The decline in legislative deliberation inside the Senate in recent years is a direct consequence of the shift from a proportional view to a majoritarian view.
Islam and Constitutionalism
The Arab Spring has ushered in a new round of constitution making in Arab states, but will it also bring a new era of constitutionalism? Virtually all of the forty-four or so Muslim-majority states have embraced the idea that a constitution is an essential feature of modern governance. Nearly all have promulgated formal constitutions, and most began drafting a constitution as one of their first tasks immediately after independence. Yet, as we all know, it is one thing to promulgate a constitution and quite another to inculcate constitutionalism and to establish a constitutional system of government. The history of constitutionalism in Muslim countries is rather bleak. None so far has managed to instill a tradition of constitutionalism, and many could be held up as examples of the abject failure of constitutional government. There are certainly some encouraging signs that perhaps constitutionalism is developing in states such as Indonesia and Turkey. Both nations are overwhelmingly Muslim but have long pursued officially secular politics. Constitutionalism has fared poorly in states that have officially and most visibly proclaimed themselves “Islamic,” including Afghanistan under the Taliban, Iran under the ayatollahs, Pakistan, and Saudi Arabia. This record raises the question of the compatibility of Islamic politics and constitutionalism: Is there something about “Islamic states” that makes them averse to constitutionalism?
This question has been hotly debated for decades in a related form: Is Islam compatible with democracy? Constitutionalism and democracy are conceptually related but not identical. At its core, constitutionalism is the idea that the political order is subject to a “higher law” that is beyond arbitrary or capricious human changes, whether they are suggested by an autocrat, an oligarchy, a democratic mob, or even a duly constituted legislature. A constitutional system, I suggest, contains three essential features: (1) limited and accountable government, (2) adherence to the rule of law, and (3) protection of fundamental rights. So theoretically any political regime that fulfills these three criteria could be considered as fulfilling the requirements of constitutionalism. In practice, however, history shows that constitutionalism is best realized in a liberal democratic regime, in which the people periodically elect leaders who govern within the limits of enumerated or widely accepted legal powers.
Given this definition of constitutionalism, there is no obvious or inherent incompatibility between it (or, for that matter, democracy) and Islamic political theory. The very question of compatibility suggests that there is a full-blown notion of an Islamic state in Islamic political theory, whereas in reality there is nothing of the sort, in either classical or modern Islamic thought. The source of all Islamic thought, the Qur’an, is conspicuously lacking in any specifics about the structures of an Islamic state or about government in general. Similarly, the hadiths, or collected traditions of the prophet Muhammad, provide little detailed guidance on politics. More details about the Prophet’s political views and behavior are found in the early biographical literature, including intriguing references to an agreement that Muhammad concluded with Muslim and Jewish groups shortly after his migration from Mecca to Medina.
This compact—dubbed the Constitution of Medina by many writers—does not outline any specifically Islamic political system. More than anything else, it establishes a unified Muslim community (umma), forges a mutual security pact among the various groups in Medina—Muslim and non-Muslim—and establishes Muhammad’s role as the ultimate arbiter of disputes among the parties. The fact that neither the Qur’an nor the Prophet provided the Muslim community with an Islamic political system is evidenced by the confusion and near anarchy (at least in the Sunni version of events) created by Muhammad’s unexpected death. Years later, when asked to describe how Abu Bakr became the first caliph, ‘Umar ibn al-Khattab (the second caliph) described it as falta, or an unexpected, unprepared event. In other words, the caliphate, the institution at the heart of classical Islamic political theory, the office to which the great political minds of the early Islamic period devoted by far the bulk of their attention, was born not through divine command or inspiration, but instead through hasty improvisation by the Medinan community.
The Qur’an and sunna (example) of the Prophet provide no constitution for an Islamic polity; what they do provide are broad ethical guidelines for the conduct of politics. Qur’an 4:59 emphasizes obedience: “O you who believe! Obey God, and obey the Messenger and those in authority among you.” But Qur’an 42:38 includes a reference to the Muslims as those who decide their affairs by mutual consultation (shura baynahum), and one widely quoted hadith has the Prophet declaring: “There is no obedience to the created in opposition to the Creator.” Thus, even the broad guidelines require reconciliation and interpretation in order to construct a coherent set of ethical principles for politics. For this reason, there are today, as there have been throughout Islamic history, disputes over the details of an Islamic political order. Does Islam require a universal caliphate or are local emirates acceptable? Are monarchies contrary to Islamic principles or are democracies? Yet, regardless of the answers contemporary Muslim theorists give to these and related questions about the specifics of constitutional arrangements and procedures, they generally seem to agree on the substance of constitutionalism, namely, that Islamic government must be limited and accountable, it must adhere to and enforce the rule of law, and it must safeguard the rights of the people.
