The core ambiguity of modern Islamic constitutionalism: the scope and authority of human-made legislation

What is more interesting are the areas of disagreement or fundamental ambiguity. What does it mean in the modern period for the Shari ah to be enforced or to serve as the source of legis­lation? What is the scope for law-making in an Islamic state and who is entitled to participate in it? What is the status — from a Shari 'ah-minded perspective — of new laws made by state institutions? And what is the standard for engaging in Shari 'ah review of legislation, and who is entitled to formulate that standard and apply it in courts authorized to review legislation? The rest of this chapter focuses on a few important thinkers who have articulated responses to these questions: Abu al-A'la Mawdudi, Kamal Abu al-Majd and Rashid al-Ghannushi.

3.1 Mawdudi

Post-partition Pakistan was the first modern, post-colonial Muslim-majority state to attempt to define itself explicitly as an ‘Islamic state’ and to enshrine that through constitutional declarations. The 1949 Objectives Resolution was, to a certain extent, a symbolic victory for Islamists as it codified certain basic premises of modern Islamist ideology associated with Mawdudi and his party, the Jama 'at-i IslamT^[1] In 1948 Mawdudi gave a speech in which he articulated ‘Four Points’ central to any Islamic constitution:

1) Sovereignty in Pakistan belongs to God, and the government is only an agent of His Sovereign Will.

2) The Islamic Shari 'ah shall form the inviolable basic code of all legislation in Pakistan.

3) All existing or future legislation which may contravene (in letter or in spirit) with the Shari 'ah shall be null, void, ultra vires of the legislature.

4) The powers of the government shall be derived from, circumscribed by and exercised within the limits of the Shari 'ah alone.

The 1949 Resolution nodded to these principles in declaring that ‘Sovereignty belongs to Allah alone; but he has delegated it to the State of Pakistan through its people for being exer­cised within the limits prescribed by Him as a sacred trust’. According to Said Arjomand, this

declaration of God’s sovereignty was in fact the cornerstone for the construction of an ideological constitution purporting to be based on the Qur’an and the Islamic Shari 'ah. This declaration ushered in a wave of ideological constitution-making in the Muslim world, with Islam increasingly as the basis of the constitution and the state, making cur­rent constitutional problems especially intractable.¹⁹

More germane for present purposes are the theories of Islamic constitutionalism in circu­lation at this time. Mawdudi was not the only figure writing on this topic during the time between the adoption of the Objectives Resolution and the 1956 Pakistan constitution, but his ideas were both among the most influential and also represent an important point of comparison with later Islamist articulations of constitutional ideals. Mawdudi also made con­stitutional theory central to the Islamist intellectual project early in the history of his party.

As noted above, Mawdudi’s discussion of constitutional principles actually goes back to as early as 1939, in a lecture to students at Punjab University. In this lecture,²⁰ he gave a three­fold characterization of an Islamic state:

law which God has laid down, even if the desire to effect such legislation or change in Divine laws is unanimous. (3) An Islamic state must be founded upon the law laid down by God through His Prophet. The government which runs such a state will be entitled to obedience in its capacity as a political agency set up to enforce the laws of God and only insofar as it acts in that capacity.²¹

Thus, we see the main principles of Mawdudi’s Islamic constitutionalism: God’s sovereignty is primarily to be understood as legislative sovereignty and that means first and foremost adopting for implementation any revealed text that appears to indicate a clear legislative command.

Mawdudi’s view is distinctive for its formalist understanding of Shari 'ah and its restrictive understanding of the place for human legislative efforts. In the same lecture, he discusses the place of law making beyond the Shari 'ah in the following way:

All administrative matters and all questions about which no explicit injunction is to be found in the Shari 'ah are settled by consensus of opinion among the Muslims. Every Muslim who is capable and qualified to give a sound opinion on matters of Islamic law is entitled to interpret the law of God when such interpretation becomes necessary. In this sense, the Islamic polity is a democracy. But it is a theocracy in the sense that where an explicit command of God or His Prophet already exists, no Muslim leader or legislature, or any religious scholar can form an independent judgment, not even all the Muslims of the world put together have any right to make the least alteration in it.²²

