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ISLAMIC CONSTITUTIONALISM:
NOT SECULAR. NOT THEOCRATIC. NOT IMPOSSIBLE.

Asifa Quraishi-Landes

I. INTRODUCTION

This Lecture Series asks us to engage in a thought

experiment: what would a constitution look like if it integrated—
rather than separated—church and state? As the Muslim
respondent to this question, I have to start by reminding us that
Islam does not have a “church” in the first place. This fact has
some very important and relevant constitutional implications that
will become clear later. But setting that aside for the moment, the
thought experiment is still appropriate for a Muslim context if we
broaden it to imagine the constitutional integration of state and
“religion” (rather than “church”). As it happens, I have been
working on the subject of Islamic constitutionalism for some time,
so I will answer the question by summarizing a proposal for
modern Islamic constitutionalism that is part of my current larger
academic project. This proposal presents a structure for Islamic
constitutionalism that is inspired by pre-modern Islamic
jurisprudence and Muslim history, yet designed for contemporary
realities. It also has the potential to solve the apparently endless
“Islamist-versus-secular” political and social tensions that plague
most Muslim-majority countries today.
In modern western constitutional discourse, theorizing
about religious government typically encounters this immediate
obstacle: fear of theocracy. Entrenched in western constitutional
theory is the belief that any combination of religion and state is
unacceptable because it too easily allows for theocracy; it is simply
too dangerous to individual freedoms to enable a government to
use its police power to impose religion and religious law upon its
citizens. This concern is usually impossible to remove—and for
good reason. European history tells a long and gruesome tale of
religious wars and government oppression justified by states
claiming to be enforcing divine law. Therefore, our modern age of
constitutional protection of individual freedoms is strongly linked
with the principle of separation of religion and state. Without this
separation, we open the door to theocratic oppression of all those
who disagree with the government’s chosen religious beliefs.
But this is a European telling of the story of religion and
state. More precisely, it is a specifically Christian story of the
554 RUTGERS JOURNAL OF LAW & RELIGION [Vol. 16

history of church and state. It ignores the rest of the world’s

experiences and the possibility that not every religion has had the
same relationship with government power. Islam is one very
significant counter-example to this Eurocentric narrative. In order
to provide an Islamic answer to the thought experiment, therefore,
I must begin with a brief summary of the nature of Islamic law
and Muslim political history, pointing out its significant
differences with the Christian church-state paradigm. With that
foundation, I will then elaborate on what a contemporary Islamic
constitutional framework might look like, based on what I find to
be the essential characteristics of Islamic constitutionalism.

II. ISLAMIC LEGAL DIVERSITY

The core principle of Islamic jurisprudence is that sharia,

God’s Law, cannot be known with certainty. Literally meaning
“street,” or “way,” the term “sharia” in the Quran denotes the
perfect Way of God—the way God advises people to live a virtuous
life. This Way of God is described in the Quran and the Prophet
Muhammad’s life example. But of course not everything is clearly
answered in those two sources, so Muslim scholars perform
“ijtihad” (rigorous legal reasoning) to extrapolate from those
sources more detailed guidance for life according to sharia. This
guidance comes in the form of detailed legal rules called “fiqh”
(literally “understanding”). Muslims never established any clerical
establishment or central institution to establish Islam’s official
religious doctrine, so the religious rules of Islam are the result of
the work of a diverse community of fiqh scholars operating
according to their own collective standards of integrity and
professionalism.
The epistemology of fiqh is important to understanding
Islamic law, and especially how it differs from religious law as it
appeared in Europe. Fiqh lawmaking happens with an awareness
of its own fallibility. From the start, fiqh scholars acknowledged
that their work of ijtihad is a fundamentally human endeavor that
always carries the possibility of error.1 Their use of the term “fiqh”
is telling. “Fiqh” in Arabic means “understanding.” This word
linguistically signals that every fiqh rule is at best a given
scholar’s understanding of God’s Law, nothing more. In short,

1 For further detail, see Bernard Weiss, Interpretation in Islamic Law: The
Theory of Ijtihad, 26 AMER. J. COMP. L. 199 (1978).
2015] ISLAMIC CONSTITUTIONALISM 555

although their job is to articulate God’s Law, fiqh scholars are

careful never to speak for God.
Looking at the discipline broadly, fiqh lawmaking is based
upon an acceptance of the impossibility of knowing God’s Law with
certainty, but not the futility of trying. 2 This simultaneously
humbling and empowering attitude among the fiqh scholars
resulted in a natural and unavoidable diversity of fiqh doctrines.
Because there is no way to know for sure which fiqh conclusions
are correct (and no Muslim “church” to designate favorites), all
fiqh rules are deemed to be equally valid understandings of sharia,
even though they often contradict each other. As more and more
fiqh scholars wrote more and more fiqh rules, several identifiable
schools of law emerged, each with a different methodology of
interpretation. (Once numbering in the hundreds, there remain
about five dominant in the world today.)3 In short, for a Muslim,
there is one Law of God, but there are many versions of fiqh
articulating that Law here on Earth. Thus, the tangible reality of
sharia in the world is not a monolithic single code of law, but
rather the different doctrines of many fiqh schools, each equally
valid representations of the Law of God.
In pre-modern Muslim systems, the application of fiqh in
individual lives occurred through this diversity. Fiqh law was
accessible to the public in a way that gave individual Muslims
choice over which school of fiqh law they would follow. To
summarize a vast temporal and geographic history, individual
Muslims typically identified with one fiqh school, seeking out
scholars of that school for guidance when they were in need of
specific legal answers, such as whether or not a contract was valid,
or how to designate inheritance beneficiaries. The fiqh scholars’
answers to these individual questions came in the form of legal
responsa (fatwa) which were voluntarily self-enforced by the

2 See KHALED ABOU EL FADL, SPEAKING IN GOD’S NAME: ISLAMIC LAW,

AUTHORITY AND WOMEN 39 (2001) (“Islamic legal methodologies rarely spoke in
terms of legal certainties (yaqin and qat’). The linguistic practice of the juristic
culture spoke in terms of probabilities or the preponderance of evidence . . . .
Muslim jurists asserted that only God possesses perfect knowledge–human
knowledge is tentative.”). For more on this concept in the various schools of
Islamic jurisprudence, see ARON ZYSOW, THE ECONOMY OF CERTAINTY: AN
INTRODUCTION TO THE TYPOLOGY OF ISLAMIC LEGAL THEORY (2013).
3 For more on these different fiqh schools and their respective
methodologies compared with the methodologies of American constitutional
interpretation, see Asifa Quraishi, Interpreting the Qur’an and the Constitution:
Similarities in the Use of Text, Tradition and Reason in Islamic and American
Jurisprudence, 28 CARDOZO L. REV. 67 (2006).
556 RUTGERS JOURNAL OF LAW & RELIGION [Vol. 16

questioner him or herself. If a fiqh-based dispute arose in which

third party conflict resolution was necessary, (for example, a
property dispute between neighbors), the parties would typically
seek out a ruler-appointed qadi (judge) to resolve the dispute,4 and
the qadi’s ruling would be enforced by the executive power of the
Muslim ruler. This was possible because Muslim rulers generally
accommodated the fiqh diversity of their populations by appointing
a variety of judges from different fiqh schools reflecting the
demographics of each geographic area.5 This system created a “to
each his own” quality of religious law in these societies that
included not just the many Muslim fiqh legal schools, but also the
religious laws of Christians, Jews, and others. In this way,
individuals in pre-modern Muslim systems could receive official
recognition of their preferred religious law without imposing it on
everyone else.
Importantly, the fiqh applied in the qadi courtrooms was
created by the fiqh scholars; it was not written by rulers.
Moreover, rulers rarely attempted to consolidate the rules of
divergent fiqh schools to create one fiqh code applied by all the
qadis in the land. This reflected a basic appreciation by Muslim
rulers that, even though they were responsible for enforcing fiqh
rules when necessary, their executive power did not include the
power to articulate God’s Law. This is because it was established
early in Muslim history that substantive control over the meaning
of scripture would rest exclusively with the fiqh scholars, and
outside of ruler authority.6 But that does not mean that rulers did