Consider, for example, the statements of two ideologically very different Muslim writers. Ayatollah Khomeini declared: Islamic government “is not a tyranny, where the head of state can deal arbitrarily with the property and lives of the people, making use of them as he wills…Islamic government is neither tyrannical nor absolute, but constitutional….It is constitutional in the sense that the rulers are subject to a certain set of conditions in governing and administering the country, conditions that are set forth in the Noble Qur’an and the Sunna of the Most Noble Messenger.” Fazlur Rahman, one of the most influential modernist scholars of the twentieth century, wrote: “To carry on their collective business (government), the Qur’an asks them [Muslims] to institute shura (a consultative council or assembly), where the will of the people can be expressed by representation….The efforts of several Muslims in the nineteenth and twentieth centuries to justify and propagate the idea of a strongman rule, therefore, run in the very teeth of the Qur’an.” More than anything else, the vast majority of Muslim theorists would affirm the essence of constitutionalism, the contention that Islamic government must be subject to a higher law beyond the caprice of the people or their government.
The Clash of Higher Laws
But this is the very issue upon which Western constitutionalism and Islamic constitutionalism encounter some nettlesome issues of reconcilability. Western constitutionalism posits the existence of a higher law grounded in human reason. Two factors were determinative in giving rise to the idea of constitutionalism: a robust notion of natural law, on the one hand, and a relatively weak idea of divine law in Christianity, on the other. The theoretical foundation of constitutionalism in the West is the natural law tradition of the ancient Greeks and Romans, particularly the Stoics. The natural law tradition flowed from the Romans into the works of the great philosophers of the Western Church, who found little by way of divine legislation in the life or teachings of Christ to challenge it. Enlightenment philosophers, particularly Locke, Montesquieu, and Rousseau, shifted the emphasis in natural law thinking from duties to rights. In this framework, the constitution is the scripture of a civil religion, but because it originates in the mind of man, this scripture is assumed to be inherently and endlessly interpretable by human beings.
In contrast, the Islamic heritage bequeaths to modern constitution writers a relatively weak idea of natural law, on the one hand, and a robust notion of divine law, on the other. The higher law of the man-made constitution thus has the potential to clash with the higher law of God, the shari‘a. And insofar as the shari‘a is understood to contain specific and immutable legal rulings, as it is according to many influential theorists, this clash seriously limits the ability of Muslim reformers to revise the shari‘a according to their understanding of what good government and human rights require.
This clash has ancient roots in the Islamic intellectual tradition. Perhaps from the time of the prophet Muhammad himself, the Qur’an was viewed in part as an expression of divine law. The Qur’anic text may not explicate a constitution for the Islamic state, but it does contain verses on a variety of subjects, ranging from marriage and inheritance to war and peace, that have legal import. Some injunctions are preceded by the words kutiba ‘alaykum (“it is written for you”), suggesting that God is directly legislating for humanity.
As long as the Prophet lived among his people, there was no question as to the supreme interpretive agent for divine revelation. The problem that confronted the Muslim community immediately after Muhammad’s death was how to interpret the Qur’an, particularly when verses are ambiguous or apparently contradictory, and what normative value, if any, to give the sunna, the sum total of Muhammad’s prophethood in words and deeds. Ibn Khaldun notes in the Muqaddima that the four legal schools that had coalesced in Sunni Islam by the fourteenth century were characterized by the degree to which they championed reason over tradition. The Hanafis favored the use of opinion (ra’y) and analogy (qiyas), while the Malikis relied on traditions, especially the living tradition of the Medinan Muslims who were assumed to preserve most faithfully the sunna of the Prophet and his companions. The Shafi‘is attempted to synthesize these two approaches, but their synthesis clearly favored the champions of tradition over opinion. The last school to emerge, the Hanbali, continued this trend toward reliance on the Qur’anic text and its interpretation through the hadiths of the Prophet. But, as Ibn Khaldun makes clear, the proponents of tradition did not disavow all interpretive activity (ijtihad) by qualified jurists because the jurist’s task was to illuminate shari‘a by his jurisprudence. He notes caustically that the literalists, or Zahiris, who shunned ijtihad, failed to establish a lasting school, and were only occasionally followed by “worthless people.”
