Public Reason, Conscience and Islamic Constitutionalism (original) (raw)

A comparative assessment of constitutionalism in Western and Islamic thought

2013

In the spirit of comparative political theory, this thesis analyzes the ideas that have shaped Western and Islamic constitutional discourse and assesses the extent to which they intersect at key historical and philosophical points. This goal is placed within a larger debate of whether Islam and constitutionalism are mutually exclusive. The thesis begins by positioning itself against Samuel Huntington and Elie Kedourie, who argues that Islam is inherently incompatible with constitutional governance. It then addresses the idea of constitutionalism as described by Western thinkers on three constitutional concepts: the rule of law, reflection of national character, and placing boundaries on government power. These are examined through the lens of a particular canonical text or thinker, Cicero, Montesquieu, and The Federalist Papers, respectively. This is followed by an examination of Muhammad’s “The Constitution of Medina.” Islamic corollaries to the constitutional ideas discussed earli...

The Challenges of Islamic Law Adjudication in Public Reason

2019

Rawls’ conception of public reason precludes the enforcement of rules derived from metaphysically controversial doctrines, such as revealed religions. Accordingly, a commitment to public reason seems to exclude adoption of Islamic legal doctrines as legitimate rules of decision. While that is true as a matter of ideal theory, the relationship of public reason to Islamic law in non-ideal theory is more complex. Islamic law is either directly incorporated in the legal systems of numerous Muslim and non-Muslim jurisdictions throughout the world, or its rules arise incidentally in various cases even where Islamic law is not formally part of the legal order. This chapter argues that the idea of public reason can meaningfully guide public reason minded judges when they are tasked with applying Islamic law in a fashion that vindicates the ideals of public reason. Public reason, I argues, requires judges to steer a middle course among possible extremes when an issue of Islamic law arises: t...

Constitutionalism and Democracy: An Islamic Perspective

The long history of Islamic scholarship on caliphate, sharīʿah-oriented policy (siyāsah sharʿiyyah) and system of government (nizām al-hukm) has yielded a rich legacy which is, nevertheless, beset with uncertainties in conjunction with modern developments on government and constitutional law. Uncertainties have persisted over the basic concept and definition of an Islamic polity and the existence or otherwise of a valid precedent and model for an Islamic state. This is partially caused by a tendency in modern writings to apply the nation-state ideas of eighteenth-century Europe to the events of early Islam some twelve centuries earlier and doubtful parallels that have been attempted to be drawn between them. This article attempts first to identify the causes of the problem and then proceeds with an overview of the evidence in the Qur’ān and Sunnah and contributions of a cross-section of schools and scholars on the subject. This is followed by a general characterisation of an Islamic system of rule under five sub-headings, the first of which describing Islamic government whether Islamic state, and Iran in particular, is a theocracy, whether Islam stands for a qualified democracy, and whether it also upholds separation of powers. The last section discusses freedom of religion and religious pluralism in an Islamic polity followed by a conclusion and recommendations.

‘In Search of Islamic Constitutionalism’, The American Journal of Islamic Social Sciences, vol. 21, no. 2, 2004, pp. 1 - 24.

This article examines the question of whether theSharìah is compatible with the principle and procedural form of western constitutionalism. The article will answer this question by looking at the arguments put forth by opponents of Islamic constitutional law and various counter-aguments. Using the substantive approach, I assert that theSharìah is compatible with constitu-tionalism. This position rejects both the fundamentalists' and the secularists' views on this subject. TheSharìah's principles can be a formal source or an inspiration to a constitution.

Qur’ānic Constitutionalism and Moral Governmentality; Further Notes on the Founding Principles of Islamic Society and Polity

A sequel to earlier publications on the subject, this article argues that the Qur'ān not only saw itself and was seen as exclusively authorized to adjudicate matters in the social realm but also that it was directly responsible for the origination of constitutive epistemic and political structures in the Sharī'a. Specifically, through a study of certain paradigmatic concepts, it attempts to show that the Qur'ān laid the foundations for three constitutive features of the Sharī'a, namely, (1) its constitutional organization and the practice of the rule of law; (2) its landmark features of jurists' law and ijtihādic apparatus; and (3) its moral governmentality.

Constitutional Law: An Overview of the Islamic Approach and Its Contemporary Relevance

SCIREA Journal of Sociology, 2021

Constitutional law (al-fiqh al-dusturi) is one of the important aspects of shariah. However, it has not been given due elaboration by Muslim jurists and modern scholars, unlike other branches of Islamic law. Its potentials have not been fully explored and developed for the practical purposes in a modern system of government. However, generic studies on Islamic state abound, but very little has been devoted to the study of the principles of Islamic state in relation to constitutional law. This paper is an attempt to examine this dimension, and provide an overview of the Islamic approach to constitutional law, by analyzing some Islamic principles, seen in a contemporary context. Since principles of Islamic state permeate constitutional law, understanding of the former is inevitable; they can also be regarded as Islamic constitutional principles. This research demonstrates that Islamic constitutional principles, while being faithful to basic tenets of religion, are flexible enough to accommodate the changing needs and varied applications in modern times. This aspect of the law requires further development by both shariah and constitutional experts.