4 Which fiqh school would resolve conflicts between Muslims of different

fiqh affiliations differed according to the details of each time and place, a topic too
large to summarize here, but, generally speaking, the resolution was similar to
the way that conflict of laws rules govern how disputes between citizens of
different nations or states is resolved today.
5 Significantly, Muslim governments did not view this fiqh diversity as a
threat to their sovereignty. See Sherman A. Jackson, Shari'ah, Democracy, and
the Modern Nation-State: Some Reflections on Islam, Popular Rule, and
Pluralism, 27 FORDHAM INT’L L.J. 88, 106 (2003) (“the pre-modern Muslim state . .
. did not equate the integrity of the State with the exercise of an absolute
monopoly over lawmaking or the ability to impose a uniform code of behavior on
the entire society.”).
6 Scholarly autonomy over the interpretation of scripture is a result of the
mihna, an attempt by early Muslim rulers to control theological belief of the
Muslim population. Scholar resistance ultimately prevailed, leading to the
separation of fiqh and siyasa authority that became typical of Muslim societies
thereafter. See MARSHALL G. S. HODGSON, THE VENTURE OF ISLAM: CONSCIENCE
AND HISTORY IN A WORLD CIVILIZATION I: THE CLASSICAL AGE OF ISLAM 285-319,
479-89 (University of Chicago Press 1974); see Khaled Abou El Fadl, Islam and
the Challenge of Democratic Commitment, 27 FORDHAM INT’L L.J. 4, 26 (2003)
2015] ISLAMIC CONSTITUTIONALISM 557

no lawmaking at all. They most certainly did. But the laws they
made were of a very different type than fiqh.7

III. LAWMAKING BY MUSLIM RULERS

Muslim rulers’ deference to the fiqh scholars’ authority over

the substantive content of fiqh was not out of politeness. It was the
natural result of a unique separation of legal authority in pre-
modern Muslim lands that has all but disappeared today. In pre-
modern Muslim legal systems, there were two types of law: siyasa,
created by the rulers, and fiqh, created by the fiqh scholars.8 These
two types of law operated in an interdependent relationship with
each other, but they came from very different sources and stood on
very different grounds of legitimacy. Unlike fiqh, siyasa laws were
not extrapolated from scripture by religious legal scholars. Muslim
rulers crafted siyasa according to their own philosophies of
government and ideas about how best to maintain public order.
Siyasa laws were typically pragmatic, governance-related laws,
covering topics like taxes, security, marketplace regulation, and
public safety—i.e., things necessary for public order, but about
which the scripture says little. 9 Notably, siyasa rulers were
specifically expected not to draw their rules from scripture, but
from their own opinions of what is necessary for social and

(“after the age of mihna . . . the ‘ulama (religious scholars or jurists) were able to
establish themselves as the exclusive interpreters and articulators of the divine
law . . . . [T]he inquisition was a concerted effort by the state to control the
juristic class and the method by which Shari’ah law was generated. Ultimately,
however, the inquisition failed and, at least until the modern age, the jurists
retained a near exclusive monopoly over the right to interpret the divine law.”).
7 See Abou El Fadl, supra note 6, at 30–31 (“Only the jurists [were]
qualif[ied] to investigate and interpret the Divine will . . . . However, pursuant to
the powers derived from its role as the enforcer of Divine laws, the State was
granted a broad range of discretion over what were considered matters of public
interest [known as the field of al-siyasah al-Shar’iyyah].”).
8 See Asifa Quraishi, The Separation of Powers in the Tradition of Muslim
Governments, in CONSTITUTIONALISM IN ISLAMIC COUNTRIES: BETWEEN UPHEAVAL
AND CONTINUITY 67 (Tilmann J. Roder & Rainer Grote eds., 2012); Gianluca
Parolin, Religion and the Sources of Law: Shari‘ah in Constitutions, in LAW,
RELIGION, CONSTITUTION; FREEDOM OF RELIGION, EQUAL TREATMENT, AND THE LAW
95–97 (Durham et al. eds., 2013) (describing the difference between fiqh and
siyasa); FRANK VOGEL, ISLAMIC LAW AND LEGAL SYSTEM: STUDIES OF SAUDI ARABIA
31 (2000) (describing fiqh and siyasa as “microcosmic” and “macrocosmic” law).
9 See VOGEL, supra note 8, at 52, 171–73. For an insightful study of some
interaction between fiqh and siyasa in Muslim legal history, see KRISTEN STILT,
ISLAMIC LAW IN ACTION: AUTHORITY, DISCRETION, AND EVERYDAY EXPERIENCES IN
MAMLUK EGYPT (2012), describing the mixed fiqh-siyasa role of the muhtasib.
558 RUTGERS JOURNAL OF LAW & RELIGION [Vol. 16

political order.10 The result was religious legitimacy for Muslim

rulers to issue laws and “perform the duties of everyday
governance and law enforcement without specific reference to, or
grounding in, the sacred texts.”11
Siyasa lawmaking by temporal holders of power ultimately
came to be seen as Islamically legitimate because of the
widespread consensus in Islamic jurisprudence that the ultimate
purpose of sharia is to promote the welfare of the people
(maslaha). 12 Because rules extrapolated from scripture cannot
cover all the day-to-day public needs of civil society, the fuqaha
recognized that another type of law besides fiqh was necessary to
fully serve the public good (maslaha ‘amma). Scriptural study
cannot identify, for example, what is a safe speed limit or what
regulations will ensure food safety. The only institution capable of
creating and enforcing these sorts of rules is the police power—
that is, the siyasa power held by the rulers. Thus, in the literature
of Muslim political science that came to be known as siyasa
shariyya, fiqh scholars agreed that it is fundamental to a sharia-
based system that rulers exercise siyasa lawmaking power for the
purpose of serving the public good (maslaha ‘amma).13 Though the
siyasa shariyya scholars differed widely in their ideas about the
proper sharia scope of siyasa power, the practical impact of siyasa

10 See Mohammad Fadel, The True, the Good, and the Reasonable: The
Theological and Ethical Roots of Public Reason in Islamic Law, 21 CAN. J.L. &
JURIS. 5, 59 (2008) (“this area of the law was entirely independent of theological
expertise, and accordingly, legitimized rule-making for the vindication of public
interests rather than the vindication of express revelatory norms.”); Abou El-
Fadl, supra note 6, at 30–31 (describing Muslim ruler broad range of discretion
over matters of public interest).
11 Sadiq Reza, Torture and Islamic Law, 8 CHI. J. INT’L. L. 21, 27 (2007).
12 For more detail on maslaha, see FELICITAS OPWIS, MASLAHA AND THE
PURPOSE OF THE LAW: ISLAMIC DISCOURSE ON LEGAL CHANGE FROM THE 4TH/10TH TO
8TH/14TH CENTURY 1–8 (2010).
13 Frank Vogel, Islamic Governance in the Gulf: A Framework for Analysis,
Comparison, and Prediction, in THE PERSIAN GULF AT THE MILLENNIUM: ESSAYS IN
POLITICS, ECONOMY, SECURITY, AND RELIGION 259 (Gary G. Sick & Lawrence G.
Potter eds., 1997) (“as understood by [fiqh scholars] the ruler possesses authority
under siyasa doctrine to act freely to pursue the welfare of the [community] as he
understands it . . . .”). Shihab al-Din al-Qarafi, for example, described siyasa as
“that power entrusted to the government to improve society. Exercises of this
power were valid insofar as they were undertaken with the purpose of enhancing
the community’s welfare, and did so improve it in fact.” See Fadel, supra note 10,
at 58 (quoting al-Qarafi’s al-Furuq). See generally OVAMIR ANJUM, POLITICS, LAW,
AND COMMUNITY IN ISLAMIC THOUGHT: THE TAYMIYYAN MOMENT (2012) (comparing
a great number of siyasa shariyya scholars on the topic of Islamic governance,
including their divergent views on the reason for and nature of the siyasa ruler).
2015] ISLAMIC CONSTITUTIONALISM 559

