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in association with the Centre for Socio-Legal Studies and Wolfson College, University of Oxford

Islamic Law in anIslamic Republic:

What Role for Parliament?

Matthew J. Nelson

The Foundation for Law, Justice and Society

The Social andPolitical

Foundations ofConstitutions

Policy Brief

www.fljs.org

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The Foundation for Law, Justice and Society

This article is drawn from a longer piece entitled Islamic Law in an Islamic Republic: WhatRole for Parliament? in Constitution-Writing, Religion, and Democracy, Asli Bali and HannaLerner, eds. (Cambridge, 2015).

The Foundation for Law, Justice and Society 2015

The Social and Political Foundations of Constitutions

Constitutions take various forms in different societies, but essentially determine how policyissues, often of fundamental social importance, are to be decided and implemented.Constitutions and constitutionalism are usually studied either doctrinally, as the source offundamental legal doctrine, or conceptually, as the subject of philosophical methods ofanalysis. The approach of this programme offers a third way: the study of constitutions andconstitutionalism in their social context, emphasizing their social character and role, theirsocial goals, and their links to other parts of society, especially economic and politicalaspects.

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n In recent years, several Muslim-majority countries have reconsidered the constitutional

status of Islamic law: Afghanistan, Iraq, Tunisia, Egypt, to name a few. This trend is likely

to continue.

n In Muslim-majority states, the different ways in which constitutions wrestle with the

combination of Islamic law and parliamentary power remains rather poorly understood.

Some see Islamic law as inflexible. However, anthropologists, political scientists, and

legal scholars have gone out of their way to illuminate the ways in which it is also

historically flexible.

n In Muslim-majority states, different political parties often have different perspectives on

this issue: Islamists often stress the fixity of Islamic law; secularists either ignore Islamic

law or stress its flexibility.

n Grounded in the shifting terrain of electoral politics, the cut and thrust of parliamentary

practice generally favours flexibility. However, this push towards flexibility often leads

countervailing executive and/or judicial actors to argue that the terms of shariah might

be used to limit the domain of popular sovereignty. These actors often refer to shariah

as a type of supra-constitutional meta-structure standing outside and above the realm

of legislative politics.

n In many Muslim-majority states the question is not whether the terms of shariah

suggest a set of overarching legal norms. The question is how those norms might be

illuminated and, thus, which actors/institutions are in a position to control their

selection and interpretation. In this context, overarching constitutional questions

regarding the separation of legislative, executive, and judicial powers figure

prominently.

n Pakistan has wrestled with the constitutional relationship between Islamic law and

parliamentary power for nearly seventy years, developing some of the most

sophisticated thinking on these issues. A deeper understanding of competing

constitutional approaches to the relationship between Islamic law and parliamentary

power in Pakistan sheds a great deal of light on the relationship between Islam and

democracy more generally.

Executive Summary

ISLAMIC LAW IN AN ISLAMIC REPUBLIC: WHAT ROLE FOR PARLIAMENT? . 1

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Islamic law and state power: The issue

On 5 May 2015 an article appeared in Pakistansmost prominent English-language newspaper,Dawn, in relation to the Pakistan Supreme Court.The Court had been hearing a case regardingconstitutional amendments passed by theNational Assembly that address the relationshipbetween the legislature, the judiciary, and theexecutive. At issue was the ability of the legislatureto reframe (via such amendments) the basicstructure of the state. What if, by populardemand, [legislators press] for changing thebasic structure to secularism? one justice asked.It would be odd, noted another, if the judiciarywere to strike down constitutional amendmentssimply by referring to some theory of supra-constitutional basic structure. Indeed, the ChiefJustice explained, such theories (originating inGermany) were never accepted by the court. InPakistan, the court has always acknowledged thesupremacy of parliament.1

