Const Polit Econ (2013) 24:5785 DOI 10.

1007/s10602-012-9132-5 ORIGINAL PAPER

Islamic constitutionalism and rule of law: a constitutional economics perspective

Moamen Gouda

Published online: 3 January 2013 Springer Science+Business Media New York 2012

Abstract This study investigates the relationship between Islamic constitutionalism and rule of law. Al Azhar, one of the most respected Sunni religious institutions in the world, developed a model of an Islamic constitution. This study uses Al-Azhars constitution as a model of Islamic constitutionalism and examines its stance in regard to the rule of law. We nd the Al-Azhars constitution to be incompatible with essential concepts of rule of law. For example, the powers vested in the head of the Islamic state are enormous, making the executive branch of government far superior to the legislative and judicial branches. Women and nonMuslims are explicitly discriminated against throughout the constitution. Moreover, laws stemming from this constitution are not stable since many differences exist among schools of Islamic jurisprudence (qh). Consequently, we show that state-ofthe-art Islamic constitutionalism lacks essential components needed in any constitution based on rule of law. Keywords Constitutionalism Rule of Law Sharia Islam Constitution H10 H11 K30 K39 Z12

JEL Classication

1 Introduction This study investigates the relationship between Islamic constitutionalism and the concept of rule of law. Islamic parties are becoming major players in writing new constitutions in Arab Spring countries. These Islamic parties have declared that, through drafting the new constitutions, they aim for more economic growth as well as
M. Gouda (&) Department of Institutional Economics, Faculty of Business Administration and Economics, t Marburg, Barfu ertor 2, 35037 Marburg, Germany Philipps-Universita e-mail: moamen27@yahoo.com

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more adherence to Islamic law (sharia). It is thus becomes essential to inquire whether constitutions based on sharia can achieve prosperity. Rule of law, described as a core institution at the base of free societies (Voigt 2005, p. 62), is often emphasized as an essential institution for economic development (Acemoglu et al. 2001; Rodrik et al. 2004). Arab Spring countries differ on many levels, most importantly in their institutions, which structure incentives in human exchange, whether political, social, or economic (North 1990, p. 3). Thus, it is presumed that new constitutions will reect such differences in their respective societies, resulting in discrepancies between the constitutions of each country. Although it is not clear at this stage what the nal form of these constitutions will be, it is evident that they will be more Islamic. But, how Islamic will they be? In other words, which version of Islam will dominate these constitutions? The role given to Islam varies considerably in the constitutions of Islamic countries, ranging from the puritanical models of Afghanistan and Iran to the more liberal ones of Tunisia and Egypt. Thus, it is far from obvious which Islamic model will be adopted in these new constitutions. Interestingly, Al Azhar, one of the oldest and most respected Sunni religious institutions in the world, developed an Islamic constitution with the purpose of making it available to any country that wishes to model itself after the Islamic sharia.. Facing the differences among Islamic sects, the preamble to Al-Azhars constitution states that the principles laid down in this constitution agree with those shared between the Islamic schools of law to the utmost extent possible. Since its completion in 1978, this Islamic constitution has received little attention from either policy makers in Islamic countries or legal scholars worldwide. Only recently did Islamic political movements in Egypt announce their desire to use this constitution as a model for the upcoming Egyptian constitution. Against this background, this study uses the Al-Azhar constitution as a model of Islamic constitutionalism. There are several reasons why it is important to analyze this constitution. First, to our knowledge, this is the only modern constitution to be developed by a religious entity with minimum interference from formal institutions of the state. Second, this constitution sums up Islamic legal thought on government and state, enabling researches from various elds of social science to analyze such thought more rigorously. Third, the committee responsible for the nal version of this constitution included members from different elds of specialization, many of them not Islamists per se. Fourth, the religious entity that supervised this constitution is considered by many as the most moderate entity in the Islamic world. Therefore, this constitution should represent a moderate version of contemporary Islamic thought. Fifth, the main reason for developing this constitution was to offer a guideline for any country desiring to model itself after the Islamic sharia. For this purpose, the constitution drafters did their best to make the constitution principles express a convergence of various legal schools of Islam. Consequently, the constitution analyzed in this study can be viewed as a median thesis of Islamic sharia. Sixth, as inuential political actors call for Egypts implementation of this constitution in the near future, our analysis might be timely and crucial at this inuential stage of political, legal, and economic transition in Arab Spring countries in general and in Egypt in particular. Although there is no set denition of the rule of law encompassing all its practices, there is agreement on its basic principles. These include: (1) separation of

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powers, (2) clear and stable laws, (3) judicial independence and judicial review, (4) equal access to justice, (5) the state being bound by the law, and (6) protection of basic human rights. Examining the Al-Azhar constitution in light of these six principles, we nd that it does not measure up well. For example, the powers vested in the imam (head of the Islamic state) are enormous, making the executive branch of government far superior to the legislative and judicial branches. Women and nonMuslims are discriminated against throughout the constitution, meaning that laws are not equally applied to every citizen of the Islamic state. As the constitution is based on Islamic sharia, laws stemming from it are not stable due to the many differences among schools of Islamic jurisprudence as to the methodology of interpretation of quran and sunna. Moreover, sharia has major discrepancies with contemporary notions of human rights, as severe punishments, including amputation of body parts, are inicted on those convicted of certain crimes. Thus, state-of-theart Islamic constitutionalism, represented by the Al-Azhar constitution, lacks components essential to any constitution based on rule of law. This study contributes to the constitutional economics literature by presenting and analyzing a unique constitution that is based solely on the teachings of a certain religion, largely diminishing the schism between formal and informal institutions. Nevertheless, empirical assessment of the effect of this constitution on rule of law in any Islamic state is impossible since the constitution, although it resonates with the constitutions of some Islamic countries such as Afghanistan and Iran, has not to date been enacted in any country. The study is divided to six sections. Section 2 focuses on dening concepts such as constitution, constitutionalism, and rule of law. Moreover, the link between the latter two concepts is explored. Section 3 presents the Islamic viewpoint on constitutionalism. This is accomplished through exploring the Islamic legal literature related to constitutionalism. Section 4 is divided to two parts, the rst provides an overview of the contemporary political situation in the Arab Spring countries, with a particular focus on Egypt. The second part takes a brief look at the extant literature on the Al-Azhar constitution. Section 5 is the heart of the study in which the provisions of the Al-Azhar constitution are analyzed from the contemporary perspective of rule of law. Concluding remarks are offered in Sect. 6.