shariyya scholarship as a whole was to confirm that sharia as a

holistic system for societal good includes pragmatic considerations
of good governance. In this way, sharia as “God’s Law” is meant to
cover more than just the fiqh elaboration of scriptural rules. In
short, sharia is a rule of law, not a mere collection of rules.
Siyasa’s lack of direct grounding in sacred texts is
important for Islamic constitutionalism because it illustrates how
sharia works as an Islamic rule of law comprised of two different
types of lawmaking. Even though siyasa laws were not derived
directly from scripture, pre-modern Muslims did not think of
siyasa as “outside” of sharia. Instead, they considered fiqh and
siyasa both to be components of their rule of law systems. As
understood in pre-modern Muslim political theory and practice,
rulers and religious legal scholars together serve sharia, through
their respective jobs, each serving different roles based on different
sources of legitimacy. More specifically, the job of the rulers is to
make and enforce laws that serve the public good, and the job of
the scholars is to use ijtihad to extrapolate scripturally-directed
rules from the Quran and Sunnah.
To use contemporary terminology, legal pluralism 14 —not
legal monism—was the constitutional structure of pre-modern
Muslim governments. In Sherman Jackson’s words, “legal
pluralism was to the premodern Muslim state what legal monism
has become to the modern nation-state.”15 It really could not have
been any other way. Because of the epistemology of Islamic
jurisprudence. Muslim legal systems had to figure out how to
accommodate the unavoidable and inherent diversity of fiqh. More
specifically, if different doctrines of the different fiqh schools are
all equally valid, then it is not possible to declare one of them the
law of the land (and those who tried, failed). So, unlike law
(especially religious law) in Europe, legal centralism simply was

14 Legal pluralism is the existence of multiple legal systems or layers of

law, usually with different sources of legitimacy, that coexist within a single state
or social field. For more, see John Griffiths, What is Legal Pluralism?, 24 J. LEGAL
PLURALISM 1 (1986); Sally Engle Merry, Legal Pluralism, 22 LAW & SOC’Y REV.
869 (1988). Note that the academic discourse on legal pluralism defines it as the
situation of different laws originating from different sources exist simultaneously
in the same space, and not as a diversity of interpretations of the same source
material (as in different justices’ opinions on the meaning of constitutional text).
Following this terminology, fiqh diversity is not legal pluralism, but a legal
system composed of fiqh and siyasa is.
15 Sherman Jackson, Islamic Reform Between Islamic Law and the Nation-
State, in THE OXFORD HANDBOOK OF ISLAM AND POLITICS 46 (John L. Esposito &
Emad El-Din Shahin eds., 2013).
560 RUTGERS JOURNAL OF LAW & RELIGION [Vol. 16

not an option. Muslim societies had to figure out another way to

set up their legal-political systems, and their solution was two
types of law: siyasa (made by the ruler) and fiqh (made by the
scholars). Both had authority over the people, but in very different
ways. Siyasa served general public needs such as safety and
justice and order, whereas fiqh provided rules to guide Muslims in
living a life according to the will of God. Siyasa was enforced by
the state through use of force, whereas fiqh was partly enforced by
the state and partly self-enforced, depending on the nature of the
issue. 16 In sum, the rule of law in pre-modern Muslim lands
depended upon the existence and complementarity of both types of
law, siyasa and fiqh.

IV. THE COLONIAL DISRUPTION

Today, the norm of constitutional ordering is legal monism,

not legal pluralism, even in Muslim-majority countries. This norm
comes from the European nation-state model—the idea that a
culturally and ethnically distinct people (a “nation”) form a
territorially-bound sovereignty that gives legitimacy to a
governing political power. This political power is characterized by
legal centralism—the idea that everyone is governed by the same
law, and that law comes from a central state. The European
nation-state model of government was imported into Muslim lands
with colonialism. In countries colonized by European powers, the
pre-existing Muslim legal and political systems (described above)
were dismantled and replaced with national legal codes and
judicial systems. With independence in the mid-twentieth century,
the new Muslim-majority states in Arabia, Africa, Asia, and
Eastern Europe retained most of the law and legal systems set up
by their former European rulers, now woven into the socio-
economic infrastructure of these countries. 17 In virtually every
Muslim-majority country, whether it was actually colonized by a
European power or not, European nation-state legal centralism
became the norm.
This colonialist mutation of legal-political systems in
Muslim-majority lands has, sadly and ironically, created
theocratic-leaning Muslim governments. But it is not the
integration of religion and state that has caused these new Islamic

16 It was self-enforced when individual Muslims sought out fatwas for their
personal legal questions. It was enforced by the state if the fiqh was being applied
through the judgment of a qadi.
17 See WAEL B. HALLAQ, AN INTRODUCTION TO ISLAMIC LAW 85–124 (2009).
2015] ISLAMIC CONSTITUTIONALISM 561

theocracies. Rather, it is the integration of religion with legal

monism that has created this phenomenon. To explain further:
with independence in the twentieth century, many Muslims
organized themselves into social and political organizations (often
called “Islamism”) to remedy the wound of the colonialist purging
of sharia in Muslim lands. But these Islamists operated with a
rather stunning amnesia. Rather than looking to Islamic history
for alternative arrangements of legal and political authority, they
instead took the nation-state structure inherited from their
European colonizers for granted, and simply concentrated their
efforts on making that central state “Islamic.”18
This was a dangerous turn of events. Because Islamists did
not challenge the monist presumptions of the nation state,
monolithic legal positivism has shrunk Muslim constitutional
horizons to the narrow realm of state law, contributing to
dangerous power monopolies in contemporary Muslim
governments. The more it is insisted that all law comes from the
state, the more everyone is forced into that arena to acquire any
recognition and protection for laws that are important to them—
religious laws included. Now that all law in these countries is
defined by the state, the state now has control over the substantive
content of sharia in these countries.19 This is the reason for the
proliferation of “sharia legislation.” Following the legal monist
presumption that the central state controls all law, Islamist
movements consistently look to state lawmaking bodies to
officially recognize sharia, usually in the form of legislating it.20

18 As Sherman Jackson puts it, “liberal or illiberal, pro- or anti-democratic,

the basic structure of the nation-state has emerged as a veritable grundnorm of
modern Muslim politics. The basic question now exercising Muslim thinkers and
activists is not the propriety of the nation-state as an institution but more
simply—and urgently—whether and how the nation-state can or should be made
Islamic.” Jackson, supra note 15, at 42. Even those calling for an “Islamic state”
did not challenge the nation-state presumptions of legal monism. In Jackson’s
words, “the Islamic state is a nation-state ruled by Islamic law.” SHERMAN A.
JACKSON, ISLAMIC LAW AND THE STATE: THE CONSTITUTIONAL JURISPRUDENCE OF
SHIHAB AL-DIN AL-QARAFI xiv (1996). Frank Vogel comments that this is apparent
“when Islamic thinkers assume that to return to sharia one should just amend
here and there the existing positive-law constitutions and statutes; or assert that
a modern state is Islamic if its legislature pays respect to general Islamic legal
precepts, such as bans on prostitution or gambling.” VOGEL, supra note 8 at 219.
19 For a commentary on this phenomenon in a discussion of legal pluralism,
see Sherman A. Jackson, Legal Pluralism Between Islam and the Nation-State:
Romantic Medievalism or Pragmatic Modernity?, 30 FORDHAM INT’L L.J. 158
(2006).
20 See Mohammad Hashim Kamali, Methodological Issues in Islamic
Jurisprudence, 11 ARAB L. Q. 3, 9 (1996) (“The advent of constitutionalism and
562 RUTGERS JOURNAL OF LAW & RELIGION [Vol. 16

