ISLAM, SHARIʿA, AND CONSTITUTIONALISM

To begin with, I recall a point emphasized earlier, as human interpretations of the foundational religious sources of Islam (Qur’an and Sunna), conceptions and principles of Shariʿa that are accepted by Muslims at any given time and place can be neither divine nor immutable.

Except when used simply as a shorthand way of referring to a state where Muslims constitute a clear majority of the population, the adjective “Islamic” logically applies to people, rather than to a state as a political institution. More importantly the notion of an Islamic state as a political institution is conceptually incoherent, historically inaccurate, and practically not viable today (An-Naʿim 2000). It is conceptually incoherent because for a political authority to claim to implement the totality of Shariʿa in the everyday life of a society is a contradiction in terms. Enforcement through the official institutions of the state is fundamentally inconsistent with the nature of Shariʿa, as a religious normative system that is the product of human interpretation of the Qur’an and Sunna by early Muslim scholars (An-Naʿim 1990).

It is misleading to think of Shariʿa as “Islamic Law” because it is different from positive law that is supposed to be enforced by the state in the usual sense of the term. To begin with, Shariʿa is believed to be the divinely ordained total way of life for all Muslims; its norms cover the full range of human activity, from purely religious articles of faith and worship practices to social relations and personal hygiene and fairness in personal relations and vocational activities. It is also supposed to provide broad political principles of participation in the public affairs of the community and organization of its economic and social concerns. As such, Shariʿa is different from positive law because its binding force is supposed to be derived from the convictions of believers rather than the coercive power of the state. It is only this type of voluntary compliance that is consistent with the nature of Shariʿa as the product of scholarly interpretation of religious texts. Moreover, the manner in which this system has actually evolved in practice has resulted in extensive diversity and disagreement among the founding scholars of the various schools of thought (madhahib). In contrast, the enforcement by the state today would require formal enactment as the law of the land or adoption of clear policies specifying certain action by organs of the state. To meet such requirements of the way a state must operate today, the legislature and government will have to choose among equally authoritative but different interpretations of the various madhahib, as well as of individual scholars within each one. Yet the leading individual scholars who founded those madhahib are unanimous in insisting that such choices are to be made by the believers according to their own conscience. Thus, what is represented as Shariʿa is no longer the religious normative system of Islam once it is formally enacted for enforcement by the state.

Moreover, as a matter of historical fact, there has never been an Islamic state that consistently and systematically enforced Shariʿa in the sense advocated today by some Muslims. The Prophet’s state of Medina (622–632) was of course of foundational normative importance, but it can neither be replicated, since the Prophet is no longer among us, nor compared to any of the subsequent Muslim imperial states, let alone with present-day increasingly complex states in their global context. The Medina state ruled over a very small area and population who lived in direct interpersonal contact under the immediate guidance of the Prophet, with no institutionalized organs, system of public administration, or security forces to enforce the will of the state within its own territory. It is clear that that form of political organization, if it can be called a state at all, is nowhere to found in the rest of Islamic history to the present day.

Even if one assumes, for the sake of argument, a degree of conceptual coherence or historical experience with states that can be called “Islamic” in the past, it would still be clear that such a state is not practically viable at the present time. A state that seeks to enforce some general principles of Shariʿa regarding public affairs and governance would find it extremely difficult to fulfill its essential domestic and international functions in the present increasingly global context. A number of problems will arise from this perspective. First, the basic structure and political order of the state would be impossible to operate even for a small population of a few million people, as highlighted in chapter 1. Second, the denial of basic citizenship rights for women and non-Muslims will face serious challenge by these groups internally, and by the international community at large. Third, enforcement of corporal punishments for hudud offenses faces serious unresolved procedural and evidentiary objections, let alone human rights concerns about cruel, inhuman, or degrading treatment or punishment (An-Naʿim 1990). Fourth, economic activities would be crippled by the prohibition of a fixed rate of interest on loans (riba), and of insurance as based on speculative contracts (qharar).

To note such limitations or problems with the modern application of Shariʿa is not in the least to criticize that system in its own historical context, but only to object to its enforcement by the state today. The Shariʿa principles that I find objectionable from a constitutional or practical point of view today were in fact consistent with the political and social values of the historical context in which they evolved and practically applied in building a major world civilization that flourished for many centuries across vast regions of the world. Being consistent with the values and institutions of their time (seventh to ninth centuries), the founding jurists of Shariʿa did not address the need to limit the powers of the Caliph through notions of separation of powers or independence of the judiciary. Moreover, while those founding jurists were careful to explain a certain set of rights for women and those non-Muslims accepted as People of the Book (mainly Christians and Jews), they did not envision the possibility of equal rights of citizenship for these groups. Besides refusing to grant equal access for members of these groups to the highest ranks of public office, traditional Shariʿa principles deny them equality before the law even in the daily administration of criminal justice, all on the grounds of gender and religion. For example, women and non-Muslims are denied the competence to testify in trials for capital offenses (hudud), and the monetary compensation that is to be paid for their homicide is less than that paid for Muslim men.

Theoretically speaking, as I have argued elsewhere (An-Naʿim 1990), these constitutional problems can be overcome through a particular degree of reinterpretation of the Qur’an and Sunna, but that process can only begin when the incompatibility of Shariʿa with the principles of constitutionalism is acknowledged as a serious problem. Instead of taking this essential first step, the proponents of an Islamic state today tend to undermine the legitimacy of constitutionalism itself in the name of upholding the Islamic authenticity of the state and its institutions. What is more serious, however, is that the Muslim public at large finds it extremely difficult to resist these claims, which are presented in the name of Islam as a religion. That is, when ordinary Muslims are faced with claims that the absolute powers of the ruler (though not as a Caliph in the traditional sense) and the limitations on the rights of women and non-Muslims are decreed by Islam itself, in contrast to the demands of constitutionalism, which is presented as a secular Western notion, it becomes extremely difficult for Muslims to choose the latter over the former. This is the core of the unavoidable yet problematic relationship between Islam and constitutionalism I am concerned with in this and the next chapter.

It is not relevant for our purposes here to discuss the validity or viability of any specific Islamic reform methodology as such, whether the one I have argued for or another approach, because that is a matter of detailed, and probably highly technical, debate among Muslims. The more pertinent issue here is the practical difficulties facing the mediation of the tensions between Shariʿa and constitutionalism, regardless of the precise reform methodology one is proposing to resolve those tensions.

Given a clear understanding of the particularity of the relationship between Islam and constitutionalism in each Islamic society, the issue becomes one of understanding the basis and dynamics of this relationship as a historical process that is capable of change and transformation, rather than a permanent or inescapable fact. What is really at issue is the organic relationship between normative systems like constitutionalism, on the one hand, and the religious/cultural worldview, values, and institutions of any people who are expected to accept and implement such a system, on the other. The question is how can people of different religious/cultural traditions, even though they all live in the same country, agree to accept the same normative system? In other words, tensions in the relationship between Islam and constitutionalism in Islamic societies are simply specific manifestations of the broader problem of the cultural legitimacy and contextual sustainability of constitutionalism in those countries. To explore possibilities of mediating this tension I will now introduce the notion of contingency of the role of Islam in the African context.