2005

Islamic Perspectives on Constitutionalism

Abstract

The object of this chapter is to discuss the meaning which constitutionalism has in the context of Arab-Islamic political thought. It is argued that Islamic Shari'a contains elements of constitutionalism which are relevant to the rights which citizens have, and the limits on the legitimate exercise of state power. Moreover, the scope of these rights and limits will vary, depending on the method (liberal or conservative) which is used to interpret Shari'a.

I. Introduction

The object of this chapter is to discuss the meaning which constitutionalism has (or may come to have) in the context or Arab-Islamic political thought. Other terms which have sometimes been used as equivalents of constitutionalism in Western languages include "rule of law", "Rechtsstaat", and "l'etat de droit". Some of these terms have natural-sounding equivalents in Arabic: thus dawlat al-qanun will do very nicely for Rechtsstaat, and the same can be said for hukm al-qanun and rule of law. "Constitutionalism", however, has no readily identifiable Arabic equivalent.

In Western political thought, terms such as "constitutionalism", "rule of law" (and others) have come to express meanings which are richer, and more complex, than what is suggested by etymology, or mere juxtaposition of words. This is usually the mark of terms and concepts that have come to play a pivotal role in the theory of the subject matter in which the term is used. Such terms invariably carry a greater semantic burden that is suggested by their linguistic derivation or the sum of their parts.

The same cannot be said for the equivalent terms which are used in Arab-Islamic political writings. But this need not mean that Arab-Islamic political thought does not know what constitutionalism is, or that it is not conceptually equipped to deal with matters that are discussed under this rubric. On the contrary, themes such as ruling in accordance with the law, the right which people have to oppose unjust rule, liberties which rulers are not permitted to infringe on, and other similar concerns, have existed in Arab-Islamic political thought since the earliest times.

There is much to be said for discussing the meaning and role which constitutionalism has (or may eventually come to have) in Arab-Islamic political thought. Firstly, a discussion of this type can help us make sense of (or at least thematize) some of the concerns that are being expressed by Arab and Islamic political thinkers. Secondly, the concept of constitutionalism has come to be regarded as exceedingly important, as far as Western political thought is concerned. This invites one to wonder about its universality; concepts that are truly basic and fundamental should not be (are not normally) of local relevance. Thus in discussing the meaning and possibility of constitutionalism in Arab-Islamic thought may function as a partial test for the universality of this concept.

In section 2 of this chapter, I shall first go over the meaning of constitutionalism, as the term is used in contemporary Western political thought. Then I shall go on to raise the question of whether we have any reasons to think that the concept of constitutionalism (as the term is used in Western political writings) has any meaning as far as Arab-Islamic political thought is concerned.

Having answered the question in the affirmative, I shall, in section 3, proceed to discuss the foundations of constitutionalism in Arab-Islamic political thought. As we shall find, the foundations which constitutionalism can be said to have are "theistic" foundations -- they bear primary reference to divine law and divine revelation. But theism which is exhibited by Islamic thought is not all of one kind. It is possible to distinguish between two varieties of theism: one (the Ash'arite variety), is a voluntarist outlook, which is almost devoid of rational elements, another (Mu'tazilite), follows an objectivist line of thought, and is well known for its rationalism. Both outlooks can be used in order to establish foundations for constitutionalism in Islamic thought.

In sections 4 and 5 of this chapter I discuss the scope of Islamic constitutionalism, that is to say, the topics and themes which are relevant to constitutionalism, and which have been touched on by Islamic writers. In section 4, we discuss the different individuals rights and protections which Islamic laws may be expected to offer (on either the Ash'arite or Mu'tazilite readings of Islamic law), and we compare these with international human rights schemes. In section 5, we move on to discuss the meaning and possibility of a doctrine of "the separation of powers" on Islamic premises, and we stop to consider the views of some "Islamic democrats" on this topic, which has only recently become an object of interest in Islamic political thought.

Finally, in the last and concluding section of this chapter I shall try to close some of the remaining gaps in the Islamic discussion of constitutionalism. It will be suggested that critics of the Islamic conception of democracy and constitutionalism often base their criticism on the assumption that belief in secularism is required for the possibility of democracy and/or constitutionalism. This assumption can be -has in fact been- questioned by some Islamic writers, with the result that Islamic conceptions of democracy and constitutional merit reconsideration.

II. The Meaning of Constitutionalism

Unlike some other concepts which play an important role in contemporary Western political thought (democracy is one example), the concept of constitutionalism does not appear to be "essentially contested". (1) Indeed, difficult questions continue to be raised about the consequences of constitutionalism for the functioning of democracy, and the extent to which constitutionalism may be thought to impose restrictions on liberty -- the liberty of ordinary citizens, government officials, or even the liberty of future generations. But all of this takes place within the framework of a broad agreement on what constitutionalism basically means.

According to Elster, "Constitutionalism refers to limits on majority decisions; more specifically, to limits that are in some sense self-imposed." (Elster 1988, 2) Castiglione, on the other hand, defines constitutionalism more fully in these terms:

"It comprises those theories which offer a series of principled arguments for the limitation of political power in general, and of government's sway over citizens in particular." (Castiglione 1996, 5)

Some writers prefer to understand constitutionalism by reference to the nature of constitutions, which is what the term itself invites one to do. Thus Sunstein introduces the meaning of constitutionalism by reference to constitutions which "operate as constraints on the governing ability of majorities." (Sunstein 1988, 327) In the same vein, Elster attributes to constitutions two functions: "they protect individual rights, and they form an obstacle to certain political changes which would have been carried out had the majority had its way." (Elster 1988, 3)

No matter where one chooses to begin, the basic idea which appears to underlie constitutionalism is the idea that there should be limits on, and means for checking the power of those who have ultimate political power, those who are in a position to abuse it, if they were to have their way. But of course, limits and checks have to be proclaimed, or otherwise impressed on society, if they are to have an effect on how political power is managed. In modern times, this has increasingly come to be accomplished by means of written constitutions which seek not only to "protect" the people from the state, but also to regulate the operation of the state in such a way that state power is "internally controlled". For these reasons, in what follows I shall discuss Islamic views on constitutionalism in terms of the following characterization which is proposed by Lane:

"Two ideas are basic to constitutionalism : (a) the limitation of the State versus society in the form of respect for a set of human rights covering not only civic rights but also political and economic rights; (b) the implementation of separation of powers within the state." (2) (Lane 1996, 25)

These two ideas are not unconnected. According to Lane, the first functions as "external principle" which restricts state power with respect to civil society, while the second functions as an "internal" principle" which ensures that no body (organ, or person) in the state completely prevails over the others. (Lane 1996, 25)

To be sure, one does not does not find in Islamic intellectual history (exact) equivalents for concepts such as separation of powers, human rights, and civil society. One certainly can understand why some students of Islamic thought may be unsympathetic to the idea of looking for grounds for constitutionalism in Islam. They see it as yet another attempt to subject Islamic thought to categories and concepts that are characteristics of Western thought.

Of course, the charge of "hegemonic Western discourse" has to be met and rebutted (if possible) on its own grounds. But, in general, there is no a priori reason to expect Islamic political ideas to be utterly dissimilar to those which have been expressed in Western political thought. On the contrary, there are reasons to expect similarities and points of correspondence between these two intellectual traditions. This is based on two powerful considerations.