2 On constitutionalism and rule of law The concept of constitutionalism dees easy denition or description (Fombad 2007; Sweet 2009, p. 623). Walker (1996, pp. 266, 267) denes constitutionalism as the set of beliefs related with the idea of constitutional government. Fombad (2007, p. 5) argues that constitutionalism rests on two fundamental pillars. The rst of these is the existence of certain restrictions imposed on the state, predominantly in its relations with citizens, based on a clearly dened set of core values. The second pillar is the existence of a clearly dened mechanism guaranteeing that the limitations on the government are enforced. Henkin (1998) denes constitutionalism more elaborately as constituting the following elements: (1) constitutional government; (2) separation of power among

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the executive, the legislative, and the judicial branch of state; (3) sovereignty of the people and democratic government; (4) constitutional review by the judiciary of legislative and executive acts; (5) an independent judiciary; (6) government subject to a bill of individual rights; (7) control of the police; (8) civilian control of the military; and (9) no state power, or very limited and strictly circumscribed state power, to defer the operation of some parts of, or the entire, constitution. In short, the essence of constitutionalism is restraint of the powers of state by law (Gordon 1999, p. 5; Friedrich 1950, p. 24). Mcllwain (2008, p. 21) sums up the different meanings of constitutionalism by stating that constitutionalism is a legal limitation on government; it is the antithesis of arbitrary rule; its opposite is despotic government, the government of will instead of law.1 According to Cooter (2000, p. 35), the rst aim of a constitution is to impose the rule of law and protect the liberty of citizens. Described by Tamanaha (2004) as the most important political ideal today, the rule of law concept nds its roots in the works of Aristotle, who treats the rule of law as an essential component of any regime worthy of the name (Frank 2007, p. 40). Tamanaha (2004, p. 4) and Louw (2007, p. 6) state that the rule of law has evolved from being associated with a certain country of origin to being a global imperative, which explains the vast amount of literature on the topic (Voigt 2009, p. 3). Most of the studies on rule of law dene the concept in different ways and from various historical contexts (Barnett 2011, p. 52). Taiwo (1999, p. 154) points out that [it] is very difcult to talk about the rule of law. There are almost as many conceptions of the rule of law as there are people defending it. Hamara (2009, p. 11) mentions that the only thing that seems agreed upon within rule of law discourse is that there is persistent disagreement within rule of law discourse. Nevertheless, in its most basic sense, rule of law refers to a society that is ruled by law, and not by those in power. The essence of rule of law, as Pek (2008), p. 1994) argues, is the nonexistence of arbitrary government power, protection of personal freedom, and respect for human dignity. According to Hayek (1960), laws should be general and equal (having an impersonal voice that is equally directed to unknown people and circumstances); abstract (not specially endorsing a certain behavior, but banning a limited number of actions); known and certain (enabling people to condently anticipate what they can expect from other members of society and to be certain that todays rules will not be
1

Note that constitutionalism can exist without a constitution and a constitution does not necessarily result in constitutionalism. For the former notion, Gordon (1999, p. 5) asserts that if constitutionalism is dened in terms of written constitutions embodying specic constraints and provisions such as the Bill of Rights in the US constitution, countries with no written constitution such as Israel, New Zealand, and the United Kingdom are automatically excluded. Nevertheless, these countries are not less constitutional than the United States. For the notion of a state with a constitution but with no constitutionalism, Sartori (1962, p. 861) argues that constitutions without constitutionalism are fac ade constitutions in the sense that such constitutions can declare inspiring principles and adopt specic power structures for government; but these provisions and principles are ineffective and potentially delegitimized because they are not actually followed. Zhang (2010, p. 950) presents China as an example of a constitutional state without constitutionalism. Zhang (2010, p. 951) states that Chinas Constitution lacks any meaningful mechanism of implementation, and is left unguarded against ofcial violations; it declares a long list of good ideals without the capacity to fulll any; one can easily nd unfullled promises and positive violations of constitutional norms in daily life.

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arbitrarily changed overnight); and rationally justiable. Several international organizations have attempted to dene what rule of law means. Ehm (2010, p. 7) compares these denitions and nds that certain principles are common to all of them. These principles are (1) independence and impartiality of the judiciary, (2) legal certainty, (3) non-discrimination and equality before the law, (4) respect for human rights, (5) separation of powers, (6) the state is bound by the law, and (7) the substantive consistency of the legal framework. Because the rule of law promotes stability, predictability, and consistency in private property rights as well freedom of contracts, it fosters a healthy market economy (Voigt 1998, p. 196; 2005, p. 62; Doering 2011, p. 12; Chukwumerije 2009, pp. 415416). Many studies emphasize the importance of rule of law to economic development and growth.2 According to Voigt (1998, p. 196) and Haggard et al. (2008, p. 206), there is a certain set of fundamental institutions necessary to maintain the rule of law. Such rule of law institutions are created via constitutional provisions. According to Buchanan (1987, p. 585), constitutional economics is an attempt to explain the working properties of alternative sets of legal-institutional-constitutional rules that constrain the choices and activities of economic and political agents, the rules that dene the framework within which the ordinary choices of economic and political agents are made. Consequently, analyzing a countrys constitution can be way of discovering the countrys rule of law principles (Voigt 2009, p. 12). For instance, through their comparative constitutions survey, Elkins et al. (2010, pp. 142144) investigate how well a countrys constitution conforms to a number of rule of law principles.3 Based on the literature discussed above, this study examines how well the Al-Azhars Islamic constitution conforms to the rule of law using six categories: (1) separation of powers, (2) clear and stable laws, (3) judicial independence and judicial review, (4) equal access to justice, (5) the state is bound by the law, and (6) protection of basic human rights. First, however, it is necessary to dene Islamic constitutionalism.

3 Dening Islamic constitutionalism Although constitutionalism is usually thought of as a Western concept, it is found in Muslim-majority countries, albeit adapted to Islamic sharia principles. Indeed, most constitutions in Muslim-majority countries contain certain notions of sharia, ranging from the more strict versions of Iran and Pakistan, to the more lenient ones
2 3

See Acemoglu et al. (2001, 2002, 2005a, b), Easterly and Levine (2003), Rodrik et al. (2004).

The causal relation between constitutionalism and rule of law is still a matter of dispute in the literature. For example, Chahil and Singh (2003, p. 18) state that rule of law is a device used to achieve constitutionalism. This direction of causality contradicts that found by Rodriguez et al. (2010, p. 1475), who view constitutionalism as a key rule of law institution. Nevertheless, generally, denitions of rule of law largely correspond with the concept of constitutionalism. In fact, it can be argued that the concepts of rule of law and constitutionalism are so closely related that they can almost be used interchangeably (Voigt 1998, p. 196; Chen 19992000, p. 149).

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of Albania, Bangladesh, and Indonesia. Table 1 in the Appendix presents a comparison of the sharia-related provisions in the constitutions of Muslim-majority countries, revealing a great deal of variation in the role sharia plays in these countries constitutions. For example, in Afghanistan, Iran, Iraq, Pakistan, and Yemen, laws contrary to Islam are void, thus making sharia the one and only source of law. These ve countries can be considered the most Islamic from the constitutional perspective. Nearly one-third of Muslim-majority countries stipulate that the head of state should be Muslim; Iran and Yemen go a step farther by specifying in their constitutions that the head of government should be Muslim as well. Brunei, Gambia, Indonesia, Jordan, and Nigeria integrate sharia into their judiciary by establishing religious courts. Other Muslim-majority countries chose a more secular path, indicating in their constitutions that religious authorities should not interfere with matters of state. Interestingly, countries in this group are all nonArab. Most Muslim-majority countrys constitutions provide for freedom of religion. Muslims believe that Islam is not simply a theological system, but a way of life. Mortimer (1982, p. 16) states that Islam, we are told, is not mere religion: it is a way of life, a model of society, a culture, a civilization. Sharia is the most important and distinctive aspect of Islamic teaching regarding the state and thus its application is an indicator of religiosity of a Muslim country (Abdillah 2008, p. 51). Islamweb.net (2002) denes sharia as the whole body of beliefs, rituals, transactions, policies and norms that Allah have ordered Muslims to abide by. Supporting this denition, Zidan (1969, p. 38) argues that sharia and religion are synonymous for Muslims. As such, sharia is central to any Islamic society. According to Bahlul (2007, p. 520), sharia, with its broad scope, is expected to contain elements of an Islamic constitution as well as of a constitutionalism to be dened in reference to it. This view is supported by Al-Turabi (1987, p. 25), who argues that sharia contains within it a detailed constitution. Faruki (1971) states that the basis of Islamic constitutionalism can be traced back to the experience of the original Muslim community, established by the prophet Muhammad in Medina after he ed from Mecca in 622 CE. The 627 CE constitution of Medina instituted a number of rights and responsibilities for the Muslim, Jewish, Christian, and pagan communities of Medina, bringing them within the fold of one community (Ummah), and formed the basis of the future Islamic caliphate (Serjeant 1978). Many studies assert that the Medina constitution is the rst constitution in the history of humanity (Hamidullah 1986; Al-Abdin 1983; Khan 2006; Abdillah 2008, p. 53; Ende 2008, p. 29; Abodah 2012), somehow overlooking much earlier constitutions that were developed in Greece and Rome (Mcllwain 2008, p. 25). The Medina constitution clearly reects the three principles of the Islamic political system as theorized by Al-Mawdudi (1967, p. 40), which are tawhid (unity of God), risala (prophethood), and khilafa (caliphate or succession of the prophet Muhammad). Tawhid proposes that since Allah is the Creator, Sustainer, and Master of the universe, the sovereignty of this kingdom is vested only in Him. Consequently, any notion of Islamic constitutionalism differs signicantly from Western concepts in that Islamic constitutionalism bestows sovereignty to Allah and not the people as is the case in Western democracies. Al-Mawdudi (1981), Iqbal (2000, p. 11), and

