September 30, 2011 15:10 Age: 3 yrs

Making Constitutionalism Work in Islamic Countries

Abdullahi Ahmed An-Na'im

Charles Howard Candler Professor of Law
Director, Center for International and Comparative Law
LLB, University of Khartoum, 1970
LLB, University of Cambridge, 1973
MA, University of Cambridge, 1973
PhD, University of Edinburgh, 1976
Scholarly interests: comparative constitutional law, Islamic law, and international human rights


An internationally recognized scholar of constitutionalism and Islamic law, Abdullahi An-Na'im has developed a theoretical framework as well as practical strategies for pursuing two inter-related goals: promoting the cultural and religious legitimacy of both constitutionalism and human rights in African and Islamic societies.

To those ends, An-Na'im emphasizes two main messages: Democracy cannot exist within an Islamic state, and a secular state is not hostile to religious freedom.

With his focus on developing an internal Islamic justification for the secular state in particular, An-Na'im has broken ground. “To the best of my knowledge, this argument has not been made in those terms by any other Muslim scholar,” he says. “Scholars tend either to oppose the secular state or to argue for it from a secular perspective.”

An-Na'im's book Islam and the Secular State: Negotiating the Future of Shari'a (Harvard 2008), also published in Arabic and Indonesian, analyzes the relationship of religion, state, and society in its specifically Islamic context, paying particular attention to the ongoing interpretation of ancient texts and the post-colonial condition of Islamic countries. Translations of this book in Bengali, Persian, Urdu, Turkish, and Russian also may be downloaded for free at http://sharia.law.emory.edu/en/languages. An earlier book, African Constitutionalism and the Role of Islam (University of Pennsylvania 2006), addresses the sometimes related challenges of implementing constitutionalized forms of government specific to Africa.

Other recent works include “The Compatibility Dialectic: Mediating the Legitimate Coexistence of Islamic Law and State Law,” 73 Modern Law Review 1 (2010) as well as Muslims and Global Justice (University of Pennsylvania 2011), in which An-Na'im critically examines the role that Muslims must play in the development of a pragmatic, rights-based framework for justice.

Now under contract with Oxford University Press is a book with the working title Beyond Minority Politics: American Muslims and Citizenship, written during his tenure as a 2009 Carnegie Scholar of Islam. In this volume An-Na'im seeks to reframe the terms of discussion from “Muslim Americans as a minority” to “American citizens who happen to be Muslim.”

“My objective in this manuscript is twofold,” An-Na'im says. “First, I urge American Muslims to take a proactive, affirmative view of their citizenship in the United States, in order fully to realize their rights and fulfill their obligations in social and cultural terms, as well as in political and legal terms. My second objective is to explore and clarify the sort of strategies American Muslims might pursue in public discourse and through the political and legal process to advance their priorities on their own terms, including what I call religious self-determination.”

How can — and should — Islamic law influence Islamic societies? An-Na'im asks that question repeatedly in multiple venues. Driven by his ongoing concern to reach and influence public opinion in Islamic and African societies at large, he travels widely within Africa and the Muslim world, debating and presenting his work. During a 2009 lecture tour, An-Na'im visited Lebanon, Canada, England, Italy, Germany, and the Netherlands, speaking before university and governmental audiences. In the past three years alone, he has delivered more than 50 keynote addresses, panel presentations, and public and private lectures around the globe.

An-Na'im has served as a visiting professor at Georgetown University and as a senior visiting fellow at the Berkeley Center. From Atlanta he hosts live webcasts and, as a Senior Fellow at Emory Law’s Center for the Study of Law and Religion, he has directed several research projects related to advocacy strategies for reform through internal cultural transformation: Women and Land in Africa, Islamic Family Law, and the Fellowship Program in Islam and Human Rights.

Forthcoming in Tanner Lectures on Human Values, is “Transcending Imperialism: Human Values and Global Citizenship,” a lecture An-Na'im delivered at the University of California-Berkeley in March 2010. His appointment to the annual nine-university Tanner Lecture Series recognizes his uncommon achievement and outstanding abilities in the field of human values — work that An-Na'im regards as an opportunity for which he is deeply grateful.