Firstly, both cultural traditions have been shaped by the operation of monotheistic faiths that can be considered to be "sisters" in more sense than one. Judaism, Christianity, and Islam belong to the same (Near Eastern) spiritual tradition. They speak the same religious language, even when they disagree on points of doctrine. Secondly, both cultural traditions have absorbed a large dose of Greek thought, which has survived (to different degrees and in different shapes) till the present.

These two reasons should predispose one to look for similarities and areas of correspondence. Islamic thought has always been closer to Western thought than to Eastern Thought. I think this can be asserted on the sheer strength of historical influences and intellectual content, regardless on how matters stand with respect to the thesis of "hegemonic Western discourse", abstractly understood.

Still, this does not answer doubts about the meaningfulness of the concept of constitutionalism, as far as Arab-Islamic political thought is concerned. But a quick look at the discussions that are taking place between Islamic thinkers (and others) about the notion of "divine sovereignty", as well as the causes which underlie demands for the application of Shari'a (Islamic law) is sufficient to show the viability of the idea of seeking to understand constitutionalism in Islamic terms.

Consider, for example, the notion of "divine sovereignty", popular among many Islamic thinkers and young intellectuals. How should their proclamation "al-hakimiyyatu li-Allah", which may be roughly rendered as "sovereignty (ruler-ship) belongs to God" be understood? Bernard Lewis takes the view that

"The Islamic state was in principle a theocracy -- not in the Western sense of a state ruled by the Church and the clergy ... but in the more literal sense of a polity ruled by God. ..." (3)

Lewis' explanation paves the way for viewing the Islamic polity as a despotic state. For God is hardly the sort of ruler who could be held to account, or who would need to consult with any of His subjects. But the Tunisian Islamic thinker Rachid al-Ghannouchi offers a more plausible explanation of "divine sovereignty", which has the additional virtue of relating this notion to our current concern with constitutionalism. According to Ghannouchi,

"Those who proclaim that sovereignty belongs to God do not mean to suggest that God rules over the affairs of the Muslim community directly, or through the clergy. For there is no clergy in Islam, and God cannot be perceived directly, nor does He dwell in a human being or an institution which can speak for Him. What the slogan "sovereignty belongs to God" means is rule of law (hukm al-qanun), government by the people ..." (Ghannouchi 1999,155. Italics added)

The idea that Islamic calls for "divine sovereignty" and the application of Shari'a should be understood as hinting at constitutionalism (or an Islamic version thereof) is not a instance of wishful thinking which is restricted to those who are inclined to interpret Islam in sympathetically. The idea has not been lost on the more astute Arab secularists, such as Amzi Bisharah who claims that

"In times when social consciousness takes a religious form, it is possible that calls for the application of Shari'a express a democratic tendency, or (at least) an opposition to despotism, simply because Shari'a rule implies restrictions on the exercise of political power over and above mere will of rulers." (Bisharah 1993, 83)

Remarks by Ghannouchi, Bisharah, and others (4) indicate that it may be possible to find some elements of constitutionalism in Islam - elements that can be expressed by means of modern terms, such as "rule of law" (as opposed to "rule of men").

Of course, constitutionalism does not reduce to the simple idea of legality, or to the idea of imposing restrictions on the power of mundane rulers. For these ideas, noble as they may be, can be sabotaged by other (implicit) elements in the tradition, which could make the claim to constitutionalism rather pointless. All of this must be determined in due course. The most suitable method to follow is to begin by inquiring about the place of law in Islam. This will hopefully provide us with some idea about the Islamic constitution, and the constitutionalism which it implies.

III. Foundations of Islamic Constitutionalism

Constitutionalism makes reference to the idea of law, inasmuch as constitutionalism requires that the conduct of the different organs of the state vis-à-vis citizens, as well as vis-à-vis each other, be regulated by laws, or rules (which may or may not be written). For this reason it is convenient to begin the inquiry into the possible foundations of constitutionalism in Islamic thought with the question of what the (Islamic) law is, and the place it has in society. It is here that one would hope to be able to discover foundations for constitutionalism (or a certain version thereof) in Islam.

A statement by an influential Islamic theorist of modern times, namely, Mawdudi, indicates that Islamic thinking does not draw a line between the laws which govern the system of nature (considered as mere physical reality), and the laws which govern (or ought to govern) human affairs in society. To the Muslim thinker all laws, ultimately considered, are God's laws. In a statement which is reminiscent of Aquinas's distinction between eternal law and divine (i.e. revealed) law (Aquinas 1944, v.2, 748-757), Mawdudi says:

"From the moment of their conception, till the very last day of their lives, human beings are completely subject to God's natural law, unable to break it, or to go contrary to it. Those who believe in divine revelation must also believe that God rules over the voluntary part of our lives as well as the involuntary part, and the universe in its entirety." (Mawdudi 1975a, 18)

Putting aside as irrelevant to our purposes those laws which govern the motions of the planets and other parts of mere physical reality, we are left with those portions of God's law which are collectively referred to as Shari'a. As many Islamic thinkers conceive of it, the Shari'a is all-encompassing, taking into purview all the acts which human beings are capable of in society. In Mawdudi's words:

"[Shari'a] judgments of good and evil extend to all parts of our lives. They cover religious acts and duties, as well as actions undertaken by individuals which reflect on their way of life, morals, customs, manners of eating, drinking, attire, speech, and family affairs. They cover social relationships, financial, economic and administrative matters, rights and duties of citizenship, organs of government, war and peace, and relations with foreign powers ...There is no part of our lives where the Shari'a does not distinguish between good evil...". (Mawdudi 1975a, 24)

Presumably, it is this rich and varied field of Shari'a law that we would expect to find elements of the Islamic constitution, as well as the constitutionalism which can be defined by reference to it. This is a legitimate expectation, which is supported by the fact that Islamic thinkers often view Shari'a as a constitution of sorts. Turabi, for example, thinks that "Sharia is the higher law, just like the constitution, except that it is a detailed constitution". (Turabi 1993, 25)

And Mawdudi himself believes that the "unwritten Islamic constitution" already exists, that it only awaits efforts to codify it, on the basis of its original sources, which are identical with the sources of Shari'a". (Mawdudi 1975b, 11)

We shall in the next two sections of this chapter discuss the various constitutionalist themes that can be found in Islamic thought, but what we need to do first is to examine basis of the obligatory character which laws have in the Islamic view of law. If we are to arrive at an Islamic view of constitutionalism, we must not only determine the type and number of laws which are considered to be relevant to constitutionalism (as it is understood in the West), but we must also inquire into the logic, or the rationale which underlies these laws. For it is this which gives us insight into the normative character of laws, the attribute which is needed to provide a situation of obligation, as opposed to coercion.

Essentially, we have two schools of Islamic thought with the respect to the question of the sources of moral obligation. (Frank 1983, 204-223)

We do not speak here of moral obligation in general, but moral obligation to obey laws, and to engage in practices which touch upon different aspects of our life, both private and public. These may range all the way from the injunction to help the needy wayfarer, to the obligation to obey those who are in authority over us.

