Islam and Constitutionalism

To begin with, I need to qualify the sense in which I am discussing the relationship between Islam, as an ancient and extremely diverse religious tradition, on the one hand, and constitutionalism as a modern secular doctrine of governance and rights, on the other.

The premise of highlighting the possibilities of positive as well as negative relationships is that the attitudes of Muslims regarding constitutionalism are partly shaped by their understanding of Islam. This does not mean that Islam completely or exclusively determines the constitutional behavior of Muslims, as that is also influenced by a wide range of economic, political, and other factors, which is also true of the role of religion in other human societies in general. Nevertheless, the role of Islam is probably a major issue in many Islamic societies because of its widely perceived impact on the legitimacy of constitutional theory and practice, though that tends to vary in intensity and implications. In other words, Muslims may take a negative view of constitutionalism, even one hostile to some aspects of it, to the extent that they believe it to be inconsistent with their religious obligation to observe Shariʿʿa.

The following outline of some of the ideas and factors that are likely to influence the view Muslims may take of constitutionalism will necessarily be brief because it is not possible, or necessary for my purposes here, to attempt a comprehensive discussion of the subject. This overview will also be theoretical not only because the historical record is difficult to verify, or review in detail in this limited space, but also since it is the popular perception of the theory more than factual reality that resonates with the consciousness of Muslims today.

The predominant Islamic frame of reference is commonly taken to be the experience of the original Muslim community established by the Prophet in Medina, a town in Western Arabia, around 622, and believed to have been continued by the first generation of his followers (Faruki 1971). Patterns of individual and collective behavior, models of political and social relationships, and institutions commonly ascribed to or associated with that period continue to be held as the Islamic ideal by most Muslims today. To the Sunni majority, the Medina community of 622–660, the reign of the Prophet, and that of the four “rightly guided” Caliphs (successors of the Prophet) represent the most authoritative model of Islamic constitutional theory. The Shiʿa minority (presently at about 10–12 percent of the total Muslim population of the world) hold a similar view for their own separate line of Imams, starting with Ali, the fourth Caliph in the Sunni sequence of succession (An-Naʿim 1990: 29–31). Both sides uphold their respective model as the ideal, while constantly decrying deviations by subsequent generations, which are often justified as coerced by compelling circumstances such as internal strife or external invasion.

To a Muslim, it has always been a far more heinous sin to deny or question the divine revelation than to fail to obey it. So it seemed preferable to continue to pay lip-service to an inviolate Shari’a, as the only law of fundamental authority, and to excuse departure from much of it in practice by appealing to the doctrine of necessity (darurua), rather than to make any attempt to adapt that law to the circumstances and needs of contemporary life. (Anderson 1976: 36)

Thus, the common (or rather commonly assumed) view among Muslims today is that the Medina state was the original and perfect model of an “Islamic state,” established and ruled by the Prophet who continued to receive Divine Revelation, according to Muslim belief, until his death in 632. In modern constitutional terms, the Prophet was the original and exclusive human sovereign and sole source of law and political authority. The subjects (as they could not be called “citizens” in the modern sense of the term) of that state are believed to have been the ideal model Muslims, both individually and collectively as a community of devout believers, the embodiment of Islamic values under the immediate instruction and supervision of the Prophet himself. By its own terms, therefore, this view of the Medina state and its population can never be replicated because Muslims do not accept the possibility of another Prophet after Muhammad and also believe the first generation of Muslims to have been the best possible embodiment of Islamic values and lifestyle. Yet the Medina state is supposed to forever provide Muslims with the most authoritative constitutional model of an Islamic government under Shariʿa. In this light, it is instructive for our purposes here to analyze that model in constitutional terms because Muslims presumably continue to hold it as the standard by which a modern state is to be judged, if not actually implemented today.

The key constitutional features of the Medina state derive from the central role of the Prophet as the ultimate source of moral and political as well as “legal” authority, who as such enjoyed complete unfettered allegiance and obedience of the believers—those who believed him to be the final and conclusive Prophet.

Upon the Prophet’s death in 632, the first Caliph, Abu Bakr, was selected by a very small group of leading Muslims, the second, Umar was directly appointed by Abu Bakr before he died, and the third Usman, was selected by a small committee appointed by Umar as he was about to die. While Ali, the fourth Caliph, was not openly contested by any other contender, his appointment was indirectly challenged by some leading Muslims of the time for a variety of reasons. The ensuing civil war and the assassination of Ali resulted in the establishment of the Umayyad monarchy in 661, followed by the Abbasid monarchy that lasted in various forms and ways for several centuries. In all cases, however, the effectively final and conclusive selection or appointment of the Caliph was presumably confirmed by the general Muslim population through what was known as bayʿa, public oath of allegiance. Although this may have been a fiction or mere formality, even during the Medina state, the notion of bayʿa can have some paradoxical or ambiguous constitutional implications today, as explained below. In particular, while this notion of bayʿa implied that the authority of the Caliph derives from the Muslim population at large, there was no way to hold him accountable or to terminate allegiance to a specific person in that office in practice.