“Constitutionalism, as defined in the excerpt herein, is necessary for peace, political stability, economic development, and social justice everywhere in the world, but particularly in post-colonial African and Islamic societies,” An-Na'im says. “I hope to contribute to the ability of these societies to transcend the negative consequences of post-colonial dependency, build their own economies, promote political accountability, and achieve social justice.”

SELECTED PUBLICATIONS

Books

  • Muslims and Global Justice (University of Pennsylvania 2011)
  • Islam and Human Rights: Selected Essays of Abdullahi An-Na'im (Mashood A. Baderin ed., 2010)
  • Islam and the Secular State: Negotiating the Future of Shari'a (Harvard 2008) (Indonesian translation 2007; Arabic translation 2010)
  • African Constitutionalism and the Role of Islam (University of Pennsylvania 2006)
  • Human Rights Under African Constitutions: Realizing the Promise for Ourselves (University of Pennsylvania 2003) (editor)
  • Cultural Transformation and Human Rights in Africa (Zed 2002) (editor)
  • Islamic Family Law in a Changing World: A Global Resource Book (Zed 2002) (editor)

Book Chapters

  • Beyond Dhimmihood: Citizenship and Human Rights, in The New Cambridge History of Islam, Muslims and Modernity: Culture and Society Since 1800 314 (Robert W. Hefner ed., 2010)
  • European Islam or Islamic Europe, in Islam and Europe: Crises are Challenges 85 (Marie-Claire Foblets & Jean-Yves Carlier eds., 2010)
  • Islam and Secularism, in Comparative Secularisms in a Global Age 217 (Linell Cady & Elizabeth Shakman Hurd eds., 2010)
  • Universality of Human Rights: Mediating Paradox to Enhance Practice, in Human Rights Today — 60 Years of the Universal Declaration 29 (Miodrag Jovanovic & Ivana Krstic eds., 2010)
  • A Theory of Islam, State and Society, in New Directions in Islamic Thought: Exploring Reform and Muslim Tradition 145 (Lena Larsen & Christian Moe eds., 2009)
  • Shari'a in the Secular State: A Paradox of Separation and Conflation, in The Law Applied: Contextualizing the Islamic Shari'a 321 (Peri Bearman, Wolfhart Heinrichs, & Bernard G. Weiss eds., 2008)
  • Global Citizenship and Human Rights: From Muslims in Europe to European Muslims, in Religious Pluralism and Human Rights in Europe: Where to Draw the Line? 13 (M.L.P. Loenen & J.E. Goldschmidt eds., 2007)

Articles

  • The Compatibility Dialectic: Mediating the Legitimate Coexistence of Islamic Law and State Law, 73 Modern Law Review 1 (2010)
  • Religion, the State and Constitutionalism in Islamic and Comparative Perspectives, 57 Drake Law Review 829 (2009)

EXCERPTS

The basic understanding of constitutionalism I am working with here is premised on two propositions. First, various conceptions of constitutionalism should be seen as complementary approaches to an ideal, to be adapted to different conditions of time and place, rather than as representing sharp dichotomies or categorical choices. Whether based on a written document or not, the objective must always be to uphold the rule of law, enforce effective limitations on government powers, and protect fundamental rights.

Second, the construction of general principles (or universal features) of this concept should emphasize their role as means to the ends of successful and sustainable constitutional governance in country-specific contexts, while emphasizing the need for internal consistency of the relationship between ends and means. The ends of popular sovereignty and social justice, for instance, can only be achieved through the actual application of these principles, rather than by postponing application until “ideal” conditions for it have been established by some self-proclaimed ideological elite as has often happened in recent African experiences. Such conditions can only be realized through trial and error in the practical application of principles of popular sovereignty and social justice, provided society and its leaders are open to implementing the necessary correction of theory and modification of practice. … In other words, the end of constitutional governance is realized through the means of empirical practical experience of constitutional principles in the specific context of each society.

. . .

Put in elemental terms, therefore, constitutionalism is a framework for the mediation of certain unavoidable conflicts in the political, economic, and social fabric of every human society. This proposition assumes that conflict is a normal and permanent feature of human societies, and defines constitutionalism in terms of being a framework for mediation, rather than permanent or final resolution of such conflicts.

