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Islamic Constitutionalism
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Sad 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. 3:11540

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 articles 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 rst survey of the topic, this review covers Islamic constitutionalism since its emergence a century ago, showing a signicant
range of historical variation. The rst 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 rst 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 governmentthis 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 nally the current return to the rule of law and postideological constitutionalism. The conception of the
place of the sharia (Islamic law) in the constitutional order is crucial for the denition
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
sharia and to an elite as the guardian of

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Arjomand

the public interest (Brown & Sherif 2004,


p. 58). Ahmad ibn Abi Diyaf [1872 (2005),
esp. p. 75], another Tunisian bureaucrat and
drafter of its constitution but writing a decade
after the constitutions promulgation, based
his constitutionalist reading of Islamic history on his remarkable intuition that the
sharia imposed a limitation upon autocratic
monarchy. In his words, monarchy limited
by law (kanun) 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
rst 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 rst 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 20032004,
pp. 36768, 37172).
This early constitutionalism, which could
be considered implicitly Islamic or protoIslamic, found its major embodiment in the
Ottoman Fundamental Law (kanun-e esasi)
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
sharia and the state law (kanun). The council
of ministers under the grand vizier included
the highest religious ofcial of the empire, the
Shaykh al-Islam, and the judiciary power consisted of the religious or shari 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. 1114).

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THE EMERGENCE OF ISLAMIC


CONSTITUTIONALISM IN IRAN
The emergence of Islamic constitutionalism
proper, however, dates from the Iranian Constitutional Revolution (19061911). It was
the result of the rst serious constitutional
debates about Islam occasioned by the prominence of the Shiite 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 shari
or sharia-permissible constitutionalism
(mashruta mashrua). Although few of these
problems were denitively or satisfactorily
resolved by it, the idea of shari constitutionalism became clearly dened and elaborated. As
distinct from secular constitutionalism, this
form of Islamic constitutionalism considered
the sharia a rm limitation on government
and legislation.
The peculiarity of Iran as the only Muslim
country where Shiism was the established religion left an indelible mark on the character
of Islamic constitutionalism as it developed
during this rst decade of the twentieth century. What distinguished the Shiite from the
Sunni (mainstream) branch of Islam by the
nineteenth century was its rmly institutionalized clericalism and the existence of a powerful Shiite 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 Shiite hierocracy. As a result of
this conscious strategy by the constitutionalist
movement to draw in the leaders of the Shiite
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 afrmed, Iranian constitutionalism was
not to imitate foreign constitutionalism and
does not wish any (reprehensible) innovation

(bedat) to occur in religion (cited in Ajud


ani
20032004, p. 205). This assertion of the
identity of constitutionalism and Islam often
involved crude and misleading reductionism.
The conation 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 Shiite 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
specied by the sharia) by the other, and it
unintentionally inscribed the religious leaders into the constitutionalist movement and

the constitutional order (Ajud


ani 20032004).
The emergence of Islamic constitutionalism in this Shiite form is covered in Hairis
(1977) Shiism and Constitutionalism in Iran. It
was, in the rst instance, elaborated in 1907 by
Shaykh Fazl Allah Nuri (d. 1909). Nuri, one
of the three highest ranking Shiite jurists who
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had supported the demand for a constitution


in 19051906, 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 shari constitutionalism that
gained considerable currency even among the
clerics who remained in the constitutionalist
camp (Hairi 1977). The core idea of shari
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 ve 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 inuential justication of constitutionalism in terms of Shiite
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 sharia
as a limitation on parliamentary legislation.
Tanbih al-umma wa tanzih al-milla (Admonishment of the Umma and the Purication of
the Nation/Religious Community) by Mirza
Mohammad Hosayn Gharavi Naini (d. 1936)
was published in Baghdad in 1909. Naini
adopted the dichotomy of despotic and constitutional governments from the contemporary Arab thinker Abd al-Rahman alKawakibi, modifying it into two forms of
government called proprietary or patrimonial
(tamallokiyya) and custodial (velayatiyya). He
then put forward a new reconciliation of constitutional government and the Shiite theory

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of the Imamate, beginning with the Shiite 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 Shiite 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 Imams 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
qualied 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. 19394, translation slightly modied). Furthermore, Naini
was careful to impose all the same limitations
on parliamentary legislation as other Shiite
jurists, who had supported constitutionalism
but had modied 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
sharia.) Naini accordingly accommodated
the substance of the idea of shari constitutionalism regarding the restriction of parliamentary legislation to secular or customary (or)
affairs and explicitly restricted equality before
the law to man-made or positive laws (qavanin
mawzua) on the assumption that they cannot
override the sharia (Hairi 1977, p. 225).