The first of these two schools of thought, and by far the most enduring and influential, is the Ash'arite school of thought. It has been in existence (at least as a tendency) since the early days of Islamic theology, to judge from the letter which Hasan al-Basri (d. 728) wrote in rebuttal of certain conceptions of divine justice and human responsibility that tend to go with this view. (Ritter 1935)

There is probably nothing which is more suggestive of the spirit which animates the Ash'arite view of morality than the definition which it offers of basic moral notions such as good, evil, and justice. The Ash'arite definition also sets limits to the range of opinions which one can entertain with respect to law, morality and obligation.

Consider what Ash'ari (d. 935) says about the actions which God is capable of doing. According to the Islamic (as well as the Judeo-Christian) tradition, God is omnipotent. Does this mean that there is nothing which God cannot, in a moral sense, do? According to Ash'ari:

"God is entitled to do everything which He does. This is proved by the fact that He is the overpowering Master; there is nothing which has power over Him, no prohibiter, no commander, ... nothing which sets limits to His power, or draws a boundary around His actions. This being so, it follows that nothing which God may do can be considered to be evil. For to do evil is simply to go beyond what has been assigned to one as a boundary, to do that which one is not entitled to do." (Ash'ari 1955, 117)

The underlying concern here, which makes such a passage of critical importance, is the question of whether God is to be conceived of as behaving like a "constitutional monarch", or as a despot who is subject to nothing but the dictates of his will. There is a reason to believe that this will have negative implications for the resulting view of constitutionalism, even if "constitutionalism", in its primary application, is not an attribute of individual agents such as God(s) or monarchs.

The Ash'arite view, on the whole, does not seem to favor the first alternative, that is, the alternative which views God as a "constitutional" being. Foremost among the laws which God would have to observe, if indeed there were any at all, would be laws such as: the innocent shall not be punished, or, perhaps, the well-doers shall be rewarded. But this is not the case, according to the famous theologian Ghazali (d. 1111), who followed in the footsteps of Ash'ari:

"God ...can hurt and torture creatures, despite their having committed no previous wrong. He can also refrain from rewarding them in the Hereafter. For God is entitled to do as He wishes in His dominion (mulk). ...To do injustice is simply to undertake actions in a dominion which is ruled over by another, without first obtaining permission form the master. This is, of course, impossible in the case of God, for there is no dominion which does not belong to Him. Hence there is no dominion where He can act unjustly." (Ghazali 1975, 3)

This may sound highly implausible, but one does not begin to understand this view until one considers the reasons which may have led early Islamic theologian to this conclusion. It is difficult for theologians who take divine omnipotence seriously to accept the idea that God is subject to anything, even if it is something intangible, such as the law. One should consider the position of the early Muslim theologians who began to reflect on these philosophical matters in the centuries following the Islamic conquest of the ancient centers of civilization. Filled with a sense of piety and wonder at divine power, many of them must have found it extremely hard to come to terms with the idea of a limited God, a God whose scope of willing and doing was in anyway restricted.

In some ways, the Ash'arist view resembles legal positivism. It is a theistic type of positivism, if you will. Like positive law, God's law is to be understood by reference to the agency which enacts it as law. Furthermore (according to the Ash'arites), the obligatory character which God's law has is not to be explained by reference to the content of the law. Nor does it depend on our understanding (as rational creatures) of what the law means. Rather, its obligatoriness must be explained in terms of the relation which holds between those who are supposed to obey the law, and the agency which is recognized as a legitimate source of law. (5)

In the case of Ash'ari's theistic positivism, the agency which enacts the law and declares to be such is none other than God. The relation between the lawgiver and those who are subject to the law is one of power. God is the master of the universe, and we are part of his dominion, subject to His sanctions. We are not in a position to question His commands or His prohibitions. Good and evil, obligatory and forbidden, as well as all other moral attributes of actions must be defined by reference to God's commands.

But positivism, whether it is of the more familiar natural variety, or the supra-mundane variety which we have attributed to the Ash'arite school, has many difficulties. In both cases one has to ask: "Why has the choice made by the lawgiver a normative nature, which means that it is binding and therefore ought to be accepted?" (Cotta 1983, 276) It is hard to imagine that an answer to this question would be forthcoming without reference to the meaning of the law, and the position which we take towards it as rational, interested creatures

Of course, the Ash'arite theologian may say that we are raising an impious question, one which should not be raised in the first place. But this is not a convincing answer, even for those who firmly stand on Islamic grounds. For not only does God explain his commands and prohibitions in many places in the Qur'an, but the Ash'arite interpretation of the meaning of the basic moral terms stands to make nonsense of many verses in the Qur'an. As Hourani says:

" [T]he repeated commands of God to do what is right would be empty of force and insipid, if they meant only "commands to do what He commands". It is even harder to make sense of statements that God is always just to His servants on the supposition that "just" means "commanded by God". The only possible move at this point is to resort to the transcendence of meaning in reference to God - always the refuge of the baffled theologian." (Hourani 1985, 81)

Whatever philosophical difficulties Ash'arism faces, this does not mean that it is impossible to make a case for constitutionalism on Ash'arite grounds. What it means is that the constitutionalism in question is likely to be literal (out of respect for the letter of the scripture, which is, after all, God's word), rigid (so as not to risk legislating against God's commands) and non-rationalistic. (6) In these respects Ash'arism differs from Mu'tazilism. The latter can arguably be said to support a more rationalistic, less conservative, and more enlightened type of constitutionalism, as can be seen from their moral philosophy.

As Frank characterizes their view, the Mu'tazilites believed that "all men of sound mind know in an immediate and irreducible intuition that certain acts... are morally obligatory ... and that certain actions are morally bad." (Frank 1983, 205) Furthermore, ethical predicates such as "good" and "bad" can be attributed to actions in an objective manner, that is to say, in a manner which is determined by the qualities of the actions themselves, and not by the attitude of the beholder of the action, be that a human being or God Himself.

To illustrate the Mu'tazilite approach to morality, consider the following passage from the later Mu'tazilite thinker, al-Qadi 'Abd al-Jabbar (d. 1025?). 'Abd al-Jabbar makes it clear that knowledge of good (when this knowledge exists) is sufficient to determine moral obligation. Furthermore, he explicitly denies that good and evil are to be defined in terms of what revelation commands or prohibits. These points are made with the help of the example of purely devotional duties (such as the duty to perform prayers in a certain manner, at certain times during the day) which are known only by revelation.

"Revelation only uncovers about the character of these acts aspects whose evilness or goodness we should recognize if we knew them by reason; for if we had known by reason that prayer is of great benefit to us, ... we should have known its obligatory character [also] by reason. Therefore we say that revelation does not necessitate (la yujib) the evilness or goodness of anything, it only uncovers the character of the act by way of indication, just as reason does, and distinguishes between the command of the Exalted and that of another being by His wisdom, Who never commands what it is evil to command." (7)

The intellectual orientation with which the Mu'tazilites approach morality promises to deliver a type of constitutionalism which is different from the Ash'arite type. To begin with, the Mu'tazilite view of the law is remarkably less heteronymous than that of the Ash'arites. According to the latter, the law is a number of divine dictates which neither emanate from human reason, nor is human reason fit to question them. God, moreover, assumes the role of the absolute ruler whose power is utterly unrestrained, but whose judgment defines what is good and bad, what is legal, and what is illegal. The Mu'tazilite God, on the other hand, seems very different. To the extent that He abides by moral laws which are valid independently of the attitude of the beholder (or knower) He can be viewed as a "constitutional monarch", one who is not above the law in every respect.