What these movements fail to recognize is that, far from restoring

sharia to those places to where it was removed, these sharia
legislative projects have fundamentally transformed the nature of
sharia’s engagement with Muslim societies.
The dominance of nation-state legal monism in Muslim
politics has obscured what is arguably the most constitutionally
relevant aspect of Islamic history: siyasa respect for a separate
and autonomous realm of fiqh law. This respect enabled a
bifurcation of legal authority between fiqh and siyasa law that
directed pre-modern Islamic government away from theocratic
rule. Because fiqh and siyasa each played separate roles in sharia
rule of law systems before colonialism, pre-modern Muslim
governments worked with the reality of these different legal
realms rather than using their political power to enforce one
singular version of religious law on everyone.
The contemporary phenomenon of “sharia legislation”
ignores this fundamental feature of pre-existing Muslim legal
systems. Rather than thinking of sharia as a rule of law system
composed of both fiqh and siyasa legal realms, the “Islamization”
of Muslim governments has collapsed sharia into just fiqh, and
then looked to state power (today’s siyasa) to bring fiqh into the
political realm.
Moreover, so-called “sharia legislation,” does not really
legislate “sharia” at all. It merely legislates one (or several) among
many fiqh possibilities. Recall that, because every fiqh rule is
fallible, no Muslim government can claim that the fiqh rule they
have enacted is in fact God’s Law. Therefore, the best that can be
claimed of so-called “sharia legislation” is that the government has
enacted its preferred understanding of sharia from among many
equally valid options. To call such legislation “sharia” is to use
religion in a politically manipulative manner—implying divine
mandate for rules that are in reality fallible human
interpretations of divine law.
In reality, “sharia legislation” is simply an act of siyasa.
The adultery laws in Nigeria and Pakistan, the fiqh-inspired
marriage and divorce laws in the family law codes of Egypt and
Morocco—all are acts of siyasa lawmaking because they are laws
created by a political power. They cannot be enactments of divine
law because we can never know with certainty which fiqh rule is

government under the rule of law brought the hegemony of statutory legislation
that has largely dominated legal and judicial practice in Muslim societies. The
government and its legislative branch tend to act as the sole repository of
legislative power.”); see also Jackson, supra note 5.
2015] ISLAMIC CONSTITUTIONALISM 563

the correct understanding of sharia. In truth, then, enacting one

and not another must be on some other basis than it “being” divine
law. Usually, it is some combination of political majorities, social
pressure, and administrative preference (whether this is admitted
publically or not). So, even when they “legislate sharia,” Muslim
governments are doing a purely siyasa job: making prudent
choices given the practical realities of their public lawmaking
systems, ostensibly to serve the public good. In itself, there is
nothing wrong with this—after all, making pragmatic decisions to
serve the public good is exactly what siyasa is meant for. The
problem with “sharia legislation” is that by calling it “sharia,” its
promoters pretend that this is not happening. Sharia legislative
projects are typically presented to a Muslim public as if they are
obligatory divine law, with no mention of the human element
between God and the statute books.
Unfortunately, most religious Muslims do not see this as a
problem. To the contrary, because most Muslims around the world
have an incomplete understanding of sharia, fiqh pluralism, and
the role of siyasa before colonialism,21 they usually do not question
“sharia legislation,” believing to do so would be questioning God’s
Law. Many even defend “sharia legislation” as if defending their
very faith, seeing opponents of “sharia legislation” as enemies of
Islam.22 “Sharia legislation”—because it is so often immune from
popular criticism, amendment, and most of all, repeal—has a
powerful (and often manipulative) strategic advantage in Muslim-
majority countries.
To see this another way, the nation-state is the source, not
the victim, of the destructive cycles of religious politics in Muslim-
majority countries today. The legal monism of the nation state has
created a state-church quality to Muslim rule that is
unprecedented in Muslim history. Muslim governments can now
occupy the powerful position of being both author and enforcer of
what is sharia. This creates oppressive potential for state-enforced
religious dogma, a situation exacerbated by the creation of “sharia
courts” with final authority to interpret the authoritative meaning

21 See e.g., Tamir Moustafa, Islamic Law, Women’s Rights, and Popular
Legal Consciousness in Malaysia, 38 LAW & SOC. INQUIRY 168 (2013) (showing,
based on recent polling data, lay Muslim ignorance of core epistemological
commitments in Islamic legal theory, such as its commitment to pluralism and
the centrality of human agency in fiqh lawmaking).
22 For details on this phenomenon in the context of Islamic law and
women’s rights, see Asifa Quraishi, What if Sharia Weren’t the Enemy?
Rethinking International Women’s Rights Advocacy on Islamic Law, 22 COLUM. J.
GENDER & L. 173 (2011).
564 RUTGERS JOURNAL OF LAW & RELIGION [Vol. 16

of state-enacted “sharia law.” This is a very odd thing for Muslims

to do. For centuries, Muslims rejected the establishment of any
clergy with the power to declare “the” Islamic rule on any given
topic. Today, however, “sharia courts” have the sole authority to
interpret the meaning of sharia for a given Muslim-majority
country. This is arguably the closest thing to a Muslim “state
church” that has ever existed.
It is important to appreciate that it is not sharia itself that
has caused this situation. Rather, it is the result of failing to think
of sharia as a pluralist rule of law, encompassing both fiqh and
siyasa realms. Using sharia and fiqh as interchangeable terms,
Islamist movements not only miss the important role of siyasa in a
sharia-based system but also contribute to this new theocratic
trend by inserting (selected) fiqh rules into monist nation-state
structures that have exclusive control over all law. This is why
“sharia legislation” is a wholly modern, post-colonial invention: it
relies upon the centralized power of the nation-state to exist.
These governments would not be able to uniformly enforce their
selected fiqh rules if the premodern Muslim pluralist bifurcation of
fiqh and siyasa had survived. The theocratic consequences of this
status quo should offend not just secularists who feel that state
law should be separated from religion but also religious Muslims
because it disrespects fiqh diversity and lets the state claim
control over what used to be left to the autonomy of independent
fiqh scholarship.

V. ISLAMIC CONSTITUTIONALISM: THREE ESSENTIAL PILLARS

Given all this history, my answer to the proposed thought

experiment begins with this rather radical idea: what would a
constitution look like if it began with legal pluralism, not legal
monism, as its core structure? My framework for modern Islamic
constitutionalism presented here begins with that premise.
Rejecting legal monism and reclaiming the legal pluralism
illustrated in the historical Muslim bifurcation of fiqh and siyasa
law, this paper describes what a sharia-based government could
look like if sharia is understood as an Islamic rule of law
comprised of two forms of law: fiqh and siyasa. This takes sharia
all the way up the theoretical ladder to the rung of constitutional
theory, opening up new ways of thinking about the allocation of
legal and political power and how to create checks and balances on
that power. The result is a framework for Islamic
constitutionalism that is based on sharia but is not about
2015] ISLAMIC CONSTITUTIONALISM 565

“Islamizing” the nation-state. Rather than accepting the current

constitutional norm that locates all legal authority in a central
sovereign power—and then debating whether that power should or
should not be used to enforce sharia (and if so, which version)—the
framework proposed here shows that sharia-based government can
mean something much more profound and constitutionally
creative than anything that exists right now.
Unlike the centralized nation-state system inherited by
most Muslim-majority countries, the proposed Islamic
constitutional structure is built upon the separation of lawmaking
power that had previously characterized Muslim legal-political
systems for centuries: a separation between siyasa laws made by
rulers in furtherance of the public good (maslaha) and fiqh laws
articulated by a diversity of religious legal scholars based on their
interpretation of scripture. There are three essential pillars to the
proposed structure: (1) government political action must be based
on the public good, as determined by democratic means, (2) a
diverse marketplace of fiqh (and other religious law) should exist
in a parallel legal realm, available as a voluntary opt-out of state
law, and (3) a “sharia check” reviewing the Islamic legitimacy of
political action should be based on the purposes (maqasid) of
sharia. Together, these three pillars form the essential structure
for a system of government that enables Muslims to have sharia as
the “law of the land,” but is not theocratic because it does not allow
a state to impose its preferred religious doctrine upon the entire
population. It also opens up new solutions to longstanding conflicts
between secular and religious forces in Muslim-majority countries
today, such as the purported incompatibility of Islam and
democracy and apparent conflicts between sharia and human
rights. These solutions have been missed in global discourses
about Islamic government so far because Eurocentric concepts of
law (especially religious law) currently dominate the field. A brief
summary of the three essential pillars follows.

