Islamic Constitutionalism: Not Secular. Not Theocratic. Not Impossible.
16 Rutgers Journal of Law and Religion 553 (2015)
28 Pages Posted: 27 Jun 2016
Date Written: 2015
This Lecture Series asks us to engage in a thought experiment: what would a constitution look like if it integrated — rather than separated — church and state? As the Muslim respondent to this question, I have to start by reminding us that Islam does not have a “church” in the first place. This fact has some very important and relevant constitutional implications that will become clear later. But setting that aside for the moment, the thought experiment is still appropriate for a Muslim context if we broaden it to imagine the constitutional integration of state and “religion” (rather than “church”). As it happens, I have been working on the subject of Islamic constitutionalism for some time, so I will answer the question by summarizing a proposal for modern Islamic constitutionalism that is part of my current larger academic project. This proposal presents a structure for Islamic constitutionalism that is inspired by pre-modern Islamic jurisprudence and Muslim history, yet designed for contemporary realities. It also has the potential to solve the apparently endless “Islamist-versus-secular” political and social tensions that plague most Muslim-majority countries today.
In modern western constitutional discourse, theorizing about religious government typically encounters this immediate obstacle: fear of theocracy. Entrenched in western constitutional theory is the belief that any combination of religion and state is unacceptable because it too easily allows for theocracy; it is simply too dangerous to individual freedoms to enable a government to use its police power to impose religion and religious law upon its citizens. This concern is usually impossible to remove — and for good reason. European history tells a long and gruesome tale of religious wars and government oppression justified by states claiming to be enforcing divine law. Therefore, our modern age of constitutional protection of individual freedoms is strongly linked with the principle of separation of religion and state. Without this separation, we open the door to theocratic oppression of all those who disagree with the government’s chosen religious beliefs.
But this is a European telling of the story of religion and state. More precisely, it is a specifically Christian story of the history of church and state. It ignores the rest of the world’s experiences and the possibility that not every religion has had the same relationship with government power. Islam is one very significant counter-example to this Eurocentric narrative. In order to provide an Islamic answer to the thought experiment, therefore, I must begin with a brief summary of the nature of Islamic law and Muslim political history, pointing out its significant differences with the Christian church-state paradigm. With that foundation, I will then elaborate on what a contemporary Islamic constitutional framework might look like, based on what I find to be the essential characteristics of Islamic constitutionalism.
Keywords: Islamic Constitutionalism, Separation of Church and State, Secularism, Theocracy, Constititional Theory, Muslim, Islamic Law, Jurisprudence, constitutional law, thought experiment
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