 130), while the subsequent Article 131 recognizes similar residual use of Shi‘ite jurisprudence. Strange as it may seem, the position of the Shi‘ite jurisprudence in the theocratic Islamic Republic of Iran is no different (Arjomand 2007b).


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of the Egyptian constitutionalist writings of the 1990s, as we shall see, is to acknowledge this great synthetic effort in legal modernization as what T¯ariq al-Bishri (1996, pp. 47– 49) terms “independence in law-making” (al-istiql¯al al-tashri‘i), accepting Sanhuri’s extensive legal borrowing from European sources as “Egyptianization” (tamsir). Be that as it may, the Islamic revolution of 1979 in Iran happened at the end of the era of ideological constitutions outside of the Middle East—an era that had begun with the Mexican Constitution of 1917 and the Soviet Constitution of 1918. The neologism of “Islamic government” (hokumat-e esl¯ami) had been the key slogan of Ayatollah Ruhall¯ah Khomeini’s revolutionary movement, and he ordered its translation into constitutional law after the overthrow of monarchy [as far as I know, the source of the neologism is Mawdudi’s h¯akimiyya[t], via the Arabic translation (Arjomand 2000, pp. 301–32)]. Islam was simply put in the place of the dominant ideology and was explicitly referred to as such in the constitutional documents and in the Preamble to the Fundamental Law of 1979. The shari‘a thus came back with a vengeance and swallowed the modernized state and its constitution. An appendix consisting of a number of traditions (hadiths) pertaining to its most important articles demonstrates that the 1979 Constitution of the Islamic Republic of Iran is partially derived from the shari‘a; its Article 4 declares all laws found inconsistent with the shari‘a null and void, including the constitution itself. The critical function of nullification of all proposed and existing laws found inconsistent with the shari‘a is given to the six clerical jurists of the Council of Guardians. The Council of Guardians, it should be noted, was a modification of the committee of five mojtaheds, provided for in the Supplement to the Fundamental Law of 1907 in response to the demands of the Islamic constitutionalists but never implemented (Arjomand 1993a). It corresponded to the proposal for a “supreme tribunal” to act as “the guardian of the constitution” with

veto power over legislation proposed by Asad (1961, pp. 66–67), who quite probably knew about the 1907 committee (Asad’s proposal, however, extended the tribunal’s veto power to administrative acts as well). It is interesting to note that the clerical elite of the new Islamic regime found very little indeed in the civil and other codes of the 1930s un-Islamic and in need of changing and could only fulfill their ideological commitment by enacting the penal code of the shari‘a that had historically been in abeyance in Iran as in most of the rest of the Islamic world. Here as elsewhere, the punitive urge behind the outcry for the imposition of the shari‘a was the execution of its atavistic and cruel hudud punishments, most notably the stoning of women for adultery.

SHI‘ITE CONSTITUTIONALISM AND ITS POSTIDEOLOGICAL TRANSFORMATION Khomeini had been living in exile in Iraq for well over a decade before his triumphal return to Iran on the crest of the Islamic revolutionary wave. Despite Saddam Hossein’s fierce repression, the Najaf Khomeini left in 1978 had been the center of a movement for Islamic renewal, and especially the renewal of Islamic law that Mallat (1993) has aptly termed the “Shi‘i international.” The methodology of the movement for Islamic reform relied on the category of maslaha that had been marginal in traditional Islamic jurisprudence but was now made central as “public interest” in the constitutional field (Kerr 1966). It has been severely criticized (Hallaq 1997, ch. 6) and had no constitutional impact, although the reformist syncretic legal methodology, as was pointed out, did influence the codification of Middle Eastern law. The Shi‘ite reform movement in the 1960s and 1970s, by contrast, made two previously underdeveloped areas of Islamic jurisprudence the core of its renewal of Shi‘ite law: “the constitutional part of public law, and the large field opened up by modern economics: labor law, land www.annualreviews.org • Islamic Constitutionalism

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law . . . and banking” (Mallat 1993, p. 4). As a consequence, Islamic law suddenly gained ground “in disciplines which had seemed only a few decades ago beyond the pale: constitution, economics and banking” (Mallat 1993, p. 189). The chief architect of this renewal of Shi‘ite law was Mohammad Baqer as-Sadr, who was executed with his sister by Saddam’s order in April 1980. Sadr’s first major work, Falsafatun¯a (Our Philosophy), had been written in 1959 in reaction to the growing appeal of communism among disenfranchised Iraqi Shi‘a, and in his endeavor to modernize the Islamic legal tradition Sadr took on Marxism as the most seductive rival ideological system. He thus swallowed the Marxist esprit de syst`eme and the Marxist notion of ideology, just as Mawdudi had done, and his modernized Islamic system unsuspectedly was conditioned by its antithesis. This is clear in Sadr’s economics, expounded in Iqtis¯adun¯a (Our Economics), where he seeks the principles of the Islamic economic system in point-by-point contrast to capitalism and socialism conceived as systems. This approach enables Sadr to include a good deal of derivative materials, for instance on social security, while requiring the introduction of novel categories and a few neologisms. Although Sadr proposes an interesting Lockean-like justification of private property as the fruit of labor, and a sharp distinction between worked land and dead land, public ownership tends to occupy the predominant position in his economics, and with it goes a dirigiste attitude toward exploitation of natural resources and implementation of largescale economic projects for the benefit of the entire society. Similarly, in his writings on Islamic interest-free banking, Sadr displays a clearly dirigiste attitude toward state control of banking, while typically replacing the forbidden category of usury (rib¯a) with modified uses of other permissible categories of Islamic law. In Sadr’s political theory, the unsuspected conditioning by the Marxist antithesis is notable in his characterization of the traditional

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Shi‘ite marja‘iyya(t) (authoritative source of imitation) as “ideological leadership,” and of the jurist holding this position as “the supreme representative of the Islamic ideology” (cited in Mallat 1993, p. 66). This marks a break with his early writing by placing a specifically Shi‘ite institution, the highest rank in the hierocracy, at the center of the Islamic political system. The search for the principles of this Islamic political system prompted Sadr to embark on an endeavor to develop Islamic constitutional law toward the end of his life, an endeavor that assumed historical significance with the Islamic revolution in Iran. In Iqtis¯adun¯a, Sadr had conceived of a discretionary area subject to the (legislative) authority of the ruler, stating that Islam allowed the wali al-amr (an undefined term Mallat reasonably translates as the ruler) to exercise ijtih¯ad according to the needs and interests of society (Mallat 1993, p. 119). In 1976, in a novel division of the rules of the shari‘a into four categories, Sadr offered as the last of these the category of rules pertaining to public conduct, which covers the conduct of the wali al-amr according to the principles of the wil¯ayat al-‘¯amma (general mandate) (Mallat 1993, p. 14). Sadr deftly avoids the thorny discussion of the referent of the term wali al-amr (the person invested with authority); we are left to guess whether the wali al-amr is the ruler (sult¯an) of the medieval jurists or Khomeini’s theocratic faqih. In a note proposing a constitution for an Islamic republic in Iran, written a week before the final collapse of the monarchy, he put the general vicegerency (al-niy¯abat al-‘¯amma) that pertains to the supreme jurist (al-mujtahid almutlaq) in place of the wil¯ayat al-‘¯amma as the mandate to rule, and the supreme jurist as marja‘ in place of the ruler (wali al-amr) of his earlier writings, thus offering a legal formulation of the wil¯ayat al-faqih as the Mandate of the Jurist (to rule) (Mallat 1993, pp. 70– 71). Sadr’s formulation was much more precise than the vague statement put forward by Khomeini a decade earlier in his lectures on the Mandate of the Jurist. The term (wali-ye


