Constitutional Islamization and Human Rights: The Surprising Origin and Spread of Islamic Supremacy in Constitutions
Dawood I. Ahmed
University of Chicago - Law School
Tom Ginsburg
University of Chicago Law School
May 20, 2014
Virginia Journal of International Law, Forthcoming
U of Chicago, Public Law Working Paper No. 477
Abstract:
The events of the Arab Spring and recent military coup in Egypt have highlighted the central importance of the constitutional treatment of Islam. Many constitutions in the Muslim world incorporate clauses that make Islamic law supreme or provide that laws repugnant to Islam will be void. The prevalence and impact of these “Islamic supremacy clauses” is of immense importance for constitutional design — not just for Muslim countries but also for U.S. foreign policy in the region, which became engaged in the issue during constitution-writing in Afghanistan and Iraq. However, to date, there has been no systematic or empirical examination of these clauses. Many questions remain unexplored: Where did these clauses originate? How have they spread? Are they anti-democratic impositions? What determines their adoption in national constitutions?
This Article fills this gap. Relying on an original dataset based on the coding of all national constitutions since 1789 and case studies from four countries — Iran, Afghanistan, Egypt and Iraq — it traces the origin and adoption of Islamic supremacy clauses since their first appearance in Iran in 1907. We make three major, counterintuitive claims: First, we argue that the repugnancy clause — the most robust form of Islamic supremacy clause — has its origins in British colonial law, and indeed, that all forms of Islamic supremacy are more prevalent in former British colonies than in other states in the region. Second, we argue that in many cases, these clauses are not only popularly demanded, but are also first introduced into their respective jurisdictions during moments of liberalization and modernization. Third, contrary to the claims of those who assume that the constitutional incorporation of Islam will be antithetical to human rights, we demonstrate that almost every instance of “Constitutional Islamization” is accompanied by an expansion, and not a reduction, in the rights provided by the constitution. Indeed, constitutions which incorporate Islamic supremacy clauses are even more rights-heavy than constitutions of other Muslim countries which do not incorporate these clauses. We explain the incidence of this surprising relationship using the logic of coalitional politics.
These findings have significant normative implications. On a broader level, our work supports the view of scholars who argue that the constitutional incorporation of Islam is not only compatible with the constitutional incorporation of basic principles of liberal democracy, but that more democracy in the Muslim world may mean more Islam in the public sphere; in fact, we find that more democratic countries are not necessarily any less likely to adopt Islamic supremacy clauses. Our findings also suggest that outsiders monitoring constitution-making in majority Muslim countries who argue for the exclusion of Islamic clauses are focused on a straw man; not only are these clauses popular, but they are nearly always accompanied by a set of rights provisions that could advance basic values of liberal democracy. We accordingly suggest that constitutional advisors should focus more attention on the basic political structures of the constitution, including the design of constitutional courts and other bodies that will engage in interpretation, than on the Islamic provisions themselves.
Number of Pages in PDF File: 87
