In Search of Islamic Constitutionalism

Nadirsyah Hosen

While constitutionalism in the West is mostly identified with secular thought, Islamic constitutionalism, which incorporates some religious elements, has attracted growing interest in recent years. For instance, the Bush administration’s response to the events of 9/11 radically transformed the situation in Iraq and Afghanistan, and both countries are now rewriting their constitutions. As
Ann Elizabeth Mayer points out, Islamic constitutionalism is constitutionalism that is, in some form, based on Islamic principles, as opposed to the constitutionalism developed in countries that happen to be Muslim but which has not been informed by distinctively Islamic principles. Several Muslim scholars, among them Muhammad Asad3 and Abul A`la al-Maududi, have written on such aspects of constitutional issues as human rights and the separation of powers. However, in general their works fall into apologetics, as Chibli Mallat points out:
Whether for the classical age or for the contemporary Muslim world, scholarly research on public law must respect a set of axiomatic requirements.
First, the perusal of the tradition cannot be construed as a mere retrospective reading. By simply projecting present-day concepts backwards, it is all too easy to force the present into the past either in an apologetically contrived or haughtily dismissive manner. The approach is apologetic and contrived when Bills of Rights are read into, say, the Caliphate of `Umar, with the presupposition that the “just” qualities of `Umar included the complex and articulate precepts of constitutional balance one finds in modern texts

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