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amr) is in fact used in the section embodying the Mandate of the Jurist in the 1979 Constitution, although the official designation of the supreme jurist is the leader of the Islamic Republic of Iran. In the 1990s, after the death of Khomeini, however, new constitutionalist writings in Iran took a firmly anti-ideological turn in their opposition to the theocratic regime whose chief organ of constitutional review became overburdened with an unexpected function of political control (mainly by using its power of supervising elections to disqualify candidates) and failed to generate any constitutional jurisprudence. In daring attempts to find an alternative to the official theocracy enshrined in the Constitution of the Islamic Republic of Iran, a number of dissident clerics have been striving for a different kind of constitutional democracy consistent with the shari‘a. Politically the most consequential of these was the radical modification of the Mandate of the Jurist into a purely supervisory one by one of its chief architects in the Assembly of Experts, Ayatollah Hasan-‘Ali Montazeri, Khomeini’s successordesignate until 1988, who had published a treatise on Islamic jurisprudence justifying the Mandate of the Jurist (Montazeri 1988). The young jurist who followed Montazeri’s hint and developed a full-fledged critique of Khomeini’s constitutionally enshrined theory of Mandate of the Jurist was one of his students, Hojjat al-Islam Mohsen Kadivar. This critique unfolded in two stages. The first was implicit and consisted of the relativization of Khomeini’s theory by presenting it as one among many recognized Shi‘ite views of the state. Kadivar’s (1997) Nazariya-ha-ye dawlat dar f iqh-e Shi‘a (Theses on the state in Shi‘ite jurisprudence) takes this step and is valuable for its departure from the official position that Khomeini’s thesis was the Shi‘ite view of government. Although dutifully tracing its genealogy, Kadivar separates Khomeini’s earlier and later views on theocratic government into two theses and puts them alongside seven other theses

that were presented as equally plausible. Khomeini’s earlier view, incorporated into the Fundamental Law of 1979, was characterized as “the general appointive mandate of the collectivity of jurists,” and the later view, acknowledged in the Amended Fundamental Law of 1989, as the “absolute appointive mandate of the jurists” (vel¯ayat-ei motlaqa-ye faqih¯an). Kadivar (1997, p. 80) points out that the difference between the two positions is relatively minor and consists of the extent of governmental authority. The latter thesis gives the supreme jurist absolute authority by making his ordinances, which are referred to as governmental ordinances (singular, hokm-e hokumati), superior to those of the shari‘a. The orders of the supreme jurists, according to this thesis, must not only be obeyed as a religious duty but also prevail, in cases of contradiction, upon the state law and the sacred law alike (Kadivar 1997, pp. 108–9). Kadivar intermittently points out (1997, pp. 18, 36–37, 78–79) that the idea of theocratic government was rejected by some prominent jurists from Shaykh Murtaz¯a Ans¯ari (d. 1864) to the present. Rather than taking the Mandate of the Jurist as a constitutionalized principle, Kadivar simply discusses both its weaker and stronger versions as Khomeini’s juristic theses alongside seven others presented as equally authoritative. Historically, the most significant of these is the legitimation of monarchy in what I have called the theory of the two powers. Kadivar presents this view as the first Shi‘ite thesis on government and supports it by citations from the seventeenth and eighteenth centuries as well as the early constitutional periods. The second historically significant thesis is N¯a’ini’s abovementioned justification of constitutional government in 1909. The remaining theses belong to the era of the Islamic Republic of Iran but diverge from its official constitutional interpretation. The later view of Sayyed Mohammad Baqer al-Sadr (d. 1980) is typified as “Caliphate of the people with the supervision of the ‘sources of imitation’” (khel¯afat-e mardum ba nez¯arat-e www.annualreviews.org • Islamic Constitutionalism

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marja‘iyyat), while his earlier views, alongside those of the Lebanese jurists, Shaykh Muhammad Javad Mughnia and Shaykh Muhammad Mahdi Shams al-Din, are presented as the thesis on “elective Islamic government.” Coming close to this view, according to Kadivar, is the theory of Mahdi H¯a’iri-Yazdi, presented in Hekmat va hokumat (Wisdom and government, published in 1995), which assimilates parliamentary representation to grant of power of attorney by the people as the joint owners of the country and constitutes Kadivar’s thesis on “representation through deputation by joint property-owners” (vel¯ayat-e malek¯ane shakhsi-ye mosh¯a’)! Last but not least, we have the thesis on the “elective and conditional mandate of the jurists,” which represents the views of Ayatollah Montazeri and of Shaykh Ne‘matoll¯ah S¯alehi-Najaf¯ab¯adi. This class of contemporary Islamic constitutionalist writings represents modernist attempts to create various legal fictions, drawn from Shi‘ite jurisprudence, for the justification of a modern Islamic constitutional state. S¯alehiNajaf¯ab¯adi attempts to reconcile sovereignty of God with representative government in a subordinate position through the idea of an Islamic social contract. Though perhaps more liberal, they have been weaker than Mawdudi’s theo-democracy and Asad’s Islamic state in their derivation of constitutional principles from Islam (Akhavi 2007). H¯a’iri-Yazdi comes a little closer to Western social contract theories on the basis of the implicit recognition of the natural law in the Qur’an, buttressed by ad hoc reinterpretation or extension of categories of joint ownership and legal representation in Islamic jurisprudence. Though recognizably Islamic, it is not deemed convincing in the derivation of the social contract from Islam (Akhavi 2007). Kadivar (1998) took the second and final step a year later with the publication of Hokumat-e vel¯a’i (Mandate-based government), or government based on the “absolute appointive mandate of the jurists.” He now offered an explicit critique of Khomeini’s theory

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and a refutation of the legal arguments for the validity of the official doctrine of theocratic government (Kadivar 1998, p. 13). The book consists of two roughly equal parts; the first traces the progressive extension of the authority of the jurists from judiciary competence to the right to rule, and from authority over special categories of persons such as the insane and orphans, as specified by the hisba rules of the shari‘a, to authority over the people in general (Kadivar 1998, pp. 102–3, 124, 132– 33). This is followed by an interesting account of the politics of the incorporation of the theory into the Fundamental Law of 1979. The second part of the book is the painstaking, and often abstruse, refutation of the “traditional” and “rational” bases of the official doctrine in terms of traditional Shi‘ite jurisprudence. Kadivar’s theory remains strictly within the bounds of Shi‘ite jurisprudence and offers no hermeneutic questioning of the Shi‘ite jurisprudence itself as a historically contingent discipline (the clerical establishment felt threatened by Kadivar and sentenced him to 18 months in prison by the Special Court for Clerics in April 1999). The most radical epistemic break with Khomeini’s theocratic theory, however, was put forward in a series of lectures and articles that were later published as two books by Mojtahed-Shabestari, a Shi‘ite cleric who had been the director of the Islamic Center in Hamburg and had been elected to the first Islamic Majles in 1980. Undermining the premises of the constitution and official ideology of the Islamic Republic of Iran, MojtahedShabestari (1996, pp. 46–66) forcefully argues that no political regime was founded on the basis of the science of Islamic jurisprudence in the past or can be so founded in the future. Rather, the science of jurisprudence can only offer answers to certain questions that arise within the institutional framework of existing political regimes. Furthermore, MojtahedShabestari (2000, p. 12) explicitly refutes the two cardinal tenets of the official clericalist reading of Islam, namely that “Islam as a religion has political, economic and legal


