A brief history of modern Islamic constitutional theory

Constitutionalism and constitutional theory have been some of the most active areas of Islamic legal thought and practice in the modern period. It is not hard to see why this might be the case.

First, important Muslim polities (like the Ottoman Empire, Qajar Persia, Egypt and Husaynid Tunisia) received their first written constitutions before the period of direct Western colonial governance. Thus, the problem of constitutionalism received extensive treatment while Islamic legal frameworks still dominated intellectual and political life in Muslim lands. Second, once Islamist politics emerged as an oppositional force in 20th- century colonial and post-colonial contexts, its ideological vocabulary was largely juridical. The concepts of ‘divine sovereignty’ and ‘religion and state’ (din wa-dawla) as the alternative to nationalism or socialism directly refer to the institutional and adjudicative structure of the state. It is, thus, as natural for political Islamists to focus on constitutional themes while out of power as it might be for Marxists to focus on economic ones. Third, the tensions within political Islam also largely lend themselves to argumentation over constitutional questions. If Muslim intellectuals or activists find the utopian theories of thinkers like Mawdudi or Qutb lacking in subtlety or flexibility, it makes sense that the response might be to develop alternative theories of what Islam requires in terms of state power, obedience to the Shari 'ah and popular participation in government. Finally, it must be said that the Sunni juridical tradition, in particular, simply lends itself well to modern appropriation in the area of constitutional law.² While Islamic empires did not tend to pass down written covenants between rulers and the ruled, Sunni scholars developed a rich tradition of thinking about ‘the rules of governance’ (al-ahkdm al-sultdniyya) and ‘religiously legitimate governance’ (al-siydsa al-shariyya).

Many of the core themes at the heart of constitutionalism are all to be found in these texts, even if their institutionalization was often less developed than in their counterparts in medieval and early-modern European monarchies.

Historically, it is possible to mark out a few important phases of modern Islamic constitutional theorizing. The 19th-century was a period of profound social and political transformation in lands broadly under the authority of the Ottoman Empire and Qajar Persia. Somewhat less successful than the codification of many areas of the positive law during this period, but symbolically important for later debates on Islam and state legitimacy, were efforts to impose written constitutions on traditional dynastic rulers. These constitutional documents include those adopted (often briefly) in Tunisia (the 1857 ‘Pact of Security’, followed by the 1861 constitution), the Ottoman Empire (1876), Egypt (1882) and, into the 20th century, Qajar Persia (1906-1911).

At the same time, a number of important intellectuals and statesmen penned defences of written constitutions that serve as some of the first modern statements of Islamic constitutional theory. Such texts include the articles published by the activist Namik Kemal (d. 1306/1888) in the newspapers founded by the Young Ottomans (particularly Hurriyet and Ibret), Khayr al-Din Pasha’s (d. 1307/1890) Introduction (Muqaddima) to his study Aqwam al-Masalik fi Ma'rifat Ahwal al-Mamalik (The Surest Path to Knowledge of the Conditions of States) (1867), the Introduction to the multi-volume history of Tunisia by the bureaucrathistorian Ahmad b. Abi al-Diyaf (Bin Diyaf; d. 1290/1874), Ithaf Ahl al-Zaman bi-Akhbar Muluk Tunis wa-Ahd al-Aman, as well as various writings on the need for political and intellectual reform by such figures as Rifa'a al-Tahtawi (d. 1290/1873), 'Abd al-Rahman al-Kawakibi (d. 1320/1902) and Muhammad 'Abdu (d. 1323/1905).

A second period of Islamic constitutional theorizing was the period right after the First World War.

Two events in this period can be identified as particularly important in sparking an intense debate around the meaning of the Caliphate, one political and one intellectual. The political event is the abolition of the Caliphate by the Turkish National Assembly on 4 March 1924 (although the Sultanate had been abolished and the last Sultan, Mehmet VI, had departed, in November 1922). The intellectual event is the 1925 publication of al-Azhar-trained scholar 'Ali 'Abd al-Raziq’s al-Islam wa-Usul al-Hukm: Bahth fi al-Khilafa wa-l-Hukuma fi al-Islam (Islam and the Foundations of Governance: A Study of the Caliphate and Government in Islam), which claimed that the Prophet Muhammad had only been sent as a religious messenger to the world and did not reveal a political doctrine, and thus called for a strict removal of religious claims from political life. It is, thus, in the 1920s that we begin to see the first emergence of works forced to defend Islam’s claim to priority over the political sphere (at this stage still by defending the obligatoriness of the office of the Caliphate) and to begin to elaborate the balance between divine and popular sovereignty. Of particular interest here are Rashid Rida’s al-Khilafa,³ the critiques of 'Abd al-Raziq’s treatise by al-Azhar scholars Muhammad al-Khidr Husayn (Naqd Kitab al-Islam wa-Usul al-Hukm⁴) and Muhammad Bakhit al- Muti'i (Haqiqat al-Islam wa-Usul al-Hukm⁵) and the treatise by the great Egyptian jurist, 'Abd al-Razzaq al-Sanhuri, Fiqh al-Khilafa.⁶

These debates immediately preceded the founding of the Muslim Brotherhood by Hasan al-Banna in 1928 and the birth of political Islam as an oppositional movement. But, while al- Banna did author some lectures on politics and basic constitutional principles,⁷ arguably the most important early statements of Islamic constitutional theory came not from Egypt but from South Asia. Abu al-A'la Mawdudi gave a lecture on ‘The Political Theory of Islam’ as early as 1939, in which he outlined basic principles for a renewed Islamic constitutional theory, and authored more elaborate accounts of constitutional principles in the period after the founding of Pakistan during the debates surrounding the first post-independence Pakistani constituent assembly.

Some of these lectures and articles from the 1949—1953 period were gathered into a volume entitled Islamic Law and Constitution. In them, Mawdudi articulates certain principles that can be said to characterize much Islamic constitutional thinking for the next decades.

While Mawdudi’s concepts of hakimiyya (divine sovereignty) and jdhiliyya (the condition of rejecting Islam) were notoriously influential on the Egyptian Islamist thinker Sayyid Qutb, and Qutb’s writings on divine sovereignty ensured that Arab Islamists saw this concept as their standard objection to modern forms of secular politics, Qutb himself was not particularly interested in technical issues of constitutionalism or institutional design. However, the post-Qutb period gives us a few important sets of writings on Islamic constitutional law.

One set might be characterized as Islamist doctrinal apologetics. Many thinkers, of a variety of intellectual backgrounds (some lay, some with scholarly credentials), have written treatises on the kind of Islamic state Islamists should be striving for. These include activist intellectuals such as Hasan al-Turabi, Rashid al-Ghannushi⁸ and Yusuf al-Qaradawi.⁹ This set might also include treatises written by independent intellectuals sympathetic to political Islam, such as Fahmi Huwaydi,¹⁰ Muhammad 'Imara,¹¹ Muhammad Salim al-'Awwa¹² and Tariq al-Bishri. In addition to this discourse (much of it dense and sophisticated), we find a literature of scholarly monographs on ‘constitutional jurisprudence’ (fiqh dustdfi),¹³ ‘the principles of government’ (usdl al-hukm)¹⁴ or ‘religiously legitimate governance’ (siydsa shar‘iyya)¹⁵ written by professional academics, many of them in ‘secular’ universities.

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Source: Abou El Fadl Khaled, Ahmad Ahmad Atif, Hassan Said Fares (Eds.). Routledge Handbook of Islamic Law. Routledge,2019. — 466 p.. 2019

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