The Mu'tazilites did not only believe in the rationality and objectivity of morality (and the laws which must be justified by reference to it), they also characteristically espoused the doctrine of the createdness of the Qur'an (which is God's speech). This doctrine, which is bound to sound peculiar to modern ears, engendered much debate during the Mu'tazilite period of Islamic intellectual history. Since it is possible to view this debate, at least part, as debate about constitutionalism and the limits of authority, it may be useful to review briefly the position which the Mu'tazilite took in this debate.

By the time the issue of the createdness of the Qur'an erupted on the Islamic intellectual scene during the second century of Abbasid rule (750-1258), political views were polarized between what Watt calls a "constitutionalist bloc" and an "autocratic bloc". The constitutionalist bloc comprised, among others, the nascent body of 'ulema, and others who were united in the belief that "the Islamic community's way of life was constituted by the supernatural revelation contained in the Qur'an and the Traditions [of the Prophet]." (Watt 1963, 44)

To suggest that the Qur'an was created did not only mean that Qur'an was less than divine, but it must also have meant that the caliph (who headed the "autocratic bloc") had a freer hand when it came to interpreting the scripture and enacting laws. It was also to take away from the authority of the class of the 'ulema, who enjoyed a popular following among ordinary people, and whose status and authority in the community partly emanated from their special connection to the scripture (as students and interpreters). In a way, opposition to the doctrine of the createdness of the Qur'an mean opposition to despotism, or unchecked power. According to Watt's estimate:

"[T]he general conception of the caliphate was at stake --not which particular family or person was to rule, but what kind of ruler one was to look for. Must the caliph be a person with a "divine right" to rule, and so the primary fount of all law in the state? Or was he merely a man subject to the divine law contained in the Qur'an and the Sunnah of the Prophet?" (Watt 1963, 48)

The Mu'tazilites sided with the autocratic party, and when official support for the doctrine of the createdness of the Qur'an stopped during the reign of al-Mutawakil (d. 861), their fate was sealed. But this need not be a reflection on their moral doctrine. For there can be no doubt that the Mu'tazilite alliance with the powers that be was not a logical consequence of their doctrine. Rather, it is the temptation which enlightened elites throughout Islamic history have always had: unable to have faith in the power of the people to rule themselves with good laws, they tended to put their trust is the wise, enlightened ruler who possessed total power. The rule of such a ruler would not lawless or unconstitutional, anymore than the rule of Plato's philosopher-king would be. But it would not be "democratic", either.

In fact, it may be helpful (if this is not altogether too anachronistic) to view the difference between the Ash'arites and Mu'tazilites in the light of the distinction which Elster makes between two "sides" of constitutionalism. According to Elster, one side of constitutionalism can be summed up as "rules vs. discretion". (Elster 1988, 6) The meaning of this is clarified by reference to the "war" which constitutionalism fights against the executive power: one does not want the rulers to have too much discretionary power in their conduct of government. By insisting on laws and rules, constitutionalism takes decisions out of the realm of private, individual judgment, even when this latter aims at nothing but the common good. Ash'arist foundations for Islamic constitutionalism may be viewed as taking aim at the discretionary powers which rulers may otherwise be inclined to exercise. By holding the Shari'a over their heads as the divine constitution which cannot overturned, rulers are kept in check.

The other side of constitutionalism, according to Elster, may be summed up as "rules vs. passion". Under this aspect constitutionalism is seen as fighting a war, not against the executive power, but against the legislative power. The idea here is to ensure good government by somewhat insulating the political process from the "whims" and "passions" of transient and possibly irresponsible majorities which can form in the legislative branch of government. Viewed in this light, constitutionalism dwells in the halls of the Supreme Court, which is authorized to review legislation for constitutionality. (Elster 1988, 6, 7)

Now it cannot be said that the Ash'arites represented the democratic party, nor can it be said the Mu'tazilites anticipated ideas of a separate judicial power. Such thinking would be anachronistic, and there are no facts to support it. Still, to the extent that Ash'arites had popular following, and to the extent that they represented opposition to despotic rule, one may be excused in momentarily blurring the distinction between populism and democracy. On the other hand, it cannot be denied that he Mu'tazilites, in many ways, represented the "voice of reason", enlightenment, and progressivism, which modern constitutionalists sometimes look for in the Supreme Court. The Mu'tazilites stood against a certain type of conservatism (traditionalism), which could hold the community motionless in history, if it were to have its way. Indeed, one cannot take the Mu'tazilites to have represented that side of constitutionalism which guards against the "passion" of the masses. But it is plausible to view their constitutionalism as guarding against the inertia, traditionalism, and weakened rationality of the masses.

To sum up our discussion so far: we have seen that the idea of government in accordance with the "law" is an essential part of Islamic political thought. Shari'a is simply God's law, and it is undeniably at the heart of the Islamic faith. Furthermore, Shari'a can be approached either in a conservative-literal manner (which is the method used by the Ash'arites), or in a liberal-rational manner (which is what the Mu'tazilites chose to do). Both approaches to Shari'a can yield constitutionalism.

It remains for us to explore the themes, elements and concepts that can be brought together under the rubric of constitutionalism, understood Islamically. That is to say, we need to ask: what is constitutional in Islamic Shari'a? What potential does it hold for further development of constitutionalist ideas?

IV. The Scope of Islamic Constitutionalism: The Question of Rights

In what follows, we shall keep to Lane's idea of constitutionalism, the idea which is succinctly expressed in article 16 of The Declaration of the Rights of Man and the Citizen (1789): "A society in which rights are not secured nor the separation of powers established is a society without a constitution." (Finer 1979, 271)

We begin with the question of rights, for this is easier than the question of the different branches of government, and the relations which may hold between them. What rights do individuals have in Islam? How does the Islamic scheme of individual (and human) rights compare to other schemes?

It is commonplace to say that Islam is not one thing to all who profess to believe in it, or practice it. This is true in many respects, but the subject of rights stands out as an area in which drastically different interpretations of the faith are possible.

It is useful to think of the range of possible interpretations in terms of the old rivalry between the Ash'arites and the Mu'tazilites. It is true that contemporary adversaries do not see themselves as historical continuations of that old rivalry, but there is no doubt that many of the concerns, rationales, even conflicting interests which caused that old split, are still operative now, and are likely to continue in the future.

As one might expect, Ash'arite-minded thinkers tend be literal, traditional, and more defensive in the stance which they take towards modernity, including the question of human rights. Mu'tazilite-minded thinkers, on the other hand, tend to be more progressive, and more daring in the interpretations and innovations which they offer.