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regimes based on the science of jurisprudence” suitable for all ages and that “the function of government among the Muslims is the execution of the commandments of Islam.” Mojtahed-Shabestari’s ideas were very influential in the reform movement under President Mohammad Kh¯atami (1997–2005), who propounded the idea of religious democracy together with the leading reformist intellectual, ‘Abdol-Karim Sorush. Sorush had denounced the characterization of Islam as an ideology in the 1990s and moved on to argue that Islam was essentially secular and consistent with democratic forms of government that a fortiori are also secular. However, as democracy is majoritarian and the majority of Iranians are religious, for Sorush as for Kh¯atami, democracy in Iran would naturally assume the form of a religious democracy. Sorush (2000a, pp. 215, 220) juxtaposed this underspecified idea of religious democracy with the view of the ruling clerical elite as “the fascist reading of religion” and spoke of them as the “bearers of religious despotism,” affirming that “the new generation that has now arisen in Iran does not see the jewel of religion in jurisprudence and ideology.” Last but not least, in a major departure from his earlier purely instrumental, managerial view of democracy as a rational method of management of society, Sorush (2000a, pp. 376–77) now offers a normative definition of democracy as resting on three pillars: rationality, pluralism, and human rights.

ISLAMIC CONSTITUTIONALISM IN EGYPT AND POSTIDEOLOGICAL CONSTITUTION-MAKING IN SUNNI ISLAM Turning to (Sunni) Islamic constitutionalism in the Arab Middle East, we find it inseparable from the organizational and ideological evolution of the Muslim Brotherhood, founded by Hasan al-Bann¯a’ in Egypt in 1928

to translate the Salafi idea of Islamic reform into a modern sociopolitical movement. It established branches in all major Arab countries, and its offshoots have come to power in the Sudan and Palestine (the present HAMAS government), shared power in the Jordanian government, and constitute the official opposition in Kuwait, although the main branch was outlawed in Egypt itself in 1954 and has remained officially unrecognized despite forming the largest opposition bloc in the present parliament. The fascist and communist ideological influences on the Muslim Brothers in the 1930s and 1940s must have been considerable and were especially reflected in its secret armed organization for revolutionary takeover. Voll (1991) claims that even in this period the Muslim Brothers were influenced by the prevalent liberal constitutionalism. Even if so, an Islamic revolutionary ideology was cogently formulated in prison by Sayyid Qutb in response to repression by President Nasser (Haddad 1980). Qutb was executed in 1966, but his ideology spread clandestinely to become the dominant ideology in the Muslim Brotherhood in the 1960s (Ramadan 1993). The Muslim Brotherhood’s turn to Islamic constitutionalism must be dated from the composition in 1969 of Du¯at la qud¯at (Missionaries not judges) by the movement’s imprisoned leaders, which was not published until 1977. They sought to distance themselves from Qutb’s position. There was an Islamic constitutionalist trend, inspired or directly expressed by the Muslim Brothers in the 1950s and 1960s, but there is little to distinguish it from Mawdudi’s idea of the Islamic state in Pakistan. Mawdudi’s works were in fact translated into Arabic and influenced Qutb and others. In one of the earliest usages of the term fiqh al-dusturi [constitutional (Islamic) jurisprudence] in 1962, Ahmad Kam¯al Abu’lMajd compared the shari‘a to natural law in the American constitutional tradition and inferred the need for creation of independent judicial institutions to constrain the legislative branch of the state and assure the conformity www.annualreviews.org • Islamic Constitutionalism

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of its laws with the principles of the shari‘a8 (Rutherford 2006, pp. 712–14). Abu’l-Majd, however, set the trend in Islamic constitutionalism that developed fully in the 1990s, representing a postideological return to Abu Diy¯af ’s nineteenth-century idea of the shari‘a as a constraint and limitation on government. If the ruler violates the shari‘a, the citizens can disobey his orders and even remove him from office under certain conditions (Rutherford 2006, p. 712). Although the appearance of Du¯at la qud¯at in 1977 indicated the will to political accommodation with the authoritarian state, the true epistemic break with ideology came with the abandonment of the idea of the Islamic state for democracy by a group of writers and publicists who have been described as “Islamic liberals” (Binder 1988) and “New Islamists” (Baker 2003). The acceptance of political pluralism and a multiparty system, in short, of democracy by the postideological Islamic constitutionalists as “the form of government that is closest to Islam” (Yusuf al-Qarad¯awi as cited in Rutherford 2006, p. 716) means abandoning the utopia of the Islamic state executing the Law of God and guarding a total ideology based on the Qur’an and the Sunna. Furthermore, the idea of the shari‘a as a constitutional limitation on legislation is often softened by considering it as the reference point (marja‘) rather than the source of law. The Sunni idea of social contract is made easier by the absence of institutionalized clericalism comparable to Shi‘ite Islam, and like Mawdudi, the Egyptian Islamic constitutionalists rest it on the human beings’ collective caliphate or vicegerency of God (Akhavi 2003, pp. 41, 43). The reductionism and conflation that marred the early twentieth century and to a lesser extent the postideological Shi‘ite constitutionalism in Iran are not entirely absent from the new Egyptian

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This requirement is consistent with Asad’s proposal for an organ of judicial review in the Islamic state in Pakistan at the same time and with the Council of Guardians set up in the Islamic Republic of Iran two decades later.

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attempts to formulate a theory of Islamic social contract. In al-Isl¯am wa’l-dimqr¯atiyya (Islam and democracy, published in 1993), Fahmi Huwaydi, for instance, claims that Islamic and Western political thought share the concept of political pact (‘aqd siy¯asi) between the community and the ruler, that human rights are guaranteed by God in Islam and by man in the West, and that the idea of consensus (ijm¯a’) in Islamic jurisprudence anticipates Rousseau’s general will by centuries (cited in Akhavi 2003, p. 42). Reductionism and conflation are minimized, however, by acknowledging that Islamic religion does not require any distinctive form of government and by the consequent recognition of the heterogeneity of Islam and democracy. On the illiberal side, the Egyptian Islamic constitutionalists share the idea that the constitutional democratic state should enjoin good and forbid evil. It is thus an intrusive state obliged to create pious citizens by using schools and courts (Rutherford 2006). The acceptance of democracy and rejection of the conception of Islam as a total ideology are shared features of postideological Islamic constitutionalism in Iran and Egypt. Egyptian Islamic constitutionalism has two remarkable additional features. First, it has a stronger legalistic dimension that rests on the endorsement of the early twentieth-century Islamic reform movement and the codification of the Egyptian law inspired by it (Bishri 1996). In other words, it returns to the preideological Islamic constitutionalist idea of government limited by law—this time, a law inclusive of certain principles and substantive norms of the shari‘a but extending far beyond it to include democratic constitutional law. Second, in this legal dimension, Qur’anic and Sunnah textualism, which implies the immutable eternity of the shari‘a as the divine law, is severely restricted and replaced, at least in the writings of its leading figure T¯ariq al-Bishri, by a historical perspective with a pioneering sketch of the Islamic legal system. This distinctive legal realism is not accidental but deeply rooted in contemporary Egyptian


