Constitutions and Islamic Law
- Christie S. WarrenChristie S. WarrenWilliam & Mary Law School
The Constitution of Madinah, written by the Prophet after his flight from Mecca and arrival in Madinah (622 ce/1 ah), is considered by many to be the first written constitution. Nevertheless, and although Islamic law has developed in rich detail since then in a number of other areas, constitutionalism remains a comparatively underdeveloped area of Islamic law. Only recently has this started to change.
Since 2011 and in part due to events of the so-called Arab Spring, the topic of Islam and constitutions has been the subject of heightened interest. In recent years, a number of Muslim-majority countries, including Tunisia, Algeria, Libya, Egypt, Yemen, and Palestine, have embarked upon constitutional processes, and the relationship between Islam and the state has been debated in each of them. A variety of models has emerged over time; whereas in Saudi Arabia the Qur’an serves as the constitution itself, in Egypt Shari’ah is the principal source of legislation. Similarly, while the 2012 draft constitution of Libya states that Islam shall be the state religion and Islamic Shari’ah the main source of legislation, the constitution of Iraq provides that no law contradicting established provisions of Islam may be enacted. Language in the Afghan constitution is even more precise and states that Afghanistan is an Islamic republic, that no law shall contravene the tenets and provisions of Islam, and that in the absence of specific constitutional or legislative language governing the disposition of a case, courts shall implement principles of Hanafi jurisprudence.
In similar fashion, academic scholarship analyzing the relationship between Islam and constitutionalism has increased in scope and vibrancy in recent years. Historically, scholarship in this field tended to focus on issues relating to governance and administrative structures in Muslim-majority countries—not on normative constitutional principles. More recently, Islamic perspectives on constitutional norms have become the focus of significant scholarship. Some constitutional issues of recent academic interest include state sponsorship of a particular religion to the exclusion of others, freedom to practice Islam and other religions, and options for articulating the role of Shari’ah within constitutional frameworks, including the use of supremacy and repugnancy clauses, the role of Shari’ah as a source of legislation, “Shari’ah checks” to ensure that legislation does not contravene Islamic law, review by Shura Councils, and the role of the judicial branch in interpreting Islamic law. Additional constitutional issues impacted by defined relationships between Shari’ah and the state include human and women’s rights, protection of religious minorities; criminal law and hudud punishments; finance law and restrictions on charging interest; rights of freedom of association, expression, and expression; and provisions governing marriage, divorce and inheritance.