A. The First Pillar: Government Action Must be Based on the

Public Good

The first pillar comes from the classical Islamic legal-

political literature addressing the sharia power of rulers. As
discussed above, the legitimacy of siyasa power was based upon
service of the general public good. Today, siyasa power comes in
the form of presidents and parliaments and kings rather than
sultans and caliphs, but the essential nature of the power is the
566 RUTGERS JOURNAL OF LAW & RELIGION [Vol. 16

same—siyasa authority is held by whoever holds police power, i.e.

the government. Thus, the first pillar of the present framework for
Islamic constitutionalism is that all government action must be
based on the public good. Further, the public good could—and I
believe should—be identified through democratic means.
Serving the public good may not seem at first like a very
Islamic demand to make of a Muslim government. It is commonly
assumed (by Muslims as well as non-Muslims) that a country’s
sharia compliance should be measured by comparing its legal
codes to the laws found in classical fiqh. The closer the match, the
more Islamic the government—or so goes the thinking. But that is
a very narrow (and very legal monist) way of thinking about
sharia-based government. In pre-modern Muslim systems, the
sharia mandate for siyasa power was not to enact and impose a
singular fiqh doctrine on everyone, but rather, simply to maintain
public order and serve the public good. Thus, state lawmaking for
the public good—not legislating fiqh doctrine—is the core Islamic
duty of the government in a sharia rule of law system.
This concept has profound implications for Muslim societies
today. If sharia is understood as a rule of law system that includes
siyasa service of the public good, then it becomes clear that “sharia
legislation” is not the only way to make a government Islamic. If it
is appreciated—as an Islamic matter—that a Muslim government
should not be selectively enforcing its preferred religious doctrine
but instead should be seeking to serve the public good, this could
cause a revolutionary change in the secular-versus-religious
debates in Muslim-majority countries today. Rather than debating
“should we have religious law or not?” the people would be asking
“what serves our public good?” Not only does this open up the
public conversation to everyone regardless of religious credentials,
but it also may lessen the tensions of identity politics that has
been part of “sharia politics” in these countries.23 After all, if the
goal of lawmaking of an Islamic government is the public good,
then citizens of all religions and no religion can participate in this
conversation with equal credibility. Public discourse could focus on
practical evaluations of social need rather than oppositional

23 Support for sharia legislation is often fueled by identity politics such that
it has come to symbolize what it is to be a religious Muslim, as against secularism
as an extension of cultural imperialism and the politics of Christians. See Anver
M. Emon, The Limits of Constitutionalism in the Muslim World: History and
Identity in Islamic Law, in CONSTITUTIONAL DESIGN FOR DIVIDED SOCIETIES:
INTEGRATION OR ACCOMMODATION? 258, 259 (Choudhry ed., 2008).
2015] ISLAMIC CONSTITUTIONALISM 567

arguments about the role of Islam and Islamic law.24 Moreover,

sharia-minded Muslims should support this shift as the proper
sharia role for their state, rather than as a concession to
secularism or international pressure.
This shift is also the key to solving the supposed conflict
between Islam and democracy. Democratic decision-making is,
after all, one method by which a society decides what is in the
public good. Accordingly, a sharia-based rule of law system could
choose to use democracy as its mechanism for determining the
public good in the siyasa realm. Keeping this in mind can help
explain to western observers why Muslim affinity for both
democracy and sharia is not an oxymoron. Statistics showing that
a large majority of Muslims around the world are pro-democracy
and also support sharia25 are confusing only if we insist on limiting
the meaning of sharia to fiqh. However, once we recognize that
sharia is larger than fiqh—that it also encompasses siyasa as the
Islamic realm of state lawmaking based on the public good—the
paradox disappears. In short, if human lawmaking in the interest
of the public good is part of God’s Law, then there is no inherent
conflict between human lawmaking and God’s Law.
Moreover, if it is realized that serving the public good is
what gives sharia legitimacy to state action, then a whole range of
what are now considered “secular” laws would gain support from
religious Muslims. Laws about environmental protection, city
zoning, traffic, health care, labor, antitrust, public education,
criminal procedure, individual rights, and so on, all could now be
considered part of an Islamic government’s sharia-mindful
responsibility. For Muslim populations wanting to see sharia as a
guide to their government’s actions, understanding siyasa as part
of a sharia rule of law system enables them to proudly look at state
administration of important social services as Islamic work. Public
support for such programs could be bolstered by the same religious
passion that currently supports “sharia legislation,” because it
would now be understood that government service of the public
good is itself part of God’s Law.

24 As Mohammad Fadel has said, “Muslims should not ask whether the

human rights standard is the same as that under Islamic law, but only whether
the human rights standard represents a legitimate act of government.”
Mohammad Fadel, The Challenge of Human Rights, SEASONS: SEMIANNUAL
JOURNAL OF ZAYTUNA INST. 59, 69 (2008).
25 See JOHN L. ESPOSITO AND DALIA MOGAHED, WHO SPEAKS FOR ISLAM:

WHAT A BILLION MUSLIMS REALLY THINK 35 (2008) (documenting that large

majorities of Muslims around the world support democracy and also support
sharia).
568 RUTGERS JOURNAL OF LAW & RELIGION [Vol. 16

B. The Second Pillar: A Diverse Realm of Religious Law Exists as a

Voluntary Alternative to State Law

Today, the legal systems of virtually every Muslim-majority

country are all siyasa. Built on nation-state legal monism, the
officially-recognized law in these countries today is that which is
enacted and enforced by the state. Whatever is not incorporated
into state law has no formal recognition.26 This ignores the reality
of fiqh as a powerful socio-legal force that has always operated
within Muslim populations, whether or not it was recognized by a
state. Most Muslims who follow fiqh rules do so not because a
government is forcing their compliance, but rather, because they
personally believe it important to living a virtuous life. That life
covers more than just ritual practice; Muslims regularly go to their
local mufti, imam, fiqh scholar, or online equivalent, for direction
on things like how to marry and divorce, how to write a will, how
to buy a home, and what business transactions to enter into. Thus,
despite its being non-state law, fiqh has demonstrated an enduring
power to direct individual Muslim behavior even when the siyasa
power does not acknowledge it.
The Islamic constitutional theory presented here recognizes
the central role that fiqh plays in Muslim lives, and seeks to
rehabilitate formal recognition of that fiqh realm as a vibrant
parallel sphere of law. Therefore, the second pillar of the proposed
structure is as follows: individual access to fiqh (and other
religious laws, as needed) must be protected by the existence of a
parallel legal realm available to those who choose to follow it. This
second pillar brings constitutional recognition to non-state fiqh
and entrenches a parallel fiqh realm in the foundational
constitutional structure of the overall system. The second pillar
thus distinguishes the present proposal not only from most
Islamist discourse, but also from all constitutional discourse that
presumes a nation-state template.
Moreover, any framework for Islamic constitutionalism that
does not create a separate protected realm for fiqh to flourish sets
itself up for a tug-of-war for power over its monistic lawmaking
institutions. “Sharia legislation” is the most obvious example. In a
legal monist system, the only way for an individual Muslim to
have her legal disputes resolved according to the fiqh school of her