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Parwez (2002, pp. 3334) note that the principle of the sovereignty of Allah fully negates the concept of legal and political independence of human beings, individually or collectively. Muslims are obliged to obey Allah, the Prophet, and those who have authority (ulu al-amr) as long as the latters decisions and policies are in accordance with Gods commands in the quran and the Prophets tradition in hadith (Abdillah 2008, p. 53). Nevertheless, Al-Ghannouchi (1999, p. 155) provides an explanation for sovereignty of Allah that harmonizes with Western concepts of constitutionalism, stating that there is no clergy in Islam, and Allah 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 and government by the people. Risala refers to the laws of sharia, which Allah gave Muslims. Al-Mawdudi (1967) and Zidan (1969, p. 39) state that sharia is based on two essential sources: the quran, the holy book of Islam that contains Gods word as revealed to the prophet Muhammad over a period of 23 years, and the sunnathe practices and sayings of Muhammadwhich became the source of Islamic ethics and Muslim behavioral norms. Because, according to Islam, both were revealed by Allah, Muslims believe that provisions in both the quran and sunna are impeccable, infallible, and have a specic and xed meaning. Moreover, Muslims also believe that such provisions are universal, suitable for every time and place. Iqbal (2000, p. 13) goes further and states: The Islamic constitution has only two important organs, the executive and the judiciary. The third organ i.e., the legislature is not an important feature for the reason that all legislation has already been made by Allah in the quran which is only to be implemented or executed by the head of the state who, in consultation with the body of advisors or otherwise, can make subordinate legislation by the way of ordinances. An-Naim (1990), p. 78), however, disagrees, and asserts that human reasoning has always played a part in determining the applicable principles and rule of sharia. For example, Muslim jurists, specialized in Islamic jurisprudence (qh), have developed legal principles and methodologies to interpret quran and sunna. Since most Islamic constitutions allow a certain Muslim jurists with specic qualications to engage in reasoning and interpretation of Gods laws, in Islamic constitutions, the sovereignty of God actually translates into the authority of chosen clergy to interpret Gods divine laws. An-Naim (1990) argues that Islamic constitutions are based on the logic that since Muslims accept the ultimate sovereignty of God, they must also accept the practical sovereignty of men who speak for God. An-Naim adds that this logic is awed in two ways: rst, in the unveriable assumption that man knows the will of God; second, in assuming that when a group of chosen men is able to know the will of God, such group will speak with one voice. Roesler (2009, pp. 249250) points out that Islam not only authorizes legal interpretations but develops qh as an essential source of Islamic legal system. Therefore, many legal concepts of Islam change according to time and place and prevailing circumstances, providing Islam with a certain amount of exibility to adapt to different societies. Khilafa is based in the notion that since the Muslim community is to be governed in accordance with Islamic law, it must have a directing head to implement this law.

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However, since Islamic law has already been laid down by Allah in the quran and sunna, the head of an Islamic state (usually referred to as Khalifa or Imam) is only an executive authority and has no inherent power to legislate (Iqbal 2000, p. 12). Faruki (1971, pp. 1619) points out that the caliph was either chosen by a small group of Muslims or selected by the preceding caliph and was then conrmed by the general Muslim public through a mass pledge of allegiance (bya). Due to its vagueness as a basis of political legitimacy and the informality of the procedure, bya gave way to a political system of direct hereditary monarchy in which a pledge of allegiance to the next caliph was secured during the lifetime of the existing caliph or imam (Arnold 1966). An-Naim (1990), pp. 7677) points out that the concept of khilafa cannot easily be integrated into the idea of constitutionalism for two main reasons. First, there is no way of verifying the origin of political legitimacy once the initial appointment and conrmation of the caliph through bya was made by the Muslim population and no way for withdrawing support and allegiance at any subsequent point in time. Second, under the current form of Islamic constitutionalism, the nature and scope of powers provided to the caliph are by no means limited. This dilemma stems from the special situation of the Prophet being chosen by God to lead the Islamic state. Therefore, executive, judicial, and legislative powers were solely entrusted to the Prophet. The Prophet successors, the caliphs or imams, perhaps rather naturally, even if not specically so empowered by God Himself, continued to assume this role of one-person government. Consequently, it became impossible to restructure and limit the powers of the caliph or imam as required by Western constitutionalism.

4 The Al-Azhar constitution as a model for Arab spring constitutions 4.1 On Arab spring, Islam, and new constitutions As the quest for more democracy is bringing more Islamic political parties on stage in the Arab Spring countries, it is very likely that Islamists in Tunisia, Morocco, and Egypt will play a signicant role in the crucial phase of constitutional development. Nguyen (2011) argues that Arab Spring looks more like an Islamic revolution. The Economist (2011) states that [m]ost Muslims do not believe in the separation of religion and state, as America and France do, and have not lost their enthusiasm for religion, as many Christian Democrats in Europe have. One of the dominant demands of the Islamists and their representative parties is full implementation of sharia in their societies. Schacht (1964) argues that law remains an important, if not the most important, element in the struggle which is being fought in Islam between traditionalism and modernism under the impact of Western Ideas. Given the importance of Islamists in the current state of affairs, Islamic constitutions based essentially on sharia law are probable (Nguyen 2011; Marquand 2011; Maginnis 2011; Heneghan 2011b; Harfoush 2011; Etzioni 2011). However, which model of Islamic constitution will be adopted by Islamic parties in Arab Spring countries? Although current turmoil makes the answer to this

