Shari’a and Constitutionalism

Nadirsyah Hosen. Shari’a and Constitutional Reform in Indonesia. Institute of Southeast Asian Studies, 2007.

Constitutionalism in the West is mostly identified with secular thought. In recent years, there has been a growing interest in Islamic constitutionalism. For instance, the Bush administration’s response to the 11 September 2001 attacks on New York and Washington has radically transformed the situation in Iraq and Afghanistan as both countries are rewriting their Constitutions. Ann Elizabeth Mayer has pointed out that Islamic constitutionalism is “constitutionalism which is in some form based on Islamic principles”.

Several Muslim scholars such as Muhammad Asad and Abul A’la al-Maududi have written on several aspects of constitutional issues such as human rights and the separation of powers. However, in general their works fall into apologetics, as Chibli Mallat points out:

Whether for the classical age or for the contemporary Muslim world, scholarly research on public law must respect a set of axiomatic requirements. First, the perusal of the tradition cannot be construed as a mere retrospective reading. By simply projecting present-day concepts backwards, it is all too easy to force the present into the past either in an apologetically contrived or haughtily dismissive manner. The approach is apologetic and contrived when Bills of Rights are read into, say, the Caliphate of ‘Umar, with the presupposition that the ‘just’ qualities of ‘Umar included the complex and articulate precepts of constitutional balance one finds in modern texts.

Going further back in history, the fall of the Ottoman Empire also contributes to the lack of Islamic constitutional thought since the empire was the last caliph state. It is also worth considering that books on political law (fiqh siyasa) written in the twentieth century, such as those by ‘Abdurrahman Taj, and Ahmad Syalabi, refer to the idea and the practice of the Islamic state more than a thousand years ago. This suggests that their works are simply repetitions of opinions from fiqh books written several centuries ago without making modification through ijtihad (reinterpretation) and without trying to link the revelation, which was sent down fifteen centuries ago, to modern problems in a nation-state. In other words, what Islamic constitutionalism entails remains contested among Muslims and also Western scholars who study the topics.

Constitutional law can be defined simply as law that regulates the government of a state. It is concerned with the struggle between rival contenders for power and the question of the limits to be imposed on the government. In a minimalist sense of the term, a constitution consists of a set of rules or norms creating, structuring and defining the limits of governmental power or authority. In this sense, all states that have constitutions are constitutional states. However, it should be noted that having a constitution—written or unwritten—does not necessarily mean that a state follows constitutionalism.

Louis Henkin defines constitutionalism as constituted of the following elements: (1) government according to the constitution; (2) separation of power; (3) sovereignty of the people and democratic government; (4) constitutional review; (5) independent judiciary; (6) limited government subject to a bill of individual rights; (7) controlling the police; (8) civilian control of the military; and (9) no state power, or very limited and strictly circumscribed state power, to suspend the operation of some parts of, or the entire, constitution.

In other words, constitutionalism has evolved to mean the legal limitations placed upon the rightful power of government in its relation to citizens. It includes the doctrine of official accountability to the people or to its legitimate representatives within the framework of fundamental law for better securing the citizens’ rights. The philosophy behind the doctrine is that the people are the best judges about what is and what is not in their own interest. Therefore, a constitution which has the spirit of constitutionalism must, at least, limit the power of the state; guarantee and protect the rights of the citizenry; and regulate the process and procedural paths of authority and accountability.

The main question in this chapter is: “Is shari’a compatible with the principle and procedural form of constitutionalism?”. This chapter answers this question by looking at the arguments put forth by the opponents of Islamic constitutional law and the counter-arguments. One group takes the view that not only is shari’a sufficient to meet Muslims’ needs, and therefore Muslims do not need constitutionalism, but also that shari’a as God’s law is above the Constitution. Shari’a has already provided a unique system of government or politics. Another group believes that Islam (including shari’a) has no relationship with state affairs. According to this group, the Constitution should not be used to enforce shari’a.

Although both groups have different arguments, they share the same conclusion that the nature of shari’a does not permit them to acknowledge the compatibility of shari’a with constitutionalism. This chapter offers a different position on this issue. It argues that shari’a is neither above nor outside the Constitution. Instead, the principles of shari’a and constitutionalism can co-exist, but reinterpretation of shari’a is needed to articulate the procedural and institutional mechanisms of Islamic constitutional law, particularly to draw a clear line of authority and accountability.

Authoritarianism and Secularism

This section discusses the arguments against the compatibility of shari’a with constitutionalism. The first four arguments are pointed out by fundamentalist groups, while the rest are provided by secularist groups. Although each group has its own reasons, they take the similar view that shari’a is not compatible with constitutionalism.

The Arguments of the Fundamentalists

Firstly, there is the view that Islamic law is immutable because the authoritarian, divine and absolute concept of law in Islam does not allow change in legal concepts and institutions. Shari’a is immutable, regardless of history, time, culture, and location. Muslims may change but Islam will not change. This means that the rulings pronounced by shari’a are static, final, eternal, absolute and unalterable. In other words, its idealistic and religious nature, its rigidity and its casuistic nature lead to the immutability of shari’a. This position is not compatible with the nature of a constitution, which can be amended, modified, reformed or even replaced by a new one.

Secondly, shari’a is based on the revelation of God. The source of Islamic law is the will of God, which is absolute and unchangeable. There has always been a close connection between Islamic law and theology. This means that the laws that do exist must operate within the boundaries set by shari’a. In other words, real power is in the hand of Allah. This condition contradicts the nature of constitutionalism, which is based on the will of man. Under shari’a, sovereignty belongs to God, not to man. This means that the government must act according to shari’a. It is argued that even though a legislative measure has been supported by a majority, it does not necessarily imply that it is a “right” measure. It is always possible that the majority, however large and well intentioned, might be mistaken, while the minority might be right. What is right and what is wrong should be based on shari’a, not on the popular vote.

