Islamic Norms and Modern Constitutionalism; The Intersection of Faih, Law and Politics (Case Study of the 2004 Constitution of Afghanistan)

Abstract

The study of the relationship between Islamic norms and modern constitutionalism is typically reduced to the question of compatibility of Islamic norms and democratic principles. Relaying on the principle of state sovereignty, proponents of Islamic rule of law take it as granted that certain Islamic norms- such as consultation (Shura), consensus (Ijma) and a Sharia-based governance, by the virtue of being popular among the Islamic countries or Muslim people make the ground for an “Islamic” democracy; different from a secular democracy. A Sharia-based government makes sure that no one consider himself above the law and consultation and consensus ensure that in an Islamic state decisions are taken based on people’s concept. On the other hand critics say that Islamic norms are discriminatory towards women and religious minorities; the Sharia-based government leaves no room for freedom of speech and democratic political contestation. This paper look at the issue in the broader context of compatibility of Islamic norms and modern constitutionalism assuming that both Islamic norms and modern constitutionalism transcend the contesting models of democracies. Such inquiry takes us beyond the dichotomy of secular versus religious constitutionalism. In order to investigate that relationship, I evaluated the development of the Islamic constitutional theory and the mainstream theories of the Islamic constitutionalism (with the Islamic constitution of Afghanistan as the thesis case study) through the paradigmatic principles of the modern constitutionalism. Moreover I invoked the Customary International Law and the Islamic theory of international law to situate my discussion in a universal context. My research finds that the paradigmatic elements of modern constitutionalism and Islamic norms are not necessarily complementary to each other. The modern legislature 4 especially could be detrimental to Islamic norms, if codification of Islamic norms is considered as its primary task. The Islamic constitutional theory does not go beyond a technical installation of the principles of Islamic jurisprudence across state institutions- especially the legislature. Such approach pushes the modern constitutionalism and Islamic norms into a contradictory relationship. My thesis concludes that modern constitutionalism cannot produce desirable results unless as a public institution it enters the living experience of the people it is supposed to serve. The contribution of Islamic norms to the discourse of the modern constitutionalism follows the same logic. The international law- especially the customary norms of human rights, provides a common platform for objective engagement in universal appeal of contesting norms.