To see how rights are dealt with on the Ash'arite model, consider the writings of Mawdudi, an Islamic thinker of considerable fame and influence. In his al-Khilafah wa al-Mulk (Caliphate and kingship) he enumerates no fewer than 13 rights which citizens hold against their government. They include the right to life, dignity, privacy, property, due process, equality before the law, freedom of belief, freedom to assemble, and freedom from religious persecution. Many, or most, of the rights which he enumerates are supported by reference to fairly unequivocal Qur'anic verses. (Mawdudi 1978b, 27-31)

Viewed abstractly, some of the individual rights which Mawdudi dwells on are remarkably similar to the rights mentioned in the Universal Declaration of Human Rights (UDHR). But when one looks at Mawdudi's other writings, one finds reasons to reconsider, specially insofar as women and non-Muslims are concerned. In his Tadwin al-Dustoor al-Islami (Codification of the Islamic constitution), rights of women are severely abridged: for example, they are not allowed to be members of the "Consultative Council" (majlis al-shura), on the strength of a Prophetic tradition which says: "Never will a people who are led by a woman prosper". (Mawdudi 1975b, 65) Similarly, in his al-Qanun al-Islami (Islamic law and methods of its application), non-Muslims do not enjoy the same political rights as Muslims (even if the denial is couched in terms of the idea that the Islamic polity is, by definition, non-secular, so that it cannot (without self-contradiction) ignore religion in the apportionment of political rights). (Mawdudi 1975a, 47)

The same conservative spirit seems to be operative also in many of the Islamic human rights schemes that have been made public. The documents in question tend to be guarded, on account of their being potentially addressed to an international audience. Still, many inconsistencies, obfuscations, and equivocations are to be found in several places, specially in the areas of freedom of thought, treatment of non-Muslims, and women's rights. For example, whereas the English version of article XX(a) of the Universal Islamic Declaration of Human Rights (UIDHR) says that the husband owes his wife means of support "in the event of divorce", the Arabic version of the same article uses the phrase "if he divorces her". What the English version passes over in silence is, of course, the troublesome problem of "the unconditional right to divorce", which Shari'a has always given to men. In addition, the Arabic version invokes the notion of qiwamah (authority which men have over women), something which the English version omits altogether.

This is not the place to discuss Islamic human rights schemes, nor the circumstances, pressures, and compromises which gave rise to them. Suffice it to say that many concepts are not understood in the same way by conservative Islamists and human rights advocates who often stand on secular grounds. To the Ash'arite -minded thinker, "the law" simply means (or ought to mean) the Law of Shari'a. Thus when he welcomes the modern-sounding notion of "equality before the law" he is in fact welcoming the not-so-modern notion of "equality before Shari'a". As Mayer says:

"...they took the position that equality before the law meant that all Muslims should be treated equally under Shari'a and that all non-Muslims should also be treated equally under Shari'a - not that Muslims and non-Muslims should be treated alike, or accorded the same rights under the law." (Mayer 1991, 98)

None of this, however, should blind one to the wide variety of rights and protections which Shari'a affords -even when it is conservatively understood. In addition to the rights mentioned above in connection with Mawdudi, one should mention social and economic rights, which individuals can press against the state, and society as a whole, on the basis of fairly unequivocal verses in the Qur'an ("...[save] those in whose wealth is a right known for the beggar and outcast" [LXX, 25]). Individuals also have rights not only during times of peace, but also during times of war and instability -such as the right of asylum, which Shari'a extends even to unbelievers ("And if any of the idolaters seeks of thee protection, grant him protection till he hears the words of God, then do thou convey him to his place of security..." [IX, 6]).

Equally significantly, individuals have political rights, such as the right to oppose the unjust ruler, on the strength of the Prophetic tradition which says: "There is no obedience to a creature in sin against the Creator." The Universal Islamic Declaration of Human Rights goes as far as to make democracy (at least in theory) a human right. According to article XI of the UIDHR, "The process of free consultation (shura) is the basis of the administrative relationship between government and the people. People also have the right to choose and remove their rulers in accordance with this principle."

Despite all these positive provisions, the scheme of individual rights and protections which Ash'arite-minded thinkers offer leaves many things to be desired, at least from the perspective of those who want Islamic human rights to conform fully to international standards. Such is the attitude of the contemporary Islamic thinker Abdullahi an-Na'im, whose approach to ethics, and whose daring views on how to interpret Shari'a are reminiscent of Mu'tazilism at its best. Of course, he accepts all the non-controversial provisions which Shari'a has to offer, but he pushes reform further, to the extent wanting to bring Islamic legislation to full correspondence with international human rights provisions.

Not only is Abdullahi an-Na'im a rationalist thinker when it comes to ethical theory, but he is also a historical-minded thinker. Following his teacher Mahmoud Taha, he distinguishes between two stages of Islamic religious development. During the first (Meccan) stage, when it was still a weak and persecuted religion, Islam presented itself as a simple spiritual message which recognized the dignity and humanity of all persons, without reference to gender or religious belief. During the second (Medinan) stage, however, the victorious Islam formed a polity which needed to be governed in specific ways - ways that were appropriate to the then-prevailing historical conditions.

According to the author:

"Unless the basis of modern Islamic law is shifted away from those texts of the Qur`an and Sunnah of the Medina stage, which constituted the foundations of the constructions of Shari`a, there is no way of avoiding drastic and serious violation of human rights. There is no way to abolish slavery as a legal institution and no way to eliminate all forms and shades of discrimination against women and non-Muslims as long as we remain bound by the framework of Shari`a." (An-Na'im 1990, 179)

An-Na'im, in effect, proposes a new Shari'a, one that is based on the earlier Islamic message, which is described elsewhere as "the eternal and fundamental message of Islam". (An-Na'im 1990, 52) To give an impression of the content of this essentially ethical-humanistic message, consider the following verses from an early Meccan sura:

Say: "Come, I will recite what your Lord has forbidden you: that you associate not anything with Him, and to be good to your parents, and not to slay you children because of poverty; We will provide you and them; and that you approach not any indecency outward or inward, and that you slay not the soul God has forbidden, except by right. That then He has charged you ; haply you will understand. And that you approach not the property of the orphan, save in the fairer manner, until he is of age. And fill up the measure and the balance with justice. We charge not any soul save to its capacity. And when you speak, be just, even if it should be to near kinsman. And fulfill God's covenant. That He has charged you; haply will remember." (8) (VI, 150-151)

An-Na'im relies on a "principle of reciprocity", by which we are enjoined not to deny others rights which we believe we are entitled to. This principle underlies the universality of human rights, and is to be found in all the major religious traditions, including Islam:

"...[T]here is a common normative principle shared by all the major cultural traditions which, if construed in an enlightened manner, is capable of sustaining universal standards of human rights. That is the principle that one should treat other people as he or she wishes to be treated by them. This golden rule, referred to as the principle of reciprocity, is shared by all the major religions traditions of the world. Moreover, the moral and logical force of this simple proposition can easily be appreciated by all human beings of whatever cultural tradition or philosophical persuasion." (9) (An-Na'im 1990, 163)

Arguing in this manner, an-Na'im invokes the ethical-humanistic Meccan texts, and looks for contextual explanations for the Medinan texts which enable him to put them aside as being inappropriate to modern conditions. In this way an-Na'im arrives at a "reformed" Shari'a which bans slavery, recognizes equality of men and women, and grants full citizenship rights to all citizens, regardless religious affiliation

In summary, we can say that the Shari'a offers a rich and varied field in which human rights can be grounded. Depending on how Shari'a is interpreted, there may be limitations, serious omissions, and shortcomings which our modern ethical sensibilities cannot accept. But one probably should not judge Islamic Shari'a (or other religious traditions, for that matter) harshly. After all, we could not have been able to entertain the vision of one humanity, whose members are equal in worth and dignity, endowed with inalienable human rights, regardless of gender, race, or social position, had we not "stood on the shoulders" of prophets, who were the first to announce the equality of all humans in the sight of God, their Creator.