Thirdly, constitutionalism is not drawn originally from Islam. It is a Western product and is part of hegemony. The tension between the church and the state in Western tradition is evident in most European constitutional traditions and also in the constitutions of colonial states such as the United States and Australia. It is argued that adopting constitutionalism, which is outside of Islamic discourse, will lead Muslims to separate Islam from politics, thus abandoning their religion. Moreover, in Islam democracy and the rule of law are concepts introduced by Western traditions. In shari’a, there is no distinction and separation between religion and state. Islam is a religion and at the same time a state (din wa dawla). Politics of the state is a part of Islamic teachings since Islam is a religion as much as it is a legal system.

Secularization, or the separation of religion and politics, is seen as the product of Western colonialism. During the colonial era, the concept of secularization was introduced into Muslim societies in order to maintain Western power. With the separation of religion and politics, jihad becomes meaningless. The word and the idea of secularization become pejorative terms. Any Muslim scholar who supports this concept would allegedly be seen as a supporter of Western hegemony, since constitutionalism is the product of this Western idea.

Fourthly, it is argued that, based on the Qur’an (5:3), shari’a is perfect and covers broad topics such as ritual, social interaction, criminal law, and political law. Every single problem can be answered by shari’a. It was designed for all times and places and for universal application to all peoples. It is comprehensive and encompasses all aspects of law—personal, societal, governmental, constitutional, criminal, mercantile, war and peace, and international treaties. Hence, Islam is an ideology addressing all of life’s affairs. Meanwhile, constitutionalism will not (and cannot) provide answers for all the problems of humankind.

The arguments above are supported by the fundamentalist groups. These groups take the view that shari’a is not compatible with constitutionalism in the modern, legal and secular sense. Instead, the Qur’an and Hadith should be used as the Islamic constitution.

Saudi Arabia

Saudi Arabia adopts a fundamentalist position. The Qur’an and the Sunna became the Constitution, and shari’a is the basic law, implemented by the shari’a courts with ulama as judges and legal advisors. The head of state is the king, who is elected by and is a member of the Saudi family. The King, assisted by a council of ministers, supervises legislative and executive institutions, and the judiciary. It has no House of Representatives whose members are elected by the people, and also no political parties.

It is worth noting that demands for reform initiatives led the Saudi rulers to promulgate their 1992 Basic Law, which has been loosely referred to as a kind of constitution, even though it carefully avoids calling itself one. Having discussed the Basic Law, Mayer comments that “the Basic Law does not set down constitutional limitations on government or establish a genuine system of separation of powers and protection for the rights of citizens.”

The evidence comes from Article 1 which states: “The Kingdom of Saudi Arabia is a sovereign Arab Islamic state with Islam as its religion. The Holy Qur’an and the Prophet’s Sunna are its constitution. Its language is Arabic, and its capital Riyadh.” Article 44 further stipulates: “The authorities of the state consist of the following: the judicial authority; the executive authority; the regulatory authority. These authorities co-operate in the performance of their duties, in accordance with this and other laws. The King shall be the point of reference for all these authorities.”

The national Consultative Council, known as majlis al-shura, was established pursuant to Article 68. All the council members are appointed by the King and have powers to give advice to the government on issues of public interest. Through Article 46 the Constitution recognizes the judicial authority as “an independent organ and nobody has authority over the judges except the authority of the Islamic shari’a”. Article 8 offers a different picture of the basis of the Saudi state, providing: “Government in the Kingdom of Saudi Arabia is based on the premise of justice, consultation, and equality, in accordance with the Islamic Shari’a.”

The Arguments of the Secularists

At the other end of the spectrum, the secular group rejects the constitutionalization of shari’a. According to this group, in Islamic history, shari’a was never the constitution of the traditional Islamic caliphate, which was in fact an “absolute monarchy”. It is not possible to enforce shari’a in a constitutional way, since shari’a and constitutionalism contradict each other.

Shari’a is not compatible with constitutionalism since shari’a is a matter for individual compliance. States do not have the right to intervene nor to enforce shari’a law on the public. One may observe that Islamic law began with the activities of jurists owing to religious motives, it was not created by state legislation. This results in the jurists’ conviction of the independence of Islamic law from state control. States could encourage their citizens to comply with shari’a (for example, the payment of zakat, fasting, making the pilgrimage to Mecca), but the state cannot force its people to comply. Unlike the authoritarians’ view, this group believe in the secular state and, therefore say shari’a cannot (and should not) take the place of the Constitution. They introduce the idea of de-politicizing Islam, and determine it solely as a religious faith, as once articulated by the Islamic scholar ‘Ali ‘Abd al-Raziq.

Shari’a was sent down fifteen centuries ago, and it is fit only for the conditional, political and institutional conditions of that time. Shari’a could be operated only in a traditional state (or city-state) which is based on a personal charisma of the leader; not based on the constitutional system. Fifteen centuries ago, there was no parliament, no check-and-balance system, no judicial review, no good governance, and no separation of powers. The implementation of shari’a is, therefore, in contradiction with modern institutions and concepts. Moreover, constitutions cannot be viable documents in the absence of the ideological, cultural and political prerequisites for constitutional life. How can constitutionalism emerge in societies in which liberalism and secularism is so far from hegemonic?

If constitutionalism is defined as a set of ideologies and institutions, predicated on the idea of the limitation and regulation of government authority by law, according to this view, shari’a does not limit the power of governments. In the Islamic tradition, the Caliph could do anything he wanted without the fear of facing the opposition party or even impeachment procedures. The power of the Caliph was unlimited. The implementation of shari’a would lead to an undemocratic state. In the words of Bassam Tibi, “none of them was a legal ruler in the modern constitutional sense”. One of the reasons was that there existed no institutional authority able to control the Caliph’s compliance with shari’a.

Historically, the decision of the Caliph would be based heavily on his discretion, or his political interest or his interpretations of shari’a, not on the rule of law. Discretion can be inimical to efficiency, stability and transparency. Discretion is prone to ad hoc decision-making. In that case, it does not lend itself to long-term planning and certainty. It is in such circumstances that it runs counter to the doctrine of rule of law. Besides, it can confer too much power that could corrupt and be abused. Factors other than transparent scientific considerations could infect the decision-making process.