The early controversies in jurisprudence were mirrored by bitter disputes in speculative theology (kalam). Mu‘tazili theologians advocated ethical objectivism, that truth and falsehood, right and wrong, are objective categories, discernible by human reason and independent of God’s will. Influenced by Aristotelian philosophy and possibly reacting to theological disputations with their Christian counterparts in Syria and Iraq, the Mu‘tazilis were trying to reconcile Greco-Roman natural law arguments with Islamic conceptions of divine law.
The Mu‘tazili faith in reason was vociferously challenged by other schools. The Maturidi school accepted reason as a source of moral knowledge, but held that the Mu‘tazili position relied excessively on it over revelation. The Maturidi view was a middle ground of sorts between the Mu‘tazilis and their fiercest critics, the Ash‘aris. In opposition to the Mu‘tazilis’ embrace of ethical objectivism, the Ash‘aris held that God’s power could not be subject to any objective ethical values; rather, ethical value was derived entirely from God’s command. Man discovers right action through God’s grace to his creation, through the scriptures and the actions of divinely inspired prophets. These sources of divine law are the only arbiters of the moral content of specific actions. Without the light of the shari‘a, humans cannot be sure that an action is good or bad.
By the end of the twelfth century, for reasons more political than intellectual, the Ash‘ari position had emerged as dominant in Sunni Islam. Maturidism remained influential, particularly in areas ruled by Turkic dynasties in Anatolia and central and southern Asia. Mu‘tazilism lingered in some Sunni circles, but its impact was greatest on the evolution of Shi‘i jurisprudence, which underwent its own controversy between traditionalists and rationalists, ending in the eighteenth century with the triumph of the latter. In Sunni Islam the ascendancy of the Ash‘ari position had profound consequences for the evolution of Islamic conceptions of law and ethics.
A moral epistemology rooted in revelation is intrinsically conservative. Those most familiar with revelation, the ulema (religious scholars), were placed in a privileged position to interpret the faith to the mass of the faithful. Confronted as they were with political instability and pressures to interpret the law in ways favorable to those in power, the ulema naturally tended toward greater conservatism in their legal interpretation. One could say they upheld the shari‘a as a higher law above human tampering and expedient interpretations. But, in this Islamic context, the higher law that was being upheld was rooted in conceptions of divine, not natural law. The “closing of the gates of ijtihad” was an event more mythic than real—as legal interpretation certainly continued—but behind the myth lies an undeniable reality: the ethos that gripped Sunni legal scholarship was deeply resistant to change or critical inquiry. Ibn Khaldun has some pointed comments on this development: “(Scholars) came to profess their inability (to apply independent judgment), and had the people adopt the tradition of the (authorities) mentioned and of the respective group of adherents of each. . . . The person who would claim independent judgment nowadays would be frustrated and have no adherents.”
As development and even reinterpretation of the shari‘a became more and more restricted, while Muslim societies continued to change and encounter new challenges, extra-shari‘a legislation developed parallel with it. This siyasa shar‘iyya or qanun created, in effect, an ever-increasing sphere of secular law. As the qanun expanded in scope, the shari‘a contracted—in practice, not in theory. In theory, qanun was the realm of man-made laws, tolerated by ulema for pragmatic or utilitarian purposes but never as a substitute for the ideal divine law.