Mawdudi gives a relatively clear-cut ‘constitutional’ principle about whether humans are free to enact novel laws: Is there a text on the matter in the Shari 'ah or not? This reflects a formalist understanding of the law: texts are all more or less equal in their legal force and are not to be second-guessed by humans based on some independent, substantive criterion of legal validity. So on this standard, even areas of the law of social relations (mu 'dmaldt), often thought to be open to continuous Ijtihdd based on judgements of what serves the wel­fare of Muslims (maslaha) at any given time (marriage, divorce, succession, sales, contracts, etc.), are not subject to legal change or revision if there are clear revealed texts. What is left over for public consultation or deliberation are characterized as largely ‘administrative matters’.

In later writings, from the period after the Objectives Resolution and the establishment of a constituent assembly, Mawdudi published some longer lectures and articles on Islamic constitutional theory.²³ In these, he goes into further detail about the core problems of Is­lamic constitutionalism that he expressed in his Four Points demand: what exactly it means to apply the Shari ah, what space is left over for human legislation, how that legislation should be made, and how all state legislation should be reviewed for Shari ah-compatibility.

He first makes clear that by ‘applying the Shari ah’ he means applying as much as possible from both clear, revealed texts and classical fiqh before moving on to human legislation. He defines the ‘fixed parts of the Shari 'ah’ that must be upheld as, first, those laws that have been laid down in explicit and unambiguous terms in the Qur'an or sunnah (e.g. those pertaining to alcohol, interest, gambling, the huddd punishments, inheritance, and so on), followed by guiding principles (mabddi') and limitations on human behaviour laid down in revelation.²⁴ Beyond the realm of law clearly determined by revelation, he allows that there is a further realm of the law subject to modification according to the changing needs and requirements of the time. This adaptation of the Shari 'ah is to be performed strictly by expert jurists using the methods of legal interpretation (which he characterizes somewhat idiosyncrati- cally as drawing on the mechanisms of ta'wTl, qiyds, ijtihad and istihsan).

But Mawdudi’s prescriptions should not be mistaken for the ‘back to the source’ approach to Islamic law common to many Modernists.²⁵ He calls for the establishment of an Academy of Law, staffed by expert jurists charged with ‘taking stock of the entire work left behind by our ancestors in the field of law’ with the mission of translating classical fiqh works but also editing them afresh and ‘re-arranging their contents on the pattern of modern books of Law’ so that Islamic fiqh manuals might look more like modern works of law, resulting in Islamic legal codes of civil and criminal law and procedure.²⁶

Mawdudi does not confuse classicalfiqh works for the very essence of Shari'ah that Mus­lims are required to uphold. For him, Islamic law is comprised of only the following four categories:

1) explicit commandments of God in the Qur'an;

2) explanations or details of a Qur'anic commandment or an explicit order by the Prophet;

3) deductive or inductive inferences based on explicit texts and approved by the majority of the Muslims in the past, or a juristic verdict agreed to in the past by a majority of Islamic scholars and accepted by a great majority of the Muslims (ijma '); and

4) a ‘fresh piece of legislation decided now by a unanimous verdict or the opinion of the majority of the leaders of the Millat in accordance with the requirements of Islamic Law’.²⁷

Based on this typology, his

proposal is that a body of Islamic legal experts should compile the first three categories of commandments and laws into a Code.

In terms of constitutional theory, Mawdudi can be said to regard traditionally-trained schol­ars as the designated expert codifiers of law. The legislative authority of any constituted political body is constrained by both a prior moral commitment to be faithful to the Shari 'ah and by a political imperative to defer to experts who are entitled — on the basis of their epis- temic (not appointed) authority — to codify law for the Muslim community. While the precise political institutions created within a constitutional order are up to the umma to design, the broad contours of the constitutional order are fixed by certain permanent injunctions of the divine law.

What remains is the Islamic notion of shUra: consultation among the believers about the best means for realizing their interests in the world. Mawdudi regards that as a relatively open area for constitutional jurisprudence. The precise mode of shUra has been left for the Muslims to figure out. The Shari'ah

does not, therefore, lay down whether the people should be consulted directly or through their representatives; whether the representatives should be elected in general elections or through electoral colleges; whether the consultative body should have one house or two houses... the Shari 'ah leaves these problems open for solution according to the needs of the time.

