Islam and Constitutionalism: Tensions and Possibilities of Mediation
To recall the caveat in Chapter 1, the premise here is not that Islam is the sole or even primary determinant of the status of constitutionalism in Islamic countries (that is, those where Muslims constitute the majority of the population).
Indeed, it is integral to my argument that the present status and future prospects of constitutionalism in those countries should be assessed in terms of the historical experience and present context of each country, like any other country in the world. The role of Islam in that experience and context would necessarily vary from one country to another, but always as only one among many factors and forces that may influence the course of developments in each setting. However, even where it is not so obvious or dominant at some point in time, the role of Islam in this field should not be underestimated because of its implications for the legitimacy and efficacy of the notion of constitutionalism itself in those societies. In other words, the role of Islam in this connection should be taken seriously, without unduly exaggerating or underestimating it.This relationship is problematic since Islam is commonly taken to be synonymous with historical understandings of what is commonly known as Shariʿa. Whereas the term Shariʿa refers to the normative system of Islam in general, the specific content Muslims have given to this system is necessarily a product of the history of their own societies. This point is extremely important for our purposes here, namely, that the term Shariʿa always refers to human interpretation of the Qur’an and Sunna (traditions of the Prophet), and as such is neither divine nor immutable. The particular understanding of the content of Shariʿa prevalent among Muslims today contains some principles that are incompatible with fundamental principles of constitutionalism, as briefly explained earlier and further elaborated below. This does not mean that Shariʿa as such is incapable of being understood by Muslims in ways that are fully consistent with constitutionalism for their own society, but the contradictions must first be acknowledged before the reinterpretation can begin. In this first section, I will briefly explain this basic tension, and outline a theoretical approach to its mediation. The notion of contingency elaborated in the rest of this chapter indicates that there is “space” for this mediation to happen within the local context of each Islamic society. But let me first recall aspects of the understanding of constitutionalism on which my argument is founded.