International Journal of Constitutional Law & Center for Constitutional Transitions

Designing Islamic constitutions: Past trends and options for a democratic future

By Clark Lombardi

In recent years, a growing number of countries have adopted constitutional provisions requiring that state law be consistent with Islamic law (sharia). Muslims today are deeply divided about what types of state action are consistent with sharia. The impact of a “Sharia guarantee clause” (SGC) depends largely on questions of constitutional design: who is given the power to interpret and apply the provision and what procedures do they follow? This article explores the trends that gave rise to SGCs and provides a history of their incorporation into national constitutions. It then surveys a number of the remarkably varied schemes that countries have developed to interpret and enforce their SGCs, and it considers the impact that different schemes have had on society. Finally, building on this background, the article considers what types of SGC enforcement scheme, if any, are consistent with democracy. As it notes, SGCs are often found in authoritarian or imperfectly democratic constitutions. Unsurprisingly, the designers of SGC enforcement schemes in non-democratic countries have generally tried to ensure that their SGC will be interpreted and applied in a way that permitted or even promoted non-democratic policies. Nevertheless, from the experience of non-democratic countries with SGCs we can draw some important lessons about the types of SGC enforcement scheme that would allow more democratic states to promote both democratic political participation and rights. Furthermore, recent debates have erupted in Western liberal democracies about how best to reconcile rights enforcement with democracy. These help to further clarify some issues that aspirational Islamic democracies will face as they try to develop SGC enforcement schemes for a democratic society, and they provide insights into the qualities that an institution must possess if it is to address these issues effectively. A number of Muslim countries are currently debating how best to square a constitutional commitment to respect Islam with parallel commitments to democracy and rights. Acknowledging that these countries will need to tailor their SGC enforcement schemes to very different local conditions, this article describes some basic design features that effective democratic SGC enforcement schemes are likely to share.

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About the Special Issue

Symposium – Constitutional Transitions in the Middle East

In March 2012, Constitutional Transitions held a symposium on the constitutional reformation of the Middle East and North Africa region in the wake of the Arab Spring. The papers presented at the symposium are collected in this special edition of the International Journal of Constitutional Law (I•CON), with an introduction by Constitutional Transitions Faculty Director Sujit Choudhry. For more information and videos from the 2012 symposium, click here.

Constitutional Transitions generates and mobilizes knowledge in support of constitution building. Constitutional Transitions generates knowledge by identifying issues of critical importance to the success of constitutional transitions, where a lack of adequate, up-to-date research impedes the effectiveness of technical assistance for constitution building, and assembles and leads international networks of experts to complete thematic research projects that offer evidence-based policy options to practitioners. Constitutional Transitions mobilizes knowledge through an innovative clinical program that provides “back office” research support to constitutional advisors in the field, and deploys faculty experts and field researchers for support on the ground. We meet existing field missions’ needs for comprehensive research, dramatically enhancing their effectiveness and efficiency in their role as policy advisors and actors.

The International Journal of Constitutional Law (I•CON) is published in association with the New York University School of Law, and is dedicated to international and comparative constitutional law. I•CON has international editorial and advisory boards and an international focus. It examines an array of theoretical and practical issues and offers critical analysis of current issues and debates. In addition, I•CON looks at global trends that carry constitutional implications. It features scholarly articles by international legal scholars, judges, and people from related fields, such as economics, philosophy, and political science.