Constitutional Jurisprudence and the Articulation of Islamic Law: A Comparative Analysis of Egypt and Pakistan

Posted: 22 Jul 2008 Last revised: 8 Jul 2009

Shoaib A. Ghias

University of California, Berkeley, School of Law, Jurisprudence and Social Policy Program

Date Written: July 20, 2008

Abstract

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

Suggested Citation

Ghias, Shoaib A., Constitutional Jurisprudence and the Articulation of Islamic Law: A Comparative Analysis of Egypt and Pakistan (July 20, 2008). Islamic Law and Law of the Muslim World Paper No. 08-42. Available at SSRN: https://ssrn.com/abstract=1168503

Shoaib A. Ghias (Contact Author)

University of California, Berkeley, School of Law, Jurisprudence and Social Policy Program ( email )

2240 Piedmont Ave
Berkeley, CA 94720
United States
510-759-1494 (Phone)

HOME PAGE: http://www.law.berkeley.edu/jsp/people/viewProfile.html?id=43

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