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constitutional politics. Not only is Tariq al-Bishri a high ranking judge who narrowly missed the presidency of the Egyptian Council of State (majlis al-dawlah) because of his political views, but Islamic constitutionalism has been fully endorsed in the political program of the Muslim Brothers in 2004 and 2005. This development can in turn be partly attributed to the expansion of judicial power under the Egyptian authoritarian regime and to the assertiveness of the Supreme Constitutional Court (SCC) of Egypt as well as the Council of State. When the age of ideology spread from Europe to the Middle East, a number of ideological constitutions appeared with it—most notably the Turkish constitutional amendment of 1928, the Egyptian Constitution of 1971, and the 1979 Constitution of the Islamic Republic of Iran. Furthermore, with the global transplantation of legal institutions, constitutional courts were set up in Egypt in 1979 and Turkey in 1961 (reorganized in 1982), whereas the Iranian Constitution of 1979 set up a Council of Guardians modeled on the French Conseil Constitutionnel, with more extensive powers. A recent study by Shambayati (2007) uncovers a surprising similarity in the judicial politics of Turkey and Iran, where the organs of constitutional review have acted as the institutional mechanism for protecting the opposite ideological foundations of the respective regimes, Kemalism and Islam. The surprising convergence in two regimes with opposite ideological foundations invites a comparison with the SCC of Egypt in interpreting Egypt’s equally ideological Constitution of 1971, and especially its notable jurisprudence of the above-mentioned amended Article 2 of the Egyptian Constitution and its ideological declaration that “the principles of the Islamic shari‘a are the chief source of legislation.” The damage control from this preemptive and seemingly unnecessary declaration was left to the new but assertive SCC. Having refused to hear a large number of cases demanding unconstitutionality of laws according to

Article 2 between 1987 and 1991, in its landmark ruling of May 15, 1993, the SCC basically invested the state with the right to determine compatibility of laws with the shari‘a. The most important part of this ruling, however, was declaring Article 2 nonretroactive and thus preserving the major achievement of the preideological age, namely the Egyptian Civil Code, and making it immune to the Islamist onslaught (Mallat 2007, ch. 4). In sharp contrast to the Iranian Council of Guardians, which soon degenerated into the gatekeeper of entry for elected offices, stopped giving reasons for its legislative vetoes, and thus developed no Islamic constitutional jurisprudence, the constitutional jurisprudence of the Egyptian SCC has been remarkable. In procedural and formal terms, its constitutional interpretation of Article 2 over the first two decades of its existence amounted to a consistent jurisprudence resting on three principles: the coherence of the Constitution of 1971 as a “unified organic unit” of which Article 2 was one element, the nonretroactivity of Article 2’s requirement of adherence to the shari‘a by the legislature, and lastly a distinction between the definite and the indefinite norms of the shari‘a to be determined by the SCC justices themselves (Brown & Sherif 2004, p. 68). Furthermore, the SCC sought to institutionalize the principle of public interest (maslaha) by arguing that the indefinite norms of the shari‘a can be left to the discretionary power of the ruler through ijtih¯ad. “If the ruler misuses this power or selects an ijtih¯ad that is not consistent with the public interest . . . , his legislation becomes a violation with Islamic shari‘a” (Brown & Sherif 2004, p. 74). The Egyptian SCC’s Article 2 jurisprudence thus required it to “be understood in the context of other commandments enshrined in the constitution” and thus represents the “peaceful integration of Islamic principles in the constitutional order” (Brown & Sherif 2004, p. 75). On the substantive impact of Islamism on the decisions of the Egyptian SCC, however, the scholarly opinion is divided. Botiveau (1993) and Brown (1997a; 2002, pp. 180–84), www.annualreviews.org • Islamic Constitutionalism

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basing their sanguine opinions mainly on the earlier decisions of the SCC, argue that the SCC tends to meet the Article 2 challenges to laws by upholding them on the grounds of the discretionary power of the state. Lombardi (1998–1999) and especially Vogel (1999), on the other hand, present a more disturbing picture. It appears from these accounts together that, although Egypt’s SCC at first responded vigorously to the major change in the international politico-legal culture by largely demolishing the socialist ideological foundation of Egypt’s constitution and by moderating authoritarian statism, it has more recently been increasingly responsive to the popular pressure and has tended to bring to life the Islamic ideological principles of their syncretic constitution to trump civil rights and women’s rights. Comparing the Egyptian and Iranian organs of constitutional review, we can say that, whereas the Iranian Council of Guardians is primarily the guardian of the shari‘a against the constitution as well as legislation, the Egyptian SCC is primarily the guardian of the constitution. The Egyptian Constitution of 1971 recognizes no guardian for the shari‘a. Indeed, for a quarter of a century, the Egyptian SCC has considered Article 2 as primarily addressed to the legislature or the ruler (Brown 2002, p. 183). As the Islamist pressure mounted in the 1990s, however, it has also come to consider itself the interpreter of the “principles of the Islamic shari‘a” to the horror of its official guardians—the ulema of alAzhar. In what may turn out to be a historical turning point for Islamic constitutionalism in Egypt, in December 2005 the Muslim Brotherhood recognized the exclusive competence of the SCC to determine the constitutionality of all laws, including their conformity with Article 2 (Rutherford 2006, p. 722) The global expansion of judicial power reached Egypt in the last quarter of the twentieth century, creating an important political space in Egypt’s authoritarian regime for oppositional “legal mobilization” (ElGhobashy 2006). The Supreme Court was

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transformed into the SCC of Egypt with a self-appointive bench in 1979, and the Council of State at the apex of Egypt’s administrative courts was granted similar self-appointive independence in 1984 (Hill 1993). Perhaps the most eloquent testimony to the empowerment of judges, citizens, and human rights nongovernmental organizations (NGOs) in Egypt through this legal mobilization is the sharp rise in the recourse to administrative courts (El-Ghobashy 2006, pp. 103–4) and the SCC (Moustafa 2003, p. 884). Legal mobilization through resort to courts and by capitalizing on Egypt’s international human rights obligations indeed appears as “an alternative path to democratization” (El-Ghobashy 2006, p. 153). Meanwhile, there was a generation turnover in the Muslim Brotherhood in the 1990s that was definitively marked by the death of the octogenarian general guide, Ma’mun al-Hudaybi in 2004 (El-Ghobashy 2005). Against the background of rising tension between the SCC and the authoritarian state over the formation of political parties, the electoral law, and especially the judicial supervision of the elections of 2000 and 2005, the Association of Judges was advocating a plan for increasing judicial independence and reform of democracy (Bishri 2006, pp. 91–96). In April and May 2005, Egypt’s authoritarian government attempted to roll back the two-decade expansion of judicial power into politics. The government passed a law that restricted the activities of NGOs and transferred authority over them from the judiciary to the Ministry of Social Affairs (Elkhalil 2006, p. 602). The imprisonment of the opposition’s presidential candidate and the disciplining of two senior judges who had publicly charged electoral fraud provoked a major confrontation between the government and the judges, backed by the main opposition, the Muslim Brotherhood, and by massive demonstrations in the streets of Cairo in favor of judiciary independence that were suppressed heavy-handedly. The Muslim Brotherhood, which includes some