Another argument is discrimination among people if shari’a is enforced through a constitution. According to Islamic history, the world was split into two divisions: the territory of Islam (dar al-Islam), comprising Islamic and non-Islamic communities which accepted Islamic sovereignty, and the rest of the world, called the dar al-harb or the territory of war. Muslims enjoyed full rights of citizenship while others enjoyed only partial civil rights. For instance, a non-Muslim could not be appointed as a caliph or a president. The fear of non-Muslims on their status under shari’a can be understood by looking at the concept of dhimmi, which does not give non-Muslims the governing rights, and while guaranteeing them security of life and property, does not permit them to become an integral part of the ruling class. The treatment of non-Muslims under the concept of dhimmi will violate religious freedom under international human rights instruments.

This means that there would be no equality before the law, should shari’a be implemented. In other words, shari’a does not guarantee and protect the rights of minority groups. The problem of equality in Islamic society is centred around, as pointed out by Esposito and Piscatori, “unequal status between Muslims and non-Muslims as well as between men and women”. For instance, in civil matters the testimony of Muslim women is accepted, but it takes two women to make a single witness. A Muslim male is always a fully competent witness under shari’a. This discrimination should be seen as being against the spirit of constitutionalism. Accordingly, these examples provide evidence that shari’a should not be put into a constitution.

Turkey

The best model of secular state in the Muslim world is Turkey. The republic that Kemal Ataturk founded and subsequent leaders have shaped is radically different from the imperial society of the Islamic Ottoman Empire. The fifth constitution was established in 1982 by the last military regime after its seized power in 1980. The 1995 amendments abolish about twenty articles and the preamble, which stated the people’s will to accept military rule. Civil servants are allowed to engage in collective bargaining and unions may take part in politics.

Turkey is a parliamentary democracy. Although the population is 99 per cent Muslim, the Turkish constitution establishes the Republic of Turkey as a democratic, secular and social state, governed by the rule of law and respecting fundamental human rights and freedoms. Legislative power is vested in the 550-member Turkish Grand National Assembly (TBMM), whose members are elected to five-year terms by the votes of Turkish citizens over the age of 18. Internationally recognized human rights are protected but can be limited in times of emergency and cannot be used to violate the integrity of the state or to impose a non-secular or non-democratic system of government. Turkish women gained the right to vote in 1934, well ahead of women in many other European countries. Many Turkish women do not wear chadors, burkas, or any of the head-to-toe coverings.

According to the Constitution, the president and the prime minister divide the functions and executive power of government in a way similar to the system of government in France. The Turkish president is the country’s head of state, but he also has important governmental powers. He is commander-in-chief of the armed forces. He signs bills passed by the Grand National Assembly or may return them for reconsideration. He may call a referendum on certain issues relating to the Constitution. He decides who among the members of the Grand National Assembly should have the right to seek to form a government as prime minister. The president is elected by the Grand National Assembly for one term of seven years.

The prime minister appoints the members of the Council of Ministers. The prime minister and the Council of Ministers share executive power, taking care of such matters as foreign policy, defence, public works, internal revenue, customs, health, education, and welfare. As in most European democracies, the prime minister is the head of the majority party in Parliament.

According to the Constitution, the judiciary is independent and includes a system of lower courts, the national Court of Appeals and the Constitutional Court. The Constitutional Court has the task of ensuring the compatibility of laws and administrative acts with the constitution. It may also act as Supreme Court in hearing cases against high public officials. The first woman judge was appointed to the Turkish Constitutional Court in 1932. The Council of State is the highest administrative court.

Turkish law is codified based on various European systems: civil and commercial law originally based on the Swiss system, administrative law on the French system, and criminal law on the Italian system. Turkey today is a secular state. Turkey has mosques, churches, and synagogues open to all, and politicians are forbidden to exploit religion for political purposes.

Counter Arguments: Formal and Substantive Shari’a

As can be seen from the discussion above, both authoritarian and secularist groups believe that shari’a is not compatible with constitutionalism. Although both have similar views, they have different arguments in support of these views. While the authoritarians believe that shari’a is better than constitutionalism, the secularists take the position that shari’a is part of a religious faith and not a system of government. It seems that both groups put different interpretations on the word and the meaning of shari’a. Therefore, the notions of shari’a and its relationship with the idea of constitutionalism will be examined critically.

At the outset of this book, I mentioned Kurzman’s thought on three main tropes of shari’a: the liberal shari’a, the silent shari’a, and the interpreted shari’a. Despite their different opinions, these tropes of shari’a can simply be classified as substantive shari’a. It holds that shari’a should be reinterpreted in the line of democracy and constitutionalism. Using this substantive shari’a approach, I would take the position that no inherent contradiction exists between the principles of shari’a and constitutionalism.

In this context, I have mentioned another type of shari’a’s thought in contrast to substantive shari’aformal shari’a. The formal shari’a approach holds the view that shari’a is also compatible with constitutionalism. However, unlike the substantive approach, it takes the view that all constitutional issues should be based on shari’a practised by the Prophet and the companions in Medina fifteen centuries ago. It refers to the textual meaning of the Qur’an, the tradition of the Prophet and even the Medina Charter. While the fundamentalist group believes that shari’a is above the constitution and, therefore, it is incompatible with constitutionalism, the formal shari’a group takes the view that shari’a can have a place in a constitution and become the source of such constitution.

Egypt

Egypt is an interesting model of how a country put shari’a provisions in its constitution through amendment of its constitution. From the Arab Republic of Egypt’s Constitution of 1980, it can be said that Egypt is a democratic socialist state in which Islam is the state religion. Shari’a has been made the main source of law. However, sovereignty belongs to the people, and the people are the source of the state’s power. Egypt follows a multi-party system. All citizens have equal legal status. They have equal rights and responsibilities, without distinction on race, heredity, language, religion or belief. According to the Constitution, the state assures freedom of expression, and of establishing or joining associations or political parties. On the requirements for those elected as Head of State, aspirants for the presidency shall be citizens of Egypt, progeny of an Egyptian father and mother, not have lost their civilian and political rights, and be at least forty years of age. The condition of being Muslim is not included.

