Toward a New Theory of Islamic Constitutionalism

I had the honor of spending a few days last week with a number of constitutional scholars at the International Association of Law Schools conference on Constitutional Law held jointly at American University Washington College of Law and Georgetown University Law Center.

It helped to refocus some of my own thinking about this topic, particularly on the notion of Islamic Constitutionalism.

Although I have had an interest in Islamic Constitutionalism for some time, it became heightened after the summer of 2007. That summer human rights groups, members of the Egyptian People's Assembly (Majilis Al-Sha’ab), and the Egyptian Lawyers Syndicate invited me to monitor military trials of suspected Islamists. During this trip, I had the privilege of meeting with some of the highest officials of the Muslim Brotherhood and heard about their ideas and visions. It also reinforced in my mind that Islamists (controversial term) are here to stay. We cannot simply wish them away or bomb them out of existence. We can choose to dismiss and ignore them at our own peril, or we can take the road of constructive engagement and empower the moderates among them in ways that respect their right to self-determination and try to work toward peaceful co-existence.

Over the last few years, I have spent a considerable amount of time studying both the views of a broad range of Islamists as well as Islamic political and legal theory. I am currently working on a paper, which argues that there are sufficient doctrinal and conceptual tools within Islamic legal and political theory to structure an Islamic system of governance that can be in compliance with modern constitutional and democratic practice.

A caveat is in order at the outset: Detailing out this argument is a very ambitious project, and I cannot do justice to it in such a short synopsis. I hope to provide a brief outline or framework of my main ideas in this post. I will try to post from time to time as I develop my arguments. These preliminary thoughts are put out to solicit some initial reaction. I welcome feedback, criticisms and whatever else you may wish to throw my way :-)

My proposal is to theorize the development of a new Islamic Constitutional model by relying on John Rawls' theory of “overlapping consensus” and the notion of constructively engaging with the moderate Islamists (including Islamic feminists) who should be encouraged and enabled to internally work out and negotiate their own consensus on their societal values. Obviously, there are serious criticisms that can be lobbed at these arguments, especially when there has been no opportunity to detail them out in any substantive way. In any event, I hope to address these in the fully articulated version of this paper.

I believe there is enough in the interaction between the two ideas and the existing doctrinal and conceptual tools within Islamic legal and political theory for us to work with. These three considerations provide us with a workable starting point in theorizing a more tolerable yet robust model of Islamic Constitutionalism. Such a model must be acceptable to both the Western and Islamist perspective. This of course envisions a role for both the moderates among us in the west and the moderates in the Muslim world.

The “overlapping consensus” thesis set out in Rawls' Political Liberalism refers to how proponents and adherents of different ideologies or world views can concur on a political agreement based on justice. This consensus is reached, in part, by avoiding the deepest religious and philosophical divides between the various camps. This of course assumes that there are core commitments common to “reasonable” people and that people can, in fact, keep their deepest subjective beliefs and convictions to themselves. Rawls argued that citizens who held diverse religious and moral beliefs could agree on the constitutional basics -- the essential or minimum constitutional principles necessary for a society to advance the interests of justice as fairness and maintain some sort of cohesive structure in the pursuit of the common good. Rawls accepted that total agreement on justice as fairness might be impossible, but he concluded that an "overlapping consensus," is possible.

My arguments will build on the work of Mohamed Fadel who used Rawls' framework to examine how Muslim citizens of a liberal state could participate in a Rawlsian "overlapping consensus." I would like to push the envelope a little further and argue that a viable Islamic Constitutional model (revolving around the reasonable middle ground) can be achieved by respecting the role of religion, the traditions of Islam (including legal and political theory), and the right to self-determination. These three pre-conditions, as trite as they may be, are too often overlooked, minimized, assumed away or dismissed both in scholarly work and in policy formulation. Yet, these are critical if we are to engage with the Islamic world in any meaningful way based on mutual respect and in the spirit of co-existence.

If we can get beyond the clash of extremism – that has been prevalent to date in exchanges between the two sides -- then we may be able to communicate and appreciate the legitimate interests and views of the other. If we can respect the role of religion, the traditions of Islam and provide some breathing space to Muslim societies to struggle with their own demons, we may indeed give the opportunity for aql (reason) to prevail in the pursuit of adl (justice) and the common good of humanity. This obviously calls for a rethinking of our approach to the Islamic world in line with Amitai Etzioni's view that the fundamental clash (fault lines) we need to worry about are not really between civilizations but within civilizations. Only constructive engagement with the moderate elements in the Islamist movement will allow for this “overlapping consensus” to come to the fore.

I argue that an ummah (Muslim community) led, bottom-up approach, which Mashood Baderin has accurately labeled the socio-cultural and harmonistic approach to Islamic reform, is the most sustainable and peaceful route to devise a workable and acceptable or tolerable model of Islamic Constitutionalism. The moderates within the ummah must be given the opportunity to grapple with the existing traditions of Islam and to work with its tool box of legal and political theory to start devising their own governing structures. The least we can do is to allow these societies to negotiate and work out their own societal norms rather than attempting to impose our own values and judgments. This organic bottom up consensus building approach to Islamic reform would be in line with the long established Islamic traditions of tajdid (renewal) and islah (reform) in Islamic legal and political theory. The product of this process would have greater legitimacy for its inherent consistency with Islamic doctrines and concepts. Indeed, this may better inoculate these reforms from the inevitable attacks from extremists, who will undoubtedly label them as western impositions.

Granted, this project, or more likely series of projects, will not be a quick or smooth process. In fact, consistent with Etzioni’s view, the factions within the Islamic civilization and the western world will clash. There will be a contest within the Western camp on whether or not to engage with the moderates (and if so with who) and whether or not we accept the outcome of the process. Within the Islamist camp, various factions will vie for the power to set the agenda. These clashes both at the intellectual, political and military (rebellion and terrorism) are already taking place on the ground. These internal contestations are inevitable and simply represent the birth pangs in the evolution into civil and participatory societies.

None of this, of course, means that the governance structure that evolves into existence will be an exact replica of western models. Herein lies a challenge to us in the West and in the secular camp; will we accept that there are other viable models for governance that deserve our respect?