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prominent judges among its members and won 88 seats in the People’s Assembly in 2005 despite widespread electoral fraud, assumed the championship of constitutionalist contention by protesting against the state of emergency law and pressing for constitutional reform according to their 2005 electoral platform. At the time of this writing (March 2007), President Mubarak struck back by rushing through the People’s Assembly and an immediate referendum a set of 34 illiberal constitutional amendments that not only replaced the state of emergency law in effect since 1981 by the constitutionally retrenched suspension of civil rights (Article 179), but also removed the judicial oversight of the elections, which was given to a state-appointed elections commission (Article 88). The key feature of the Egyptian Islamic constitutionalism is the inclusion of other constitutional principles beside those of the shari‘a to determine the constitutionality of laws and the acceptance of the extension of the shari‘a in modern legal codes. This key feature was fully anticipated in the felicitous and liberal formulation of the repugnancy clause in Article 64 of the Afghan Constitution of 1964 [“No laws can be in contradiction (mun¯aqez) to the principles of the sacred religion of Islam and the other values contained in this Constitution”], which I had hoped would be retained and reinforced by a modern constitutional court competent to reconcile the principles of Islam and other constitutional principles within a unified and coherent framework (Arjomand 2003). The formula survived into the published draft constitution put before the Constituent Loya Jirga but was unfortunately changed behind the scenes and without public discussion and does not appear in the constitution promulgated in January 2004.9 The 2005 Constitution of the

9

Because of its religious pluralism, Iraq offered an opportunity, under ideal circumstances, for the liberal updating of N¯a’ini’s Shi‘ite constitutionalism of 1909, which is presumably acceptable to Ayatollah ‘Ali al-Sist¯ani.

predominantly Shi‘ite Iraq also significantly broadens the repugnancy clause, requiring in its Article 2 that no laws can contradict (a) the undisputed ordinances of Islam, (b) principles of democracy, or (c) basic rights and freedoms. Unfortunately, however, the breakneck speed imposed upon the constitution-making process by the American occupying power, among other factors, prevented a spelling out and institutional translation of this formulation in an otherwise deliberately vague and unsatisfactory constitutional document. I must briefly mention at least two other instances of nonideological constitutionmaking to indicate the range of variation in constitutionalism in the Muslim world. Whereas the Ottoman Sultanate was abolished in 1924, traditional monarchy in Morocco survived French colonialism and into the present. The late King Hasan II (r. 1961–1999), who had been trained in law, had a hand in drafting several constitutions that took the institutionally embodied Islam for granted and were entirely immune from the Islamic ideology and its myth of the Islamic state. The final constitution promulgated by him in 1992 could thus declare the principle of national sovereignty without any apprehension that it might impinge on God’s cosmic majesty (Article 2). It was marked by “the relative paucity of Islamic trappings” (Mayer 2002, p. 209) and yet remained true to the traditional dualism of the Muslim monarchies in emphasizing the king’s role as the guarantor of both the temporal and the religious legal orders. As in the Ottoman case, the person of the Moroccan king is inviolable and sacrosanct (Article 23), and as the commander of the faithful, he “ensures the observance of Islam and the Constitution” (Article 19). However, the Moroccan Constitution of 1992 also included a number of liberal features, and its preamble reaffirms the kingdom’s subscription to “human rights as they are universally recognized” (Mayer 2002, pp. 209–13). A more interesting and clearly postideological pattern of constitutional reform can be found in Indonesia’s current transition www.annualreviews.org • Islamic Constitutionalism

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to democracy. The two massive Islamic organizations in Indonesia, which between them can claim more than 60 million members, the Nahdlatul Ulama and the Muhammadiyya, had demanded the establishment of an Islamic state during the constitutional debates of the 1960s but subsequently changed their orientation toward civil society and democracy. Their respective leaders, Abdurrahman Wahid and Amien Rais, played key roles in the post-Suharto transition to democracy. Wahid served as president in 1999–2000. As the speaker of the Indonesia Parliament, Rais was responsible for the enactment, between 1999 and 2002, of four extensive amendments to the Indonesian Constitution of 1945, which were followed by an act establishing the Constitutional Court of the Republic of Indonesia in 2003. The amendments, notably the bill of rights in 10 additional articles (28A–28J) included in the amendment of August 18, 2000, transformed Indonesia into a constitutional democracy. This acceptance of democratic constitutionalism by the leaders of the two massive Islamic organizations in Indonesia who resisted the demands for any special Islamic provisions is even more remarkable than the Egyptian liberalization of Islamic constitutionalism.

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THE IMPOSITION OF THE SHARI’A IN THE INCONCLUSIVE SUDANESE CONSTITUTIONAL EXPERIENCE When Sudan achieved colonial independence, a constitutional debate naturally ensued about a legal system to replace the common law system established by the British. Sheikh Hasan Muddathir, the Grand Kadi of the Sudan, wrote a “memorandum for the enactment of a Sudanese Constitution devised from the principles of Islam” for the committee charged with drafting a permanent constitution in 1957, whose work was aborted by the 1958 coup. The so-called October 134

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Civil Revolution of 1964 set up a “law revision committee for the purpose of proposing new laws consistent with our tradition” (in the National Charter as cited in Lutfi 1967, p. 220), but an Islamic draft constitution was shelved by the coup of 1969 by Colonel Ja’far Numeiri, who advocated socialism at first but later turned Islamic. In September 1983, he abruptly imposed the shari‘a law over the whole of the Sudan by presidential decrees in violation of the Addis Ababa agreement of 1972 that had ended the civil war with the non-Muslim Southern Sudanese and was entrenched in the permanent Constitution of 1973. It is important to see this ideological turnabout in historical perspective. Until Numeiri himself promulgated a new civil code in 1971 in fulfillment of his earlier commitment to pan-Arabism and socialism, the shari‘a courts had been functioning for nearly seven decades since the British Mohammedan Law Courts Ordinance of 1902 and had been procedurally modernized only two years earlier with the Shari’a Courts Act of 1967 (Khalil 1971). The shari‘a courts administered personal status and family law but did not have and never claimed criminal jurisdiction. And that was really the point of Numeiri’s imposition of the shari‘a. It wrought havoc with the Sudanese judiciary system but satisfied the Islamists’ punitive urge by amputating the limbs of the poor thieves, some of whom had already served prison sentences, and flogging poor women who had made their living by selling intoxicating beverages (An-Na’im 1990, pp. 219–20, n. 91– 92). Shortly before being overthrown in April 1985, Numeiri executed Mahmud Muhammad Taha, an advocate of radical reform of Islamic law who had published a short pamphlet criticizing the Islamicization program on the charge of apostasy (An-Na’im 1985). In developing Taha’s idea of Islamic reformation and his constitutional proposals (AnNa’im 1990, pp. 57–70, 97–100), his student Abdullahi Ahmad An-Na’im (1990, 1996) analyzed the contradictions between the shari‘a and modern constitutionalism, human rights,