Beginning in the nineteenth century, the ideology of constitutionalism began to creep into Islamic political thought as more and more Muslims visited and studied in Europe. The need to reopen the shari‘a to reinterpretation and reform was one of the driving forces underlying the advocacy of constitutionalism among reformers. For these men, constitutionalism was the supreme manifestation of neo-ijtihad, a legitimate vehicle for the reconceptualization of Islamic polity and the creation of new and more effective political institutions that reflect the true purposes of an Islamic ethical system. But from the beginning, the reformers faced concerted opposition from many ulema and other conservatives, who viewed constitutionalism as the latest assault on the sacred law. According to this view of Islamic polity, the Qur’an and Prophetic sunna provide the immutable Islamic “constitution,” and human engagement with these sources is limited to “law finding” rather than lawmaking. In his treatise Islamic Law and Constitution, Abu al-A‘la Mawdudi declared: “It is beyond the purview of any legislature of an Islamic state to legislate in contravention of the directives of God and His Prophet, and all such pieces of legislation, even though approved by the legislature would ispo facto be considered ultra vires of the Constitution.” And Ayatollah Khomeini continued his statement quoted earlier as follows: “The fundamental difference between Islamic government and constitutional monarchies and republics is this: whereas the representatives of the people or the monarch in such regimes engage in legislation, in Islam the legislative power and competence to establish legislation belongs exclusively to God Almighty…No one has the right to legislate and no law may be executed except the law of the Divine Legislator.”
These serious differences in understanding of the constitutional process and the meaning of the constitution in national life have obviously had profound consequences for Muslim societies. They have most significantly affected the rights of women and religious minorities. But more broadly, they have often stymied the development of genuine constitutionalism or they have led to the demise of the constitutional enterprise altogether. The experiences of Iran and Pakistan, two countries with the longest running experiments in Islamic constitutionalism, are telling.
The 1905 constitutional movement in Iran was characterized by bitter disputes among the Shi‘i ulema on how much legislative prerogative the new national assembly would have and whether elected representatives who were not trained ulema had any right to make pronouncements about shari‘a. Similar controversies erupted in 1979 when the constitution of the Islamic Republic of Iran was being drafted. This constitution was framed in light of Ayatollah Khomeini’s notion of velayet-e faqih (rule by the jurist), and so it incorporated into its framework an explicit guardianship role for not just the Shi‘i ulema as a whole, but for one of them in particular, the rahbar, or “guide.” The guide is assisted in the task of ensuring that no law passed by the Majlis (the Iranian parliament) contravenes the principles of Islam by a twelve-member Council of Guardians. The council proved such an impediment to the Majlis’s legislative functions that Khomeini established the Expediency Council to arbitrate disputes between the two institutions. Upon Khomeini’s death in 1989, this body was formally instituted by amending the constitution. But its existence has not resolved the frequent clashes that polarize the elected reformers in the Majlis and the appointed conservatives on the Council of Guardians.
Pakistani constitutionalism has grappled with the complexities of framing an Islamic constitution ever since the 1949 Objectives Resolution of the First Constituent Assembly proclaimed: “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.” Very quickly, shari‘a reform tested just where the “limits” lay in the people’s exercise of their “delegated” sovereignty. Reformers and conservatives clashed frequently before and after Pakistanis adopted their short-lived constitution of 1956, with the conservatives demanding that a judicial body be instituted with the authority to declare all legislation contravening the shari‘a as null and void. Such a court was established in 1980 as part of the “Islamizing” reforms of the dictator General Zia al-Haq. The Federal Shari‘a Court is empowered to declare legislation passed by the National Assembly as repugnant to Islam, and it has used this sweeping power, according to its critics, to usurp the authority of the country’s elected parliament to legislate and of the Supreme Court to interpret and enforce the constitution.
More recent cases of constitution writing in Muslim countries once again raised immediate and important questions about the role of shari‘a in the constitutional order. In the constitutions of Afghanistan and Iraq—both drafted under American tutelage—Islam has been designated as the official religion of the country. Article 3 of the Afghan constitution states: “In Afghanistan, no law can be contrary to the beliefs and provisions of the sacred religion of Islam.” Article 2 of the Iraqi constitution declares: “Islam is the official religion of the State and it is a fundamental source of legislation. No law that contradicts the established provisions of Islam may be established.” The article then continues: “No law that contradicts the principles of democracy may be established. No law that contradicts the rights and basic freedoms stipulated in this constitution may be established.”
And now, in the wake of the Arab Spring, a number of other countries are grappling with essentially the same issue. Initial drafts of the Egyptian and Libyan constitutions indicate that shari‘a will be formally acknowledged as the principal source of law. Tunisia has so far been a notable exception to the trend; its government has stated that the new constitution will declare Islam to be the official religion but will not mention the shari‘a as a source of law.
We will have to wait and see how all of these new constitutional experiments reconcile the application of Islamic law with the principles of modern democratic rights. We may predict that they will encounter much of the same difficulties as their Iranian and Pakistani coreligionists before them.