In 1980, Egypt amended Article 2 of its Constitution. The wording of Article 2 was thus changed from mabadi’ al-shari’a al-Islamiyya masdar ra’isi li al-tashri’ (the principles of the Islamic shari’a are a principal source of legislation) to the more forceful statement, mabadi’ al-shari’a al-Islamiyya al-masdar al-ra’isi li al-tashri’ (the principles of the Islamic shari’a are the principal source of legislation). The act of amending Article 2 was a concession by the government to Islamists, and it implied that the Islamic shari’a was henceforth to have a more important role in Egyptian society.

Iran

Another example of a formal shari’a group is Iran. The foundation for the Islamic Republic of Iran is based on a new Constitution, which was established in 1979 (after the Islamic revolution) and was amended in 1989. According to Article 4 of the Constitution, all laws and regulations in civil, criminal, political and other aspects shall be based on Islamic principles.

The 1979 Iranian Constitution is based on religious sovereignty in terms of the doctrine of wilayat al-faqih (governance of the Islamic jurist) introduced and coined by Ayatulla Khumayni. However, one could find borrowed Western elements that lack Islamic background, such as the republican form of government, the division of the government into three separate branches (separation of powers), a directly elected president who functions as chief executive, a prime minister and cabinet, the ideas of the independence of the judiciary and judicial review, the concept of legality, the notion of an elected legislative body, the need for the cabinet to obtain votes of confidence from the legislative branch, and the concept of national sovereignty. Such rules have counterparts in Western political systems. Therefore one could argue that they bear no relation to the traditional function of the Shi’a School.

Ann Mayer examines further that:

In many facets, and its general format, the Iranian constitution resembles the 1958 French constitution. The way Islamic content has been injected into provisions with French antecedents can be illustrated by comparing the treatment of national sovereignty in article 56 of the Iranian constitution with article 3 of the French constitution. The French version establishes that sovereignty rests on the will of the people as expressed through referendums and enjoins interference with the exercise of popular sovereignty. It begins: “National sovereignty belongs to the people, which shall exercise this sovereignty through its representatives by means of referendums. No section of the people, nor any individual, may attribute to themselves or himself the exercise thereof.” In Chapter 5 of the Iranian constitution under the heading “The Right of National Sovereignty and the Powers Derived from It” one sees in article 56 the Islamized version of the same provision, in which the theological tenet that God is Supreme Ruler is inserted and the French provisions enjoining interferences—this time with Divine Sovereignty—have been incongruously retained: “Absolute sovereignty over the world and mankind is God’s and He alone has determined the social destiny of human beings. None shall take away this God-given right from another person or make use of it to serve his special personal or group interest.” Wanting to retain the provision for popular referendums, the authors of the Iranian constitution relegated it to article 59, by which placement the clash between the idea that national sovereignty is exercised by the people via referendums and the idea that sovereignty is the exclusive province of the deity has been rendered less obvious. The incongruity remains: there is no room for popular sovereignty exercised via referendum in a system based on the theological premise of divine rule, which at the very least should mean that God’s laws are binding and not subject to modification by any human agency, such as popular referendums involve.

However, the 1979 Iranian Constitution contains some startling new elements. Alongside a popularly elected Assembly and President, the Constitution designated a Leader and a Council of Guardians. The authority of these new institutions is such that Chibli Mallat has described them as forming a second tier of the separation of powers, on top of the more traditional separation between the executive, legislative, and judicial powers. According to Article 91 of the Iranian Constitution, the Guardian Council’s role is to examine the compatibility of the legislation passed by the Assembly with Islam. The council consists of twelve members (six ulama and six jurists).

Substantive Shari’a

Contrary to the formal shari’a views above, other Muslim scholars such as Abdullahi Ahmed An-Na’im and Muhammad Sa’id Al-Ashmawy advocate an emancipated understanding of shari’a, stressing its original meaning as a “path” or guide, rather than a detailed legal code. Shari’a must involve human interpretation. Islamic law is, in fact, the product of a very slow and gradual process of interpretation of the Qur’an and the collection, verification and interpretation of the Sunna during the first three centuries of Islam (the seventh to the ninth centuries). This process took place among scholars and jurist who developed their own methodology for classification of sources, derivation of specific rules from general principles, and so forth.

This led the scholars to distinguish between shari’a and fiqh. While shari’a can be seen as the totality of divine categorizations of human acts, fiqh might be described as the articulation of the divine categorizations by human scholars. These articulations represent or express the scholars’ understanding of the shari’a. This means that jurists or scholars in the Islamic tradition, however highly respected they may be, can present only their own personal views or understanding of what shari’a is on any given matter. Moreover, the Qur’an and the Sunna cannot be understood or have any influence on human behaviour except through the efforts of (fallible) human beings.

Bernard Weiss has correctly pointed out that:

Although the law is of divine provenance, the actual construction of the law is a human activity, and its results represent the law of God as humanly understood. Since the law does not descend from heaven ready-made, it is the human understanding of the law—the human fiqh (literally meaning understanding)—that must be normative for society.

Therefore, even though shari’a is based on the revelations of God, it cannot possibly be drawn up except through human understanding, which means both the inevitability of differences of opinion and the possibility of error, whether among scholars, or the community in general. Khaled Abou El Fadl explains further:

All laws articulated and applied in a state are thoroughly human, and should be treated as such. Consequently, any codification of shari’ah law produces a set of laws that are thoroughly and fundamentally human. These laws are a part of shari’ah law only to the extent that any set of human legal opinions is arguably a part of shari’ah. A code, even if inspired by shari’ah, is not shari’ah—a code is simply a set of positive commandments that were informed by an ideal but do not represent the ideal. In my view, human legislation or codifications, regardless of their basis or quality, can never represent the Divine ideal.

Since shari’a involves human understanding, the social norms of shari’a follow the nature of human beings because they are derived from specific historical circumstances. For instance, the caliphate was the product of history, an institution of human, rather than divine, origin, a temporary convenience, and therefore a purely political office. This means that most of the regulations in Islamic law, including the status of non-Muslims and women in Islamic societies, may be amended, changed, altered, and adapted to social change.

Whilst the Qur’an contains a variety of elements, such as stories, moral injunctions, and general, as well as specific, legal principles, it should be noted that the Qur’an prescribes only those details that are essential. It thus leaves considerable room for development, and safeguards against restrictive rigidity. The universality of Islam lies not in its political structure, but in its faith and religious guidance.