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This describes the theory of Islamic constitutionalism as it was formulated in relation


to Shiite jurisprudence in Iran in the rst
decade of the twentieth century. The practice was very different. The committee of
ve mojtaheds was never formed because the
great majority of Shiite jurists selected by the
Second Majles (19091911) 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
Hajj Mirza Yahya, the Imam Jomah of Khoi,
did perform the supervisory role of insuring
consistency of legislation with the sharia in a
fashion, without formally instituting a committee (Arjomand 1993b). A generation later,
however, as is discussed below, some of the
Shiite jurists inspired by it partially fullled
the promise of Islamic constitutionalism by
codifying many of the substantive norms of
the sharia in the Iranian Civil Code.
In the rst phase of Islamic constitutionalism surveyed in this section, sharia 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 rst,
and far more destructive. In this wave of ideological constitution-making,1 Islam increasingly appears as the basis of the constitution
1

The dening 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 nullication 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 Pakistans 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 ` Abul-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 Shiite ulema (Maududi 1960,
pp. 15456, 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 jihad (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. 14748). This popular vicegerency,
derived from the Quranic 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.
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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. 15860). Mawdudi had
written in his early writings about the Islamic
revolution and considered jihad as Islamic
revolutionary struggle the means for achieving it. Later, however, he was a beneciary 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 reafrmed 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 rst 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. 22627) 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, rst
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 rst 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 Kelsens
pure theory of law, considered the Objectives
Resolution and the Almighty Allahs legal
sovereignty over the entire universe as the
Grundnorm of the constitutional order
in Pakistan (Choudhry 1988, pp. 712).
With this confusion of theological and
legal categories, ideological elements were
grafted upon Pakistans liberal, Westminster
constitutional model and grew to deform
its character when the declaration of the
sovereignty of God in the Objectives Resolution was nally made justiciable as Article
2-A of the restored Constitution of 1985,
interestingly by President Muhammad Zia
ul-Haqs executive at. This development,
and the Islamicization of the Pakistani state
and judiciary by General Zia, a member
of Mawdudis Jamaat-i Islami who came to
power with a military coup in 1977, can thus
be considered the much-delayed outcome
of the countrys foundation in 1947 (Taylor
1983, p. 181).
At the time, when the Pakistani founding
elite was not challenged in its cozy interpretation of Islam, Binders (1961) assertion that
the Objectives Resolution, drafted by the secular Prime Minister Liaqat Ali Khan, was a
perfect compromise (because it satised 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 difculty trumping the
other putative sovereigns! There is much less
justication, half a century later, for Feldman
(2003, p. 57) to take the sovereignty of God
as the connotation of the very word Islam and
nd 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


Khatami considered below, Feldman puts forwards the idea

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notion and its confusion of legal and theological categories. The declaration of Gods
sovereignty was in fact the cornerstone for
the construction of an ideological constitution purporting to be based on the Quran and
the Islamic sharia. 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, 2024), 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 sharia] (Gibb
1970, p. 11). This statement is typical of the
period (Khadduri 1951). The historical pic-

that constitutionalism naturally reects 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 sharia of
the prophets as divine messengers (Arjomand
2007a).
The convergence of Orientalism and
fundamentalism nds 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 Punjabs 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
rst guiding principle of the Islamic state is
the following: The foremost duty of such
a state consists in enforcing the ordinances
of the shariah in the territories under its
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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 shariah (Asad 1961, p. 39). The
implication is that, if the government fullls
the requirements imposed by the shariah,
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 shariah, a Muslim citizens
duty of obedience to the government is a
religious obligation (Asad 1961, pp. 69, 75).
Each generation should undertake its own
independent endeavor (ijtihad) in law-nding
and legislation in the area where there are
no rm ordinances of the sharia, 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 (shura) 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 peoples freedom to legislate
for themselves (Asad 1961, p. 20).
The qualication of the Republic of
Pakistan as Islamic also created a serious
constitutional problem, as had Israels as the
Jewish state. The constitutional proposals
by Mawdudi and Asad to treat religious minorities as the protected people (dhimmis)
according to the sharia 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


sharia concerning the dhimmis inapplicable
to the public law of Pakistan. Commenting
on the rst 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. 23) similarly
stated that the relationship between the Muslim and non-Muslim citizens of Pakistan was
a contractual one, and the provisions of the
sharia concerning the dhimmis did not apply
to the latter whose position is assimilable
to that of muahidsthe beneciaries of a
binding pact. President Zia ul-Haqqs 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 conrmed
by the Supreme Court of Pakistan in 1993
(Zaheeruddin v. State) (Arjomand 1996).
The nonideological core idea of Islamic
constitutionalism, namely the idea of sharia
as a limitation to legislation, was embodied
in the so-called repugnancy clause4 [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 Quran and the Sunnah,

The Constitution of 1973 nally 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 Zias Islamicization measures, however.

