Islamic Law and the Modern State:Islamic Constitutionalism for Shari’a-Minded Muslims

Abstract

Since the fall of the Caliphate over a century ago Islamicscholars, intellectuals, and movements have been occupied by a centralproject and trying to answer a crucial question: How do we restore theIslamic state and the rule of Shari’ah-based society in today’s world?This study by Muslim legal scholar Asifa Quriashi-Landes was presentedin the first CIGA conference few years ago and her attempt to address thisfundamental question. In the paper, she proposes an Islamic constitutionalstructure inspired by historic Islamic legal pluralism. She argues that anyShari’a-based constitutionalism must necessarily have separate legalrealms for fiqh and siyasa (politics), necessitated by the epistemology anddiversity of fiqh. This type of constitutionalism is unique in a world wherethe legal monism of the nation-state is the norm. It also challenges theidea of Shari’a (often used interchangeably with “fiqh”) dominant incontemporary Muslim discourse - especially within political Islamdiscourses. The study contends that understanding Shari’a as an Islamicrule of law — not just fiqh rules — not only opens up a whole new worldof Islamic constitutional theory, but also introduces the uniquely Islamicidea of constitutionalized legal pluralism to global scholarship onconstitutionalism.In short, she asserts that her proposal would allow secularists andIslamists in Muslim majority countries to find middle ground withoutcompromising their core values and purposes. For religious Muslims, itbases the legitimacy of state action directly on Shari’a principles. Forsecularists, it requires state lawmaking to be justified on something otherthan religious pedigree. It does this by articulating a model of governmentin which religious laws (fiqh) are only one of a two-part Shari’a-as-rule-of-law system, the other being state lawmaking based on the Shari’anotion of public good. This idea provides a way for Islamic governmentsto formally recognize fiqh rules without imposing them on those who donot want them. This pluralistic system includes an integral role fordemocratic lawmaking for the public good, situating it as part of aShari’a-based system, not in opposition to it. It’s an interesting proposal that starts an important conversation on theis central topic, and desrves tobe discussed, debated, studied, and critiqued.Department for Islam and Muslim Societies Studies (IMSS)Center for Islam and Global Affairs (CIGA)