Against Conceptualism: Islamic Law, Democracy, and Constitutionalism in the Aftermath of the Arab Spring
29 Pages Posted: 31 Mar 2013 Last revised: 14 Feb 2015
Date Written: March 31, 2013
This article examines the debate over the constitutionalization of shari’a in post-authoritarian Arab regimes. A shari’a clause would empower judges to review the validity of legislation on the basis of Islamic law. Thus, it raises for the first time the potential countermajoritarian effect of judicial intervention. This article examines the conceptualist-style approach to the question of Islam and democratic constitutionalism. Such an approach, which has hitherto dominated the debate, seeks to show the compatibility of Islam and democracy, or the lack thereof, on the basis of conceptual analysis of abstract concepts like Islam and democracy. The article maps and evaluates the different discursive moves that moderate Islamists, Salafis, and secularists deploy in this debate. Comparing the debates to the U.S. constitutional debates between originalists and living constitutionalists, I show the unacknowledged methodological similarities between the opposing camps. I argue that the contestability of the basic concepts on which the debate is based shows the futility of the conceptualist debate. Furthermore, ignoring contestability, fleeing to abstraction, and falling prey to formalism produce bad normative effects that are detrimental to the debate. Ultimately, I seek to advance a different kind of conversation: a pragmatic, consequentialist-style analysis that takes into consideration prudential and normative arguments for or against the inclusion of shari’a law in the emerging Arab constitutional orders.
Keywords: constitutionalism, religion, sharia, judicial review, Egypt, Tunisia, U.S. constitutional theory, Arab Spring
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