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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 ulemas amendment, reiterated by Mawdudi, that added
and the Quran 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 ofce at the discretion of the president, has assumed jurisdiction over determination of the conformity of laws with the
Quran and the Sunnah. The Shariah Bill of
1991 gave the judiciary power to interpret the
sharia 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 SHARIA 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 sharia 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 sharia 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) specied the sharia as the sources of all legislation (cited in An-Naim 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 sharia are the chief source
of legislation5 (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 sharia
(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 sharia the state law.
The turning of sharia 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 shariawhatever 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 sharia 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,
18691876, 16 books of the Mecelleor,
to give its full title, the Books of Judicial
5

The word for legislation itself is derived from sharia in


Arabic, unlike the Persian word that stems from qanun,
so the Arabic text reads: mabadi al-sharia al-islamiyya almasdar al-rasi lil-tashri.

6
Meanwhile, sharia 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 sharia 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 (ahkam adliyya)had created the


rst sharia-based modern code of law and set
the pattern for all future codications of the
sharia. 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
(qabiliyat al-qh al-islami lil-taqnin). In the
meantime, the famous movement for Islamic
reform (islah) 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 Sad Zaghlul in 1907)
of selecting among the opinions of the jurists
of the four schools (Botiveau 1993, pp. 265
66). Abduhs successor, Muhammad Rashid
Rida (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 Sala. 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 Abduhs followers in Egypt was the same
as that of the Ottoman Mecelle, except that
it was not restricted to the opinions of the
Hana schools but was expanded to include
all the four orthodox schools. Meanwhile,
during the second constitutional period, the
codication of those areas of the sharia was
resumed, with its methodology expanded
beyond the jurisprudence of the Hana
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


shari rules of process and evidence, while
giving primary importance to documentary
and circumstantial evidence (Schacht 1932,
pp. 23133). The process culminated in the
construction of the Egyptian Civil Code of
1948 under the direction of Abd al-Razzaq
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 sharia 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 codication of important legal sections
of the Shiite sharia 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 sharia, as Hallaq implies, but in the willful amnesia of the earlier
generations 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

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 codication based
on Islamic jurisprudence in Iran and Egypt, and its Constitution of 1964 (Article 69) allowed residual resort to Hana
jurisprudence in the absence of statutory law. The corresponding article in the 2004 Constitution of the Islamic
Republic of Afghanistan conrms this (Article 130), while
the subsequent Article 131 recognizes similar residual use
of Shiite jurisprudence. Strange as it may seem, the position of the Shiite 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 Tariq al-Bishri (1996, pp. 47
49) terms independence in law-making
(al-istiqlal al-tashrii), accepting Sanhuris 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 Eastan era that had begun with the
Mexican Constitution of 1917 and the Soviet
Constitution of 1918. The neologism of
Islamic government (hokumat-e eslami) had
been the key slogan of Ayatollah Ruhallah
Khomeinis 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
Mawdudis hakimiyya[t], via the Arabic translation (Arjomand 2000, pp. 30132)]. 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 sharia 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 sharia; its
Article 4 declares all laws found inconsistent
with the sharia null and void, including the
constitution itself. The critical function of
nullication of all proposed and existing laws
found inconsistent with the sharia is given
to the six clerical jurists of the Council of
Guardians. The Council of Guardians, it
should be noted, was a modication of the
committee of ve 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. 6667), who quite probably knew
about the 1907 committee (Asads proposal,
however, extended the tribunals 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 fulll their ideological commitment by enacting the penal code of the
sharia 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
sharia was the execution of its atavistic and
cruel hudud punishments, most notably the
stoning of women for adultery.