Throughout the Muslim world, constitutions framethe terms within which Islamic law is combinedwith, or separated from, state power. In recentyears, several Muslim-majority countries havereconsidered the constitutional status of shariah:Afghanistan, Iraq, Tunisia, Egypt, to name a few.This trend is likely to continue; however, the waysin which constitutions wrestle with thecombination of Islamic law and parliamentarypower is poorly understood. Some see Islamic lawas religiously fixed. However, scholars have goneout of their way to illuminate the ways in which itis also historically flexible. The cut and thrust ofparliamentary practice, grounded in the shiftingterrain of electoral politics, generally favoursflexibility. However, this push in the direction of

flexibility occasionally leads executive and judicialactors to argue that the terms of shariah should beused to limit the domain of popular sovereignty.Indeed, executive and judicial actors often referenceshariah as a type of irrefutable basic norm (in HansKelsens terms, a legal grundnorm) standing outsideand above the realm of legislative politics.

When legislators attempt to redistribute land,regulate interest charges in the banking sector,protect heterodox beliefs, abolish the death penalty,or extend equal inheritance rights to sons anddaughters, references are often made to Quranicverses or injunctions spelled out in digests ofclassical Islamic jurisprudence (fiqh) in order tosuggest that this or that legislative effort lies outsidethe boundaries of Islam. The effect of such efforts,however, does not lie in clarifying the historicallyflexible boundaries of Islamic law once and for all.Instead it lies in suggesting that those boundariesshould be defined by actors other than electedlegislators. The question is not whether the terms ofshariah suggest an overarching set of legal norms.The question is, simply, who should define thosenormselected legislators or someone else?

In Pakistan, as in many other countries, a deeperunderstanding of competing constitutionalapproaches to the relationship between Islam anddemocracy requires a more nuanced understandingof the relationship between Islamic law andquestions of parliamentary sovereignty.

Islamic law and the state: Why parliamentarypower is important

Historians, political scientists, and legal scholarswriting about the link between shariah and the stateoften focus on different issues. Historians and

2 . ISLAMIC LAW IN AN ISLAMIC REPUBLIC: WHAT ROLE FOR PARLIAMENT?

Islamic Law in an Islamic Republic: What Role for Parliament?

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anthropologists tend to focus on what might bedescribed as alternative spaces of shariah: non-statemuftis issuing non-enforceable fatwas, on the onehand; state-based qazis working with particularcaliphs to enforce a state-based form of siyasashariah, on the other. Dismissing the idea of animmutable shariah, these scholars describe theways in which shariah as a living law has been orhas not been historically tied to the state.

More recently, however, political scientists like JillianSchwedler have focused on the conditions underwhich efforts to shariah-ify the state, on the part ofIslamist political parties, might unfold in moderateways.2 These scholars often shy away from an accountof different groups competing to define what shariahitself might mean. Instead, they draw attention tovariables like Islamist party structure and overarchingpolitical conditions, asking whether Islamists seekingto enforce something broadly called shariah willwork with other parties say, non-religious leftist orliberal parties or not. (According to Schwedler,moderates will, but non-moderates wont.)

Islamic legal scholars, however, often try to peekinside the discursive tradition of shariah, fleshing outalternative approaches to issues like theconstitutional separation of powers. Here, one of themost important questions concerns the relationshipbetween executive and judicial power: qazis workingfor executive caliphs, if you will, versus strictlyjudicial muftis issuing non-enforceable fatwas. Morerecently, however, greater attention has been paid tothe work of elected Muslim parliaments notparliaments constitutionally divorced from the workof the ulema (as in Turkey) or categoricallysubordinated to it (as in Iran), but, as the ChiefJustice of Pakistan pointed out, Muslim parliamentscharged with considering the non-binding advice ofthe ulema while remaining fully sovereign.

Here one might consider the work of legal scholarslike Khalid Abou El Fadl or Mohammed Fadel.3 Howshould we think about the role of multi-party Muslimparliaments with respect to matters of shariah? Howis shariah tied, not merely to a fixed politics ofreligious being, but also to a vigorously contestedparliamentary politics of Muslim adaptation orbecoming? This is the issue I examine in what follows,focusing on the case of Pakistan.

Analysis: Islamic law an