Constitutional Jurisprudence and the Articulation of Islamic Law: A Comparative Analysis of Egypt and Pakistan
Shoaib A. Ghias
University of California, Berkeley, School of Law, Jurisprudence and Social Policy Program
July 20, 2008
Islamic Law and Law of the Muslim World Paper No. 08-42
After decolonization, Muslim states have tried to Islamize their law and society in search for legitimate basis of political authority. However, the political context of a modern nation state makes the concept of traditional Islamic law, embodied in fiqh books of the ulama', anachronistic. As a result, the social and intellectual bases of Islamic law are being redefined since the 20th century. As Baber Johansen notes, "The modern distinction between fiqh and shari'a treats the fiqh as a historical interpretation of the shari'a, and the shari'a as a metahistorical source of guidance in legal and ethical as well as other matters." But as fiqh rules are marginalized as historical, the modern states have to articulate a new body of rules in addition to normative systems to uphold these rules as Islamic.
In this paper, I compare the evolution of Islamic law in, and through, the constitutional jurisprudence of Egypt and Pakistan. During the 1980s, the authoritarian regimes of Egypt and Pakistan were facing a crisis of authority. In response, they passed constitutional amendments to make Islam the principal source of legislation and empowered the constitutional courts to review legislation for consistency with "Islamic law." I compare how the constitutional courts of Egypt and Pakistan develop Islamic legal norms (use the notion of ijtihad), as opposed to applying the doctrine developed by historical madhabs (schools of Islamic law). I also explore whether these courts are defining a modern state madhab that would, in time, replace the historical madhabs. This comparative project helps us in understanding the nature of shari'a as the legal system of a modern state.
Keywords: shari'a, Islamic law, Egypt, Pakistan, Federal Shariat Court, Supreme Constitutional Court, ijtihad
Date posted: July 22, 2008 ; Last revised: July 8, 2009