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international law, and other legal fields in exhaustive detail in Toward an Islamic Reformation (An-Na’im 1990). This work deserves much praise as an important corrective to the evasive vagueness of facile assertions by most advocates of Islamic constitutionalism such as those of the leader of the Muslim Brothers (later the National Islamic Front) in the Sudan, Hasan al-Turabi (1983), which are liable to create intolerable abuse and corruption because of their hopeless underspecification. This was indeed the case after the coup of 1989 by the military wing of his National Islamic Front, when Turabi became the chief advisor to General Omar El-Bashir until his fall from the general’s favor in 2000 (El-Affendi 1991). It is remarkable that during the 11 years before his fall, Turabi made no lasting contribution to the development of Islamic constitutionalism beyond the application of the shari‘a, which only prolonged the civil war resumed after its imposition in 1983. The failure of Islamic constitutionalism to accommodate religious minorities, already noted in the case of Pakistan, becomes more glaring in a country with a much more substantial non-Muslim population such as the Sudan, where the multi-party system was formally restored under the Constitution of 1998. An-Na’im’s (2006) most recent African Constitutionalism and the Role of Islam, though confirming the incompatibility of the enforcement of the shari‘a with constitutionalism and his earlier emphasis that the shari‘a has no mechanism for limiting the power and assuring the accountability of the ruler through the separation of powers, does not measure up to the same standard. An-Na’im avoids the term Islamic constitutionalism, opting instead for African constitutionalism in which the role of Islam does and should vary. Demonstrating that the role of Islam in constitutional developments in different countries has been contingent, he infers that Islam should therefore be treated as a variable in legal and constitutional theory as applied to different postcolonial African states. That the

best constitution is the best only for a specific country and that the same should apply to the place of Islam in the constitutional order are cogent and unobjectionable Aristotelian positions. But the work lacks the specificity and richness of legal detail that distinguishes An-Na’im’s first book.

CONSTITUTIONAL TREATMENT OF HUMAN RIGHTS Although I have chosen to structure this survey as a case-by-case study of selected countries that have led different trends in Islamic constitutionalism in different periods, at least one subject has to be treated thematically rather than case by case: human rights. Ann Mayer’s numerous publications, most generally Islam and Human Rights (1999), offer a comprehensive treatment of Islam and human rights. Advocates of Islamic constitutionalism have typically sought an alternative to universal human rights. The document best embodying this Islamic alternative is the 1990 Cairo Declaration on Human Rights in Islam. As is to be expected in an imitative document, much of the legal terminology of the international human rights conventions is swallowed, while quite a number of rights are in substance nullified. The Cairo Declaration offers no guarantee of religious freedom. It prohibits any form of compulsion or exploitation of poverty and ignorance to convert anyone to atheism or a religion other than Islam (Article 10). Article 22 of the Declaration bars “the exploitation or misuse of information ‘in such a way as may violate sanctities and the dignity of Prophets, undermine moral and ethical values or disintegrate, corrupt, or harm society or weaken its faith.’” It is interesting to note that, in flat contradiction to the historical experience and the public law of virtually all the signatory countries, Article 19 of the Cairo Declaration provides that “[t]here shall be no crime or punishment except as provided for in the Shari‘ah.” Article 25 further declares that the shari‘a is the only source for explanation www.annualreviews.org • Islamic Constitutionalism

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and clarification of the articles of the declaration (Mayer 1994). The human rights provisions of constitutions of Muslim countries are usually set forth in explicit or implied relationship to Islam. This always results in making them qualified rather than categorical, with qualifications on human rights ranging from the general principles of Islam to the specific provisions of the shari‘a. This results in considerable tension that remains unresolved as constitutional texts have not yet devised clear and coherent constitutional principles defining the relationship between human rights and Islam (Mayer 2007).

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CONCLUSION Democracy is a Greek political concept, and its reception in Christianity and Islam has varied through different historical eras and with divisions within each world religion. Current discussions of Islam and democracy are usually couched in essentialist terms and are therefore hopelessly ideological and ahistorical. What this survey shows is that the relation between Islam and constitutionalism is variable, as are forms of Islamic constitutionalism in different historical periods. There are significant differences in the demarcation and overlap of the sacred and the temporal, the religious and the political in the two world religions, but these are translatable to varying inflections of democratic constitutionalism rather than to their possibility or impossibility. Perhaps the greatest pertinent difference between Christianity and Islam is not doctrinal but institutional. As Weber noted, the canon law of Western Christendom was unique among sacred laws in its type of legal rationalization that was due to the bureaucratic organization of the Catholic Church, whereas Jewish and Islamic sacred laws remained “jurists’ laws” (Arjomand 1993b). As a consequence, constitutionalism in Western Europe did not clash with canon law but, on the contrary, had some roots in it. The later reception of 136

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constitutionalism in the Islamic Middle East, by contrast, resulted in a direct clash with the shari‘a as a jurists’ law (Arjomand 1993a). This clash was in principle overcome in the first phase of Islamic constitutionalism by turning the shari‘a into a theoretical limitation on government and legislation. This resolution was, however, rejected in the post World War II wave of ideological constitution-making and political Islam or Islamism, which required that Islam and the shari‘a be made the basis of the constitution of an Islamic state with complete disregard for the historical evolution of public law in the Muslim world. This creates a serious problem, making the compatibility of the ideological reading of Islam and constitutionalism questionable. In this survey I have tried to demonstrate that the intractability of the new problems and their ultimate incompatibility with constitutionalism should be attributed to the ideological character of the constitutional model now taken over by the first Islamic ideologues of the Indian subcontinent and passed on to the subsequent generations of Islamists throughout the world rather than to Islam per se. The vision of the Islamic ideological state whose primary function was the execution of Divine Law was implemented directly by Khomeini in Iran and by Generals Zia ul-Haq and Omar El-Bashir as the ideological disciples of Mawdudi and Turabi in Pakistan and the Sudan, respectively. Few would uphold the Islamicization of Pakistan as a shining example of success, whereas the Sudanese general has reverted to a multiparty pluralistic constitution. The Shi‘ite theocracy with a subordinate elected president and Majles flourishes in Iran, but a vigorous postideological Islamic constitutionalism has grown in opposition to it. More striking is the development of postideological Islamic constitutionalism taking place in Egypt. This latest variant of Islamic constitutionalism disowns the myth of the Islamic state and accepts democracy and the legal modernization of the mid-twentieth century, thereby


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making the principles of the shari‘a not the source of all constitutional and ordinary legislation but one constitutional principle that should act as a limitation to government and legislation, as with the first generation of Islamic constitutionalists, but this time alongside other constitutional principles. This allimportant nuance makes government limited by law much less restricted, as the law can expand significantly beyond the confines of the shari‘a. The future of that Islamic constitutionalism in the face of the Islamic resurgence,

on the one hand, and the persistence of authoritarian regimes, on the other, cannot be predicted. What is certain, however, is that in its latest form it offers a consistent model of Islamic constitutional democracy that would allow for the emergence of Islamic democratic parties similar to the Christian democratic parties in Western Europe and elsewhere, and to the Nahdlatul Ulama and the Muhammadiyya in Indonesia and the Justice and Development Party currently in power in Turkey.