V. The Scope of Islamic Constitutionalism: Separation of Powers

We turn now to the question of the internal workings of government, as viewed by Shari'a. The first thing to notice here is that Shari'a (as it has been understood and practiced until very recently) does not offer a doctrine of the "separation of powers". This should come as no surprise, for the (Western) doctrine of the separation of powers is itself of recent origin; moreover, Islamic traditional Shari'a did not conceive of distinct governmental powers that could be separated from each other, in the first place.

Of course, there is no reason why contemporary Shari'a thinkers cannot take up the challenge to formulate a position with respect to the operation of the different branches of government. But before we look at the prospects for accomplishing this task, and the possible picture that can emerge from it, it may be useful to look the political theory which Mawardi (d. 1031) formulates. In some ways, Mawardi's theory represents the "political sphere", as conceived of by traditional Shari'a.

Mawardi considers (or, at least, seems to consider) the caliphate to be an elective office. There is some disagreement about the number of the "electors", according to Mawardi, with some saying "the generality" throughout the land, some saying five, some saying at least one. Moreover, "Investment by the nomination of a predecessor is permissible and correct". This is based on the precedent of Abu Bakr (the first caliph) who nominated 'Umar for the caliphate. (Mawardi 1996, 9)

Beyond mentioning the qualifications which the electors should have, such as probity, knowledge and prudence, Mawardi does not say how the electors are to be chosen. Given the important role which the electors (can) play, failure to discuss how they are chosen is not a minor omission.

Allegiance to the caliph is not an absolute, unconditional duty of the subjects. In fact, there are two circumstances where the caliph may be disqualified: lack of justice, and physical disability. "An incumbent so disqualified must step down and may not be reinstated upon regaining probity without new appointment." (Mawardi 1996, 17) But here, again, Mawardi does not deal with the question of who determines, and by what procedure, whether the ruler has become illegitimate as a result of his lack of justice or otherwise. According to Bernard Lewis, this is "the crucial question which a modern constitutional lawyer would put". (Lewis 1988, 94)

Lewis's remark draws attention to the question of the sort of constitution, if any, which a Shari'a-based regime can have. In recent decades, modern Islamic thinkers have begun to discuss this question, after they absorbed the lesson that a modern Islamic state, like other modern states, would have to have different (separate) branches of government (executive, legislative, and judiciary), as well as different types of law (constitutional, criminal, administrative, public, ...etc.)

Concern with the structure and inner workings of government has reached a considerable degree of maturity in the theories and proposals of the Islamic thinkers who have grappled seriously with the question democracy (or popular government). Among such thinkers, Ghannouchi, Turabi, Mawdudi, and Khatami, are probably the best-known.

Mawdudi may be consulted here, despite his conservatism, because he offers a clear treatment of these questions. In his Tadwin al-Dustoor al-Islami (Codification of the Islamic constitution) Mawdudi recognizes an existing but "unwritten" Islamic constitution, and in his al-Qanun al-Islami (Islamic law) he explains the various types of law (constitutional and other) which Islamic law-makers need to design.

Paving the way for a discussion of the meaning and role of the parliament ("legislative assembly") in the Islamic regime, Mawdudi (along with other Islamic thinkers) takes the decisive step of espousing popular government, where people freely elect those who are to represent them. This is prefaced by some pious remarks, which need not detain us here (10), about "sovereignty" being retained by God (and God alone), while the people (as a whole) act as "vice-regents":

"The Qur'an has established that the caliphate ... is not a right that inheres in a certain individual, or family or class. It is a right which belongs to all those who recognize divine sovereignty, and who believe in the supremacy of divine law. .... This feature makes the Islamic caliphate democratic, in contrast to caesarism, papism, or theocracy, as known in the West. It must also be recognized that the system which is called democracy in the West is not one that allows the people to be sovereign. Our [Islamic] democratic system, which we call the "caliphate", allows the people to be vice-regents of God, while reserving the sovereignty to God alone." (Mawdudi 1975b, 25)

Mawdudi is not alone in his espousal of the democratic method of government. Similar positions have been taken by both Turabi and Ghannouchi. Having recognized the right which people have to elect the caliph, it is not a great additional step to recognize the right of the people to elect "representatives" who would have the task of voicing people's concerns, and watching over the executive power, which is represented by the caliph and his officers.

With two organs of government on hand, the question immediately arises as to the relation between them. Adapting an ancient term to modern usage, Mawdudi often refers to members of the parliament as "those who lose and bind" (ahl al-hal wa al-'aqd), and he raises the question of what position they have, whether they serve as mere consultants to the caliph, or whether the caliph is "bound" by what they decide. His answer is that "...we have no choice but to make the executive power subject to the majority decision of the legislative council." (Mawdudi 1975b, 38)

The question of whether the executive power should be subject to the authority of the parliament (or the legislative council) is not the most interesting question that discussions of Islamic constitutionalism give rise to. Most "Islamic democrats", if they may be thus referred to, answer the question in the affirmative, and then proceed to discuss another, more serious and (to us) interesting matter: the question of the limits of the legislative power.

With this question we finally reach a point on which modern Western constitutionalists (some of them, at least) see eye to eye with Islamic constitutionalists. In both cases there is a concern with the possibility that the legislative power may legislate that which is not fair or right.

We have already quoted Elster as saying that constitutionalism fights a "two-front war": against the executive branch of government, which is liable to ask for much discretion in the interest of efficient government, and the legislative branch, which may give rise to oppressive or foolish majorities. The greatest fear which Islamic constitutionalists (and democrats) have is that the legislative branch may legislate something which inconsistent with Shari'a. For this reason many of them reject out of hand the notion of an "unqualified popular sovereignty". This can be illustrated by reference to the writings of Ghannouchi and Turabi. According to the former:

"In the Qur'an it is stated: 'O believers, obey God, and obey the Messenger and those in authority over you.' (IV, 59) ....[This verse] clearly indicates the center of supreme authority in the lives of Muslims ... After this comes the power which the people exercise. The legitimate scope for this power does not violate divine law which is found in the Qur'an and the Traditions of the Messenger." (Ghannouchi 1993, 119)

Turabi, on the other hand, says:

"Naturally, there is no place in Islam for a popular government which is separated from the Faith. ... Democracy in Islam does not mean absolute popular power, but rather popular power in accordance with Shari`a" (Turabi 1987,63-64, 67)

Very often, Arab secularists who consider themselves to be supporters of democracy do not seem to realize the need for placing constitutional restrictions on power of the legislative assembly. They fail to distinguish between democracy, pure and simple (which can degenerate into populism or anarchy), and constitutional democracy, which (presumably) has inherent protections against such failures. To them the qualifications which Ghannouchi and Turabi impose on the power of the legislative branch is a violation of democracy. It is also taken as evidence of the spuriousness of the Islamic claim to democracy.

We shall not discuss here the various concepts of democracy in relation to secularism, since we are mainly concerned with constitutionalism. (More about this matter in the final section of this chapter.) What we need to focus on is the significance of the restrictions which Islamic democrats are willing to place on the power of the legislative branch of government.

