Although modern Muslim states “have generally failed to realize either constitutionalism or liberal democracy,” the constitutionalist ideals of rule of law, limited and accountable government, and protection of rights have been present in Islamic communities since the time of the prophet Muhammad, asserted Sohail Hashmi of Mount Holyoke College (South Hadley, MA) at the November 22 Center seminar “Islam and Constitutionalism.” The notion at the heart of constitutionalism—that the political order should be subject to an authority beyond the reach of human whim—is not foreign to Islam, he said. It does, however, stand in tension with common Muslim understandings of shari’a or divine law. And the experience of Islamic constitutionalism in Tunisia, Iran, and Pakistan has indeed been problematic.
Hashmi nevertheless cautioned against following a secular path. Any “attempt to divorce Islam completely from political life” is doomed, he said. A better strategy is “to fi nd resources within Islamic thought” that can counter the objections of Muslim critics of constitutionalism. Many Muslims view any manmade law as, by defi nition, standing in opposition to shari’a. The earliest schools of Islamic jurisprudence, however, favored “legal judgments based on human reason”; only later schools limited legal interpretation to “law-fi nding” by means of strict analogy to already settled cases. This shift away from “law-making” increased the power and rigidity of religious scholars, and “stymied the development of genuine constitutionalism.”
The task for Muslim constitutionalists, Hashmi said, is to resurrect and disseminate the ideas of the earlier jurists. They must also emphasize that early Muslims recognized the right and duty of each new generation to understand the Koran and the prophet’s teachings “in light of their own needs and circumstances.” Lastly, they need to reopen “the idea of divine sovereignty as a check against human tyranny” and urge modern Muslims to approach the Koran as a book of practical morality rather than legal minutiae. If shari’a can come to be seen “as the moral foundation for constructing a political order” that upholds “justice, equality, and submission to a transcendent authority,” it can “play the role that constitutions play” in checking arbitrary human rule. This kind of “reconceptualization” of shari’a would require “an intellectual revolution,” Hashmi admitted, but he claimed to have already seen hopeful signs of such a change in the “Islamic periphery” of Malaysia and Indonesia.
Praising Hashmi for helping “to revive serious ethical thought” in the Muslim world, Center president Hillel Fradkin opened the discussion that followed. Participants included David Abramson of the U.S. Department of State, Abdulwahab Alkebsi of the Center for the Study of Islam and Democracy, Scott Bohlinger of the Center for Strategic and International Studies, Tom Cadogan of the U.S. Department of State (retired), Carl Gershman of the National Endowment for Democracy, Persis Khambatta and Carol Yost of the Asia Foundation, Anthony Picarello of the Becket Fund for Religious Liberty, Iris Pilika of the U.S. Institute of Peace, and Bonnie Wachtel of Wachtel & Company.