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question less than certain, there are some signs in Egypt as to the direction in which the main constitution drafters are heading. With two Islamic parties winning approximately 70 % of parliamentary seats in the rst elections after Mubarak, it seems that Egypts imminent constitution will be more conservative Islamically than its predecessor. A few months before the post-revolution parliamentary elections in Egypt, Akhbar Elyoum, an Egyptian newspaper, announced that Salas (adherents of one of the most puritanical strains of Islam), along with former Grand Mufti of Egypt, Nasr Farid Wasel, and a group of renowned Islamic scholars had already started preparing a draft constitution for Egypt based on sharia. This coalition, Islamic Legitimate Body of Rights and Reformation (ILBRR), essentially aims to move the country toward an Islamic model of governance (Lashin and Abdul-Hai 2011). More importantly, Mohamed Yousry, ILBRRs secretary general and a Sala scholar, says that ILBRRs working model for a constitution is the Al-Azhar constitution of 1978 (Dabash 2011). Furthermore, Yousry states that all the Islamic movements in Egypt, including the Muslim Brotherhood, agree on this specic constitution (Lashin and Abdul-Hai 2011). Al-Azhar University, which Encyclopedia Britannica refers to as the chief centre of Arabic literature and Islamic learning in the world, is centered around the tenthcentury mosque of that name in the Islamic part of Cairo (Encyclopdia Britannica 2012). As one of the oldest and most respected Sunni religious institutions in the world, Al-Azhar is known as the voice of moderate Islam and has a major inuence across the Muslim Sunni sphere, especially in Egypt (Abdul Aziz 2011; Zakaria 2004, p. 9). Since, as discussed above, the majority of Muslims do not think that religion and state are separable, formal decisions and informal legal opinions coming from such a revered entity can have a great impact on the minds as well as the hearts of Sunni Muslims. Consequently, due to Al-Azhars inuence, it is very possible that its 1978 Islamic constitution will have a great deal of inuence on the upcoming Egyptian constitution. In his article Can Al-Azhar Constitution Put Down the Glowing re? Hashim (2011) argues that this constitution might be the answer to concerns raised by various political players regarding the upcoming Egyptian constitution. 4.2 Overview of Al-Azhars Islamic constitution The idea of developing an Islamic constitution goes back to October 1977 when Cairo hosted the eighth meeting of the Islamic Research Academy (IRA). Al-Azhar, and particularly the IRA, was commissioned to draft an Islamic constitution as a guide for any country that wishes to model itself after the Islamic sharia. The meeting also recommended that the principles laid down in this constitution agree with those of various Islamic schools of jurisprudence to the extent possible. Schulze (1995, p. 180) points out that one of several motives behind this proposal was to embed discussion of the Egyptian constitution and, in particular, the role of Islamic law in jurisdiction, in a broader context. On January 5, 1978, Grand Sheikh of Al-Azhar issued a decree forming a High Committee of IRA members and external experts for the purpose of drafting the Islamic constitution. In the autumn of 1978, less than one year after the initial idea, the nal version of this constitution

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was published in Al-Azhars ofcial magazine (Schulze 1995). The nal version consists of a preamble and nine sections, encompassing 93 clauses. Almost as soon as it was nished, however, as Yousry puts it, this Islamic constitution was forgotten by the Egyptian government (Dabash 2011).4 To date, there has been no attempt to analyze this Islamic constitution from the perspective of constitutional economics and, indeed, it has attracted the attention of only a few scholars from any eld. An-Naim (1990) is perhaps the most extensive study of this constitution. An-Naim offers an analysis of Islamic decline and possible reformation and calls for the separation of historical sharia (which is often wrongly thought of as if it were itself divine revelation) from the essence of Islam itself, as revealed by the early tenure of Mohammed in Mecca. An-Naims study emphasizes that sharia is manmade and was originally an exercise in political pragmatism. An-Naim goes on to argue that sharia likely violates the rights of non-Muslims and women in particular and may be incompatible with the essential nature of the nation-state, international law, and human rights. Naim uses the 1978 Al-Azhar constitution to demonstrate such notions, for example, by pointing out that this constitution fails to mention the rights and entitlements of non-Muslim citizens within the Islamic state. A study by Schulze (1995) focuses on the denition of Umma within the Al-Azhar constitution,but does not go beyond this. These two studies are the only ones to scrutinize the Islamic constitution. The current paper is the rst to look at this constitution from a constitutional economics perspective. After three decades of neglect, the Al-Azhar constitution showed up at Cairos famous Tahrir Square during the 2011 demonstrations. An scanned copy of the original Arabic constitution, along with an English translation, was published on July 13, 2011 in Tahrir Documents, a website dedicated to archive, translate, and electronically publish activist papers from Cairos Tahrir Square during the 2011 Egyptian uprising (Tahrir Documents 2011).5

5 The Al-Azhar constitution from a rule of law perspective From a constitutional economics perspective, protection of property and enforcement of contracts are crucial to economic development. From this viewpoint, the
4

Schulze (1995) tells what happened after the Islamic constitution was introduced: the [IRA]-proposal was not discussed openly. The [IRA]-session of 1979 could not be held, as most participants from the duwal ar-rafd, i.e., from those states, which rejected the Egyptian Israeli peace treaty of 1978, were not allowed to travel to Cairo. Again, divergent political views prevented the jurists from dening a legal conception of the Muslim nation (Umma). The main problem, of course, was to what extent an Islamic constitution should be the legal framework of the Umma; mostly it was postulated that an Islamic constitution should be the model of nation-state constitutions. It should prescribe an Islamic form of government and jurisdiction without questioning the sovereignty of the nation-states Schulze (1995, pp. 180181). Elias Saba and Thomas Levi Thompson provide an English translation on the Tahrir Documents website, but there are some problems with and omissions from their version. Therefore, I re-translated Al-Azhar constitution from the Arabic source. The original Arabic source along with a complete English translation can be found at: https://sites.google.com/site/moamengoudaecon/al-azhar-s-islamicconstitution.

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Al-Azhar constitution is problematic. Article 24 states that the state has legal possession of all natural resources that are underground, such as metals and ores. No provision is made to compensate land and property owners in the event metal or ores are found on their private property. As for contracts, the Al-Azhar constitution prohibits any transaction in which interest rates play a role (Article 23). This is problematic as global banking and nancial systems are essentially based on the interest rate. This raises some crucial questions. Are contracts with any banking or nancial entity that involve interest rates automatically void if the Al-Azhar constitution is enacted? What is the punishment for contracting with interest rates? On the macro level, how will an Islamic state that applies the Al-Azhar constitution deal with international organizations, such as the World Bank and the International Monetary Fund, for whom interest rates are a common component of their transactions? Therefore, we argue that protection of property and freedom of contract are not fully recognized in the Al-Azhar Islamic constitution. Since the constitutional economics literature recognizes the importance of rule of law to economic development, we examine the Al-Azhars Islamic constitution in regard to rule of law using six categories: (1) separation of powers; (2) clear and stable laws; (3) judicial independence and judicial review; (4) equal access to justice; (5) the state being bound by the law; and (6) protection of basic human rights. 5.1 Separation of powers The concept of the separation of powers originates, as does the rule of law, in ancient Greece. However, it was the French theorist Montesquieu who elevated this concept to the rank of a major constitutional principle. Montesquieu (1748/1989) opted for a strict separation of the legislature (which makes the law), the executive or administration (which governs the state), and the judiciary (which applies the law) in order to protect the liberty of the individual. This was reected in Article 16 of the 1789 French Declaration of the Rights of Man and of the Citizen: A society where rights are not secured or the separation of powers established has no constitution at all (Finer et al. 1995, p. 210). The Al-Azhar constitution is a clear example of the lack of separation of powers within Islamic constitutionalism. There is no mention whatsoever of the notion of separation of powers in this constitution. Moreover, signicant contradictions are apparent regarding the powers invested in each branch of government. For instance, according to Article 83(1), the legislature, represented by a shura council, can issue legislations that are not inconsistent with rulings of Islamic sharia. However, this law-making power seems to be in direct conict with the powers of the imam, obedience to whom is required by all his subjects even if they disagree with him, according to Article 44. Article 55 directs the imam to guide his subjects to justice, piety, and good deeds, leading his army to engage in jihad against the enemy, enforcing hudud [Islamic punishments for certain crimes], ratifying treaties (Article 56). Additional duties of the imam include empowering individuals and groups who command good and forbid evil (Article 57), appointing government employees (Article 58), and granting pardon for convicted criminals in certain circumstances (Article 59).