He only sees three core, shari constraints in this area. First, no collective affair can be con­ducted without consulting the people concerned (what is sometimes referred to in contem­porary political philosophy as the ‘all-affected interests principle’). Importantly, he holds that this applies to the appointment of the Head of State in the first order, and thus the principle of shura excludes from the outset any form of monarchy, despotism or dictator­ship.

However, despite the insistence on the fairness of shura, it should not be mistaken for a back door to robust legislative authority. Mawdudi is adamant that

in an Islamic state the legislature has no right to make laws, the executive has no right to issue orders and the law courts have no right to decide cases in contravention of the teachings of the Qur'an and Sunna; and if they do so, the Muslims must disobey them.

This is perfectly in keeping with his commitment to ‘divine sovereignty’:

If anything is proved to be right in the light of the Qur'an and the Sunna, it cannot be set aside by any judge on the grounds that it is in conflict with the law enacted by the leg­islature.... If there is a conflict between the two, it is the latter which must be declared ultra vires of the constitution.

But it also raises some interesting implications for a broad right (or even obligation) to civil disobedience. If the people disobey the government because it violates the Shari 'ah then ‘they will not be guilty of any crime; and it is the government whose orders must be set aside in such a case’.²⁹ However, if this right is generalized beyond the authority offiqh experts or an appointed judiciary to judge on Shari 'ah-compliance to a general right to popular disobedi­ence or nullification, this seems to raise the spectre of the kind of anarchy of judgement in religious matters that Sunni constitutional theory has sought to avoid. And yet it does seem that there is a genuine kernel of such radical populism at the heart of Sunni anti-clericalism and community-centredness.

3.2 Abu al-Majd

Mawdudi represents the apex of Islamist ideological constitutional theory, but the field is populated by a wide range of thinkers. Some of them are academics who are not part of the Islamist movement but are sympathetic to the goal of legitimizing constitutional orders in Islamic terms. One such is the prominent Egyptian constitutional lawyer and law professor, as well as former minister and vice-president of the Egyptian National Council for Hu­man Rights, Ahmad Kamal Abu al-Majd. Abu al-Majd’s 1962 lectures, published as Nazarat Hawla al-Fiqh al-Dusturi fi al-Islam (Reflections on Constitutional Jurisprudence in Islam),³⁰ are among the earliest academic contributions to the study of constitutional theory.

Abu al-Majd reiterates much of what I suggested above was standard (Sunni) constitu­tional doctrine: even a legitimate Caliph is a civil (madam) ruler from all standpoints with no claim to a divine right to rule; the Caliphate, or Imamate, is a kind of contract comparable to the social contract of Western political theory in that it involves reciprocal rights and obligations and mechanisms for checking and controlling the power of the ruler (muraqaba); the people are the legitimate source of all political power and authority; and governance is a matter of consultation between free persons. Abu al-Majd also insists that Quranic notions of the dignity (karama) of the ‘sons of Adam’ and mankind’s universal vicegerency of God (is- tikhlaf, khilafat al-insan) guarantee the respect for personal rights and freedoms in Islam, which he regards as one of the two pillars of democratic theory (along with the rule of the people).

However, he does not regard Islamic constitutionalism and modern democratic theory as identical. The difference lies in the limitations on the conception of popular sovereignty. On his reading of Western democratic theory, popular sovereignty means that whatever the major­ity decides becomes binding law; its will is supreme and there is no higher authority.³¹ In Islam, by contrast, popular sovereignty is limited. But, perhaps surprisingly, he does not stress simply the sovereign place of divinely revealed law, but also the constraint on popular sovereignty ‘by an idea, ideology and a collection of ethical and legislative values that form the obligatory legal framework for the majority’. He thus refers to the Islamic state in the first order as an ‘ideolog­ical state’ (dawlafikriyya). However, it is clear that this can only be institutionalized in the form of a law ‘which both rulers and ruled have to submit to’, and thus that Islamic government is the government of law, not the government of men. Islam strips any government actions, even if validated by the majority of the people through some process of shura, of any binding or obligating force if they violate the limits of the basic legal framework. This opens the door for the establishment of a special body for the review of such government actions.³²