Now it is fairly obvious that an agency is needed in order to review the legislation which the legislative branch of government can propose and approve. The most natural way to conceptualize this function is in terms of a third branch of government, to wit, a judiciary branch, which includes a Supreme Court that could be charged with the task of dealing with constitutional matters. It is here that critics begin to see threats to the very concept of democracy. It is also here that Islamic constitutionalism has to step carefully, if it is to succeed in avoiding this charge.

It is instructive to look at the way these matters are dealt with in the constitution of the Islamic Republic of Iran. This constitution probably represents the first attempt that has ever been made to write a detailed, workable constitution from an Islamic point of view. Here are some of the relevant articles (Blaustein 1986):

"All civil, penal, financial, administrative, cultural, military, political laws and regulations, as well as other laws or regulations, should be based on Islamic principles. This principle will in general prevail over all of the principles of the constitution, and other laws and regulations as well. Any judgment in regard to this will be made by the clerical members of the Council of Guardians." (Article 4)

"The Islamic Consultative Assembly cannot enact laws contrary to the usul [fundamentals] and ahkam [judgments] of the official religion of the country or to the Constitution. It is the duty of the Guardian Council to determine whether a violation has occurred in accordance with Article 96." (Article 72)

"The determination of compatibility of the legislation passed by the Islamic Consultative Assembly with the laws of Islam rests with the majority vote of the fuqaha' of the Guardian Council; and the determination of its compatibility with the Constitution rests with the majority of all the members of the Guardian Council." (Article 96)

The Guardian Council is not a popularly elected body. The clerical members, who are six in number, are appointed by the religious Leader, while the remaining six are nominated by head of the Judiciary Power, who is appointed by the Leader. This moves Mayer to says: "In consequence, not even constitutional rights guarantees can have force should the clerics... decide that those guarantees are not based on Islamic principles." (Mayer 1991, 37)

At this stage Islamic constitutionalists find themselves facing problems, which (in all fairness) must not be thought of as being radically different from the ones that are being discussed by contemporary Western thinkers. For if Islamic thinkers were to make the Supreme Court or the "guardian council" (or any agency that is entrusted with the task of deciding on constitutional matters) completely subject to the will of the legislative branch, this will tilt the balance of power towards the legislative, with all the attendant fears of oppressive, unenlightened, or wayward majority rule. But, on the other hand, if "the guardian council" is made completely independent of the popular will, won't this rob democracy of its very meaning, which is "government by the people"?

There are no easy, obvious, or perfect solutions to these problems, which are discussed at length in Mawdudi's Tadwin al-Dustoor al-Islami. It is instructive to follow his train of thought on this matter, because it is representative of the ideals which move many Islamic thinkers.

He begins by reflecting on the Islamic "golden age", the period of the "the rightly-guided caliphs" (al-khulafa'u al-rashidun). In those times the caliph could be the head of three different offices- the caliphate, the judges, and ahl al-hal wa al-'aqd. (Mawdudi seems to think of these as Islamic prototypes of the modern branches of government.) This is because the men who lived back then were men of a special type: the caliphs were (as their name suggests) "rightly-guided" (by God, of course), and "those who bind and lose" were no ordinary politicians --they were wise, truthful, trustworthy, well-qualified and distinguished by their work for Islam.

Mawdudi finds no precedent, during the period of the rightly-guided caliphs, of the judges overruling judgments made by ahl al-hal wa al-'aqd. But the reason for this, according to Mawdudi, is that members of the latter group (headed by the caliph) were men of great insight. They were simply incapable of producing legislation that contravened the Qur'an or Prophetic practice. (Mawdudi 1975b, 35) During this period, also, the advice of ahl al-hal wa al-'aqd to the caliph was not always binding. The first caliph waged war against the apostates (al-murtaddin) despite advice to the contrary. The caliph was perceptive enough, and his companions had faith in his good judgment, so that all things went well.(Mawdudi 1975b, 37)

Mawdudi recognizes that the golden age of Islamic "civic virtue" is gone forever, that different times requires different methods. But this is clearly his ideal. Short of attaining this ideal, he suggests resort to plebiscites in cases of irresolvable conflict between the legislative and the executive branches of government. (Mawdudi 1975b, 38) It is also clear that "public opinion", led and articulated by ahl al-hal wa al-'aqd, carries considerable weight for Mawdudi. Ahl al-hal wa al-'aqd, who play a vital role in the public affairs of the polity, are distinguished primarily by their standing with the people in the community. They are held in esteem not as a consequence of their wealth or inherited position, but on account of their courage, wisdom, dedication to Islam, and public service to the community.

Viewed in a certain way, Mawdudi's position offers insight into the basic concerns which Islamic constitutionalism tries to address. On the one hand, Islamic constitutionalism is concerned that neither the executive, nor the legislative branch of government act in ways that contravene Shari'a. Yet there is a reluctance to place all authority in the hands of one person, or agency, as evidenced by the willingness to have decisive power "devolve" to the community, which is to led by ahl al-hal wa al-'aqd, who possess Islamic "civic virtue".

VI. Concluding Remarks: No Place for Secularism

The object of these final remarks is to tie some loose ends, and deal with some unanswered questions. Constitutionalism, democracy, and the separation of powers are closely connected in concept and in practice. In the West all of them haven arisen in the context of secularism, which (as some have argued) is presupposed by all three. Since all (or most) Islamic thinkers firmly reject secularism, questions often arise as to how one can speak of Islam, constitutionalism, and democracy in the same breath.

How can the Islamic regime be democratic, if it is not secular? Democracy requires giving citizens equal political rights, but it strains credulity to think that it is possible for the head of the Islamic state to be a Christian, a Jew, or an atheist. Therefore Islam is incompatible with democracy. Constitutionalism, on the other hand, requires democracy, for it is hard to think how individual rights can be protected, how government can be kept in check, if the political regime is not democratic. Thus constitutionalism presupposes democracy and democracy presupposes secularism, which means that constitutionalism, too, presupposes secularism. But Islam rejects secularism. It follows that Islam is incompatible with both democracy and constitutionalism.

Obviously, secularism is what lies at the heart of the problem here. Unless a way is found to put secularism aside as being only contingently related to democracy and constitutionalism, there may be no way to combine Islam with either of the latter two. Let us look at how some contemporary Islamic democrats propose to deal with these problems.

Simply stated, the basic logical move which some Islamic democrats propose is to view democracy as a "doctrine of procedure", a method for dispensing, sharing, and managing political power. This way of viewing democracy has been classically expressed by Schumpeter in these words:

"Democracy is a political method, that is to say, a certain type of institutional arrangement for arriving at political -legislative and administrative- decisions, and hence incapable of being an end in itself, irrespective of what decisions it will produce under given historical conditions." (Schumpeter 1976, 242)

According to Schumpeter's definition, democracy is neutral between ends and values which may prevail in this society or that, what Ghannouchi calls the "cultural milieu in which democracy may operate":

"It is possible for the mechanisms of democracy ... to operate in different cultural milieus.... Secularism, nationalism, ...and the deification of man ... are not inevitable consequences of democracy, inasmuch as this latter resolves itself into popular sovereignty, equality between citizens,... [and] recognition of the majority' s right to rule. There is nothing in these procedures which necessarily conflicts with Islamic values. (Ghannouchi 1993, 88)

The conceptually innovative move which Ghannouchi and others, such as Khatami (Khatami 1998, 103) make lies in their claim that democracy as such is only contingently related to the abhorred doctrine of secularism. Democracy means popular sovereignty, political equality, representative government, and majority rule. None of these things spell secularism. Hence there is no call (from an Islamic point of view) for rejecting democracy.