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The mechanism for electing the imam is vague. Article 46 states that the law will clarify the path for public pledge of allegiance to choose an Imam. The public allegiance will be carried out under the supervision of the judiciary. The candidate with the required majority of votes of those participating in allegiance will be elected. The pledge of allegiance is a covenant to obey the imam, assigning him the ability to decide matters concerning Muslims at large. According to Hizb ut-Tahrir (1996, pp. 3536, 63), appointing an imam and pledging allegiance to him is obligatory for all Muslims. Failure to perform this sacred duty is one of the gravest sins and deserving of Allahs severe punishment. This method of appointing the head of a Muslim state is vastly different from any democratic notions of elections or majority rule. However, Article 46 vaguely tries to build an amalgam of a democratic and an Islamic system of electing the head of state. No further explanation is given regarding the votes mentioned in the article. Article 49 is another grant of enormous power to the imam as it reads: Expressing an opinion about the pledge of allegiance to the imam before its completion is not a crime. Consequently, the imam cannot be disputed in any way after the pledge of allegiance. There are no provisions regarding the number of terms an imam can serve as this pledge of allegiance is for life and is lifted only when the imam stops applying sharia (Salahuddin 1986, p. 248). Asad (1981, p. 75) states that as long as the state conforms in its principles and methods to the demands of the sharia, a Muslim citizens duty of obedience is a religious obligation. According to Article 47, the imam is required to have knowledge about rules of sharia. No explanation is provided regarding the necessity of such requirement for heading the executive branch of government. Therefore, it seems possible that the imam can alter the legal verdicts of the judiciary or laws and regulations issued by the legislature if he interprets the sharia in a way that contradicts these verdicts and laws. Since obedience to the imam is required from all his subjects, the imam has absolute supervisory powers over all branches of government. This also means that the imam has the nal word on any issue in the state, even as to the religious duties of his subjects. It is also not clear how Article 44 (which requires obedience to the imam even in the case of disagreement with him) ts with Article 51, which states that the imam will defer to the judiciary. In other words, if the imam was found guilty of a certain offense and was sentenced by the judiciary but the imam refused to uphold the sentence, would subjects of the imam still have to obey him no matter what? Article 45 may contain the answer to this question: Obedience to someone who disobeys God is unacceptable. An Imam who commits an action that was unanimously declared forbidden under sharia should not be obeyed with this specic action. Nevertheless, due to the previously mentioned indeterminacy of sharia, dening an action that was unanimously declared forbidden under sharia may be very difcult. The Islamic constitution does not provide a mechanism for settling this issue. To sum up, the powers vested in the executive branch of government and in the imam in particular are signicantly greater than those vested in the judiciary and legislative branches of government. This coincides with what a statement made by An-Naim that since the caliph himself was the ultimate authority on what the rule of sharia was and how it should be applied in any given case, that is, he was the

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ultimate legislative authority in addition to being the ultimate judicial and executive authority, his limitation by sharia was of little practical value (An-Naim 1990, p. 80). 5.2 Clear and stable laws Various studies aiming to dene the rule of law assert that a crucial component of this concept is the existence of clear and consistent laws (Fuller 1969; Hayek 1960; Ehm 2010). Kuran (2010) points out that Islamic law supports what can be called adaptive legal stabilitya general legal xity accompanied by some ability to change with the times. Nevertheless, it is not certain that such a system achieves an optimal balance between the conicting needs for stability and change. Indeed, Kuran asserts that, historically, this concept has had a negative impact on economic development in Islamic states. Specically, when Western Europe was developing modern nancial and commercial institutions in the second millennium CE, Islamic contract law remained essentially stagnant. Therefore, by the 19th century, many Muslim merchants and investors considered Islamic law archaic and supported legal reforms that effectively moved commerce and nance beyond the jurisdiction of Islamic courts. Investigating the provisions of the Al-Azhar constitution, we nd that that many laws are neither clear nor stable. Several fundamental problems occur throughout this constitution: 1. Since this is fundamentally an Islamic constitution, references to sharia are abundant. Article 1b reads: Islamic sharia is the source of all legislation. Article 65 states: Judges are subject only to the Islamic sharia in their judgments. In addition, numerous repetitions of the phrase according to Islamic sharia occur throughout the constitution (see, e.g., Articles 4, 14, 17, 18, 19, 20, 29, 37, 38, 40, 42, 43, and 47). The dilemma this condition presents is that sharia is prone to broad interpretations. During the course of 14 centuries, a diversity of Islamic legal principles developed that were applied in different ways across various Muslim societies. These differences between Islamic schools, the variety of juristic interpretations and legal reasoning (ijtihad), has been termed a divergence that leads to latitude of interpretation [of sacred texts] (Esmaeili 2011, p. 340). Therefore, as postulated by Roesler (2009), Islamic law was deemed indeterminate and indenite in regard to many legal issues. Due to the vast discrepancies in interpretation of the quran and sunna, a chosen individual or a group of Muslim jurists will be responsible for interpreting the constitution in the sense of issuing formal legal verdict (fatwa) regarding what sharia entails in each article of the constitution. This individual assigned to pronounce what sharia actually entails can be the imam himself, a certain legal scholar (mufti), a specic entity (e.g., Al-Azhar), or a group of legal scholars. The latter situation is signicantly similar to the concepts of CII in Pakistan or wilayat al-faqih in modern-day Iran. However, no mechanism is provided for choosing those who will be responsible for articulating sharia. This is a serious

2.

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3.

4. 5.

oversight and opens the door to diverse interpretations that may result in laws that are neither clear nor stable. The Muslim jurist(s) assigned to interpret the constitution and guide the state toward what Islam entails can choose whichever fatwa from any Islamic madhhab across more than 1,400 years of Islamic legal history. The result can be diverse, and even contrasting, laws. The verdicts of Muslim jurist(s) can vary due to different times and circumstances, thus making laws inherently unstable. As new circumstances present new problems for the Muslim jurist(s), various methods of deriving legal judgments, such as istihsan (juristic preference), istislah (consideration of public interest), or qiyas (deductive analogy), might be used to reach a legal verdict. Nevertheless, since these methods produce variable legal verdicts even among the same group of Muslim jurists, formal laws based on these methods can be unstable.

To conclude, Al-Azhars Islamic constitution contains many provisions that could contribute to laws that are unstable and unclear. This would negatively affect the rule of law of the Islamic state.

