The Limits of Constitutionalism in the Muslim World: History and Identity in Islamic Law

Abstract

Governance in the context of pluralism - e.g. ethnic, religious and otherwise - raises concerns about the long-term stability of states in the global arena. Political scientists and constitutional theorists offer various models designed to ensure peaceful governance amidst this pluralism, such as proportional representation in the national government, federalism (with varying degrees of provincial autonomy), and consociationalism. I will argue that in the context of Muslim states invoking Islamic law as part of their constitutional framework, debates on governance models that balance between state coercion and group protection prioritize statist discourses without sufficient attention to how contests about identity in the Muslim state can affect the scope of constitutional interpretation and rights distribution in society. In Muslim countries in which Islamic law is embedded in the rule of law system, protecting minorities (in particular religious minorities) involves more than theorizing about forms of state organization and models of integration or accommodation. To protect religious minorities in Muslim states requires attention to the underlying normative frameworks of Islamic law that inform the context in which constitutions are drafted, institutions of law operate, and Shari'a is defined and concretized. To accomplish this task, this essay preliminarily argues for a historicist jurisprudence of Islamic law to understand how the pre-modern Shari'a treatment of non-Muslims arose from an early context of Islamic universalism, but which creates dissonance in meaning - legal and otherwise - when implemented ahistorically in contemporary state legal systems.

Keywords: Islamic Law, Sharia, constitutionalism, religious minority, law, religion

JEL Classification: K00