LITERATURE CITED Ahmad ibn Abi Diy¯af. 1872 (2005). Consult Them in the Matter. A Nineteenth-Century Islamic Argument for Constitutional Government. Transl. LC Brown. Fayetteville: Univ. Ark. Press Ahmed I. 1987. The Concept of an Islamic State. An Analysis of the Ideological Controversy in Pakistan. New York: St. Martin’s ¯ Ajud¯ ani M. 2003–2004 (1382). Mashruta-ye ir¯ani (Iranian Constitutionalism). Tehran: Akhtar¯an Akhavi S. 2003. Sunni modernist theories of social contract in contemporary Egypt. Int. J. Middle East Stud. 35:23–49 Akhavi S. 2007. Shi‘ite theories of social contract. In Shari’a: Islamic Law in the Contemporary Context, ed. F Griffel, A Amanat. Stanford, CA: Stanford Univ. Press. In press An-Na’im A. 1985. The elusive Islamic constitution: the Sudanese experience. Orient 26(3):329–40 An-Na’im A. 1990. Toward an Islamic Reformation. Syracuse, NY: Syracuse Univ. Press An-Na’im A. 1996. Islamic foundations of religious human rights. In Religious Human Rights in Global Perspective, Vol. 2: Legal Perspectives, ed. J van der Vyver, J Witte, pp. 337–60. Amsterdam: M. Nijhoff An-Na’im A. 2006. African Constitutionalism and the Role of Islam. Philadelphia: Univ. Penn. Press Arjomand SA. 1992. Constitutions and the struggle for political order: a study in the modernization of political traditions. Arch. Eur. Sociol./Eur. J. Sociol. 33(4):39–82 Arjomand SA. 1993a. Religion and constitutionalism in Western history and modern Iran and Pakistan. In The Political Dimensions of Religion, ed. SA Arjomand, pp. 77–82. Albany: SUNY Press Arjomand SA. 1993b. Shi‘ite jurisprudence and constitution-making in the Islamic Republic of Iran. In Fundamentalisms and the State. Remaking Polities, Economies, and Militance, ed. M Marty, RS Appleby, pp. 88–109. Chicago: Univ. Chicago Press Arjomand SA. 1996. Religious human rights and the principle of legal pluralism in the Middle East. In Religious Human Rights in Global Perspective, Vol. 2: Legal Perspectives, ed. J van der Vyver, J Witte, pp. 321–36. Amsterdam: M. Nijhoff Arjomand SA. 2000. Authority in Shi‘ism and constitutional developments in the Islamic Republic of Iran. In The Twelver Shia in Modern Times: Religious Culture & Political History, ed. W Ende, R Brunner, pp. 301–32. Leiden: Brill Arjomand SA. 2003. The role of religion and the Hanafi and Ja‘fari jurisprudence in the new Constitution of Afghanistan. In Afghanistan: Towards a New Constitution, pp. 18–22. New York: N. Y. Univ., Cent. Int. Coop. www.annualreviews.org • Islamic Constitutionalism

137


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Arjomand SA. 2007a. Islam and constitutionalism since the nineteenth century: the significance and peculiarities of Iran. In Constitutional Politics in the Middle East (with Special Reference to Turkey, Iraq, Iran and Afghanistan), ed. SA Arjomand, pp. 33–62. London: Hart Arjomand SA. 2007b. Shari’a and constitution in Iran: a historical perspective. In Shari’a and Constitution, ed. A Amanat, F Griffel. Stanford, CA: Stanford Univ. Press. In press Arjomand SA. 2007c. Constitutional development and political reconstruction from nationbuilding to new constitutionalism. In Constitutionalism and Political Reconstruction, ed. SA Arjomand, pp. 1–43. Leiden: Brill Asad M. 1961. Principles of State and Government in Islam. Berkeley: Univ. Calif. Press Baker RW. 2003. Islam Without Fear: Egypt and the New Islamists. Cambridge, MA: Harvard Univ. Press Berkes N. 1964. Development of Secularism in Turkey. Montreal: McGill Univ. Press Binder L. 1961. Religion and Politics in Pakistan. Berkeley/Los Angeles: Univ. Calif. Press Binder L. 1988. Islamic Liberalism: A Critique of Development Ideologies. Chicago: Univ. Chicago Press al-Bishri T. 1996. al-Wad’ al-q¯anuni al-mu’¯asir bayn’l-shari‘ah al-Isl¯amiyah wa-al-q¯anun al-wad’i. Cairo: Maktabat al-Shuruq al-Bishri T. 2006. al-Qad¯a’ al-Misri bayn’l-istiql¯al wa-al-ihtiw¯a’. Cairo: Maktabat al-Shuruq Botiveau B. 1993. Contemporary reinterpretations of Islamic law: the case of Egypt. In Islam and Public Law: Classical and Contemporary Studies, ed. C Mallat, pp. 261–77. London: Graham & Trotman Brown NJ. 1997a. Shari’a and the state in the modern Middle East. Int. J. Middle East Stud. 29.3:359–76 Brown NJ. 1997b. The Rule of Law in the Arab World: Courts in Egypt and the Gulf. Cambridge, UK: Cambridge Univ. Press Brown NJ. 2002. Constitutions in a Nonconstitutional World. Arab Basic Laws and the Prospects for Accountable Government. Albany: SUNY Press Brown NJ, Sherif AO. 2004. Inscribing the Islamic shari‘a in Arab constitutional law. In Islamic Law and the Challenge of Modernity, ed. YY Haddad, BF Stowasser, pp. 55–80. Walnut Creek, CA: AltaMira Choudhry SA. 1988. Constitutional History of Pakistan (1909–1972). Lahore: P.L.D. Publ. Darling LT. 2007. Islamic empires, the Ottoman Empire, and the circle of justice. See Arjomand 2007a El-Affendi A. 1991. Turabi’s Revolution: Islam and Power in Sudan. London: Grey Seal El-Ghobashy M. 2005. The metamorphosis of the Egyptian Muslim Brothers. Int. J. Middle East Stud. 37.3:373–95 El-Ghobashy M. 2006. Taming the Leviathan: Constitutionalist Contention in Contemporary Egypt. PhD diss. Columbia Univ. Elkhalil HH. 2006. Egypt. In Middle Eastern Law, J Phipps et al. Int. Lawyer 40.2:597–626 Feldman N. 2003. After Jihad: America and the Struggle for Islamic Democracy. New York: Farrar, Straus & Giroux Gibb HAR. 1955. Constitutional organization. In Law in the Middle East, ed. M Khadduri, HR Liebesny, pp. 3–27. Washington, DC: Middle East. Inst. Gibb HAR. 1970. The heritage of Islam in the modern world (I). Int. J. Middle East Stud. 1:3–17 Haddad YY. 1980. The Quranic justification for an Islamic revolution: the view of Sayyid Qutb. Middle East J. 37.1:14–29 Hairi AH. 1977. Shi‘ism and Constitutionalism in Iran. Leiden: Brill Hallaq WB. 1997. A History of Islamic Legal Theories. Cambridge, UK: Cambridge Univ. Press