Whereas Mawdudi had insisted that only God could be regarded as sovereign, and the umma could only be seen as enjoying a kind of deputyship in its status as God’s vicegerent (khalifat Allah), Abu al-Majd characterizes the correct Islamic view as one of ‘dual sover­eignty’ (siyada muzdawija): the absolute sovereignty of a fixed constitution based on ‘God’s limits, made clear in the Qur'an and Sunnah’, augmented with limited popular sovereignty for the people. The foundation for this dualism is that Islam did not leave people to their whims and does not see in numbers alone a clear, definitive, infallible proof of a truth-claim. The majority view is probabilistic at best, and could even lead to error. Only the prophets of God have brought clear truth, even when they stood alone, or the number of their followers was small. Islam, for Abu al-Majd, thus distinguishes between two spheres: that of the clear, definitive Text, and the that of the ambiguous text, or the absence of one altogether. Where there is a clear, definitive Text there is no room for the majority, not even for an Ijma ' of the whole umma, to legislate. For God, who revealed such a Text, is more knowledgeable than the community of where its welfare is located and what justice requires.³³ But in other circumstances, when the text admits of interpretation, where there is no text treating this question, or when there is no objective measure of truth or right and wrong, then Islam puts the greatest weight on the opinion of the majority, making it in fact an indicator of the truth. He quotes the following Prophetic dicta in supportive of this: ‘the hand of God is with thejama'a’, ‘what the Muslims regard as good, that is good in God’s eyes as well’ and ‘my community will not agree on an error’. However, beyond the claim that there are such clear, unambiguous texts. Abu al-Majd does not, in these early lectures, specify how they are to be identified (and by whom), and whether even apparently clear texts admit ofjudgement or flexibility in application on grounds of maslaha or equity.

3.3 Ghannushi

In addition to the idea of divine sovereignty (hakimiyya) as the master principle of political legitimacy for Muslim societies, Mawdudi popularized a political reading of the theological doctrine of all mankind as God’s deputy, or caliph. Mawdudi himself drew upon this doc­trine to distinguish between sovereignty and deputyship. But as he himself referred to the Islamic regime type not as a theocracy but as a ‘theo-democracy’, this doctrine of the ‘caliph­ate of man’ releases a strain of democratic thought into the modern Islamic ideological gene­alogy. It becomes an important pillar of post-utopian Islamic democratic and constitutional thought. An important source here is the thought of Tunisian Islamist political theorist and party leader Rashid al-Ghannushi, who writes, for example, that while the Islamic concep­tion refers everything back to God and to the Shari 'ah, the claim that man is mustakhlaf (dep­utized by God) means that he is dignified by His creator with reason, will and freedom (in addition to being helped along the way by prophets). He adds that ‘this general framework for life leaves empty wide areas to be filled by man exercising his vicegerency (khilafa), through which the union of freedom and obligation, unity and pluralism, is realized’.³⁴

Ghannushi goes so far as to say that the umma, as the source of all political authorities, is ‘the possessor of supreme sovereignty in matters of governance via its election, supervision, accountability, cooperation with and removal of the ruler’.³⁵ But, a major move in modern Islamic political thought and constitutional practice is to ground the authority not only of the ‘secular’ executive rulers, but also that of ‘religious’ authorities (jurists exercising some supervisory role over the executive and legislative powers) on popular consent and election. In the theory outlined by Ghannushi, he is very clear that even if select, elite bodies of rep­resentatives are formed and exercise a mediating fiduciary role (as with the scholars in the traditional siydsa shar'iyya conception), their own limited representative authority is derived exclusively from popular ratification and not their own epistemic claims. (By contrast, as recently as 1922, when the Syrian-Egyptian scholar Rashid Rida wrote a treatise on the Caliphate in anticipation of its demise, he asserted the authority of scholars and other elites forming the ‘People Who Loose and Bind’ to take up the right to constitute a new political system on their own self-appointed authority, without any popular ratification or consent.) It is through the idea that even experts in Islamic law derive their political authority from popu­lar authorization that some of Ghannushi’s most interesting views about the umma’s ultimate application of the Shari 'ah in political life emerge.

