Constitutional Provisions Making Sharia 'A' or 'The' Chief Source of Legislation: Where Did They Come from? What Do They Mean? Do They Matter?
43 Pages Posted: 31 Jan 2014
Date Written: September 1, 2013
The constitutions of many Arab countries provide that Islamic law ("shari'a") is a "source" of national law. Indeed, some make shari'a norms "a chief source," of state law. Other stronger provisions even declare them to be "the chief source" or "the only source" of legislation. There has been surprisingly little historical scholarship about these clauses, either in Arabic or in Western languages. There has also been almost no systematic comparative scholarship looking at the way that these clauses have been interpreted in different countries. In both Western scholarship and in popular Arab discourse one finds considerable confusion about where these clauses came from and about the implications of a country adopting them. In particular there is confusion about when a "source" clause will be interpreted to prohibit the state from enacting laws inconsistent with shari'a.
This article provides a comprehensive history of the origins of these clauses in Syria and their spread to the Gulf States, Egypt and beyond. It also provides a comparative survey of their interpretation in Arab courts. It demonstrates that when they were first adopted, these clauses were understood to be ambiguous. Furthermore, for some time, the courts in different countries developed different interpretations of them. Weak provisions declaring shari'a "a source" or "a chief source" of law were understood in some countries to permit the state to enact legislation inconsistent with shari'a, but were understood in others to prohibit such legislation. Stronger clauses making shari'a "the chief source" were also interpreted in conflicting ways. Over time, however, interpretation of SSL language evolved and converged. Constitutional courts seem increasingly to agree that weak SSL clauses do not require governmental respect for shari'a while strong ones do. At the same time, courts in countries with strong SSL clauses have developed some surprising views about what sorts of law are consistent with shari'a. Most notably, courts in Egypt have insisted that Islamic values overlap significantly with liberal values and thus strong SSL clauses require the state to respect the liberal rule of law.
The history of SSL clauses to date thus reminds us that interpretations of Arab constitutions, no less than "Western" ones, constantly evolve and, at times, they grow in surprising ways. One should thus be cautious about evaluating Arab Spring constitutions or about predicting the impact that certain types of constitutional language will have going forward. Language that does not today seem to require governmental respect for shari'a may, in time, be reread to require this. At the same time, a society's understanding of shari'a is likely to be contested and over time to evolve. Liberals can only hope that if constitutions are interpreted to require respect for shari'a, social understandings of shari'a will develop in a way that harmonizes Islamic and democratic values.
Keywords: Constitution, Constitutional Design, Constitutionalism, Constitutional Courts, Islam, Shari`a, Arab world, Arab Spring, Human rights, Democracy, Sanhuri, Egypt, Syria, Tunisia, Sudan, Yemen, United Arab Emirates, Bahrain, Qatar, Gulf States
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