Another source of Islamic jurisprudence, secondary only to the Qur’an, is the examples and words of the Prophet Muhammad, or his Sunna. Not only do both the Qur’an and the Sunna not cover all issues, but quite often they also use words which have speculative meanings. They are interpretable and debatable.

Ijtihad

This leads to the third source. Ijtihad in Islamic law can be defined simply as “interpretation”. The main difference between ijtihad and both the Qur’an and the Sunna is that ijtihad is a continuous process of development whereas the Qur’an and the Sunna are fixed sources of authority and were not altered or added to after the death of the Prophet.

Ijtihad literally means “striving, or self-exertion in any activity which entails a measure of hardship”. According to al-Amidi, ijtihad is defined as “the total expenditure of effort made by a jurist to infer, with a degree of probability, the rules of Islamic law”. In this sense, al-Ghazali defined ijtihad as “the expending, on the part of a Mujtahid, of all that he is capable of in order to seek knowledge of the injunctions of Islamic law”.

Ijtihad can be conducted in one of at least three ways: ijtihad bayaniijtihad qiyasi and ijtihad istislahi. The first (ijtihad bayani) may be applied to cases that are explicitly mentioned in the Qur’an or Hadith but need further explanation. The second (ijtihad qiyasi) may be applied to cases that are not mentioned in these two sources, but are similar to cases mentioned in either of them. The third method, ijtihad istislahi, may be applied to those cases that are not regulated by the Qur’an or Hadith, and cannot be solved by using analogical reasoning. In this case, maslahah (utilities) is considered to be the basis for legal decisions.

It is commonly stated that in the Sunni schools, the “gate of ijtihad” was closed (insidad bab al-ijtihad) at some stage, often assumed to be the third or fourth century. The formation of the four schools and the recognition of their canonical status (to the detriment of others), it is assumed, “fixed” the main contours of fiqh and substantive law, and left no room for ijtihad. Jurists from then on would follow the authority of the founders (taqlid), their canons being contained in the major texts and early commentaries. Rather than independent ijtihad, arguments and rulings would have to be sought in the existing corpus. It is further argued that the authoritative ‘ijma (consensus) of previous generations was binding on jurists, thus further restricting the scope of ijtihad. It is in this context that Joseph Schacht claims that Islamic law became increasingly rigid and set in its final mould.

Contrary to this proclamation of the closure of ijtihad, one may find many jurists throughout the history of fiqh who exercised independent judgement to reach novel theoretical as well as substantive formulations. Wael Hallaq, for instance, refutes Schacht’s claim. In analysing this problem, Hallaq has come to the conclusion that Islamic law was still dynamic even after the establishment of the orthodox legal schools in the fourth century. He argues that the consistent emergence of mujtahids (jurists), the existence throughout this period of those qualified to issue legal opinions, and the availability of works on legal opinion (fatwa) supports this interpretation. Hallaq traces the controversy that resulted in the generalization of this position to the sixth century, when some Hanafi and Maliki jurists argued that there were no longer any persons qualified to engage in ijtihad, and that the practitioners of each school must follow authority. Their arguments were opposed by Hanbalis and some Shafi’is, who insisted on the necessity of ijtihad at all time, indeed on the religious duty (fard kifaya) of the learned to practise it on behalf of the community. Hallaq puts the case that the activity of fatwa in dealing with new issues proves that the gate of ijtihad was never closed. In other words, there is always room or space for Muslim scholars to exercise their legal reasoning.

The issue is still the subject of considerable debate. It is interesting to note that nowadays even many ulama believe that the gate of ijtihad is closed. Some of them try to open it; others take the view that none can open it. For the ulama who try to open it, some of them make the restriction that, although ijtihad is open, it cannot be applied in the cases of making a new Usul al-Fiqh and new rules (qawa’id); ijithad is open only in furu’ (fiqh cases) not the methodology. In other words, it is not possible to have al-mujtahid al-mustaqil. However, others take the view that the door of ijithad is open fully and there is no restriction on its use.

I take the position that the door of ijtihad is always open. I argue that ijtihad is a tool for Muslims to understand and practise shari’a (God’s law) in line with the nature and the characteristics of human beings. Having performed ijtihad, Muslim scholars can build a fresh theoretical construct and a contextual approach to legal language and legal interpretation, to follow the dynamic character of human beings. The secularist views discussed above—that shari’a fits only with the conditional, political and the institutional occasions of fifteen centuries ago—can be rejected.

Moreover, I also argue that the rule of ijtihad might also be seen to indicate “the imperfectness of the shari’a”. This means that shari’a alone does not cover all issues, as claimed by authoritarian groups. The authoritarian’s interpretation of Qur’an 5:3, as has been mentioned above, could be criticized. The verse is only about the complete and perfect teachings of Islamic ritual; from prayers to pilgrimage. After Allah sent down this verse, there were other verses such as the verse on kalalah (4:176). This means that, “This day, I have perfected your religion for you”, should be read in the context of this verse alone. Qur’an 5:3 actually talks about prohibitions against the eating of certain food, prohibitions against using arrows to seek luck or decisions, and prohibitions against fearing unbelievers. Accordingly, the word “perfect” should be understood to refer only to the mandates and prohibitions of Islam. The word “perfect” in this verse does not regulate the establishment of the caliphate.

In other words, from this verse, one could not argue that shari’a deals with any specific form of government. In fact, there is no single verse in the Qur’an which directly regulates the power of a state. If the Qur’an is a comprehensive compendium of knowledge on every issue, then why does the Qur’an leave this issue without further clarification? As will be explained below, the Qur’an provides only some basic principles on this matter.

Scholars who believe that Islam was meant to be a political order have performed their ijtihad on this matter based on their understanding and interpretation of the rule of shari’a. While their interpretations should be respected as intellectual exercises, their ijtihad is not legally binding on all Muslims, nor is it regarded as shari’a itself. This means that scholars who have different opinions on this matter have also performed their ijtihad, and whatever the outcome of their intellectual activities could not be seen as against the Divine Law. The issue of whether or not shari’a is compatible with constitutionalism is an issue of ijtihad.