SHIITE 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 Hosseins erce 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
Shii 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 eld (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 inuence the codication
of Middle Eastern law. The Shiite reform
movement in the 1960s and 1970s, by contrast, made two previously underdeveloped
areas of Islamic jurisprudence the core of
its renewal of Shiite law: the constitutional
part of public law, and the large eld opened
up by modern economics: labor law, land
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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 Shiite law was Mohammad Baqer as-Sadr,
who was executed with his sister by Saddams
order in April 1980.
Sadrs rst major work, Falsafatuna (Our
Philosophy), had been written in 1959 in reaction to the growing appeal of communism
among disenfranchised Iraqi Shia, 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 Sadrs economics,
expounded in Iqtisaduna (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 justication 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 benet 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 (riba) with modied
uses of other permissible categories of Islamic
law.
In Sadrs political theory, the unsuspected
conditioning by the Marxist antithesis is notable in his characterization of the traditional

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Shiite marjaiyya(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 specically
Shiite 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 signicance
with the Islamic revolution in Iran.
In Iqtisaduna, Sadr had conceived of a discretionary area subject to the (legislative) authority of the ruler, stating that Islam allowed
the wali al-amr (an undened term Mallat
reasonably translates as the ruler) to exercise ijtihad according to the needs and interests of society (Mallat 1993, p. 119). In
1976, in a novel division of the rules of the
sharia 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 wilayat 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 (sultan) of the medieval jurists or Khomeinis theocratic faqih.
In a note proposing a constitution for an Islamic republic in Iran, written a week before
the nal collapse of the monarchy, he put the
general vicegerency (al-niyabat al-amma) that
pertains to the supreme jurist (al-mujtahid almutlaq) in place of the wilayat 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 wilayat al-faqih as the Mandate
of the Jurist (to rule) (Mallat 1993, pp. 70
71). Sadrs 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 ofcial 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 rmly 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 nd an alternative to the ofcial
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 sharia. Politically the
most consequential of these was the radical
modication 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, Khomeinis successordesignate until 1988, who had published a
treatise on Islamic jurisprudence justifying
the Mandate of the Jurist (Montazeri 1988).
The young jurist who followed Montazeris
hint and developed a full-edged critique
of Khomeinis 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 rst was implicit and consisted of
the relativization of Khomeinis theory by
presenting it as one among many recognized
Shiite views of the state. Kadivars (1997)
Nazariya-ha-ye dawlat dar f iqh-e Shia (Theses
on the state in Shiite jurisprudence) takes
this step and is valuable for its departure from
the ofcial position that Khomeinis thesis
was the Shiite view of government. Although
dutifully tracing its genealogy, Kadivar
separates Khomeinis earlier and later views
on theocratic government into two theses
and puts them alongside seven other theses

that were presented as equally plausible.


Khomeinis 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 (velayat-ei motlaqa-ye
faqihan). 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 sharia.
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. 1089).
Kadivar intermittently points out (1997,
pp. 18, 3637, 7879) that the idea of theocratic government was rejected by some
prominent jurists from Shaykh Murtaza
Ansari (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 Khomeinis juristic theses alongside seven
others presented as equally authoritative. Historically, the most signicant of these is the legitimation of monarchy in what I have called
the theory of the two powers. Kadivar presents
this view as the rst Shiite thesis on government and supports it by citations from the seventeenth and eighteenth centuries as well as
the early constitutional periods. The second
historically signicant thesis is Nainis abovementioned justication of constitutional government in 1909.
The remaining theses belong to the era
of the Islamic Republic of Iran but diverge
from its ofcial constitutional interpretation.
The later view of Sayyed Mohammad Baqer
al-Sadr (d. 1980) is typied as Caliphate of
the people with the supervision of the sources
of imitation (khelafat-e mardum ba nezarat-e
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marjaiyyat), 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 Hairi-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 Kadivars thesis on representation through deputation
by joint property-owners (velayat-e malekane shakhsi-ye mosha)! 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 Nematollah Salehi-Najafabadi. This
class of contemporary Islamic constitutionalist writings represents modernist attempts
to create various legal ctions, drawn from
Shiite jurisprudence, for the justication of
a modern Islamic constitutional state. SalehiNajafabadi 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 Mawdudis
theo-democracy and Asads Islamic state in
their derivation of constitutional principles
from Islam (Akhavi 2007). Hairi-Yazdi comes
a little closer to Western social contract theories on the basis of the implicit recognition of
the natural law in the Quran, 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 nal step a year later with the publication
of Hokumat-e velai (Mandate-based government), or government based on the absolute
appointive mandate of the jurists. He now offered an explicit critique of Khomeinis theory

