Islam, Constitutionalism, and the Rule of Law

So what are the prospects in the Islamic world for constitutional political orders featuring the rule of law, limited government, and political representation? To answer this question Sohail Hashmi, Professor of International Relations at Mount Holyoke College, has written an incisive essay exploring the political, legal, and religious history of Islam in order to shed light on the compatibility between Islam and political constitutionalism. Hashmi’s essay is a powerful argument for ethical objectivism and the possibilities for ressourcement within the Islamic tradition that could lead to a flowering of liberty with law.

Robert Reilly, author of the powerful book, The Closing of the Muslim Mind, responds with “The Formidable Philosophical Obstacles to Islamic Constitutionalism” where he notes

Hashmi’s idea that the sharia can play the role of natural law in developing Muslim constitutionalism is problematic, to say the least, even though Hashmi is certainly correct in saying that it, at one time, served as the only brake against the otherwise absolute power of the caliph or emir.  The problem is: If the sharia is divine, it cannot be changed.  Since sharia codifies the inequality of men and women, and of Muslims and all others, how could it serve as the basis for a rule of law founded on the equality of all people?

Becket Fund lawyer Asma Uddin adds tremendously to the conversation with her distillation of human rights and the sources for their protection within the Islamic religious and legal tradition. Uddin’s voice in this exchange calls forth the complexity of the re-creation of right that could emerge from the sources of Islam.

The tireless defender of free speech, freedom of association, and religious liberty, David French, JAG officer and veteran of Iraqi Freedom, asks us to consider the substantive requirements of human flourishing and the abuses of authority within many Muslim-majority states. French argues that Hashmi’s contribution is needed and should be seriously considered by men and women of good-will in this debate. Directly stated: the current authoritarianism that is dominant in so many Muslim states cannot continue for much longer. From the standpoint of human dignity, new articulations of political freedom are needed and must be advanced in practical ways within the Islamic world.