Thus, Muslims have experienced a variety of methods for identifying rulers throughout history: from limited election, direct appointment, and limited selection in the city state of Medina to the hereditary monarchies of the imperial states that finally ended with the collapse of the Ottoman Empire after the First World War.

In any case, there was simply no concept of or mechanism for organized peaceful political dissent, though the response may vary with the possibilities or likely outcome of other forms of political negotiations or mutual accommodation. Absolute monarchies were the standard and shared experience of all human societies in that premodern historical context. Such regimes were the invariable norm throughout the world until the modern era, and not only among Muslims, and those regimes often used religion as a legitimizing frame of reference. It can also be argued that premodern systems of governance also had appropriate mechanisms of accountability and did rely on the consent of the general population, though obviously not to the degree and in the manner required by modern constitutionalism. However, while one should not judge those experiences by today’s standards, it is inappropriate to seek to implement those historical models in the present context. In other words, this constitutional critique of traditional Islamic political thought and practice is intended to challenge current calls for the reenactment of that historical model, rather than judging it as right or wrong for its own context.

Although the classical Caliphs did not enjoy the Prophet’s religious authority, they did in fact exercise the full range of his political and legal powers, which were supposed to be limited and checked by moral and ethical constraints; the assumption that the Caliph and his officials would voluntarily abide by Shariʿa.

This limited and historically conditioned understanding of the concept of shura does not mean that it cannot be used today as a basis for institutionalized constitutional principles of democratic government that are legally and politically accountable to the population at large. In fact, that is the sort of evolution and development of Islamic principles that I am calling for, but that possibility would be better facilitated by a clear understanding of what the notion of shura and its historical practice used to be. To pretend that that notion has already been understood and practiced as “constitutional democratic government” in the modern sense will be counterproductive because that would confirm and validate unconstitutional practices. In any case, that claim still has to account for the lack of practical institutional arrangements for peaceful political dissent and orderly transfer of power throughout Islamic history up to the postcolonial era. As briefly explained later, these concepts and institutions have only evolved very gradually and tentatively since the eighteenth century in some Western countries, and are only beginning to emerge and take root in most parts of the world.

Another dimension of this historical conditionality of principles of constitutional and democratic governance in relation to historical Islamic principles and practice relates to what is commonly known in present constitutional discourse as “civil rights,” also confirmed now as “human rights” under international law. I now highlight the main features of this dimension and then offer a general approach to mediating the tension between these problematic aspects of the historical understanding of Islam and modern constitutionalism, as background for further discussion in Chapters 4 and 5.

It must be first emphasized that, like the English Common Law and other legal systems, the general rule of Shariʿa is that people are guaranteed freedom of action (or inaction) unless, and only to the extent that, action (or inaction) is expressly prohibited or restricted. In this sense, there are no theoretical limitations on civil rights under Shariʿa except in specific cases, as highlighted below. But the practical application of this general principle is complicated by the diffused nature of Shariʿa in a wide range of schools of thought, and the strong disagreements among Islamic scholars (ulama) on almost every conceivable subject. Muslims are therefore often uncertain about whether under Shariʿa they have the right to act or refrain from actions, that open the door for political manipulation by rulers and the scholars who support them. Such manipulation not only is more likely in civil rights matters because that tends to serve the political interest of rulers, but is also more effective because of a traditional emphasis on the duty of the “subject” to obey the ruler in order to avoid political upheaval, especially when rulers express their commitment to Shariʿa.

Besides the generally inhibiting effect of this traditional political culture on the civil rights of all citizens in the modern context, women and non-Muslims are subjected to further restrictions under historical formulations of Shariʿa. For example, verse 34 of chapter 4 of the Qur’an has been taken to establish a general principle of men’s guardianship (qawama) over women, thereby denying them the right to hold any public office involving the exercise of authority over men. While jurists differ in their views on the subject, none of them would grant women equality to men in this regard. This general principle is applied in interpreting, and is reinforced by, various specific verses that apparently grant women unequal rights to those of men in marriage, divorce, inheritance, and related matters. The same principle of interpretation is applied to other verses, like verse 31. of chapter 24 and verses 33, 53, and 59 of chapter 33, to restrict the right of women to appear and speak in public or associate with men, thereby limiting their ability to participate in the government of their country. Thus, although Muslim women have the same freedom of belief and opinion enjoyed by men, their opportunity to exercise this right is greatly inhibited by restrictions on their access to the public domain. The same type of combination of general and specific verses has been used in traditional formulations of Shariʿa to restrict the rights of non-Muslims in various categories of People of the Book (mainly Christians and Jews) and unbelievers. But none of those categories qualify for full and equal citizenship under traditional interpretations of Shariʿa (An-Naʿim 1990: 88–91).