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Hallaq WB. 2004. Can the shari‘a be restored? In Islamic Law and the Challenge of Modernity, ed. YY Haddad, BF Stowasser, pp. 21–53. Walnut Creek, CA: AltaMira Hill E. 1987. Al-Sanhuri and Islamic Law. Cairo: Am. Univ. Cairo Press Hill E. 1993. Majlis al-Dawla: the administrative courts of Egypt and administrative law. In Islam and Public Law. Classical and Contemporary Studies, ed. C Mallat, pp. 207–28. London: Graham & Trotman Kadivar M. 1997 (1376). Nazariya-ha-ye dawlat dar f iqh-e Shi‘a. Tehran: Nashr-e Ney Kadivar M. 1998 (1377). Hokumat-e vel¯a’i. Tehran: Nashr-Ney Ker M. 1966. Islamic Reform: The Political and Legal Theories of Muhammad ‘Abduh and Rashid Rid¯a. Berkeley: Univ. Calif. Press Khadduri M. 1951. The juridical theory of the Islamic state. Muslim World 40:181–85 Khalil MI. 1971. The legal system of the Sudan. Int. Comp. Law Q. 20.4:624–44 Lewis B. 1966. Turkey. In DUSTUR. A Survey of the Constitutions of the Arab and Muslim States. Leiden: Brill Lombardi CB. 1998–1999. Islamic law as a source of constitutional law in Egypt; the constitutionalization of the shari‘a in a modern Arab state. Columbia J. Transnatl. Law 37:81–123 Lutfi GA. 1967. The future of the English law in the Sudan. Sudan Law J. Rep. 1967:219–49 Mallat C. 1993. The Renewal of Islamic Law. Muhammad Baqer as-Sadr, Najaf and the Shi’i International. Cambridge, UK: Cambridge Univ. Press Mallat C. 2007. Introduction to Middle Eastern Law. New York: Oxford Univ. Press. In press Maududi SA. 1960. Islamic Law and Constitution. Transl. ed. K Ahmad. Lahore: Islamic Publ. 2nd ed. Mayer AE. 1994. Universal versus Islamic human rights: a clash of cultures or a clash of constructs? Mich. J. Int. Law 15(2):183–228 Mayer AE. 1999. Islam and Human Rights: Tradition and Politics. Boulder, CO: Westview Mayer AE. 2002. Conundrums in constitutionalism: Islamic monarchies in an era of transition. UCLA J. Islamic Near East. Law 1:183–228 Mayer AE. 2007. The respective roles of human rights and Islam: an unresolved conundrum for Middle Eastern constitutions. See Arjomand 2007a Mojtahed-Shabestari M. 1996 (1375). Hermeneutic, kit¯ab va sonnat. Tehran: Tarh-e Naw Mojtahed-Shabestari M. 2000 (1379). Naqdi bar qer¯a’at-e rasmi-ye din. Tehran: Tarh-e Naw Montazeri H-’A. 1988 (1408). Der¯as¯at fi vel¯ayat al-faqih. Qom (n.p.). 2 vols. Moustafa T. 2003. Law versus the state: the judicialization of politics in Egypt. Law Soc. Inq. 28:883–930 Nasr SVR. 1996. Mawdudi and the Making of Islamic Revivalism. New York: Oxford Univ. Press Newberg PR. 1995. Judging the State: Courts and Constitutional Politics in Pakistan. Cambridge, UK: Cambridge Univ. Press Rahman F. 1970. Islam and the constitutional problem of Pakistan. Stud. Islamica 32:277 Rahman F. 1974. Islam and the new Constitution of Pakistan. In Contemporary Problems of Pakistan, ed. JH Korson, p. 40. Leiden: Brill Rahman SA. 1978. Punishment of Apostasy in Islam. Lahore: Inst. Islamic Cult. Ramadan AA. 1993. Fundamentalist influence in Egypt: the strategies of the Muslim Brotherhood and the Takfir groups. In Fundamentalisms and the State, ed. M Marty, RS Appleby, pp. 152–83. Chicago: Univ. Chicago Press Rutherford BK. 2006. What do Egypt’s Islamists want? Moderate Islam and the rise of Islamic constitutionalism. Middle East J. 60(4):707–31 Said EW. 1978. Orientalism. New York: Pantheon Books ˇ ¨ ¯ in modernen Agypten. Schacht J. 1932. Sari’a und Q¯anun Der Islam 20:211–33 www.annualreviews.org • Islamic Constitutionalism

139


ARI

23 September 2007

15:50

Shambayati H. 2007. The guardian of the regime: the Turkish Constitutional Court in comparative perspective. See Arjomand 2007a Sorush A-K. 2000 (1379). Siy¯asat-n¯amah. Tehran: Ser¯at Taylor D. 1983. Politics of Islam and Islamization in Pakistan. In Islam in the Political Process, ed. JP Piscatori, p. 181. Cambridge, UK: Cambridge Univ. Press Turabi H. 1983. The Islamic state. In Voices of Resurgent Islam, ed. J Esposito, pp. 241–51. New York: Oxford Univ. Press Vogel FE. 1999. Conformity with Islamic shari‘a and constitutionality under Article 2: some issues of theory, practice, and comparison. In Democracy, the Rule of Law and Islam, ed. E Cotran, AO Sherif, pp. 525–44. London: Kluwer Voll JO. 1991. Fundamentalism in the Sunni Arab world: Egypt and the Sudan. In Fundamentalisms Observed, ed. M Marty, RS Appleby, pp. 345–402. Chicago: Univ. Chicago Press

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Contents

Annual Review of Law and Social Science Volume 3, 2007

Frontispiece Kitty Calavita p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p x Immigration Law, Race, and Identity Kitty Calavita p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p1 Accountability, QuantiďŹ cation, and Law Wendy Nelson Espeland and Berit Irene Vannebo p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p 21 How Autonomous Is Law? Christopher Tomlins p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p 45 Half Empty, Half Full, or Neither: Law, Inequality, and Social Change in Capitalist Democracies Robin Stryker p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p 69 The Rule of Law John K.M. Ohnesorge p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p 99 Islamic Constitutionalism SaĂŻd Amir Arjomand p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p115 The Emergence, Content, and Institutionalization of Hate Crime Law: How a Diverse Policy Community Produced a Modern Legal Fact Valerie Jenness p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p141 Restorative Justice: What Is It and Does It Work? Carrie Menkel-Meadow p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p161 Law and Collective Memory Joachim J. Savelsberg and Ryan D. King p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p189 Law and Lawyers Preparing the Holocaust Michael Stolleis p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p213 The Death of Socialist Law? Inga Markovits p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p233 Legal Innovation and the Control of Gang Behavior Eva Rosen and Sudhir Venkatesh p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p255 v


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Punishment Beyond the Legal Offender Megan Comfort p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p271 The Effectiveness of Correctional Rehabilitation: A Review of Systematic Reviews Mark W. Lipsey and Francis T. Cullen p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p297 The Socio-Legal Implications of the New Biotechnologies Alain Pottage p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p321

Annu. Rev. Law. Soc. Sci. 2007.3:115-140. Downloaded from arjournals.annualreviews.org by SEIR on 01/24/08. For personal use only.

The Frontiers of Intellectual Property: Expanded Protection versus New Models of Open Science Diana Rhoten and Walter W. Powell p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p345 Personal Information, Borders, and the New Surveillance Studies Gary T. Marx and Glenn W. Muschert p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p375 Institutional Perspectives on Law, Work, and Family Catherine Albiston p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p397 Implicit Social Cognition and Law Kristin A. Lane, Jerry Kang, and Mahzarin R. Banaji p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p427 Indexes Cumulative Index of Contributing Authors, Volumes 1–3 p p p p p p p p p p p p p p p p p p p p p p p p p p p453 Cumulative Index of Chapter Titles, Volumes 1–3 p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p455 Errata An online log of corrections to Annual Review of Law and Social Science articles may be found at http://lawsocsci.annualreviews.org

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Contents

Arjomand-Islamic-Constitutional-Ism  

First published online as a Review in Advance on August 8, 2007 comparative constitutionalism, Islamic law, ideology, legal change Copyright...

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