On the one hand, he asserts the absolute force of divine sovereignty, even quoting Qutb approvingly:

man is not the possessor of original right [sahib haqq asdl] over himself or others but is only a vicegerent [mustakhlaf] or agent. He is not the possessor of (the right to) command or supreme sovereignty, but is only the possessor of a right to an ordained authority [sulta mahkuma] by the supreme legislative authority emanating from God. His only choices are to worship God in accordance with the covenant of vicegerency [mdthdq al-istikhlaf] or to reject it and be ranked amongst the unjust, corrupt infidels.³⁶

On this view, it is the umma’s task to implement the Shari 'ah, and it does this by entrusting the jurists with legislative authority. But at the same time, he refers to the umma as a ‘source of legislation’ (masdar al-tashrd') and describes the umma as ‘participating in divine will’.

Ghannushi derives from the doctrine of the ‘caliphate of man’ precisely a kind of popular control over the application of law in an Islamic state. While we have seen that Ghannushi rhetorically asserts the sovereignty of God’s law over any popular legislation, what is ul­timately important is not only the direct interpretation of the Shari 'ah and what rules it prescribes, but the higher-order adjudication of what in the Shari 'ah is a timeless constraint on the umma and what is subject to popular deliberation. For example, in his extensive and forceful defence of the ‘Text’ as the first pillar of Islamic political order and the originating and supreme authority within it, Ghannushi writes that the reference to ‘Text’ and ‘Shari ‘a’ as supreme authority and source of all other powers is not a reference to ‘positive jurispru­dence [fiqh] and expert reasoning as to the details [of the law]. Rather, perfection — which is a description of the Shari ‘ah — is not in the particulars but only in the generalities’.³⁷ The entire dilemma, and essential ambiguity in Ghannushi’s hybrid conception of sovereignty, is expressed a few pages later at the end of his core exposition of the meaning of divine sovereignty:

The foundations of this [just, divine] law are not posited by a majority of society, or a dominant class, or even a people preoccupied with its own partial interest, but only by God, the Lord of all. It is enforced, explained and applied to new realities through new specific acts of legislation by a human body chosen and supervised by the people. The people thus has sovereignty over this body, involving appointment, supervision and re­moval. This is the authority of the people [sultat al-umma], or consultation.

Does seeing ordinary, political legislation as a kind of popular enactment not only of siyasa law but also the Shari ‘ah itself raise complex questions about the sacralization of politics and the profanation of the Shari ‘ah? Consider Ghannushi’s definition of the living Shari ‘ah as that which the people ‘enforce, explain and apply to new realities through new specific acts of legislation’, in which the people are not only authorized to act politically in the world, but its political acts are seen to represent the Shari ‘ah. The people’s political action is not observing or abiding by the boundary between religious law and political action but creating it.

Insofar as Ghannushi stresses the idea of the universal Caliphate and the description of politics as the umma’s discharging of its half of the contract of vicegerency, there appears a kind of sacralization of politics. We see that Ghannushi’s assignment to the umma of the sovereign right not only to control secular rulers but also to determine what it means to ‘apply the Shari ‘ah’, what is timeless and binding in God’s law and what is always a matter of collective judgement and discretion, suggests the possibility of a popularized collapsing of fiqh and siyasa. In such a scheme, the idea of a theoretical constitutional distinction between a legislative authority empowered to enact laws based on maslaha but which is constrained by a juridical authority empowered to declare Shari ‘ah-violative laws ultra vires seems to dissolve.

Notes

1 While this idea is associated with Hobbes and others, for a more modern statement of it, see John Austin, The Province of Jurisprudence Determined (Cambridge: Cambridge University Press, 1995).