Believing that an Islamic society will want to live in an Islamic way, Ghannouchi welcomes free elections. His attitude toward political pluralism, party competition, parliamentary debates, and other aspects of democratic practice is equally welcoming. For he imagines that all the competition, opposition and debate will take place within limits set by a national consensus on an Islamic constitution. If and when this consensus comes into being, there may be groups of people who stand outside it, unable to agree on the basic assumptions and values which are to govern the social structure. Ghannouchi does not call for suppressing these groups. His wager is that "civil society will see to it that such groups will remain marginal, [so] there will be no need to resort to state power [in order to "contain" them]." (Ghannouchi 1993, 295)

That pluralism and opposition (so characteristic of democratic practice, as it is customarily understood) take place within the framework of a basic constitutional consensus is not an original insight on the part of Islamic writers who are engaged in examining the presuppositions of democracy. Many Western political writers recognize this. According to Esposito and Voll:

"In standard modern Western political thought, acceptable opposition in a democratic system is closely tied to the concept of a constitutional government, in which there is an underlying, fundamental consensus on the "rules of the game" of politics. Opposition is the legitimate disagreement with particular policies of specific leaders within the mutually accepted framework of the principles of an underlying constitution that is either written or based on long-established practice." (Esposito and Voll 1996, 36)

This is something which Islamic thinkers can heartily agree with. In their case, however, the constitution derives from the basic principles of the faith. This is all too evident in the case of Turabi, who clearly understands the logic of "government and loyal opposition", as it is practiced in Western democracy:

"Such a consensus on the foundations,...in whose light specific policies may be debated, is a condition for the stability of all democratic systems. This is how Western democracies have achieved their stability: the people, through a process of cultural and political development, have eventually reached a consensus on the foundations, and have succeeded in isolating the matters which are subject to consultation and parliamentary debate. [Thus] when we look at partisan debates in Western democratic countries we find that the debates take place within an established [constitutional] framework. For example, the difference between Labor and the Conservatives in Britain is very limited, and so is the difference between the Republican and Democratic Parties in America." (Turabi 1987, 68)

This is, then, the Islamic "take" on democracy. Islamic democrats propose to free democracy from secularism, to take the former, and leave the other behind. This proposal also goes along way toward solving (or alleviating) the perceived conflict (if any) between Islam and constitutionalism.

Standing on Islamic ground, an Islamic democrat may follow the path taken by An-Na'im, which is to accept all international bills which have to do with human rights. Such an Islamic democrat must expect to hear much criticism from other Islamic quarters-criticisms to the effect that conformity to all international human rights bills is bound to dilute Islam beyond recognition, that acceptance of these bills is just a polite way of rejecting Islam altogether.

Be that as it may, it is also possible for Islamic democrats to insist on culturally more specific conceptions of rights, while rejecting secularism on the strength of independent philosophical arguments. Many philosophers have argued, and continue to argue, that the universality of human rights is a fiction. According to Rorty, for example, there are no universal "foundations" for human rights-- not An-Na'im's rule of reciprocity, not Kant's categorical imperative, nor Plato's rationality. It is all a matter of social facts: "nothing relevant to moral choice separates human beings from animals, except historically contingent facts of the world, cultural facts." (Rorty 1994, 170) This view of morality is shared by Walzer who claims that

"We cannot say what is due to this person or that one until we know how these people relate to one another through the things they make and distribute. ...A given society is just if its substantive life is lived in a certain way -- that is, in a way faithful to the shared understandings of the members. ...Every substantive account of distributive justice is a local account." (Walzer 1995, 312-313, 314)

As far as (some) Islamic thinkers are concerned, secularism (and other "modern" values that are associated with it, such as rationalism, utilitarianism, belief in science etc.) is a philosophy, one among many from which one can choose. It is a philosophy which says that religion is not a "good" way (is not the "right" way) to employ when it comes to ordering society. Islam is another type of philosophy. Each has its view of human life, rights and obligations.

If rights and duties (to some degree, at least) are socially and culturally specific, if we are not in possession of universally accepted arguments for all the rights and protections which human beings are entitled to - if this is the case, then it stands to reason to think that constitutionalism is (or can be) realized differently in different societies, each according to its conception of rights and obligations. This should make room for a certain brand of constitutionalism-call it Islamic constitutionalism-which is in some ways different from, in some ways similar to constitutionalism as understood in the West.?

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Notes

1. In Gallie's sense, a term is "essentially contested" when there are disputes about the use of the term -- disputes "which, although not resolvable by arguments of any kind, are nevertheless sustained by perfectly respectable arguments and evidence." (Gallie 1964, 14)

2. These two ideas are succinctly expressed in Article 16 of The Declaration of the Rights of Man and the Citizen (1789): "A society in which rights are not secured nor the separation of powers established is a society without a constitution." (Finer 1979, 271)

3. Bernard Lewis (1993), Quoted in Lipset (1994), 6. italics added

4. al-Bishri (1996) p. 121. Cf. Ayubi's remark that "... [the Islamists] are thus after a kind of 'nomocracy', not the reign of any particular group in particular (democracy, aristocracy or, for that matter, theocracy)." (Ayubi [1991], p. 218)

5. See Cotta (1983), pp. 265-285 for a discussion of the meaning and role of positive law in relation to natural law. According to Cotta, the "positivity" of positive law has to do with the fact that it is "factually enacted". (Cotta [1983], p. 267). Compare this with what Schacht says about the Islamic law: "It follows from the heteronymous and irrational side of Islamic law that its rules are valid by virtue of their mere existence and not by virtue of their rationality." (Schacht [1964], p. 203, italics added) I take factuality and mere existence to be nearly synonymous in the present context.

6. Schacht prefers to speak of the "irrationality" of Islamic law (see note 5 above.) But I think "non-rationality" will serve the purpose better. That which does not belong to reason need not, therefore, be opposed to reason, which is what the term "irrationality" suggests.

7. 'Abd al-Jabbar (1962), vol. 6, pt.1, p. 64. I follow Hourani's translation, in Hourani (1972), p. 111.

8. I have used the Arberry translation (Arberry 1964, 140).

9. It is not obvious that the principle of reciprocity, or the golden rule, as explained by An-Na'im, is sufficient as a basis for universal morality. It does indeed deliver the correct judgment in the case of the sadist who does not wish to be tortured, or the robber who wishes not to be robbed. But the sado-masochist survives the test of reciprocity; so does the robber who self-consistently refuses to condemn robbery, no matter who is affected by it. Yet (presumably) sadism and robbery are unethical.

10. I have discussed elsewhere the supposed conflict between "divine sovereignty" and "popular sovereignty". This is a meeting ground (almost the only one) for secularists and Islamic conservatives who, for their own very different reasons, want to keep Islam and democracy apart. See Bahlul (2000a, pp. 24-26, 42-48) and Bahlul (2000b, 287-297)