Islamic Constitutionalism

I have argued against anti-Sharia laws in the U.S., but I have steered clear of debates about Sharia as applied in Muslim-majority countries. In light of outrageous examples of how Sharia is interpreted and enforced in some areas of the world today, fears about Sharia are a leading source of anti-Muslim sentiment. To the extent that Muslims favor Sharia, it is taken as evidence of Islam’s incompatibility with the premises of the American political system. But what if today’s Sharia-based governments are themselves misguided interpretations of Muslim history – not just in terms of the law’s content, but in terms of the legal order underlying the law’s application?

Asifa Quraishi-Landes has published her lecture, Islamic Constitutionalism: Not Secular. Not Theocratic. Not Impossible. She traces the “separation of legal authority in pre-modern Muslim lands that has all but disappeared today” between “siyasa, created by the rulers, and fiqh, created by the fiqh scholars.” As Muslim-majority countries emerged from colonial rule, they maintained a centralized, monistic legal order:

This colonialist mutation of legal-political systems in Muslim-majority lands has, sadly and ironically, created theocratic-leaning Muslim governments. But it is not the integration of religion and state that has caused these new Islamic theocracies. Rather, it is the integration of religion with legal monism that has created this phenomenon. . . . [W]ith independence in the twentieth century, many Muslims organized themselves into social and political organizations (often called “Islamism”) to remedy the wound of the colonialist purging of sharia in Muslim lands. But these Islamists operated with a rather stunning amnesia. Rather than looking to Islamic history for alternative arrangements of legal and political authority, they instead took the nation-state structure inherited from their European colonizers for granted, and simply concentrated their efforts on making that central state “Islamic.” . . . .

Muslim history shows that theocracy is not the inevitable result of every religious government, and secularism is not the only way to solve religious differences. For religious Muslims, it bases the legitimacy of state action directly on sharia principles. For secularists, it requires state lawmaking to be justified on something other than religious pedigree. It does this by articulating a model of government in which religious laws (fiqh) are only one of a two-part sharia-as-rule-of-law system, the other being state lawmaking based on human determinations of the public good (maslaha). This bifurcated system of law provides a way for a Muslim government to formally recognize fiqh rules without imposing them on those who do not want it.

The whole paper is worth reading.