Other examples of inequality and discrimination can be cited, and I will return to these issues later in this book, but my main point for now is that there are specific civil rights problems in addition to the broader constitutional concerns outlined above. Some proponents of the application of Shariʿa tend to cite a few examples of the high level political role played by a few women or the role of non-Muslims in the administration, as evidence of equality and nondiscrimination in practice, despite discriminatory principles in theory. Besides being few and far between, which confirms the realities of exclusion and discrimination, those examples were the product of political expediency and not institutionalized principles of equal citizenship for women and non-Muslims as a matter of Shariʿa or general Islamic political thought.

In my view, whatever political or sociological justifications may have existed in the past for these aspects of Shariʿa are no longer valid in the context of the modern Islamic societies. This view appears to be shared by the majority of Muslims today, as evidenced by the fact that the national constitutions of most Islamic states now provide for equality and prohibit discrimination on grounds of sex or religion. Many Islamic countries are also parties to international human rights treaties that require equality and nondiscrimination. It is true that Islamic countries rarely live up to the level of their constitutional or civil rights commitment, but that is a common problem among all countries. While emphasizing the need to understand and combat the underlying causes of this common failure, I find it significant that many Muslims around the world express commitment to the values of constitutionalism and civil rights. To assist these Muslims in honoring that commitment, I suggest the implementation of internal Islamic law reform in order to address the general constitutional concerns raised earlier mandating complete equality for women and non-Muslims as a matter of Shariʿa. Such reform, I suggest, will contribute to the process of legitimizing and indigenizing the values of political participation, accountability, and equality before the law, thereby enhancing the prospects of constitutionalism in Islamic societies (An-Naʿim 1990: 97–100).

One of the critical questions from this perspective in particular is how to apply constitutional concepts and institutions developed centuries after the model of the Prophet’s state in Medina in analyzing the nature, powers and operation of that state. The first step in this process is to argue that the fact that these concepts and institutions evolved much later does not make them inherently “un-Islamic.” On the contrary, the recent drastic transformation of Islamic societies and their local and international environments makes the patterns of political participation and power relations of the early Islamic era irrelevant and counterproductive. By the same token, the present context strongly indicates the need to incorporate constitutional principles and institutions into the Islamic political thought. Instead of continuing with traditional ideals that are neither workable nor desirable today, it is better to seek to understand the underlying rationale of the early principles and practice and reformulate their substance into more relevant and practicable principles.

For instance, as suggested earlier, the traditional bayʿa (oath of allegiance) should now be seen in terms of mutual contract between the government and the population at large, whereby the former assumes responsibility for the protection of the rights and general well-being of the latter in exchange for their acceptance of the authority of the state and compliance with its laws and public policy. A modern Islamic constitutional theory would also require the development of adequate mechanisms and institutions for the election and accountability of government, and other features of modern constitutionalism, as necessary means for achieving the rationale and content of the notion of bayʿa. This can be done through the development of the notion of shura into a binding principle of representative government rather than merely discretionary consultation. Civil rights are necessary not only in order to evolve and elaborate this modern concept of shura, but also for the proper implementation of the ensuing constitutional theory which must be inclusive of all the citizens of the state, men and women, Muslims and non-Muslims alike.

As indicated at the beginning of this section, however, this focus on issues of Islamic constitutional and civil rights theory should not be taken to imply that Islam is the only or decisive ideology in the Muslim world. Muslims in fact subscribe to a wide range of ideological orientations, and their constitutional and legal systems must respond to issues and concerns shared by other developing countries. Moreover, in view of the vast range of perceptions and practices of Islam among Muslims, one cannot speak of Islamic discourse except at a very high level of abstraction and generalization. The role of Islam in the political, constitutional, and legal systems of Islamic countries should be seen as integral to the role of culture as the local setting for theory and practice in this field. Although I believe that the sort of debates and reformulations suggested above are critically important in predominantly Islamic societies, many other considerations must be taken into account. This variety of factors and considerations can be examined in terms of what I call the dialectic of the global and local, the universal and relative.