2 See, for example, Khaled Abou El Fadl, ‘Constitutionalism and the Islamic Sunni Legacy’, UCLA Journal of Islamic and Near Eastern Law 1 (2001): 67 and ‘The Centrality of Shari ‘a to Government and Constitutionalism in Islam’, in Constitutionalism in Islamic Countries: Between Upheaval and Con­tinuity, ed. Rainer Grote and Tilmann Roder (New York: Oxford University Press, 2012), 35—61.

3 Muhammad Rashid Rida, Al-Khilafa (Cairo: al-Zahra' li-l-I'lam al-‘Arabi, 1988 [1922]).

4 Ed. and repr. in Muhammad ‘Imara, Ma‘rakat al-Islam wa-Usul al-Hukm (Cairo: Dar al-Shuruq, 1989), along with a number of primary source texts related to the controversy surrounding the publication of ‘Abd al-Raziq’s manifesto, including an extract from Al-Islam wa-Usul al-Hukm and other articles by ‘Abd al-Raziq defending his views, proceedings from the hearing held by the Committee of Senior Scholars (Hay'at kibar al- 'ulama ') and their verdict condemning the book and stripping him of his title of ‘Islamic scholar’.

5 Muhammad Bakhit al-Muti'i, Haqiqat al-Islam wa-Usul al-Hukm (Cairo: al-Matba'a al-Salafiyya [1925]).

'Abd al-Razzaq Ahmad al-Sanhuri, Fiqh al-Khilafa wa-Tatawwuruha li-Tusbih Usbat Umam Sharqiyya (Beirut: Mu’assat al-Risala, 2001). See also Sanhuri’s doctoral thesis from the University of Lyon: A. Sanhoury, Le Califat (Lyon: Imprimerie Bosc Freres & Riou, 1926).

See, for example, his essay ‘Nizam al-Hukm’, in Hasan al-Banna, Majmu Rasa’il al-Imam al-Shahid Hasan al-Banna (Cairo: al-Maktaba al-Tawfiqiyya, n.d.).

Rashid al-Ghannushi, Al-Hurriyyat al- Amma fi-l-Dawla al-Islamiyya (Beirut: Markaz Dirasat al- Wihdah al-'Arabiyya, 1993).

Yusuf al-Qaradawi, Fiqh al-Dawla fi al-Islam: Makanatuha, Ma'alimuha, Tabi'atuha, Mawqifuha min al-Dimuqratiyya wa-l-Ta'addudiyya wa-l-Mara wa-Ghayr al-Muslimin (Cairo: Dar al-Shuruq, 1997); al-Siyasa al-Shar'iyyafi Daw’ Nusus al-Shari a wa-Maqasiduha (Cairo: Maktabat Wahba, 1998.).

Fahmi Huwaydi, Al-Islam wa-l-Dimuqratiyya (al-Qahira: Markaz al-Ahram lil-Tarjama wa-l-Nashr, Mu’assasat al-Ahram, 1993).

Muhammad 'Imara, Al-Islam wa-Falsafat al-Hukm (Cairo: Dar al-Shuruq, 1989); Al-Islam wa-l- Siyasa: al-Radd 'ala Shubuhat al-Almaniyyin (Cairo: Dar al-Tawzi' wa-l-Nashr al-Islamiyya, 1993).

Muhammad Salim al-'Awwa, Fi-l-Nizam al-Siyasi lil-Dawla al-Islamiyya (Cairo: al-Maktab al-Misri al-Hadith, 1983); Al-Nizam al-Siyasifi-l-Islam (Beirut: Dar al-Fikr al-Mu'asir, 2004).