26 See Griffiths, supra note 14, at 3 (describing legal centralism as where

“law is and should be the law of the state, uniform for all persons, exclusive of all
other law, and administrated by a single set of state institutions.”).
2015] ISLAMIC CONSTITUTIONALISM 569

choice is for her fiqh school to also be the law of the land for
everyone. If, however, a parallel fiqh realm were available to her
to enforce her preferred fiqh school, then she would have much
less motivation to pressure the state to enact her personal fiqh
choices over everyone. An officially-recognized fiqh realm could
likewise redirect the attention of Islamist advocacy away from
state law as the only way for fiqh rules to be enforced. By
constitutionally protecting a separate realm of fiqh that is
facilitated—but not controlled—by the siyasa power, the proposed
framework thus offers a way to return fiqh back to its proper
place—not mined as raw material in support of political agendas,
but rather living in its own separate sphere, making a variety of
fiqh options available at the individual request of each Muslim.
An important attribute of the fiqh realm should be legal
diversity. This would honor both the epistemology of Islamic
jurisprudence as well ensuring meaningful choice for those
choosing to use fiqh as their governing law. As described earlier,
all fiqh understandings of sharia are equally valid, making the
world of fiqh law inherently and unavoidably one of doctrinal
diversity. According to Islamic legal theory, individual Muslims
are free to choose whichever fiqh school’s interpretive methodology
best fits them. To borrow modern constitutional terms, the
freedom to choose a fiqh school is a matter of Islamic religious
freedom. Moreover, a sufficiently diverse fiqh realm—with fiqh
rules and scholars from every classically-established school as well
as new and reform fiqh scholarship—will help ensure that those
opting to use this fiqh realm are doing so with full consent.
The importance of choice also means that there should be
freedom to not use the fiqh realm at all. This means that a full and
robust body of state laws (created through democratic
determinations of the public good) should exist parallel to the fiqh
realm, including topic areas covered by fiqh. In this, the
constitutional structure proposed here diverges from classical
Muslim legal pluralism. In pre-modern Muslim systems, siyasa
laws were typically limited to logistical and administrative needs
of society and generally did not overlap with the topics covered by
fiqh. Accordingly, pre-modern Muslims could have their legal
issues decided according to their chosen fiqh school but they could
not choose to follow no fiqh school at all, for there were no siyasa
laws written for the general public on many important legal
570 RUTGERS JOURNAL OF LAW & RELIGION [Vol. 16

topics. 27 In light of the changed circumstances of modernity in

which many do not directly identify with a fiqh school (or indeed
with any religion), the proposed constitutional framework
imagines a much more robust state legal field covering a wider
range of legal issues than siyasa law did in the past, thus offering
a tangible alternative to the fiqh realm for those who do not have a
strong fiqh affiliation. There should, in other words, always be
sufficient siyasa state law to serve anyone, Muslim or not, who
does not want to follow any fiqh at all. This would help ensure that
those opting in to the fiqh realm are affirmatively exercising this
option, rather than being forced into fiqh by default. This also
would ensure that the bifurcation of fiqh and siyasa legal realms is
not a split between public and private law, nor is it a strict
assignment of separate legal jurisdictions based on religious
affiliation.
A healthy diversity in the fiqh realm could also breathe
new life into fiqh rules themselves. Today, the uniformity
demanded by centralized legal systems combined with the
phenomenon of “sharia legislation” has muted the colorful
diversity that was once the hallmark of Islamic jurisprudence.
Today, there is no official legal recognition of fiqh rules different
from those enacted into state law, and consequently, most
Muslims are unaware of fiqh diversity altogether. 28 A
constitutionally-protected fiqh realm could build awareness, and
provide the space necessary for new, dynamic and sophisticated
fiqh to grow again. If this fiqh realm is set up so that its legal
content is autonomously generated by fiqh scholars, new legal and
social questions could prompt new fiqh rules as these scholars
directly engage with a wide swath of the Muslim public. Old and
new fiqh scholars might undertake new levels of legal analysis,
regularly engaging in healthy debate and thus dramatically
expanding the available corpus of fiqh laws. The result would be
not only new fiqh rules, but a wider marketplace for the
application of those rules, which in turn could influence their
further evolution. Importantly, classical and conservative

27 This arrangement is well known as the Ottoman “millet” system, which

has been borrowed in edited variations by some colonial powers and
contemporary states such as Israel and India. The framework proposed here
differs significantly from the millet system because of the inclusion of a fully-
formed body of state law parallel to fiqh law in all major topic areas.
28 For example, Tamer Moustafa has shown how the average Malaysian’s
understanding of sharia has been transformed through codification from one of
“flexible, plural, and open nature inherent in Islamic jurisprudence,” to “singular
and fixed understandings of God’s will.” Moustafa, supra note 21, at 170.
2015] ISLAMIC CONSTITUTIONALISM 571

interpretations of sharia would still exist, but they would exist

alongside new and liberal ones, all equally available to those
making choices in the marketplace of the fiqh realm.29
Combined with the first pillar, this second pillar provides a
workable and non-theocratic way for fiqh to exist—even thrive—in
Muslim societies. Thus, if someone strongly believes in a fiqh rule,
but cannot convince the rest of the public that it serves the general
public, then it would fail the test of the first pillar and would not
become the law of the land. But that does not mean that this
person must relinquish her desire to live by this rule; she just
turns to the fiqh realm instead. Thus, the fiqh realm exists as a
tangible alterative for those wishing to follow a particular fiqh
doctrine rather than the legislated siyasa rules on a given legal
topic. It would be available by the full consent of the parties using
it, and should be made up of multiple fiqh school doctrines from
which to choose.

C. The Third Pillar: The Islamic Legitimacy of State Law is

Evaluated by the Purposes (maqasid) of Sharia

With fiqh relegated to a separate non-governmental sphere

and all government action based on the democratically-determined
public good, it might reasonably be wondered if there is anything
particularly Islamic about the constitutional theory presented
here. Worse, if state lawmaking is based only on the public good,
what is to stop a state from deciding that it is in the public good to
enact legislation that violates sharia (banning public prayer,
perhaps?), and defeating the very raison d’etre of an Islamic
government?30 This is a very real concern in Muslim populations,
especially those who have experienced militant secularist rule, and
the sentiment is memorialized in several constitutions with

29 The constitutional framework proposed here imagines a fluidity of

movement inside the fiqh realm: Muslims choosing to access it could easily choose
among the many different fiqh interpretations available, and would not be forced
to stick with one school. This differentiates the present framework not only from
the millet system, but also from contemporary theories of multicultural
accommodation that tend to assume only one doctrinal option for a given religious
community. See e.g., AYELET SHACHAR, MULTICULTURAL JURISDICTIONS: CULTURAL
DIFFERENCES AND WOMEN’S RIGHTS (2001).
30 As the classical scholar al-Jawzi put it, “no maslahah may be justified if
it contravenes the Shari’ah.” quoted in ABOU EL FADL, supra note 2, at 14.
572 RUTGERS JOURNAL OF LAW & RELIGION [Vol. 16

clauses prohibiting state lawmaking that is contrary to sharia.31

Any theory of Islamic constitutionalism that does not address this
concern risks being rejected by its primary audience: Muslims
committed to Islamic government. This is why the third pillar of
the present model provides for a sharia-based check on
government action.
But the inclusion of such a provision simultaneously raises
resistance from another important audience: secularists and
anyone who does not want democratic decision-making to be
trumped by religious legal doctrine. Checking government action
with sharia compliance, after all, could bring theocracy in through
the back door. This concern must be addressed by any theory of
Islamic constitutionalism that is to have traction in a globalized
world with internationally-recognized human rights norms. The
key to finding middle ground between Islamists who want an
aggressive sharia check on government and secularists who want
none is to carefully theorize the meaning and implications of a