5.3 Judicial independence and judicial review Studies on the rule of law often nd an independent judiciary to be a prominent determinant of the quality of justice dispensed by courts (Prillaman 2000; Haggard et al. 2008). According to Carothers (1998), judicial independence entails that the judiciary be free of any external pressure from or control by the other two branches of government, especially the executive branch. A sign of an independent judiciary is that there is no personal and/or functional connection between the judiciary and the other two branches of government. The judiciary must also be impartial in the sense of not being interested in the outcome of a certain case in favor of any one of the participants (Jowell 2011, p. 12). Voigt (2009, pp. 1314) adds that an independent and impartial judiciary is also key to resolving conicts between various government branches. In the absence of an impartial arbitrator, power struggles are likely between branches of government. Therefore, an independent judiciary is crucial for conning government branches within the rules laid out in the constitution. According to Lau (2004, p. 920), Islamic law does not encompass a proper separation between judicial and executive branches of government. At the beginning of Islam, justice was administered by the caliph himself. Even when Caliph Omar started to appoint judges, they were regarded as the delegates of the caliph or of the governor of a province. In such a legal environment, the caliph ultimately held all legislative, executive, and judicial powers and was not accountable for any action to any human agency. Sharia neither established a standard and effectively enforced a procedure for the appointment and subsequent accountability of the caliph, nor did it seek to implement legal limitations on his powers (An-Naim 1990, p. 93). As the quran does not contain any explicit

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provision as to independence of the judiciary, the judiciary were often controlled either fully or partially by the head of the Islamic state. The Al-Azhar constitution provides for the creation of an independent judiciary. Article 67 states that [t]he state guarantees the judiciarys independence, and compromising its independence is a crime. Moreover, according to Article 81, a Supreme Constitutional Court will have the jurisdiction to decide on the conformity of laws and regulations with the verdicts of Islamic sharia and the provisions of this constitution. Thus, the Al-Azhar constitution supports the concept of judicial review. The Al-Azhar constitution provides, prima facie, for an independent judiciary. The Supreme Court as the Islamic states highest court, is endowed with signicant and decisive power. As Article 1b states that sharia is the source of all legislation, the Supreme Constitutional Court has the right of judicial review, stipulated by Article 81, whereby all state laws and regulations are assessed from the viewpoint of Islam. The constitution does not specically provide the Supreme Constitutional Court with the power to strike down laws deemed non-Islamic, using instead the phrase to decide upon the conformity of laws and regulations to the rulings of Islamic sharia. Nevertheless, the wide range of interpretation of Islamic sharia as well as the personal religious beliefs of judges responsible for judicial review are two main problems signicantly affecting the predictability of legal verdicts. Pakistan is illustrative in this context: the application of certain Islamic concepts, such as punishment by stoning to death, are considered controversial by the Pakistani judiciary (Lau 2003). To solve this crucial problem, the Pakistani government took control of the process of Islamization of the legal system by considerably reducing the independence of the judiciary so that judges who appeared too extreme in their verdicts could be transferred or removed altogether (Lau 2004, p. 925). To conclude, an independent judiciary is a crucial element of rule of law. Nevertheless, given the tremendous variability across Islamic legal verdicts, an independent judiciary in an Islamic state can be a source of destabilization for the legal system, thus negatively affecting the rule of law. Pakistan actually experienced this problem in its quest to have an independent judiciary. Lau (2004, p. 926) cites the verdict in the 1991 case of Hakim Khan v. Government of Pakistan, in which the Pakistani Supreme Court criticized the failed attempt to have an independent judiciary by stating that this experience led to a controversy and a debate which has had no parallel, shaken the very constitutional foundations of the country, [and] made the express mandatory words of the Constitutional instrument yield to nebulous, undened, controversial juristic concepts of Islamic Fiqh. It has enthused individuals, groups and institutions to ignore, subordinate and even strike down at their will the various Articles of the Constitution by a test of what they consider the supreme Divine Law, whose supremacy has been recognized by the Constitution itself. 5.4 Equal access to justice Voigt (1998, p. 196; 2005, p. 66) asserts that the most important characteristic of the rule of law is that the law is applied equally to all persons (isonomia). According to

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Article 2 of the Universal Declaration, everybody is entitled to all rights and freedoms set forth in that declaration, without discrimination of any kind, such as for race, color, sex, language, religion, or political or other opinions. This principle of equality of all before the law is also expressed in Article 7 of the Universal Declaration, which establishes that [a]ll are equal before the law and are entitled without any discrimination to equal protection of the law (United Nations 1948). The Al-Azhar constitution emphasizes this idea. For example, Article 28 states: Justice and equality are the basis of governance. The right of having a legal defense and the rights of litigation are guaranteed and may not be infringed. Moreover, Article 62 states: The people are equal before the courts. It is not permissible to discriminate against an individual or group with special courts. The wording of these articles is signicantly similar to that of the Universal Declaration. Nevertheless, many provisions of the Islamic constitution negatively affect equality of citizens in an Islamic state: 1. Explicit discrimination against women is found throughout the constitution. Article 47 requires candidates for the presidency of the state to be males. The same is true for members of the judiciary (Article 68). Article 8 states that women are liable for serving their husbands and children and that family care is a womans rst priority. Article 38 reads: Women have the right to work within the framework of Islamic sharia. It is apparent that women have more duties and fewer rights than do men. This clear inequality between men and women is also found in many studies that assert that Islamic sharia do not treat men and women on the same footing (An-Naim 1990, 2008; Baderin 2003; Voigt 2005; Mir-Hosseini 2006; Kuran 2010). An-Naim (1990) lists several examples of discrimination on basis of gender in Islamic family and private law: a. A Muslim man may have as many as four wives at the same time but a Muslim woman must have a monogamous marriage. b. A Muslim man is able to divorce his wife, or any of his wives, by unilateral repudiation without having to justify his action to any person or authority. However, a Muslim woman can obtain divorce only by consent of the husband or by judicial decree on limited specic grounds. c. In matters of inheritance, a Muslim woman receives less than the share of a Muslim man in the case both have equal degree of relationship to the deceased person. 2. There is no mention whatsoever of non-Muslims in the entire constitution. An-Naim (1990) notices this absence and explains it by stating: The reason for this serious omission is clear enough. The [constitution] document could not specify the rule of sharia on non-Muslims and yet claim to be a proposal for a constitution. It is for this reason that the document referred all relevant matters to sharia, in full knowledge of the status rights of non-Muslim subjects under sharia. This throws into doubt whether non-Muslims are considered fullyedged citizens in the Islamic state. In fact, Khadduri (1955, pp. 163169) argues that unless non-Muslims have been granted the equivalent of the status

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of dhimma, they have no civil and political rights whatsoever under sharia, even if they were born or permanently reside within the territory of the Islamic state. The status of dhimma is offered to Jews and Christians as believers in one of the heavenly revealed scriptures. According to An-Naim (1990), whoever is granted the status of dhimmi is then entitled under sharia to protection of his or her person and property and to practice his or her religion in private in exchange for payment of a certain poll tax (jizya). An-Naim (1990), pp. 90, 176) gives several examples demonstrating discrimination on the basis of religion in sharia: A Muslim man can marry a Christian or Jewish woman, but a Christian or Jewish man cannot marry a Muslim woman. b. Muslims may neither inherit from nor leave inheritance to a non-Muslim. c. Monetary compensation paid to surviving blood relatives of a victim of certain types of homicide (diya) differs according to religion. Compensation for killing a dhimmi is less than that for killing a Muslim male. d. Sharia law of evidence discriminates among witnesses on grounds of religion, since the testimony of a dhimmi is unacceptable in the more serious criminal cases of hudud. We conclude this section with the words of Khadduri (1946, p. 79): Human Rights in Islam as prescribed by the divine law [sharia] are the privilege only of persons of full legal capacity. A person with full legal capacity is a living human being of mature age, free, and of Moslem faith. It follows, accordingly, that nonMuslims and slaves who lived in the Islamic state were only partially protected by law or had no legal capacity at all. 5.5 The state is bound by law According to Jowell (2011, p. 10), the principle that the state is bound by law entails that the state operates on the basis of, and in accordance with, the law. This requires that all ofcial decisions and acts of public ofcials must be authorized by and according to law. Therefore, policy and decision-making must respect the limits and the guidance provided by the law. All legislation of the Islamic state, according to the Al-Azhar constitution, stems from Islamic sharia (Article 1b). Thus, the Islamic state is bound by sharia law. The problem with this setup is that sharia, as discussed above, is indeterminate on many essential issues. Bernard Weiss (1998, p. 120) states that sharia law is the product of legislation, of which God is the ultimate subject. On the other hand, qh law consists of legal understanding, of which the human being is the subject. An-Naim (19981999, p. 34) emphasizes that sharia cannot possibly be drawn from the sacred texts of the quran and sunna except through human understanding, which essentially means both the inevitability of differences of opinion as well as the possibility of error, whether among the Muslim jurists or the community in general. Given the diversity of legal opinions among Muslim jurists, whatever the Islamic state chooses to enforce as positive law is bound to be deemed an invalid and unacceptable interpretation of Islamic sources by some of the states Muslim citizens. a.