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and a refutation of the legal arguments for the


validity of the ofcial doctrine of theocratic
government (Kadivar 1998, p. 13). The book
consists of two roughly equal parts; the rst
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 specied by the hisba rules
of the sharia, to authority over the people in
general (Kadivar 1998, pp. 1023, 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 ofcial doctrine in terms of traditional Shiite jurisprudence. Kadivars theory remains strictly within
the bounds of Shiite jurisprudence and offers no hermeneutic questioning of the Shiite
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
Khomeinis theocratic theory, however, was
put forward in a series of lectures and articles
that were later published as two books by
Mojtahed-Shabestari, a Shiite cleric who
had been the director of the Islamic Center
in Hamburg and had been elected to the rst
Islamic Majles in 1980. Undermining the
premises of the constitution and ofcial ideology of the Islamic Republic of Iran, MojtahedShabestari (1996, pp. 4666) 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 ofcial 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-Shabestaris ideas were very inuential in the reform movement under President Mohammad Khatami (19972005), 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 Khatami, democracy in Iran would naturally assume the form of a religious democracy. Sorush (2000a, pp. 215, 220) juxtaposed
this underspecied 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,
afrming 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. 37677)
now offers a normative denition 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 nd it inseparable from the organizational and ideological
evolution of the Muslim Brotherhood,
founded by Hasan al-Banna in Egypt in 1928

to translate the Sala 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
ofcial opposition in Kuwait, although the
main branch was outlawed in Egypt itself in
1954 and has remained ofcially unrecognized despite forming the largest opposition
bloc in the present parliament. The fascist
and communist ideological inuences on the
Muslim Brothers in the 1930s and 1940s must
have been considerable and were especially
reected in its secret armed organization for
revolutionary takeover. Voll (1991) claims that
even in this period the Muslim Brothers were
inuenced 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 Brotherhoods
turn to Islamic constitutionalism must be
dated from the composition in 1969 of Duat
la qudat (Missionaries not judges) by the
movements imprisoned leaders, which was
not published until 1977. They sought to
distance themselves from Qutbs 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 Mawdudis idea
of the Islamic state in Pakistan. Mawdudis
works were in fact translated into Arabic and
inuenced Qutb and others.
In one of the earliest usages of the term
qh al-dusturi [constitutional (Islamic) jurisprudence] in 1962, Ahmad Kamal AbulMajd compared the sharia 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
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of its laws with the principles of the sharia8


(Rutherford 2006, pp. 71214). Abul-Majd,
however, set the trend in Islamic constitutionalism that developed fully in the 1990s,
representing a postideological return to Abu
Diyaf s nineteenth-century idea of the sharia
as a constraint and limitation on government.
If the ruler violates the sharia, the citizens can
disobey his orders and even remove him from
ofce under certain conditions (Rutherford
2006, p. 712).
Although the appearance of Duat la qudat
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-Qaradawi 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 Quran and the Sunna. Furthermore, the idea of the sharia 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 Shiite 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 conation that marred the early twentieth
century and to a lesser extent the postideological Shiite constitutionalism in Iran are
not entirely absent from the new Egyptian

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This requirement is consistent with Asads 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-Islam wal-dimqratiyya
(Islam and democracy, published in 1993),
Fahmi Huwaydi, for instance, claims that
Islamic and Western political thought share
the concept of political pact (aqd siyasi)
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 (ijma) in Islamic jurisprudence anticipates Rousseaus general will by centuries
(cited in Akhavi 2003, p. 42). Reductionism
and conation 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 codication of the Egyptian law inspired by it (Bishri
1996). In other words, it returns to the preideological Islamic constitutionalist idea of
government limited by lawthis time, a law
inclusive of certain principles and substantive
norms of the sharia but extending far beyond
it to include democratic constitutional law.
Second, in this legal dimension, Quranic
and Sunnah textualism, which implies the
immutable eternity of the sharia as the divine
law, is severely restricted and replaced, at
least in the writings of its leading gure Tariq
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 itmost 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 Egypts 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 sharia 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 sharia.
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 ofces, 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 rst two decades
of its existence amounted to a consistent jurisprudence resting on three principles: the
coherence of the Constitution of 1971 as a
unied organic unit of which Article 2 was
one element, the nonretroactivity of Article
2s requirement of adherence to the sharia
by the legislature, and lastly a distinction between the denite and the indenite norms of
the sharia 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 indenite norms of the
sharia can be left to the discretionary power
of the ruler through ijtihad. If the ruler misuses this power or selects an ijtihad that is
not consistent with the public interest . . . , his
legislation becomes a violation with Islamic
sharia (Brown & Sherif 2004, p. 74). The
Egyptian SCCs 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. 18084),
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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
(19981999) and especially Vogel (1999), on
the other hand, present a more disturbing picture. It appears from these accounts together
that, although Egypts SCC at rst responded
vigorously to the major change in the international politico-legal culture by largely demolishing the socialist ideological foundation
of Egypts 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 womens
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 sharia 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
sharia. 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 sharia to the horror of its ofcial guardiansthe 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 Egypts 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 Egypts 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. 1034) and the
SCC (Moustafa 2003, p. 884). Legal mobilization through resort to courts and by capitalizing on Egypts 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 denitively marked by the
death of the octogenarian general guide,
Mamun 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. 9196). In April and May 2005, Egypts
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 oppositions 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 Peoples 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 Peoples
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
sharia to determine the constitutionality of
laws and the acceptance of the extension of the
sharia 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 (munaqez)
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 unied 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