Following on the point above, one may come to argue that the understanding of shari’a is not perfect in the sense that it is changeable through the ijtihad of Muslim scholars; according to the requirements of different places and times. For instance, Muhammad b. Idris al-Shafi’i (the founding father of the Shafi’i school) changed several of the views he held in Iraq (qaul qadim) when he moved to Cairo (qaul jadid). Much earlier, before al-Shafi’i, Umar bin Khattab is known as the caliph who practised ijtihad on several occasions, not only when there was no guidance in both the Qur’an and the Sunna, but also when he thought that the law mentioned in both sources was no longer suitable for dealing with the circumstances of his era. The two texts below provide examples of how the result of Umar’s ijtihad differs from the Prophet’s decision:

  1. Narrated Imran: ‘We performed Hajj al-Tamattu’in the lifetime of Allah’s Apostle and then the Qur’an was revealed (regarding Hajj al-Tamattu’) and somebody [Umar] said what he wished (regarding Hajj al-Tamattu’) according to his own opinion (ra’y)’.
  2. Yahya related to me from Malik, from Ibn Shihab, that Muhammad ibn Abdillah ibn al-Haris ibn Nawfal ibn Abd al-Muttalib told him that he had heard Sa’d ibn Abi Waqqas and al-Dahhak ibn Qays discussing tamattu’(performing umrah first, then Hajj) in between umrah and Hajj. Al-Dahhak ibn Qays said, “Only someone who is ignorant of what Allah, the Exalted and Glorified, says would do that.” Whereupon Sa’d said, “How wrong is what you have just said, son of my brother!” al-Dahhak said, “Umar ibn al-Khattab forbade that,” and Sa’d said, “The Messenger of Allah, may Allah bless him and grant him peace, did it, and we did it with him”.

Umar believed that the situation had changed and this forced him to apply ijtihad which, in several cases, caused him to differ from the position adopted by the Prophet. Umar’s decision not to distribute the lands of Iraq and Syria among the companions furnishes another example. Muslims insisted on distributing the land among them according to the Prophet’s practice. To all their contentions Umar replied that if he kept on distributing the lands, where would he maintain the army to protect the borders and the newly conquered towns. The companions, therefore, finally agreed with him and remarked, “al-ra’y ra’yuka” (yours is the correct opinion). Umar later found the justification for this decision in the Qur’an (59: 6-10). Umar actually preferred actions which benefited Muslims in general, rather than individuals. Social justice, in Umar’s time, demanded that conquered lands should not be distributed among the army. Another interesting example occurred when a man was found guilty of theft but Umar, as a Caliph, did not amputate his hand, because at that time famine ravaged his territory. In deciding this, it seems that Umar contravened the formal Qur’anic injunction. However, Umar was still regarded and respected as one of the four rightly-guided caliphs. The Umar cases above suggest that shari’a is not unchangeable.

Shari’a is also considered not to be “perfect” on the grounds that there is much disagreement and disputation among scholars concerning the meaning and significance of different aspects of the sources with which they are working. For example, one School takes the view that analogy (qiyas) is one of the sources of Islamic law, while others reject it. It is worth noting that, as has been mentioned earlier, in the case of al-Shafi’i, the scholars’ work cannot be in isolation from the prevailing conditions of their communities in local as well as broader regional contexts. The interpretations of scholars, ulama and mujtahid would reflect the state of their human and political consciousness, and usually that of their people, at that particular time and place. Disagreements between Schools (and even among scholars of the same School), as history tells us, provide other evidence that the understanding of shari’a, as humanly understood, is not static, final, eternal, absolute and unalterable.

The Qur’an encourages ethnic and other types of diversity as blessings from God. Consequently, classic Muslim jurists recognized the fact that what may suit one culture may not be quite suitable for another. For this reason, they encouraged each country to introduce its own customs into its laws, provided that these customs do not contradict basic Islamic principles. As a result, even today, the Islamic laws of Muslim countries differ significantly on various matters.

While rejecting the Qur’an and Hadith as the Islamic Constitution (authoritarian view), at the same time, I also reject the secularist view that in the secular sense Islam is a religion that regulates it only to the relationship between man and the Supreme Creator. The Qur’an and Hadith cannot be seen as the Islamic Constitution, but perhaps as its Code of High Constitutional Principles. They comprise guidance on legislation, morality, and meaningful stories which, unlike other constitutions and laws, were unsystematically recorded. Although both the Qur’an and Hadith do not give their preferences for a definite political system, both primary sources have laid down a set of principles, or ethical values and political morals, to be followed by Muslims in developing life within a state.

For instance, Muhammad Husayn Haikal takes the view that Islam does not provide direct and detailed guidance on how the Islamic community shall manage state affairs. According to him, Islam does lay down the basic principles for human civilization, not basic provisions to regulate human behaviour in life and in association with fellow humans, which, in turn, will characterize the pattern of politics. In short, according to Haikal, there is no standard government system in Islam. The Islamic community is free to follow any government system, as long as it assures equality among its citizens, both in rights and responsibilities, and also in the sight of the law, and manages affairs of state based on the shura or consultation, by adhering to the moral and ethical values taught by Islam for mankind’s civilization.

Haikal believes that a governmental system according to Islamic provisions is a system assuring freedom, based on the principle of the appointment of a head of state having the people’s approval, and that the people have the right to control the implementation of government and to call on the government to give account of its actions. Islam appeals to mankind, especially Muslims, to make an effort to carry out those above-mentioned principles as far as possible. This position is a middle position between authoritarian and secularist views. In this context, one may see that Haikal’s views clearly oppose the strict opinions raised by authoritarian groups, that sovereignty belongs to Allah, not to the people. However, at the same time, Haikal also opposes the view that Islam does not teach methods of living within a community and within a state.

Principles of Islamic Constitutionalism

The counter-arguments above specifically reject some ideas of the incompatibility of the nature and the characteristics of shari’a and constitutionalism. The following arguments will be focused on examining the principles of shari’a in relation to constitutionalism. Simultaneously, the arguments below are presented to counter secular views on this matter.

