The basic contours of modern Islamic constitutional theory

The themes of modern Islamic constitutional theory are surprisingly consistent from the 19th-century to the present, and across the above genres. On my reading, the following are the most consistent and prominent themes in (Sunni) Islamic constitutional theory:

Governance itself (hukm) is a necessary condition for mankind, and this can be known through both reason and revelation.

The Muslim umma pre-exists any particular political regime or contract of rulership, and so paradoxes familiar to Western philosophical treatments of the authority of a people to authorize government before it has actually formed itself as a people are less salient.¹⁶ In addition to governance in general being obligatory, for Muslims the specific office of the Imam, or Caliph, is obligatory. While some thinkers argue for this from reason as well (because if governance is necessary, it follows that governance must be unitary), in most cases the arguments for the continued obligatoriness of the Caliphate are derived from Islamic legal theory.

While the Caliphate is thus regarded as a divinely ordained office, the holder of the office is seen by Sunnis as a legally constrained officer or civil servant. It is a ubiquitous theme in Islamic constitutional theory that the ruler is an agent (or even servant) of the people, is constrained by law, and is removable by the people (or their representatives) when his violation of the social contract exceeds certain boundaries.

Government in general is characterized first and foremost as the application of a pre­existing law. The social contract between the ruler and the ruled is largely seen as a pact between a principal (the umma) and an agent (the ruler) for the latter to execute the for­mer’s divinely-imposed obligation to implement divine law in the world.

Of course, no one holds that the Shari 'ah has legislated pre-existing rules for every con­ceivable area of social life. The task of government is not only to apply the law that the jurists discover (fiqh law), but to issue policy and administrative directives in areas left over. Thus, (modern) Islamic constitutional theory explicitly anticipates a realm of law making that is distinct from law derived from classical fiqh. Almost always, this kind of law making is framed in the context of the Quranic concept of ‘consultation’ (shura).

But such laws are not legislated without limitations. They must aim at the welfare of the umma (maslaha 'dmma) and they must not violate the Shari 'ah. Thus, a major theme in modern Islamic constitutional theory is the idea that all laws made and enforced by a state must either be compatible with the Shari ah or otherwise not repugnant to it.

Modern Islamic constitutional theory stresses the role of the umma in unique and novel ways. The umma is almost always portrayed as the ‘source of all political authorities’ (masdar al-sulutat) and is also given a participatory role in whatever process is imagined for institutionalizing shura and policy-oriented law making.

Finally, an important feature of modern Islamic constitutional theory is that constitu­tions are often used as important sites for declaring ideologically transformative goals within society. In addition to the symbolic declaration of the Shari 'ah as the source of all legislation, moral goals related to the family, social solidarity, religious education, social welfare, public dress and modesty, and the ethical conduct of politics are often articu­lated as constitutional obligations of an Islamic state.¹⁷

Thus, there is significant agreement among modern Islamic theorists about the basic param­eters of Islamic constitutionalism.

But any scheme that is capable of garnering so much agreement across the full ideological spectrum of modern Islamic thought must be masking some significant ambiguities. The points of disagreement and debate within modern Islamic constitutional theory include the following.

• How far does the constituent authority (sulta ta'sisiyya) of the umma extend? Is the umma free to create radically new institutions and forms of governance suitable to its time and place? Or is the specific office of the Caliphate a permanent obligation of the Shari 'ah in principle?

• How broadly based must the election of the ruler or other representatives be? While Sunni legal thought has always held that the Caliph is an elective office (by ikhtiydr rather than the Shi'ite nass, or designation), it does not follow that participation in the election of the Caliph needed to involve a wide segment of the population. Technically, the elec­tion was by the ‘People Who Loose and Bind’ (ahl al-hall wa-l- 'aqd), which could be an ad hoc council of notables, or even just the sitting Caliph, who could ‘elect’ his successor on the grounds that he was best placed to know what was in the umma’s interest. By and large, modern Islamic constitutional theory is not comfortable with limiting the election of the ruler to a limited group of ‘People Who Loose and Bind’, but this nonetheless remains an issue of disagreement.

• Similarly, there is disagreement about the source of authority of other intermediary or rep­resentative bodies. Traditionally, scholar-jurists and whoever constituted the ‘People Who Loose and Bind’ of the time stood in between the ruler and the people, and to that extent mediated the ruler’s power. But they occupied this role on their own authority, whether epistocratic (in the case of the scholars) or functional (in the case of military and other bu­reaucratic elites who claimed to fulfil the role of the ‘People Who Loose and Bind’), rather than by any authorization or consent of the people.

• While all Islamic constitutional theorists make some kind of ‘application of the Shari 'ah’ central to the understanding of political legitimacy, there is substantial disagreement about what it means to apply the Shari 'ah, what is timeless and what is flexible in the Shari 'ah, and whether the Shari 'ah is more or less identical to the classical fiqh tradition or is instead a living process of rediscovering the meaning of revelation based on present circumstances (Ijtihdd). Thus, there is ambiguity as to the core constitutional question of how free political authorities are to legislate about public matters from pre-political legal and moral constraints.

• Related to this problem, there is disagreement about the meaning and institutional­ization of Shari 'ah-adjudication. A number of Muslim countries have articles in their constitutions declaring that the Islamic Shari ah is the basis of all legislation and that

any new legislation must be compatible with, or not repugnant to, the Shari 'ah. But there is little agreement on what this means in principle, never mind in practice. What is modern codified state law evaluated against for Shari 'ah-compatibility purposes — traditional fiqh law as found in the compendia and summaries of the legal schools, some new direct evaluation of what the primary sources of revelation require, or some com­bination of the two? Are all bodies of law treated equally in terms of the requirement of Shari 'ah-compatibility? Or is there a distinction between areas of law where the Shari 'ah is thought to speak directly, and possibly definitively, and areas of the law where the umma and its representatives have greater freedom to pursue mundane welfare (maslaha)? That is, does something like the classical distinction betweenfiqh (jurists’ law) and siyasa (rulers’ law) persist, or is all legislative activity to be subject to divine restrictions? Finally, how should legislation beyond the strict confines of revealed texts be conceived? When the umma or its representatives make law in areas that do not directly implicate the Qur’an, the Sunnah, or traditional fiqh rulings, should this be regarded as law making ‘outside the Shari 'ah’ or is the pursuit of the umma’s maslaha in this world, the dunya, part of God’s will and thus part of what it means to enact a ‘living Shari 'ah’?

• There is a further dimension to the question of Shari 'ah-adjudication, namely who decides on the question of the compatibility of state law with the Shari 'ah and what is the implication of a finding one way or the other for the bindingness and validity of law within a given state? There is significant disagreement on who holds the authority to speak in the name of the Shari 'ah in the modern state.

Thus, the aspects of constitutionalism that are more or less subject to agreement in modern Sunni Islamic thought are: that the people are, broadly speaking, the source or origin of the legitimacy of political institutions, can elect and supervise political officers, and can partic­ipate in various forms of consultation and law making. Similarly, it is broadly agreed that elected rulers are agents or civil servants subject to the law and limited in their authority, and that all laws and enactments are subject to some kind of Shari 'ah-review. This is what is meant when some contemporary Islamic constitutional theorists claim that the state in Islam is neither theocratic nor fully secular, but rather a ‘civil state’.

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