Because of its religious pluralism, Iraq offered an opportunity, under ideal circumstances, for the liberal updating
of Nainis Shiite constitutionalism of 1909, which is presumably acceptable to Ayatollah Ali al-Sistani.

predominantly Shiite Iraq also signicantly


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 briey 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.
19611999), 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 nal constitution promulgated by
him in 1992 could thus declare the principle of national sovereignty without any apprehension that it might impinge on Gods 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 kings 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 reafrms the kingdoms subscription to human rights as they are universally
recognized (Mayer 2002, pp. 20913).
A more interesting and clearly postideological pattern of constitutional reform can
be found in Indonesias current transition
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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 19992000. 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 (28A28J)
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


SHARIA 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
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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 Lut
1967, p. 220), but an Islamic draft constitution was shelved by the coup of 1969 by
Colonel Jafar Numeiri, who advocated socialism at rst but later turned Islamic. In
September 1983, he abruptly imposed the
sharia 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 fulllment of his
earlier commitment to pan-Arabism and socialism, the sharia 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 Sharia Courts
Act of 1967 (Khalil 1971). The sharia courts
administered personal status and family law
but did not have and never claimed criminal
jurisdiction. And that was really the point of
Numeiris imposition of the sharia. It wrought
havoc with the Sudanese judiciary system
but satised the Islamists punitive urge by
amputating the limbs of the poor thieves,
some of whom had already served prison sentences, and ogging poor women who had
made their living by selling intoxicating beverages (An-Naim 1990, pp. 21920, 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-Naim 1985).
In developing Tahas idea of Islamic reformation and his constitutional proposals (AnNaim 1990, pp. 5770, 97100), his student
Abdullahi Ahmad An-Naim (1990, 1996) analyzed the contradictions between the sharia
and modern constitutionalism, human rights,

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international law, and other legal elds in


exhaustive detail in Toward an Islamic
Reformation (An-Naim 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 underspecication. 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 generals 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 sharia, 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-Naims (2006) most recent African
Constitutionalism and the Role of Islam, though
conrming the incompatibility of the
enforcement of the sharia with constitutionalism and his earlier emphasis that the sharia
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-Naim
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 specic


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 specicity
and richness of legal detail that distinguishes
An-Naims rst 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
Mayers 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 nullied. 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 at 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 Shariah. Article 25 further declares that
the sharia is the only source for explanation
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and clarication 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 qualied
rather than categorical, with qualications on
human rights ranging from the general principles of Islam to the specic provisions of
the sharia. This results in considerable tension that remains unresolved as constitutional
texts have not yet devised clear and coherent constitutional principles dening 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 signicant 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 inections
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
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Arjomand

constitutionalism in the Islamic Middle East,


by contrast, resulted in a direct clash with the
sharia as a jurists law (Arjomand 1993a).
This clash was in principle overcome
in the rst phase of Islamic constitutionalism by turning the sharia 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 sharia 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 rst 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 Shiite
theocracy with a subordinate elected president and Majles ourishes 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 sharia 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 rst 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 signicantly beyond the connes of the
sharia. 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.

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Ajud
ani M. 20032004 (1382). Mashruta-ye irani (Iranian Constitutionalism). Tehran: Akhtaran
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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, Quantication, 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
Sad 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 www.annualreviews.org


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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 13 p p 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 13 p p p p p p p p p p p 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

vi

Contents

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