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A clear example is the Islamic stance on slavery. The Al-Azhar constitution states that people are equal before the courts of law (Article 61). Nevertheless, according to sharia, slavery continues to be lawful (An-Naim 1990, p. 172). Laws of sharia that regulate all matters related to slavery are found in contemporary Islamic qh books (Sabek 1971). In the event a Muslim followed legal verdicts of Muslim jurists and acquired slaves, will doing so be deemed illegal by the authorities? Prohibition of slavery is currently an international norm to which most, if not all, states in the world are committed. Nevertheless, from the viewpoint of sharia, this slave owner applied a valid Islamic verdict, and thus his act is legal according to Article 1b of the Al-Azhar constitution. Thus, we are left with an ethical and legal predicament: the Islamic state either has to conform to norms recognized by members of the international community, or enforce sharia and become a pariah. In conclusion, the Islamic state cannot be bound by the law since sharia is essentially based on diverse, and even conicting, legal opinions that lead to signicant differences among Muslims. Consequently, any Muslim has the legal right to follow any legal verdict of sharia without fearing any sanction from the state. 5.6 Protection of basic human rights The protection of fundamental human rights is essential to almost every denition of the rule of law. The Al-Azhar Islamic constitution contains many provisions in Sect. 4 that aim to protect individual rights and freedom and, with few exceptions, these provisions are indistinguishable from those found in occidental constitutions. However, these fundamental rights are incorporated into the Al-Azhar constitution within the framework of the Islamic order that is formally established by this constitution. In Articles 29, 35, 37, 38, 41, 42, and 43, sharia with its prescriptions and proscriptions supplies a constitutional framework for the fundamental rights embodied in the constitution. Consequently, freedom of religion, freedom of press, the right to work, and human rights in the widest possible sense are constrained by the principles of the Islamic faith. Since sharia affects all these matters, for instance, apostasy, the prohibition on extramarital sex, the denial of rights to children born out of wedlock, and the discriminatory ban against Muslim women marrying non-Muslim men, it is apparent that the religious clause substantially inuences constitutional law in this context (Naeem 2008, p. 75). According to An-Naim (1990, 2008) and Khadduri (1946), there are several discrepancies between Islamic sharia and contemporary notions of human rights. Article 18 of the U.N. Declaration of Human Rights states: Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance (United Nations 1948). Although Taib (2011, p. 2) argues that Muslim scholars, past and present, are divided in their opinions regarding Islams stand toward apostasy, some prominent Muslim jurists assert that apostasy is an act that can be punished by death. For example, Al-Sheha (2007, pp. 129130) calls for killing the apostates and responds to the claim that the Islamic punishment

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prescribed for apostasy is a violation of human rights by stating: Rejecting Islam as a way of life after its acceptance implies malicious propaganda against Islam and a disgrace to the immediate Muslim community where the apostate lives. Such rejection will not only discourage people from accepting Islam as a way of life, but will encourage all varieties of criminality and blasphemy. The example of rejecting Islam indicates that the person who joined it was only testing it, but was not serious about his commitment to this way of life. Therefore, this rejection will tend to attack Islam and attempt to rebel from within. Therefore, such a punishment was prescribed, Allah knows best. Consequently, Article 29 presents an internal contradiction since it declares that freedom of religion is protected within the framework of Islamic sharia. It is not determined which Islamic legal verdict toward apostasy will be applied according to this constitution, but it is possible and even legal that the person(s) in charge of presenting what Islamic sharia entails to sentence apostates to death. Another area of prima facie inconsistency between sharia and international human rights law is the Islamic punishments for certain criminal acts. Article 5 of the Universal Declaration states: No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment (United Nations 1948). A number of Islamic punishments arguably can be categorized as torture or inhumane. The Islamic rules concerning stoning to death of adulterers and mutilation through the application of the eye-for-eye principle (as mentioned in Article 78 of the constitution) are in this category (Mahmoudi 2004, p. 876). Article 79 of the AlAzhar constitution is in direct opposition to Article 5 of the Universal Declaration as it states that ogging is the principle punishment in non-hudud crimes. Moreover, Article 71 reads: The sharia penalties for the hudud are applied for the crimes of fornication, false accusation of fornication, theft, banditry, drinking alcohol, and apostasy. Hudud (or hadd, in the singular) punishments are laid out in the quran and are seen as claims of God (Peters 2005, p. 54). Because God species them, they are regarded as xed and cannot be changed. Crimes that are punished with Hudud include theft (punishable by amputation), armed robbery and banditry (punishable by death, amputation of limbs, banishment, and crucixion), extra-marital sex (punishable by death or ogging), and unfounded accusation of extra-marital sex (punishable by ogging). They also include consumption of alcohol (punishable by ogging) and apostasy or renunciation of Islam (punishable by death) (Sabek 1971, p. 302; Al-Mursi 1999, p. 4; Peters 2005, p. 53). Thus, the Al-Azhar constitution contains a conict when it comes to fundamental rights because the reference to sharia in the constitution obliges the authorities in general and the judiciary in particular to enforce religious proscriptions at the expense of those rights. This is because sharia has not evolved in harmony with international human rights principles. An-Naim (1990) points out that although sharias view of human rights was justied by the historical context, it ceases to be justied in the present drastically different context.

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6 Conclusion This study investigates the Islamic constitutionalism from the viewpoint of rule of law. Muslims, who make up approximately one-fth of the worlds population believe that sharia is divinely inspired. With the current upsurge of Islamic political movements in Arab Spring countries and calls for full application of sharia by these societies, attempts to apply Islamic law may soon materialize in post-revolutionary constitutions. The Al-Azhar constitution is a unique document in which the informal institutions of Islamic norms and values are formulated into formal institutions, mandated by constitutional provisions. Originally prepared by one of the most respected Islamic organizations as a framework for any country desiring to apply Islamic law, the Al-Azhar constitution represents the state of the art in Islamic jurisprudence. Unfortunately, it is clear from our analysis that this constitution is fundamentally inconsistent with universally accepted principles of constitutionalism as well as with many foundational principles of rule of law. The Al-Azhar constitution does not limit the power of government. However, limitation of governmental power is the main outcome of constitutionalism and the essence of rule of law. Moreover, the Al-Azhar constitution does not contain specic or clear procedures, as sharia, with its varied and sometimes conicting postulations, is interpreted by Muslim individuals, and thus is more a rule of men, not a rule of law system. Rule of law relies on a system of checks and balances; the rule of sharia mainly relies on the religious-legal qualications of certain ofcials charged with supervision of state power. In fact, it is not clear why Islamic states planning to implement this constitution need a written constitution in the rst place. Pek (2008) asserts that for a certain constitution to be considered written, two conditions must be present: complete codication of constitutional principles and that these constitutional principles become supreme law as a result of the codication process. The Al-Azhar constitution fullls neither condition, as constitutional principles are not codied and Islamic sharia is the supreme law from which the constitutional principles originate. As Article 1b states that Islamic sharia is the source of all legislation, there is no real reason to have a written constitution as religious scholars are authorized to interpret sharia as they see t and as the sole source of legislation. As Emon (2006, p. 334) states: The view of sharia as a highly determinate code of rules ignores the centuries of juristic literature that undermine any conceptualization of sharia as a narrowly constructed, unchanging code of law. Sharia has a history whose normative foundations and development stretch from the seventh century to the present, which illustrates that legal rules were often the product of Muslim jurists utilizing their analytical discretion in light of a culture and institutions of education, precedent, principles, and doctrines. This study demonstrates how Islamic constitutionalism is signicantly inconsistent with many modern legal principles, particularly in relation to human rights. Nevertheless, we believe that Islamic sharia can still align itself with contemporary legal thought. However, this can occur only if sacred sources of Islam (quran and sunna) are re-interpreted to develop a new system of Islamic laws that corresponds with human rights and rule of law. This is not impossible: across a span of

