Introduction

Constitutionalism is the basic idea that the exercise of governmental powers should be limited by a basic law (usually but not always written down), and that the legitimacy of coercive law-making by a government depends on its observing the limitations and rules established by that more fundamental legal order.

Constitutional theory, however, points to some enduring puzzles about the idea of gov­ernment limiting itself by law. For one, if law is by definition the command of a sovereign power that cannot be legally checked by any higher authority, how can the idea of sovereign authority being limited by law itself be coherent?¹ Can this be resolved by distinguishing between the ‘sovereign’ power to authorize a basic constitutional order and a legally con­strained ‘government’ that exercises most ordinary legislative power? But even then, can a people be said to legally bind itself by a constitutional order if, in principle, it can change this basic law at any time? Moreover, if there is a ‘sovereign people’ that precedes a legally constituted political order, how can we identify the existence of this people separate from and prior to that political order? These are some of the most prominent questions and puz­zles associated with constitutionalism, and we will see that they also arise in modern Islamic constitutional theory. However, many Islamic constitutional theorists hold that Islamic law has ways of solving them conceptually.

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