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Islamic constitutional law, also known as Sharia or Shariah, governs the interpersonal conduct and regulates the ritual practices of Muslims. In some countries, it is the governing law, while others apply it to specific areas such as personal status or finance. Islamic constitutional law is based on the logic that since Muslims accept God's sovereignty, they must also accept the sovereignty of men who speak for God. However, this assumption has been criticised for its unverifiability and the potential for conflicting interpretations. Islamic constitutional law varies widely, with some advocating for a complete and uncompromising implementation of exact/pure Sharia, while others argue for its compatibility with human rights, democracy, minority rights, freedom of thought, and women's rights.
| Characteristics | Values |
|---|---|
| Basis of legislation | Sharia |
| Separation of powers | Yes |
| Clear and stable laws | No |
| Judicial independence and judicial review | Yes |
| Equal access to justice | Yes |
| The state is bound by the law | Yes |
| Protection of basic human rights | No |
| Democratic principles | Pluralism and freedom of thought |
| Religious democracy | Tolerance and justice |
| Reexamination of religious understanding | Yes |
| Influence of traditional laws | European models |
| Influence of criminal codes | Civil law, common law, or a combination of Western legal traditions |
| Constitutional consequences of Sharia | Bahrain, Iran, Pakistan, and Saudi Arabia |
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What You'll Learn
Islamic constitutionalism and the rule of law
Islamic constitutionalism is a topic that has been widely debated in the Islamic world. The role and interpretation of Sharia in the 21st century have become a central topic of discussion. Fundamentalists advocate for a complete implementation of "pure Sharia", while modernists argue for its reinterpretation in line with human rights, democracy, minority rights, freedom of thought, and women's rights.
Al-Azhar, a highly respected Sunni religious institution, has developed a model of an Islamic constitution. This constitution, however, has been criticised for not adhering to essential concepts of the rule of law. The powers vested in the head of the Islamic state, often referred to as the Imam, are vast, giving the executive branch superiority over the legislative and judicial branches. The constitution also explicitly discriminates against women and non-Muslims. Additionally, the laws stemming from this constitution lack stability due to differences among schools of Islamic jurisprudence.
The constitutions of many Muslim-majority countries refer to Sharia as a source of law, but the extent of its influence varies. Some countries, like Saudi Arabia and certain Persian Gulf states, have classical Sharia systems, where national law is closely tied to Sharia, with traditional Islamic scholars (ulema) playing a crucial interpretive role. Other countries, like Iran, have adopted a mix of classical and codified legal systems.
Islamic liberals argue for the constant re-examination of religious understanding, which they believe can only be achieved in a democratic context. Authors like Fahmi Huwaidi and Tariq al-Bishri have constructed Islamic justifications for full citizenship of non-Muslims in an Islamic state, emphasising pluralism and freedom of thought. Abdolkarim Soroush has proposed the concept of a "religious democracy", advocating for a religious thought that is democratic, tolerant, and just.
In conclusion, while Islamic constitutionalism varies across different Muslim-majority countries, the relationship between Islamic perspectives and the rule of law remains a complex and evolving topic. The interpretation and implementation of Sharia continue to be a subject of debate, with some advocating for traditional interpretations and others calling for a more modernist approach that aligns with human rights and democratic values.
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The role of the Imam
Islamic constitutional law is a complex and multifaceted topic that varies across different Muslim-majority countries. While the constitutions of these countries may refer to Sharia as a source of law, the interpretation and implementation of Sharia can vary significantly.
The Imam plays a significant role in Islamic constitutional law, particularly in classical Sharia systems. The Imam is the head of the Islamic state and holds enormous powers, making the executive branch of the government superior to the legislative and judicial branches. The Imam's authority is established through the act of Bay'ah, where followers pledge their loyalty, devotion, and obedience, uniting Ismaili Muslims worldwide.
Historically, the Imam's role has been concerned with both the spiritual advancement and the improvement of the quality of life of their followers. They have ruled over territories and peoples, providing rules of conduct and constitutions that conform to Islamic concepts of unity, brotherhood, justice, tolerance, and goodwill.
In classical Sharia systems, such as those found in Saudi Arabia and some Persian Gulf states, the Imam plays a decisive role in interpreting Sharia law. However, in mixed legal systems, the central legislative role is typically played by politicians and modern jurists rather than traditional Islamic scholars.
The interpretation and application of Sharia law can be influenced by various factors, including the preferences of specific societies and governments, as well as the views of Islamic scholars and Imams. Legal schools of Sunni Islam, such as Hanafi, Maliki, Shafi'i, and Hanbali, have developed methodologies for deriving rulings from scriptural sources using processes like ijtihad.
While some fundamentalists advocate for the complete implementation of "pure Sharia," modernists argue for interpreting Sharia in line with human rights, democracy, minority rights, freedom of thought, women's rights, and contemporary issues. The role of the Imam, therefore, involves navigating these differing interpretations and applying Sharia law accordingly.
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Sharia in the 21st century
Sharia, or Shariah, is a body of religious law that forms part of the Islamic tradition, based on scriptures of Islam, particularly the Quran and hadith. In the 21st century, Sharia is the source of Muslim personal law in most Muslim societies, despite being the state law in no more than 15 countries.
