Constitutionalizing Islam: Theory and Pakistan
Saint Louis University School of Law
Virginia Journal of International Law, Vol. 44, p. 759, 2004
This article explores Pakistan's Shariat judicial system's understanding of what is required by a constitutional and legal system, in order for that system to be considered Islamic. In the main part of this article, I present some of the Pakistani Shariat judicial system's landmark cases, interpreting them and demonstrating how they build and structure the Islamic system of constitutional and legal governance that I believe they do. As I argue, these cases emphasize the importance of Muslim community consensus in determining those laws which will be enforced by an Islamic legal system.
This article adds to the literature on Islamic law in a couple of different ways. First of all, most theories of Islamic constitutionalism root themselves in the exegesis and discussion of Islamic religious texts and precedents. My argument, however, emphasizes the importance of extant political realities - in particular, the Muslim sectarian divide in Pakistan - in contemporary discussions of Islamic constitutionalism.
Moreover, in the concluding section of my article, I compare Pakistan's approach to defining Islamic law and constitutionalism with India's approach. India, as I argue, has emphasized a more top-down, state-led approach to defining Islam. While this has often resulted in admirably progressive interpretations of Islamic law, I argue that Pakistan's approach - one that is more of a community-led, bottom-up approach - is likely to be needed as well, if Islamic legal reform is to be a sustainable and peaceful enterprise.
Number of Pages in PDF File: 69
Keywords: Pakistan, Islam, IndiaAccepted Paper Series
Date posted: October 24, 2008 ; Last revised: June 8, 2009
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