Intellectual debates and sociopolitical changes in Arab societies have brought about new political outlooks and consciousness, and have resulted in profound political change and restructuring of state institutions. Reform efforts successfully introduced modern political institutions, but failed in effecting a broad and systematic transformation of political culture, as the latter continues to be guided by notions and practices rooted in the premodern models of authoritarian (“sultanic”) governance. The drive to political reform under the rubric of Tanzimat started around the turn of the 19th century as a matter of necessity by both Ottoman rulers (sultans), and their governors in Egypt and Tunisia, in response to European imperial expansion into Africa and Asia. By mid-20th century, political institutions and state bureaucracies were restructured in the mold of modern political ideas. Yet these ideas, and the ethical foundations on which they stood, failed to mature in post-Ottoman Muslim societies. Conservative forces resisted the new ideas. With the increased disenchantment of Muslim youth with postcolonial states, conservative thinkers reintroduced Islamic notions and values into the debate over the proper form of government in contemporary Muslim societies. The push to modernize society has been intense, empowering Muslim modernists to move ahead to reshape societal institutions. The zeal to bring about quick development effected indeed rapid modernization but led to the rise of autocratic governments, and further polarized Muslims societies. Notions of popular sovereignty and equal citizenship were countered by the sovereignty of Shari`ah and the need for religious differentiation and religious autonomy, thereby demanding the revival of the historical institutions of caliphate and dhimmis. The debate gradually moved toward compromise, whereby Muslim intellectuals and scholars attempted a creative synthesis on the common ground found in both traditional Islam and modern democratic liberal ideas. The transformation into a model that aligns Islamic values with the principles of democracy (or shura) and equal rights of citizens, while profound and increasingly broad, is still incomplete, as current struggles in Muslim societies demonstrate; intellectual and practical battles for the soul of Muslim societies continue to rage. The push back in the last two decades against modern notions of state and citizenship, and the rise in popularity of groups that aim at reviving the premodern institution of caliphate underscore the debate between old and modern notions of political organization and allegiance, and require deeper understanding of the nature of the tensions between premodern and contemporary political ideas and institutions.
Christie S. Warren
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.