Ahmad Kamal Abu al-Majd, Nazarat Hawla al-Fiqh al-Dusturi fi al-Islam (Cairo: Matba'at al-Azhar, 1962); 'Ali Mansur, Nuzum al-Hukm wa-l-Idara fi al-Shari 'a al-Islamiyya wa-l-Qawanin al-Qada’iyya, Muqaranat bayna al-Shari 'ah wa-l-Qanunayn al-Dusturi wa-l-Idari (Cairo: Matba'at Mukhaymar, 1965); Hazim 'Abd al-Muta'al Sa'idi, Al-Nazariyya al-Islamiyya fi al-Dawla: ma a al-Muqarana bi-Nazariyyat al-Dawla fi al-Fiqh al-Dusturi al-Hadith (Cairo: Dar al-Nahda al-'Arabiyya, 1986); Fathi Wahidi, Al- Fiqh al-Siyasi wa-l-Dusturi fi al-Islam: Dirasa Muqarana fi Masadir al-Nizam al-Dusturi wa- Nazariyyat al-Siyada wa-Tanzim al-Dawla wa-Bayan Huquq wa- Hurriyyat al-Insan wa-Damanat Tatbiqiha fi-l- Watha’iq al-Dawliyya wa-l-Nizam al-Islami (Gaza: Matabi' al-Hay’a al-Khayriyyah bi-Qita' Ghazza, 1988); Al-Sayyid Khalil Haykal, Mawqif al-Fiqh al-Dusturi al-Taqlidi wa-l-Fiqh al-Islami min Bina’ wa-Tanzim al-Dawla (Cairo: Dar al-Nahda al-'Arabiyya, 1989); Mu hammad Kazim Mustafawi, Nazariyyat al-Hukm wa-l-Dawla: Dirasa Muqarana bayna al-Fiqh al-Islami wa-l-Qanun al-Dusturi al- Wad 'i (Beirut: Ma'had al-Rasul al-Akram li-l-Shari'ah wa-l-Dirasat al-Islamiyya, 2002); Ahmad Muhammad Amin, al-Dawla al-Islamiyya wa-l-MabadP al-Dusturiyya al-Haditha: Dirasa li-Ahamm Mabadi’ al-Dimuqratiyya al-Gharbiyya fi Daw’ Ahkam al-Shari'a al-Islamiyya (Cairo: Maktabat al- Shuruq al-Dawliyya, 2005); Muhammad Isma'il Muhammad Mash'al, Al-Dawabit al-Munazzima li- l-Siyasa al-Shar iyya fi-l-Qanun al-Idari wa-l-Dusturi wa-l-Fiqh al-Islami: Dirasa Muqarana (Alexandria: Maktabat al-Wafa’ al-Qanuniyya, 2013).

Muhammad Yusuf Musa, Nizam al-Hukm fi al-Islam (Cairo: Dar al-Ma'rifa, 1964); Subhi 'Abdu Sa'id, Al-Hakim wa-Usul al-Hukm fi al-Nizam al-Islami: al-Siyasi wa-l-Iqtisadi wa-l-Ijtima i wa-l-Fikri (Cairo: Dar al-Fikr al-'Arabi, 1985).

'Abd al-Wahhab Khallaf, Al-Siyasa al-Shar'iyyafi-l-Shu’un al-Dusturiyya wa-l-Kharijiyya wa-l-Maliyya (Cairo: Dar al-Ansar, 1977); Muhammad Yusri Ibrahim, Al-Musharakat al-Siyasiyya al-Mu asira fi Daw’ al-Siyasa al-Shar iyya (Cairo: Dar al-Yusr, 2011).

On this problem in early modern European thought, see Richard Tuck, The Sleeping Sovereign: The Invention of Modern Democracy (Cambridge: Cambridge University Press, 2016), particularly Ch. 2 on the differences between Grotius, Hobbes and Pufendorf on the existence of a people separate from the sovereign government that represents it.

See, for example, the ‘Draft Islamic Constitution’ drawn up by al-Azhar’s Academy for Islamic Research in 1977 to be made ‘available to any country that wishes to model itself after the Islamic Shari 'a. Both English and Arabic copies can be found at http://www.tahrirdocuments. org/2011/07/the-project-for-an-islamic-constitution-the-distinguished-al-azhar-academy-for- islamic-research. See also Muhammad Asad, The Principles of State and Government in Islam (Kuala Lumpur, Malaysia: Islamic Book Trust, 1980), which includes a set of reflections on social rights and ideological goals beyond the structure of governance.

On the modern history of the concept of ‘divine sovereignty’ in South Asia leading up to Mawdudi’s appropriation of it, and its subsequent history, see Muhammad Qasim Zaman, ‘The Sovereignty of God in Modern Islamic Thought’, Journal of the Royal Asiatic Society, 25(3) (2015): 389—418.