The secularist views mentioned earlier hold that historically the powers of the caliphs were unlimited and that, therefore, shari’a is not compatible with constitutionalism could be rejected on the grounds that Islam has provided wilaya al-mazalim (the redress of wrongs). It is the embryo of the administrative tribunal or constitutional court in the modern sense. Al-Mawardi has outlined ten areas that can be reported to this tribunal, including the oppression and maltreatment of the public by government officials, and the implementation of sentences when judges are too weak to enforce them due to the sentenced person’s power or social standing.

Abd al-Wahhab Khallaf goes further by stating that an Islamic government is a constitutional government; not a tyrannical one. In other words, based on Khallaf’s understanding of shari’a, the government in Islam is not based on the charisma of the person. He also takes the view that Islam guarantees individual rights and provides the separation of powers into al-sulta al-tashri‘iya (legislative), al-sulta al-qada’iya (judiciary), and al-sulta al-tanfidhiya (executive). Khallaf’s views can be justified on the grounds that the Qur’an provided the basic principles for a constitutional democracy without providing the details of a specific system. Muslims were to interpret these basic principles in the light of their customs and the demands of their historical consciousness. Once again, this partly explains why Muslims currently need a new reinterpretation or ijtihad.

In addition, advocates of Islamic constitutional law have sought to broaden the classic understanding of ijma’ (consensus). Only Muslim scholars had a role in reaching consensus; the general public had little significance. Fazlur Rahman argues that the classical doctrine of consultation was in error because it presented consultation as the process of one person, the ruler, asking subordinates for advice; in fact, the Qur’an calls for “mutual advice through mutual discussions on an equal footing”. In this context, the doctrine of ijma’ is closely related to the concept of shura (consultation), and therefore can be implemented as a legislative power in modern sense. Louay M. Safi also notes that the “legitimacy of the state … depends upon the extent to which state organization and power reflect the will of the ummah [the Muslim community], for as classical jurists have insisted, the legitimacy of state institutions is not derived from textual sources but is based primarily on the principle of ijma’.” In this understanding, an Islamic constitution is a human product of legislation based on the practice of consultation and consensus, and thus, virtually, no longer a result of divine act. It is set by the people and approved by them. In other words, consensus and consultation offer a justification of Islamic constitutional law.

In addition, the claim that shari’a refutes the majority principle—what is right and what is wrong should be based on shari’a, not on the popular vote—is actually open to discussion. For instance, Ermin Sinanovic has shown that key concepts of ijma’al-sawad al-a’zham, jumhur, al-tarjih bi al-katsrah and legal maxims al-qawa’id al-fiqhiyya could strengthen the case for the legitimization of the majority principle in Islamic political thought and decision-making processes.

I would also add that Muslims agree about the primacy of Hadith Mutawatir, which is reported by such a large number of people that they cannot all be expected to agree upon a lie. But, how does one define “a large number of people”? Although Muslims agree about the primacy of Mutawatir, they hold different opinions about the number of narrators for a Hadith to be accepted as Mutawatir. Some believe four persons are needed; others insist that a Hadith will achieve the degree of Mutawatir only when seventy or more narrate it. Actually, the number of reporters required to define “a group” for Hadith Mutawatir is derived by analogy. The requirement of four is based on the similar number of witnesses required for legal proof; the requirement for twenty is derived from the Qur’an (8:65) (the number required to vanquish unbelievers). The next number seventy represents an analogy to another text of the Qur’an (7:115) referring to the seventy companions of Moses. Others scholars have drawn analogy from the number of participants in the battle of Badr (313 persons). Despite this debate, the point is that the number in Islamic tradition does matter. Therefore, it is essential to note that deciding a case through the majority or popular vote is permitted. One of the justifications comes from the sayings of the Prophet:

“I (Ali bin Abi Talib) said to the Prophet, ‘O, Prophet, [what if] there is a case among us, while neither revelation comes, nor the Sunna exists.” The Prophet replied, “[you should] have meetings with the scholars—or in another version: the pious servants—and consult with them. Do not make a decision only by a single opinion.”

In this sense, Nathan J. Brown points out that shari’a does provide a basis for constitutionalism and that Islamic political thought is increasingly inclined towards constitutionalist ideas. According to him, “while it is true that attempts to put these ideas into practice have not so far been successful, the problem could be seen to lie in the lack of attention to the structures of political accountability, rather than flaws in the concept of Islamic constitutionalism”.

Azizah Y. al-Hibri explains some key concepts of Islamic law in order to support the view that shari’a is compatible with constitutionalism. A state must satisfy two basic conditions to meet Islamic standards: the political process must be based on “elections”, or bay’at; and the elective and governing process must be based on “broad deliberation”, or shura. These two principles are part of the criteria employed to determine or to judge Islamic constitutional law. According to al-Hibri, these two principles, together with other factors (the ruler in a Muslim state has no divine attributes and there is no ecclesiastical structure in an Islamic setting), indicate that there is, in fact, little difference between an Islamic constitutional setting and a secular one.

Given the alleged parallels she discovers between the Constitution of Medina and the U.S. Constitution, al-Hibri considers the possibility that the founding fathers of the United States were directly or indirectly influenced by the Islamic precedent. She notes that Thomas Jefferson was aware of Islam since he had in his library a copy of George Sale’s translation of the Qur’an. Al-Hibri suggests that Sale presented Islam in as fair a light as possible, under the circumstances of the eighteenth century, thereby making the Prophet’s precedent amenable to Jefferson. Al-Hibri argues that if the founding fathers were, in fact, influenced by the Islamic model of constitutionalism, then this would “support the argument that American constitutional principles have a lot in common with Islamic principles. Such a conclusion would be helpful in evaluating the possibility of exporting American democracy to Muslim countries”.

Although her argument could be considered apologetic, it seems that Al-Hibri has attempted to show some similarities between the two traditions, using the American standard as the standard of evaluation. The comparison between two legal traditions is, borrowing Patrick Glenn’s term, a multivalent thinking. Glenn takes the view that all traditions contain elements of others. Western legal traditions may contain some of Eastern legal traditions. In other words, “there are always common elements and common subjects of discussion”. Glenn rejects the proposition that “you can’t have your cake and eat it too”. He offers multivalent views that everything would be a matter of degree. It is possible to compare apples and oranges. In other words, Glenn takes the position that “you can have your cake and eat it too, if you eat only half of it”. Therefore, Glenn rejects the claim that a religious legal tradition is incompatible or incommensurable with secular legal tradition.

