By Cem Tecimer
Source: Noah Feldman, Islamic Constitutionalism in Context: A Typology and a Warning 7 U. St. Thomas L. J. 436-451 (2010)
Feldman begins his article by explaining what has prompted him to write the article in the first place: a symposium, in which he participated, entitled “Islamic Law and Constitutional Liberty.” Closely reviewing the title of the symposium and the recent developments in American society at large, especially with a focus on Oklahoma’s amendment to its state constitution, explicitly barring judges from including Islamic law references in their decisions. Feldman argues that Islamic law as applied in the private sphere should generally be of no concern to constitutional law. Feldman will not even discuss these under “Islamic constitutionalism” simply because there is nothing implicating constitutional law when Islam is thought of in the private sphere. It is “state adherence to Islamic law, which would, naturally enough, raise constitutional questions” (p. 439). In America, as far as Feldman has observed, there is no significant call for sharīʿa to constitute the foundation of law; it is only wished that Islamic law be treated just like Jewish law or canon law “in the occasional interactions between religious and secular legal systems that arise in a liberal democracy” (p. 440). Thus, in this article, Feldman will only discuss Islamic constitutionalism as far as Muslim-majority countries are concerned and how they struggle to design their states.
First, building a framework for thinking about constitutions in general, Feldman identifies three different planes of analysis: (1) the political sphere; (2) the philosophical sphere; and (3) the institutional-legal sphere. Constitutions “engage political structures within a society” (p. 441). Constitutions are, in one way or another, responsive to “competing demands of different political forces,” and in Muslim-majority countries, an important competing political force is Islamists (p. 441). As for the philosophical sphere, all constitutions have some foundations; for example, the U.S. Constitution allegedly has a secular and positivist foundation when it comes to conferral of individual rights and liberties (that is, rights exist because the Constitution says so). Yet, the Declaration of Independence speaks of a Creator who has endowed these rights – clearly a religious reference to explain the source of human rights and liberties. Thus, constitutions embody the “religious and cultural and theological values of their societies” (p. 444).
In Islamic constitutional countries, the philosophical aspect of constitutionalism manifests itself in three different ways: (1) Islamic law is either made “the” or “a” source of law. (2) So-called “repugnancy clauses” sometimes dictate that no law shall be contrary to Islamic law and values. (3) The third and final area in which philosophical considerations are visible is family law, including “marriage and divorce, and sometimes inheritance,” and debates as to what extent family law should be based on Islamic law are ongoing (p. 445).
As to the institutional-legal sphere, Feldman argues that it is comprised of institutions tasked with applying laws as well as laws themselves and their contents. “This institutional-legal component is in some way where the real nitty-gritty action of constitutional affairs…” (p. 447). This sphere is the least clear, Feldman argues, in today’s Islamic constitutional countries.
In the end, Feldman’s assessment of Islamic constitutionalism pays particular attention to three spheres that he has identified as relevant, and he argues that in autocratic countries suppressing Islam, Islamist political forces have gained power and increasing appeal. In the philosophical sphere, the idea that Islam and democracy are not compatible can now easily be declared archaic. The question, rather, is how to apply philosophical abstractions to daily life, because if governments fail to do so, the appeal their philosophical agenda has garnered will inevitably decrease. Finally, in the institutional-legal sphere, Feldman concludes by identifying three possible scenarios: (1) the optimistic scenario: creation of new institutions “that somehow capture some of the values of an Islamic legal tradition” (p. 450); (2) the pessimistic scenario: Islamists creating institutions that soon fail, for similar reasons why institutions fail in Western countries; and finally (3) the middle option, i.e., “the muddling-through option”, where the institutions created to embody Islamic values are marginalized and are on the periphery, ultimately “becom[ing] the background noise of the constitutional norms of a society” (p. 450).
Feldman concludes by arguing that this third option may be normatively desirable, provided it actually works, because it avoids definitive answers to potentially divisive questions about religion and how specifically it ought to be incorporated into the constitutional structure of any given country. Drawing on the American example, Feldman notes that he doesn’t believe “it would be a good idea for the United States if there were some way to resolve once and for all the question of whether our values are derived from the Declaration of Independence [which makes reference to a Creator] or the Constitution [which is a secular document]…” (p. 451).
- Islamic law: how Oklahoma’s amendment to its state constitution barring judges from making reference to Islamic law in their decisions reflects misconceptions about Islamic law and its purported incompatibility with liberalism (p. 437); how prevalent the misguided idea that “Islamic law pose[s] a special threat to the general phenomenon of constitutional liberty” is (p. 438); how, on the other hand, if Islamic law were to serve as a source of law in the United States, that would be in violation of the Establishment Clause (p. 439); how not private manifestations of Islamic law but public manifestations thereof, that is, “state adherence to Islamic law,” raises constitutional questions (p. 439); among these constitutional questions, for example, are whether the state could certify food as halal, or whether its state courts would recognize Islamic marriage contracts (p. 440); how Islamic law’s incompatibility with democracy pervaded early literature on the issue, but how it is now anachronistic (p. 449).
- Islamic constitutional law: how Islamist movements constitute a major political force in the constitutional orders of Muslim-majority countries (p. 441); Islamism defined as “a self-consciously political movement that draws upon the very contested, rich, and influential ideas and beliefs associated with the religious tradition of Islam to make political claims and to organize people into political action” (p. 441); how the Islamism movement is rich in itself, comprising different Sunni ideologies, as well as some Shi’ite views, though the Islamist movement is closely associated with the Muslim Brotherhood (p. 442); how the Algerian elections of 1990 and 1991 exemplify the Islamist movement as a constitutional political force (p. 441); how philosophical components of constitutionalism manifest themselves in Islamic contexts as different constitutional stipulation as to whether Islam is “the” or “a” source of law (p. 445); how repugnancy clauses that deem unconstitutional laws that contrary to Islam also are telling of a country’s conception of Islamic constitutionalism, which may be described as “a version of Islamic judicial review” (p. 445); how Feldman’s third sphere to think about with regard to questions of constitutionalism, that is, the institutional-legal sphere, is the “least clear” sphere in Islamic contexts (p. 447); how in Iraq, for example, institutions are far more advanced, compared to in Afghanistan, where “the legal system is itself operating in a very rudimentary way in most of the country” (p. 447); how autocratic regimes suppressing Islamists counter intuitively strengthen Islamist factions and the support they receive, as exemplified by Iraq (where there is relative freedom for Islamist views); where Islamist parties have been unsuccessful, since they are not suppressed, they can be part of the government and then fail, showing people that they aren’t as appealing as they sound to be in practical terms (p. 448).
- Islamic family law: how it constitutes a foundational philosophical question in designing Islamic constitutions; should family law questions be decided using “classical Islamic legal tradition of Sharī‘a, and if so, to what extent? (p. 445).