Said Amir Arjomand, ‘Islamic Constitutionalism’, Annual Review of Law and Social Science 3 (2007): 115-40.

Translated and published as ‘Political Theory of Islam’, in Islam: Its Meaning and Essence, ed. Khurshid Ahmad (Islamabad, Pakistan: IPS Press, 1975), 147-71.

21 Ibid., 159.

22 Ibid., 161.

23 Trans. and coll. in Syed Abul 'Ala Maudoodi, Islamic Law and Constitution, ed. Khurshid Ahmad (Karachi, Pakistan: Jamaat-e Islami Publications, 1955).

24 Ibid., 34.

25 A good example of this is the above-cited book by Muhammad Asad, The Principles of State and Government in Islam. In this work, Asad argues passionately against secularism in politics and mere rationalism in ethics, insisting that any Muslim society must derive its ethical certainty from re­ligion and its legal structure from the Shari'ah. But he also limits the absolutely binding aspects of the Shari'ah to precepts that can be grounded indisputably in revealed texts, suggesting that ‘it is reasonable to assume that the Law-Giver never intended the Shari'a to cover in detail all con­ceivable exigencies of life. He intended no more and no less than to stake out the legal boundaries within which the community ought to develop, leaving the enormous multitude of “possible” legal situations to be decided from case to case in accordance with the requirements of the time and of changing social conditions’ (p. 12).

26 Maudoodi, Islamic Law and Constitution, 57.

27 Ibid., 62.

28 Ibid., 83.

29 Ibid., 89.

30 Ahmad Kamal Abu al-Majd, Nazarat Hawla al-fiqh al-Dusturi fi-l-Islam (Cairo: Matba'at al-Azhar, 1962).

31 Ibid., 25.

32 Ibid., 26.

33 Ibid., 27.

34 Ghannushi, Al-Hurriyyat al-'Amma, 41.

35 Ibid., 71.

36 Ibid., 99.

37 Ibid., 101.

Select bibliography and further reading

Al-Hibri, Azizah Y. ‘Islamic Constitutionalism and the Concept of Democracy’. Case Western Reserve Journal of International Law 24(1) (1992): 1—27.

Arjomand, Said Amir (ed.). Constitutional Politics in the Middle East: With Special Reference to Turkey, Iraq, Iran and Afghanistan (London: Bloomsbury Publishing, 2008).

Feldman, Noah. ‘Islamic Constitutionalism in Context: A Typology and a Warning’. University of St. Thomas Law Journal 7(3) (Spring 2010): 436—51.

Grote, Rainer, and R. Tilmann. Constitutionalism in Islamic Countries: Between Upheaval and Continuity (Oxford: Oxford University Press, 2012).

Hirschl, Ran. Constitutional Theocracy (Cambridge, MA: Harvard University Press, 2011).

Lombardi, Clark B. ‘Islamic Law as a Source of Constitutional Law in Egypt: The Constitutional­ization of the Shari'ah in a Modern Arab State’. Columbia Journal of Transnational Law 37(1) (1998): 81-123.

Lombardi, Clark B. ‘Designing Islamic Constitutions: Past Trends and Options for a Democratic Future’. International Journal of Constitutional Law 11(3) (2013): 615-45.

Quraishi-Landes, Asifa. ‘Islamic Constitutionalism: Not Secular, Not Theocratic, Not Impossible’. Rutgers Journal of Law and Religion 16(26) (2014): 553-79.

Rabb, Intisar A. ‘We the Jurists: Islamic Constitutionalism in Iraq’. University of Pennsylvania Journal of Constitutional Law 10(3) (2007): 52-79.

Rutherford, B. K. ‘What do Egypt’s Islamists Want? Moderate Islam and the Rise of Islamic Consti­tutionalism’. The Middle East Journal 60(4) (2006): 707-31.

Schirazi, Asghar. The Constitution of Iran: Politics and the State in the Islamic Republic (New York: I. B. Tauris, 1998).

Sultany, Nimer. ‘Against Conceptualism: Islamic Law, Democracy, and Constitutionalism in the Aftermath of the Arab Spring’. Boston University International Law Journal 31 (2013): 435-63.