Shīʿī Constitutionalism in Afghanistan: A Tale of Two Draft Constitutions

18 Pages Posted: 16 Mar 2020

See all articles by Shamshad Pasarlay

Shamshad Pasarlay

Herat University School of Law and Political Science

Date Written: March 16, 2020

Abstract

In this paper, I look at the Afghan Shīʿī communities’ position on the idea of constitutionalism and their vision for a modern constitutional state. Drawing on two draft constitutions that Afghanistan’s most prominent Shīʿī Islamist parties published in the 1990s, I argue that the Afghan Shīʿī parties’ image of constitutionalism exemplifies two different (and opposing) schools of legal and political thought in Shīʽīsm. One grants to the mujtahids (individuals accepted as original authority in Islamic law) the power to protect the legitimacy of the political order while the other gives the mujtahids an apolitical role. Accordingly, the two draft constitutions create different types of Islamic political legitimacy, define Islam differently, award to the mujtahids a series of different responsibilities to guide and protect the political order, and craft distinctive institutions dominated by traditionally trained mujtahids to interpret and realise Islam and the shariʽa in practice. Afghanistan’s Shīʿī draft constitutions provide evidence to support the argument that the relationship between Islam and constitutions is variable, as are the forms of Islamic constitutionalism across different times and places. However, the differences between Afghanistan’s Shīʿī draft constitutions by no means obscure their similarities in principle: in different provisions, the two drafts impose Islamic shariʿa as a basic check on political power, something described as the core of Islamic constitutionalism. Designated bodies of mujtahids, not the state, would have a monopoly on constitutional interpretation and religious opinions through judicial (Islamic) review. This paper thus speaks directly to the scholarship on Islamic constitutionalism, adding two important and previously understudied cases to this new, but growing, body of scholarship. The history described in this paper provides insights that might help us understand Shīʿī constitutionalism in Afghanistan and what Afghan Shīʿī elites’ position on constitutionalism can bring to debates on Islamic constitutionalism.

Suggested Citation

Pasarlay, Shamshad, Shīʿī Constitutionalism in Afghanistan: A Tale of Two Draft Constitutions (March 16, 2020). Australian Journal of Asian Law, Vol. 20, No. 2, Article 1, 2020. Available at SSRN: https://ssrn.com/abstract=3554795

Shamshad Pasarlay (Contact Author)

Herat University School of Law and Political Science ( email )

Herat University Main Complex
School of Law and Political Science
Herat, WA Herat
Afghanistan

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