In addition, a Muslim scholar could readily conclude that a Muslim country may choose to be a republic and still be in compliance with shari’a, as long as the vote for the president is genuinely free, and the consultation among all branches of government is broad. Furthermore, the existence of a House of Representatives would ensure that the people’s voice is heard in legislative matters, even if indirectly. Another scholar, however, may make similar arguments for a constitutional monarchy based on the British example. One can see that Muslim countries may, or may not, satisfy the two criteria above, in their constitutions.

In relation to the protection of the rights of the citizen, despite some rights which are established in the Qur’an and the Sunna, maqasid al-shari’a (the objectives of Islamic law) should become another principle or criterion of Islamic constitutional law. This view is supported by UCLA Professor of Islamic Law, Khaled Abou El Fadl. According to Muhammad Husein Kamali, maqasid al-shari’a is an important but neglected aspect in the discourse of shari’a. Kamali claims that even today many highly regarded textbooks on Usul al-Fiqh (Islamic legal theory) do not comprise maqasid al-shari’a in their descriptions. Generally those textbooks are more concerned with conformity to the letter of the divine text. Accordingly, this, directly or not, has contributed to the literalist direction of juristic thought.

The maqasid al-shari’a consists of the five juristic core values of protection (al-dharuriya al-khams) for religion, life, intellect, honour or lineage, and property. Basically, shari’a, on the whole, seeks primarily to protect and promote these essential values, and validates all measures necessary for their preservation and advancement. El Fadl argues that the protection of religion would have to mean protecting the freedom of religious belief; the protection of life would mean that the taking of life must be for a just reason, and the result of a just process; the protection of the intellect would have to mean the right to freedom of thought, expression and belief; the protection of honour would have to mean the protection of the dignity of a human being; and the protection of property would ensure the right to compensation for the taking of property.

It is essential to note that these five core values are not divine, but human values, since they are developed by Muslim jurists based on their interpretations of the Qur’an and Sunna. This could mean that the maqasid al-shari’a is not limited to the five core values. Ibn Taimiyah, for instance, departs from the notion of confining the maqasid al-shari’a to a specific number of values. Yusuf al-Qaradawi takes a similar approach. He extends the list of the maqasid al-shari’a to include “human dignity, freedom, social welfare, and human fraternity among the higher maqasid of the shari’a”. The existence of additional objectives is upheld by the weight of both general and detailed evidence, in the Qur’an and Sunna.

A new ijtihad could be performed by considering the theory of the maqasid al-shari’a, examining shari’a as a unity in which the detailed rules are to be read in the light of their broader premises, substantives, and objectives. This means that by looking at the maqasid al-shari’ashari’a could be analysed beyond the particularities of the text. In Kamali’s words, “the focus is not so much on the words and sentences of the text, as on the purposes and goals that are being upheld and advocated”. It is worth noting that the principles and the procedural form of Islamic constitutional law could be found through the theory of the maqasid al-shari’a.

In relation to the position of religion vis-à-vis the state, another principle or criterion could be drawn from the Medina Charter. One of the challenges for Islamic Constitutional law is the position of Islam (or shari’a) in the constitution. This could be examined on three levels: the position of Islam within Muslim community itself, the position of Islam in relation to other religions, and the relationship between Islam and the state.

In this context, the Constitution or Charter of Medina is a document reportedly drawn up by the Prophet Muhammad (d. 11/632), upon his migration from Mecca to Medina. The document establishes rights and obligations among the Ansar of Medina, the Muhajir who left Mecca with the Prophet, and the Jewish tribes of Medina as they embarked upon a new journey of coexistence and cooperation in the nascent Muslim polity founded in Medina. The text itself consists of a preamble and forty-seven clauses outlining various aspects of community organization, procedures for common defence, and the relationship between the Muslims and the Jewish inhabitants of Medina.

The Constitution of Medina declared all Muslim and Jewish tribes of Medina (apparently, there were no Christians) to be a single community. It also stipulated that non-Muslim minorities (Jews) had the same right of life protection (as Muslims); guaranteed peace and security for all Muslims based on equality and justice; guaranteed freedom of religion for both the Muslims and non-Muslim minorities (the Jews); and ensured equality between the rights of the Jews of Banu Najjar and those of the Jews of Banu Awf.

Instead of strictly using the text, the spirit of the Constitution of Medina could be used as a principle or criterion of the modern Islamic constitutional law. Although there is not a single word in the document which referred to an Islamic state, the text states that “where a contention arises between two parties on a matter, the issue is to be referred to God and to Muhammad for a decision”. This issue will be fully examined in Chapter 6 in order to clarify the debate between authoritarians and secularists on Islam being a religion and a state (din wa dawla).

Conclusion

I have shown that there is a group which believes that shari’a is incompatible with constitutionalism. This group is divided into two camps: authoritarian/ fundamentalist and secularist. There is also a second group which holds the view that shari’a can walk together with constitutionalism. This position rejects both the authoritarian and the secularist views on this subject. However, this group is also divided into two approaches: formal shari’a and substantive shari’a. It is essential to note that I support this second approach which holds the view on the compatibility of constitutionalism and shari’a.

While the formal shari’a attempts to use shari’a as a source or the primary source of law—which makes their position closer to authoritarian/ fundamentalist views—the substantive shari’a holds that shari’a, in this context, should be reinterpreted as consistent with democracy and constitutionalism. This substantive approach is based on the belief that the understanding of shari’a is not static and final. As has been argued earlier, it can be amended, reformed, modified or even altered, without neglecting its fundamental basis. This leads the substantive group into treating the principles, objectives or spirit of shari’a only as norms or values which inspires constitutions.

In the following chapters, through critical analysis of three main case studies—human rights, the rule of law, and religion vis-à-vis state—I will examine whether Islamic political parties are proposing the formal or the substantive shari’a when dealing with the Amendments to the 1945 Constitution.