31 The precise language of these clauses differs from country to country,

and do not always use “sharia” explicitly, but they are often interpreted with
some reference to sharia. Some examples of these clauses are:
- “All existing laws shall be brought in conformity with the Injunctions
of Islam as laid down in the Holy Quran and the Sunnah . . . and no
law shall be enacted which is repugnant to such Injunctions.”
PAKISTAN CONST. art. 227(1).
- “No law shall contravene the beliefs and ordinances (“mu’taqadat wa
ahkam”) of the holy religion of Islam in Afghanistan.” THE
CONSTITUTION OF THE ISLAMIC REPUBLIC OF AFGHANISTAN, 26 Jan. 2004,
art. 3.
- “No law may be enacted that contradicts Islam’s settled [legal] rules
[or settled Islamic (legal) rules] (thawabit ahkam al-Islam).” Article
2(A), THE CONSTITUTION OF THE REPUBLIC OF IRAQ OF 2005.
- “The Islamic Consultative Assembly cannot enact laws contrary to the
usul [roots of Islamic jurisprudence] and ahkam [rules] of the official
religion of the country or to the Constitution.” ISLAHAT VA TAQYYRATI
VA TATMIMAH QANUNI ASSASSI [AMENDMENT TO THE CONSTITUTION] art.
72 [1989] (Iran).
Some constitutions do not have clauses specifically invalidating laws made
contrary to Islam (as defined), but do have “sharia as a source of legislation”
provisions that have been interpreted to prohibit lawmaking contrary to sharia.
An example is the interpretation of Article 2 of the Egyptian Constitution (“The
principles of the Sharia are the main source of legislation”) by Egypt’s Supreme
Constitutional Court. See CLARK LOMBARDI, STATE LAW AS ISLAMIC LAW IN MODERN
EGYPT: THE INCORPORATION OF THE SHARI’A INTO EGYPTIAN CONSTITUTIONAL LAW
(2006). For more on Islamic supremacy in Constitutions, see Dawood I. Ahmed &
Tom Ginsburg, Constitutional Islamization and Human Rights: The Surprising
Origin and Spread of Islamic Supremacy in Constitutions, 54 VA. J. INT’L L. 1
(2013).
2015] ISLAMIC CONSTITUTIONALISM 573

sharia check on state action as part of a comprehensive Islamic

constitutional theory. The proposal presented here engages in this
effort, investigating several alternatives for what a sharia review
of state action could mean before proposing a standard of review
based on the maqasid (purposes) of sharia as the third pillar of the
proposed Islamic constitutional structure.
Given the reality of fiqh diversity, the idea of a sharia check
on state power immediately creates a puzzle: which understanding
of sharia? Does this mean that state lawmaking on a given issue
may not conflict with any fiqh rule on that issue? Or does it mean
that laws may not conflict with a consensus or majority of fiqh
opinions on the issue? The first possibility would be very
restrictive of government power—perhaps so restrictive as to be
unworkable. That is, because there are so many different fiqh
rules on so many different subjects, “contrary to sharia” defined as
“contrary to any fiqh rule” would leave very little room for any
state lawmaking. The only laws that would be allowed under this
standard of review would be in those areas upon which there is
fiqh unanimity (which is virtually nothing), or those areas where
there is no comment at all by the fiqh scholars. Such sharia check
would force out all but a very small scope of lawmaking in the
siyasa realm of state law. Effectively, government power would
become merely an add-on supplement to the fiqh realm,
resembling more of an administrative and regulatory gap-filler
rather than broad-based lawmaking for the public good.
A sharia check that restricts government action so
drastically would likely be unworkable in a modern society. It
would tie the hands of the state on a wide range of policy issues
that are important today, such as environmental protection, labor
relations, and economic regulation. As such, it contradicts the
basic expectation of siyasa power: that it organize society for the
public good. Moreover, if applied in the pluralist framework for
Islamic constitutionalism presented here, this standard of sharia
review would mean that nearly every legal issue would be forced
into the fiqh realm. That is because, as long as a topic has been
addressed in fiqh literature in any way, state law on that topic
would be struck down as a violation of this sharia check. This
means that siyasa and fiqh would not operate as parallel systems
of law, but rather state law would be limited to a small corner of a
legal world made up mostly of pluralistic fiqh. This springs an
unacceptable trap on those who do not have any religious
affiliation represented in the fiqh realm, because meaningful
choice for opting out of the fiqh realm would evaporate. Thus, this
574 RUTGERS JOURNAL OF LAW & RELIGION [Vol. 16

first option is not an appropriate check for the fiqh-siyasa

structure proposed here.
The second possibility would be to review state law for
conflict not with any fiqh rule, but rather with those fiqh rules
upon which there is consensus (ijma’). But this standard also turns
out to be quite problematic.32 First, it is very difficult to identify
fiqh consensus because the fiqh schools themselves disagree over
what consensus means (some require unanimity while others
consider a strong majority sufficient).33 If consensus is defined as
unanimity, very few if any, fiqh rules would qualify. That means
that a sharia boundary based on fiqh unanimity would leave a
virtually unchecked field of siyasa power: anything on which there
is any diversity of fiqh opinions (which is nearly everything) would
be fair game for any state action. Although this would give a
Muslim government significant power to achieve important policy
goals that would be restricted under the first possibility, it may be
too lenient a standard to serve its purpose. For example, a Muslim
government’s use of torture would survive such a sharia check,
because many classical fiqh scholars allowed the use of torture by
siyasa authorities. 34 Thus, this standard may not appropriately
fulfill the desires of Muslim populations who want some tangible
Islamic control on state corruption and oppression. Indeed with
such a check, any state action could be upheld simply by finding
any fiqh opinion that is consistent with it. Such a sharia standard
of review would likely prove to be a dangerously lenient check on
state power—probably amounting to no check at all.
Alternatively, consensus could be described as the majority
opinion of all fiqh scholars. Assuming we could overcome the
practical difficulties of ascertaining when this actually exists, a
sharia check based on the majority fiqh opinion on a given issue
would severely limit modern siyasa action in a number of
important substantive areas. For example, if the population
decided democratically that it is in the public good to allow women

32 It is worth noting that Iraq’s Interim Constitution had a “sharia check”

constitutional clause that included the ijma’ term explicitly (“thawabit al-Islam
al-mujma` ‘alayha”), but this term was dropped in favor of “settled Islamic (legal)
rules” in the new constitution. The significance of this change is still unclear. For
some commentary, see Kristen Stilt, Islamic Law and the Making and Remaking
of the Iraqi Legal System, 36 GEO. WASH. L. REV. 695, 709-26 (2004), Intisar Rabb,
“We the Jurists”: Islamic Constitutionalism in Iraq, 10 U. PA. J. CONST. L. 527,
539 (2008).
33 See Wael Hallaq, On the Authoritativeness of Sunni Consensus, 18 INT’L
J. MIDDLE E. STUD. 427 (1986).
34 See Reza, supra note 11, at 27.
2015] ISLAMIC CONSTITUTIONALISM 575

to be witnesses in courtroom proceedings, their evidence having

equal weight as the testimony of men, this gender-equal testimony
policy would likely be struck down as inconsistent with the
classically-established majority fiqh position, even though there
are several classical (and many more contemporary) fiqh scholars
who disagree with it. This would be a frustrating position in which
to put a modern Muslim government, especially if there is
prevailing popular sentiment and respected scholarly support for
these non-majority fiqh positions. In other words, a sharia
standard of review that defines any majority fiqh position as
definitive would pit social evolution directly against fidelity to past
interpretive trends.35 In other words, a sharia check calibrated to
the “dead hand” of past fiqh majorities would likely stifle the
ability of modern Muslim governments to effectively respond in
Islamic ways to modern realities and changed social norms.36
Given the substantial problems with these possible
meanings of “contrary to sharia,” I propose the following
alternative constitutional check for sharia compliance: actions by
the government should not contradict the underlying purposes
(maqasid) of sharia. This purpose-based standard of sharia review
is inspired by the classically-established field of Islamic
jurisprudence known as “maqasid al-sharia” (the “objectives” or
“purposes” of sharia), a robust field of scholarship that continues
to grow today. The maqasid were articulated by classical fiqh
scholars who interpolated that all the rules of fiqh ultimately serve
several identifiable underlying purposes. The greatest purpose of