The role and mutability of Sharia in a changing world has become an increasingly debated topic in Islam. This debate centres on whether the religious tenet of tajdid allows for practices under Sharia to be modified or eliminated. Fundamentalists advocate the complete and uncompromising implementation of "pure Sharia", while modernists argue that it should be brought into line with human rights and contemporary issues such as democracy, minority rights, freedom of thought, women's rights, and banking. Some practices of Sharia have been deemed incompatible with human rights, gender equality, and freedom of speech and expression.
Islamic liberals argue for the necessity of the constant re-examination of religious understanding, which can only be done in a democratic context. Authors like Fahmi Huwaidi and Tariq al-Bishri have constructed Islamic justifications for full citizenship of non-Muslims in an Islamic state. Others, like Mohammed Arkoun and Nasr Hamid Abu Zayd, have justified pluralism and freedom through non-literalist approaches to textual interpretation.
In Muslim-majority countries, traditional laws have been widely used or changed by European models, and judicial procedures and legal education have been brought in line with European practices. While the constitutions of most Muslim-majority states contain references to Sharia, its rules are largely retained only in family law and penalties in some. In some Muslim countries, such as Afghanistan, Iran, Nigeria, and Pakistan, debates about Sharia have been intense and even violent.
In mixed legal systems, Sharia rules are allowed to influence some national laws, which are codified and may be based on European or Indian models. Saudi Arabia and some other Persian Gulf states possess classical Sharia systems, where national law is largely uncodified and formally equated with Sharia, with traditional Islamic scholars playing a decisive role in its interpretation. Iran has adopted some features of classical Sharia systems while also maintaining characteristics of mixed systems, such as codified laws and a parliament.
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Hudud criminal punishments
Hudud is an Arabic word meaning "borders, boundaries, limits". Hudud punishments refer to a set of criminal punishments prescribed for certain crimes in classical Islamic literature. These punishments include public lashing, public stoning to death, amputation of hands and feet, crucifixion, and whipping. The crimes that warrant these punishments include murder, adultery, slander, theft, highway robbery, and the drinking of alcohol.
Hudud punishments are derived from the Quran and the Sunnah, and they are considered to be set by Allah. In the early Islamic period, criminal cases were often handled by ruler-administered courts or local police using procedures that were only loosely related to Sharia. During the 19th century, Sharia-based criminal laws were replaced by statutes inspired by European models in most of the Islamic world.
In recent decades, there has been a push by Islamist movements to reintroduce hudud punishments. By 2013, about a dozen of the 50 or so Muslim-majority countries had made hudud applicable, although many have disregarded traditional strict requirements. Enforcement of hudud punishments varies from country to country. For example, in 2014, Brunei adopted hudud laws, while in Pakistan and Libya, hudud punishments have not been applied due to strict requirements.
Hudud is not the only form of punishment under Sharia law. For offences against man that involve inflicting bodily harm, Islamic law prescribes retaliatory punishment (qisas) or monetary compensation (diya). For other crimes, the form of punishment is left to the judge's discretion (ta'zir).
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Islamic liberalism
The methodologies of liberal and progressive Islam involve the re-interpretation of traditional Islamic sacred scriptures (the Quran) and other texts (the Hadith), a process called ijtihad. This re-interpretation can vary from minor to fundamental changes. For example, liberal Muslims may interpret the Quran as a revelation whose expression in words is the work of the Islamic prophet Muhammad in his particular time and context. Liberal Muslims see themselves as returning to the principles of the early ummah and promoting the ethical and pluralistic intent of the Quran. They argue for the necessity of constant re-examination of religious understanding, which can only be done in a democratic context.
In the context of Sharia law, modernists argue for bringing it into line with human rights and contemporary issues such as democracy, minority rights, freedom of thought, and banking. They emphasize that some practices of Sharia have been deemed incompatible with human rights, gender equality, and freedom of speech and expression. In Muslim-majority countries, traditional laws have been widely influenced by or changed to align with European models. Judicial procedures and legal education in these countries have also been brought in line with European practices.
While Islamic liberalism promotes progressive values, some traditional fundamentalist Muslims criticize liberal Muslims for being too Western and rationalistic. They view liberalism as incompatible with Islam, arguing that it reduces Islamic values to the opposite of liberal values. However, it is important to note that liberalism and progressivism within Islam are complex and varied, and not all liberal Muslims hold the same beliefs or interpretations. The influence of liberalism on Islam is particularly pronounced in Western societies, where Muslims have been impacted by liberal intellectual traditions.
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Frequently asked questions
Islamic constitutional law, also known as Sharia law, governs interpersonal conduct and regulates the ritual practices of Muslims.
Islamic constitutional law is based on the logic that Muslims, accepting the ultimate sovereignty of God, must also accept the sovereignty of men who speak for God. The powers vested in the Imam (head of the Islamic state) are enormous, and the legal authority of ijma (consensus) is second only to the Quran and Sunnah.
Islamic constitutional law varies widely across countries. Saudi Arabia and some Persian Gulf states have classical Sharia systems, with national law largely uncodified and formally equated with Sharia. Iran has a mixed system, with codified laws and a parliament, but also some features of classical Sharia systems. Muslim-majority countries generally have criminal codes influenced by civil law, common law, or a combination of both.