How to Proceed?
Given the historical record, how should Muslim states proceed if their goal is to realize a truly constitutional order? One obvious path, of course, is to embrace secularism outright. Indeed, half of the forty-four Muslim-majority states have already explicitly or implicitly taken this path, by declaring themselves in their constitution to be secular or by having no declaration regarding religion. Turkey’s Justice and Development Party (AKP) and moderate Islamic parties in Malaysia and Indonesia are important test cases of religiously based or religiously inclined parties accommodating to secular politics. So far these examples provide the basis for some hope, hope that Islamists and secularists can find mutually acceptable political space. But these experiments are still in their early stages.
The secular path, especially if it follows the French model of laicisme that attempts to keep religion completely out of the public sphere, will be a difficult one for other Muslim countries to follow. In other countries the experience of the past sixty years has shown that Islam must be incorporated into the constitutional order or the risk is that it will become the ideological basis for those who challenge the very legitimacy of that order. So the task for Muslim constitutionalists is to find the resources within Islamic thought that permit the development and sustaining of constitutionalism.
One of the first tasks in this process is to assert the possibility of natural law and natural rights within an Islamic framework. This will require a resurrection and dissemination of the early Mu‘tazili emphasis on ethical objectivism, that is, that all human beings possess the rational faculty—as a God-given faculty—to discern right from wrong and to form moral conclusions on how to order their communal lives apart from reliance on one or another revelation.
The second task is to develop a societal consensus that ijtihad is the birthright of all Muslims and that each Muslim generation has the right and the obligation to understand the Qur’an and sunna in light of their own needs and their own circumstances. Far from being a heretical idea, this view, as Muslim scholars such as Fazlur Rahman have argued, was the understanding of shari‘a for the earliest Muslim generations. It was certainly the methodology embraced by the earliest legal scholars, the ones closest to the Prophetic community. These scholars gave as much importance to istislah (public welfare) and istihsan (equity or fairness) as they did to custom or dogma.
In later centuries jurisprudents adopted a conservative attitude toward interpretation and development of shari‘a for a variety of reasons. Many of the ulema of the Abbasid period resisted tampering with shari‘a because of the theological argument that to do so would be to tamper with divine law. But there was another, very practical political reason involved as well. By upholding the immutability of the shari‘a, the jurists were attempting to separate the legislative from the executive functions. They were not seeking to enforce any specific legal points within the shari‘a. They were trying to uphold the rule of law. They were trying to prevent the transformation of the shari‘a into an instrument for tyranny at the hands of what were widely considered to be corrupt rulers.
Modern Muslims can embrace this same conception of shari‘a and apply it to their own political realities, which are in essence not so far removed from those of the early centuries. A significant movement in this direction is taking place today as a number of prominent Muslim intellectuals develop the concept of maqasid al-shari‘a (the purposes of shari‘a), which allows them to separate the eternal, divine law—known only in full to God—from fiqh (jurisprudence), which is the fallible and changeable human understanding of shari‘a. If shari‘a is understood as the moral foundation for constructing a political order and not the legal minutiae itself, if it is understood as enjoining justice, equality, and the submission of human beings to a transcendent authority, then it can serve as a check on arbitrary rule, on authoritarian regimes that dictate laws to their people. Shari‘a in this conception can play the functional role of natural law in early Western constitutional thought and the role that constitutions play today in a constitutional order.
 Al-Tabari, The History of al-Tabari, vol. 9: The Last Years of the Prophet, trans. Ismail K. Poonawala (Albany: State University of New York Press, 1990), 192.
 Ruhollah Khomeini, “Islamic Government,” in Islam and Revolution, ed. Hamid Algar (Berkeley: Mizan Press, 1981), 55.
 Fazlur Rahman, Major Themes of the Qur’an (Minneapolis: Bibliotheca Islamica, 1980), 43.
 Ibn Khaldun, The Muqaddimah: An Introduction to History, trans. Franz Rosenthal (New York: Pantheon, 1958), 3:6.
 Ibid., 3:9.
 Abu al-A‘la Mawdudi, Islamic Law and Constitution, 9th ed. (Lahore: Islamic Publications, 1986), 221.
 Khomeini, “Islamic Government,” 29.
 Fazlur Rahman, Islamic Methodology in History (Islamabad: Islamic Research Institute, 1984).