35 Using Frank Vogel’s language, there is a very real risk that a consensus-
based sharia check would, “fall into the trap of adopting medieval legal views as
permanent constitutional principles, even when disagreement as to them has
emerged in modern times.” Frank Vogel, Objectives of the Shari’a (on file with
author).
36 The public reaction to Tariq Ramadan’s call for a moratorium on the
death penalty in Muslim countries could be described as an example of this “dead
hand.” His call would almost certainly have served the public good, but yet,
because it contradicted past fiqh consensus about the use of the death penalty, it
was met with great resistance in many Muslim circles. See Tariq Ramadan, An
International Call for Moratorium on Corporal Punishment, Stoning and the
Death Penalty in the Islamic World, (Apr. 5, 2005), available at
http://www.tariqramadan.com/spip.php?article264. Ramadan was severely
criticized by Muslim leaders and academics from around the world who asserted
that he was attempting to ban a God-decreed punishment. See Dina Abdel-
Majeed, Tariq Ramadan’s Call for a Moratorium: Storm in a Teacup, (Apr. 18,
2005), available at http://www.onislam.net/english/shariah/contemporary-issues/
critiques-and-thought/439960-tariq-ramadans-call-for-a-
moratorium.html?Thought=.
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sharia, they concluded, is maslaha—the public good. Elaborating

further, they concluded that maslaha is made up of five essential
purposes or objectives: (religion, life, intellect, family, and
property) that sharia protects, to which the scholars added a
nested collection of further purposes that serve life’s “needs” and
then “enhancements.” The five essential maqasid are accepted by
all the schools as core attributes of the public good (maslaha).
Given the centrality of maslaha to the core legitimacy of
siyasa power, a purpose-based check is a logical focus for reviewing
the sharia legitimacy of siyasa state power. Because it draws upon
higher concepts of fiqh theory, a maqasid-based standard of review
is not caught up in the details of specific fiqh rules, is disentangled
from questions of fiqh consensus, and instead filters state action
through the overall goals that sharia writ large is ultimately
meant to serve. In short, it focuses on the spirit of God’s Law.
This standard of review fits well with the constitutional
theory presented here because it takes seriously the idea of sharia
as a rule of law encompassing the legal realms of both fiqh and
siyasa. In the present constitutional framework, both fiqh and
siyasa work together to (seek to) achieve God’s Law here on earth.
Fiqh rules are not superior to siyasa or vice versa. They serve
different roles as part of an overall sharia rule of law: siyasa
serves the public good and fiqh articulates Muslim “right action”
(to borrow a Buddhist term). Thus, what is Islamically appropriate
for a state serving the public good requires a different calculation
than the ijtihad work behind a mufti’s extrapolation of rules of
right action for an individual Muslim. It therefore makes sense to
check government action against the purposes of sharia, but not
the particularized rules of fiqh. This sharia check would make sure
that the democratic determinations of the public good do not
interfere with the greater sharia vision as they perform their
siyasa job, regardless of what rules are operating in the fiqh
realm. 37 The central question for the constitutional sharia

37 For example, if there is a serious problem with pollution, there may be a

strong public policy reason to enact environmental regulatory legislation that
may contradict fiqh property rules. Or there may be a serious social problem of
women left destitute after unexpected and unwanted divorces, leading to state
regulations of divorce procedures despite the fiqh consensus that husbands have
an unconstrained unilateral right to divorce. Instead of judging these siyasa
actions on the narrow question of what is allowed in the (unanimous or majority)
fiqh, a purposed-based sharia check would consider whether these proposed
siyasa laws fly in the face of sharia’s greater goals. (Here, it is likely that
environmental legislation and state regulation of divorce could be determined to
be consistent with the five maqasid). In other words, rather than trying to
2015] ISLAMIC CONSTITUTIONALISM 577

legitimacy of government action in such a standard of review is not

whether it contradicts some fiqh rule (or consensus of fiqh rules),
but rather, whether it contradicts the ultimate reasons that sharia
exists in the first place.
A maqasid-based standard of review would create space for
Muslim governments to do what they need to do when real life
justice demands it (even in contradiction with established fiqh)
while still keeping an eye on the spirit of sharia. This standard
thus occupies a middle ground between the alternatives described
above. It provides much more room for state lawmaking than the
first option under which state law may not contradict any fiqh
rule. It would thus garner support of those who want a functioning
political realm empowered to operate on topics of public need. On
the other hand, it would provide a recognizable Islamic limit on
the scope of government action that is more directive of state
action than the more deferential standards of sharia review
addressed earlier. This means that it has the potential for Muslim
popular support because it responds to the sharia-consciousness
desired by Muslim majorities today.
A maqasid-based sharia check should also be satisfactory to
secularists. True, it gives a role to religion as a check on
democratic lawmaking, but not in a straightjacketing (and
theocratic) way. A purpose-based standard of review should dispel
secular fears that democratic lawmaking must always comport
with established fiqh doctrine. For example, the contradiction
between global human rights norms condemning slavery and
established fiqh doctrine allowing slavery should not be cause for
secular alarm in an Islamic constitutional system with a maqasid-
based sharia standard of review. A state prohibition on slavery in
such a system would be checked against the greater objectives of
sharia (and would arguably be upheld by reference to the purpose
of protecting human dignity), not the particular fiqh rules that
allow slavery.
Finally, it should be recognized that the sharia check is a
structural constitutional element. It is designed to control the
limits of power, not dictate substantive law. Approving or
disapproving of something as consistent with the purposes of
sharia says nothing about whether or not it should be made law in
the first place. In a system following the present proposal, that

awkwardly fit one type of Islamic law (siyasa) into the other type of Islamic law
(fiqh), the purpose-based approach honors the bifurcation of fiqh and siyasa,
separating sharia review from fiqh formalism altogether, but still keeping it
within the boundaries of sharia ideals, writ large.
578 RUTGERS JOURNAL OF LAW & RELIGION [Vol. 16

question depends on what the public decides is in the public good

in the first place. The sharia check simply dictates the elbow room
within which those decisions can be made. In terms of the quality
of everyday lives under such a system, therefore, the first control
is not the sharia check, but the nature of public deliberation over
what serves the public good. In other words, the best way to
prevent oppressive lawmaking is to convince the public that it does
not serve the public good to have such laws in the first place. If
this is successful, then there will be no need to use a constitutional
check (religious or otherwise) to strike such laws down. As I have
argued, it is a fundamental principle of Islamic constitutionalism
that public debate about state lawmaking should not be over
whether or not Islam requires it, but whether or not it is a good
idea.

VI. CONCLUSION

This paper seeks to broaden the spectrum of thinking about

sharia as a unique type of constitutionalism. Based on this
understanding of sharia, it suggests a new constitutional model for
Muslim-majority countries. In particular, it argues that a revival
of historical Islamic legal pluralism would serve these counties
better than their nation-state European imports. It shows how a
constitutional structure based on Islamic legal pluralism provides
a powerful way out of the theocratic problems presented when
religion meets legal monism. To skeptical secularists who believe
that any recognition of religion will always invoke the threat of
theocracy and oppression of religious freedom, this paper responds
that, while this is probably true of a legally monistic state, it does
not necessarily follow for a pluralist one that maintains a
separation of fiqh and siyasa types of law.
Simply put, Muslim history shows that theocracy is not the
inevitable result of every religious government, and secularism is
not the only way to solve religious differences. The present
proposal harnesses the spirit of the Muslim past, reframed for
modern constitutional norms. This is a system of government in
which religion is important, but not in a way that merges “church”
and state. It allows secularists and Islamists to find middle ground
without compromising their core values and purposes. For
religious Muslims, it bases the legitimacy of state action directly
on sharia principles. For secularists, it requires state lawmaking
to be justified on something other than religious pedigree. It does
this by articulating a model of government in which religious laws
2015] ISLAMIC CONSTITUTIONALISM 579

(fiqh) are only one of a two-part sharia-as-rule-of-law system, the

other being state lawmaking based on human determinations of
the public good (maslaha). This bifurcated system of law provides
a way for a Muslim government to formally recognize fiqh rules
without imposing them on those who do not want it. This holistic
system includes—indeed, expects—an integral role for democratic
lawmaking for the public good, situating it as part of a sharia-
based system, not in opposition to it. For Muslims who are used to
thinking about sharia as it appears in public discourse today, this
would be a paradigm shift, but one that I believe is for the better,
and also solidly grounded in classical Islamic principles. In sum,
Islamic constitutionalism is not theocratic, not secular, and not
impossible.