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1,400 years, sharia has changed and altered with changing times and changing interpretations by Muslim jurists of Allahs commands (ijtihad). We believe that the schism between Islam and the rule of law can be minimized if Muslim jurists restore the institution of ijtihad, as it was practiced by early Muslim jurists in the ninth and tenth centuries. This, too, is not impossible: sharia has a long tradition of adopting other cultures ideas and legal principles. However, in modern times, this tradition has been ignored by Muslim jurists and one result is the Al-Azhar constitution. Many attempt to harmonize Islamic law with modern-day constitutionalism.6 For example, An-Naim (1990, S. 5253) endorses a major initiative, rst proposed by Mahmoud Mohamed Taha. Tahas initiative suggests that the content of the quran and sunna be divided into two levels or stages, one encompassing the earlier Mecca period and the other the succeeding Medina stage. Taha argues that the earlier message of Mecca is in fact the eternal and essential message of Islam, emphasizing the inherent dignity of all human beings, regardless of gender, religion, race, and so forth. That specic message is characterized by equality between men and women and absolute freedom of choice in matters of religion and faith. However, violent rejection of the Meccan message and attacks on the Prophet Muhammad proved most tangibly that Mecca society was not ready for this message7 (An-Naim 1990, S. 52). Consequently, a new and modied version of Islam was revealed in Medina to suit the circumstances of that era. This version violates the concept of rule of law as well as the values of religious freedom and human dignity. Due to historical circumstances, this version became the main source for the public law of sharia. Taha (1987) and An-Naim (1990, p. 56; An-Naim 2008, p. 284) propose a sort of backward evolution of the source of Islamic law from the texts of the Medina stage to that of the earlier Mecca period. This principle of interpretation would easily harmonize modern principles of rule of law and constitutionalism with the Meccan version of Sharia. We conclude with the words of An-Naim (1990), who states that unless a new principle of interpretation is introduced to allow modern Muslims to modify or change these aspects of the public law of sharia, only two other options remain: either continue to disregard sharia in the public domain, as used to be the case for the majority of modern Muslim states, or proceed to enforce sharia principles regardless of constitutional, international law, and human rights objections.
Acknowledgments The author thanks Matthias Dauner, Thomas Demmelhuber, Nora El-Bialy, Ahmed Ghoneim, Shubha Ghosh, Jerg Gutmann, Bernd Hayo, Helmut Leipold, Peter Lewisch, Kareem Madkour, Ulrike Schillinger, Elisabeth Schulte, Stefan Voigt, an anonymous referee, and the participants at the Constitutional Choice in the Middle East conference in Hamburg (July 2012), as well as the Hagemann-Foundation conference Arab Spring: Challenges and Prospective in Marburg (November 2012) for their valuable comments and suggestions. Special thanks to Marianne Wagdy for meticulously revising the English translation of the Al-Azhar constitution. Shimaa Hanafy was a major source of encouragement and support. The nancial support by the Yousef Jameel Foundation is gratefully appreciated. The usual disclaimer applies.
6

der (2011), Hashemi See Arjomand (2007), Abou El Fadl (2004), Moussalli (2003), Grote and Ro (2012).

By the Medina stage, An-Naim means the stage ushered in by the Prophets migration from Mecca to Medina in 622 CE. In Medina, the Muslims ceased to be a purely religious community; they became a political community as well. Unlike quranic verses revealed during the Meccan period, Medinese verses tend to be rich in legislation with regard to marriage and inheritance, among other things.

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Appendix

123
A source of law? Yes Yes Yes Yes Yes Yes Yes Yes Yes N/A Basis, main, major, or supreme source of law? Law contrary to religion void? Does the constitution contain an explicit decree of separation of church and state? Head of state must be Muslim? Head of government must be Muslim? Provisions for religious courts? Yes Yes Yes Yes Yes Yes Yes Yes N/A N/A N/A Yes Yes Yes

See Table 1.

Table 1 Sharia-related provisions in the constitutions of Muslim-majority countries*

Country

Status of religious law

Islam is the ofcial religion?

Does the constitution provide for freedom of religion?

Default law?

Afghanistan

Yes

Yes

Yes

Albania

Yes

Algeria

Yes

Azerbaijan

Yes

Bahrain

Yes

Yes

Bangladesh

Yes

Yes

Brunei

Yes

Yes

Burkina Faso (Upper Volta)

Yes

Chad

Yes

Djibouti

Yes

Egypt

Yes

Yes

Gambia

Yes

Guinea

Yes

Indonesia

Yes

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Iran (Persia)

Yes

Only certain religions

Table 1 continued

Country A source of law? Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes N/A N/A N/A N/A N/A N/A Yes Yes Yes Yes Basis, main, major, or supreme source of law?

Status of religious law

Islam is the ofcial religion?

Does the constitution provide for freedom of religion?

Default law?

Law contrary to religion void?

Does the constitution contain an explicit decree of separation of church and state?

Head of state must be Muslim?

Head of government must be Muslim?

Provisions for religious courts?

Iraq

Yes

Yes

Jordan

Yes

Yes

Kazakhstan

Yes

Islamic constitutionalism and rule of law

Lebanon

Yes

Libya

Malaysia

Yes

Yes

Maldives

Yes

Mali

Yes

Mauritania

Yes

Morocco

Yes

Yes

Niger

Yes

Nigeria

Yes

Oman

Yes

Yes

Pakistan

Yes

Yes

Qatar

Yes

Yes

Saudi Arabia

Yes

Senegal

Yes

Sierra Leone

Yes

Somalia

Yes

Sudan

Yes

123

Syria

Yes

79

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Table 1 continued

123
A source of law? Yes Yes Basis, main, major, or supreme source of law? Law contrary to religion void? Does the constitution contain an explicit decree of separation of church and state? Head of state must be Muslim? Head of government must be Muslim? Provisions for religious courts? Yes Yes Yes Yes Yes Yes N/A Yes

Country

Status of religious law

Islam is the ofcial religion?

Does the constitution provide for freedom of religion?

Default law?

Tajikistan

Yes

Tunisia

Yes

Yes

Turkey/ Ottoman Empire

Yes

Turkmenistan

Yes

United Arab Emirates

Yes

Yes

Uzbekistan

Yes

Yemen (Arab Republic Of Yemen)

Yes

Muslim-majority countries are countries where the percentage of Muslim population exceeds 50 % of total population. From Mapping the Global Muslim Population, Pew Research Center, October 2009, pp. 2833

Source: Authors reproduction from Comparative Constitutions Project, Version 1.0, May 14, 2010, retrieved May 17, 2012

N/A not applicable

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