laws, and yet somehow remain “above” the law in
acts of civil disobedience, amending or reforming
the constitution, or in a constitutional revolution.
Conceding this conception, the literal meaning of
popular sovereignty in a collective sense commits
the informal logical fallacy of composition.
Among the criteria for a liberal constitution are
limits on majority decision making; recognition of
human and civil (and increasingly, social and eco-
nomic) rights and liberties; an independent and
impartial judiciary to guarantee and protect these
rights (including judicial review); and separa-
tion of executive, legislative, and judicial powers.
Among the concepts within the Islamic tradition
suggestive of or compatible with constitutional-
ism are shura (consultation),
ijmaa
(consensus),
ijtihad
(as independent legal reasoning), maslaha
(public welfare), majlis (tribal council; public
audience granted the caliph), bayaa (an unwrit-
ten contract or pact involving the recognition of,
and allegiance to, political authority), and wilaya
(custodianship, guardianship, trusteeship).
In the 19th century Ottoman Empire, e
gypt
,
and t
Unisia
, constitutions were honored in the
breach. Autocracy, patrimonialism, tribalism, and
colonialism have left their indelible marks on
efforts at liberal reform and the democratic aspira-
tions of Muslims. In the second half of the 20th
century, socialist and nationalist ideologies were
added to the mix. That said, and keeping the Mus-
lim Middle East and North Africa in mind, one can
endorse Noah Feldman’s remark “that the world is
littered with beautifully drafted constitutions that
have been ineffective or ignored in practice” (Feld-
man, 186). The Iranian c
onstitUtional
r
evolU
-
tion
(1905–11) prefigured much of the potential
and some of the problems that were to attend later
democratic experiments, most conspicuously the
i
ranian
r
evolUtion
oF
1978–79. The constitution
of the Islamic Republic of Iran contains ostensibly
democratic features—in Malise Ruthven’s words,
it is a “hybrid of Islamic and western liberal con-
cepts” (Ruthvin, 372). But Ayatollah Khomeini’s
conception of the “guardianship of the jurist”
(wilayat-i faqih), expressed in the constitution in
terms of the “chief juriconsult” and the 12-mem-
ber Council of Guardians, has blocked democratic
methods and processes, enshrining an insidious
form of religious authoritarianism. Feldman con-
tends the constitutional monarchies of J
ordan
and m
orocco
“represent the best hope for the
development of Islamic democracy in the Arab
world” (Feldman, 50) The machinations of the
military in Pakistan, Algeria, and—less frequently
and less confidently—t
Urkey
, make mincemeat of
constitutional law. Nonetheless, Turkey is rightly
described as an “emerging democracy.” The
constitutional monarchy of m
alaysia
is betwixt
and between authoritarianism and democracy,
while Indonesia’s democratic evolution has relied
on well-crafted and well-timed constitutional
reform.
Constitution making is today in process in
i
raq
, a
Fghanistan
, and the Palestinian occupied
territories, with the assistance or support of the
U.S. government or local political organizations,
such as the Palestinian National Authority. After
enacting the proto-constitutional and provisional
Basic Law, a constitutional committee has com-
pleted its third draft of the constitution for an
independent and sovereign Palestinian state (sub-
ject to further amendments). Islam is declared
the official religion of the future Palestinian
state, while the constitution guarantees “equal-
ity in rights and duties to all citizens irrespec-
tive of their religious beliefs.” The “principles”
of “Islamic
sharia
” are termed “a major source
of legislation,” not unlike the way in which the
principle(s) of natural law have functioned in a
number of Western constitutions.
See also
civil
society
;
democracy
; p
alestine
.
Patrick S. O’Donnell
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