. . .

But what is probably the most critical aspect of constitutionalism relates to subtle and rather mysterious psychological and sociological aspects of what I referred to earlier as sufficiently strong civic engagement by a critical mass of citizens. These aspects are difficult to quantify or verify, except perhaps in terms of outcomes that indicate the success or failure of constitutionalism in a given context. They include the motivation of citizens to keep themselves well-informed in public affairs, and to organize themselves in non-governmental organizations that can act on their behalf in effective and sustainable ways. … This is the practical and most foundational meaning of popular sovereignty, whereby a people can govern themselves through their own public officials and elected representatives.

. . .

The premise of highlighting the possibilities of positive as well as negative relationship is that the attitudes of Muslims regarding constitutionalism are partly shaped by their understanding of Islam. This does not mean that Islam completely or exclusively determines the constitutional behavior of Muslims, as that is also influenced by a wide range of economic, political, and other factors, which is also true of the role of religion in other human societies in general. Nevertheless, the role of Islam is probably a major issue in many Islamic societies because of its widely perceived impact on the legitimacy of constitutional theory and practice, though that tends to vary in intensity and implications. In other words, Muslims may take a negative view of constitutionalism, even one hostile to some aspects of it, to the extent that they believe it to be inconsistent with their religious obligation to observe Shari'a.

. . .

The view of constitutionalism as a contested concept and the contingent outcome of the experiences of African countries in the postcolonial context will be further explained and discussed in the following chapters. By representing and examining this concept as a site and product of the contestation and mediation of power, I am emphasizing that it should be seen and understood as a living and evolving process, as practice. As both the site and symbol of popular legitimacy, this concept can be a productive medium for transforming and transcending the post-colonial condition, a means as well as an end of self-determination and political independence. From this broader and deeper historical-political perspective, the success or failure of various constitutional experiences should be assessed as an incremental process, affected by external as well as internal factors and actors that have shaped the political history of postcolonial Africa.

. . .

A key directive that follows from this perspective is to look closely at the internal dynamics and processes by which constitutionalism is effectively consolidated and established in any society. This requires combining a historical imagination with political and sociological analysis in assessing the relative “failure” or “success” of the concept in each setting. In other words, the failures or setbacks are as much a part of the evolution and establishment of the concept as are apparent successes in this regard. Instead of thinking of constitutionalism as an end that has either been achieved or not achieved, it is more useful to view it as a process that emerges through practice.
— from African Constitutionalism and the Role of Islam (University of Pennsylvania 2006)

. . . . . . . . . . . . . . . . . .

In order to be a Muslim by conviction and free choice, which is the only way one can be a Muslim, I need a secular state. By a secular state I mean one that is neutral regarding religious doctrine, one that does not claim or pretend to enforce Shari`a — the religious law of Islam — simply because compliance with Shari'a cannot be coerced by fear of state institutions or faked to appease their officials.

. . .

The state is a complex web of organs, institutions, and processes that are supposed to implement the policies adopted through the political process of each society. In this sense, the state should be the more settled and deliberate operational side of self-governance, while politics serves as the dynamic process of making choices among competing policy options.

. . .

The question should therefore be how to sustain the distinction between the state and politics, instead of ignoring the tension in the hope that it will somehow resolve itself. This necessary though difficult distinction can be mediated through the principles and institutions of constitutionalism and the protection of the equal human rights of all citizens.

. . .

Constitutionalism provides a legal and political framework for realizing and safeguarding equal dignity, human rights, and the well-being of all citizens. The standards of human rights, while authoritatively defined in international and regional treaties and customary international law, can be applied in practice through national constitutions, legal systems, and institutions. However, the effectiveness of national and international systems is dependent on the active participation of citizens acting individually and collectively to protect their own rights. At the same time, constitutional and human rights norms enable citizens to exchange information, organize and act individually and collectively to protect their own vision of the social good, and protect their rights. In other words, constitutionalism and human rights are necessary means to the end of upholding the dignity and rights of citizens, but that purpose can be realized only through the agency of citizens. Thus, these concepts and their related institutions are dependent on and must interact with each other in order for the purpose of each concept to be achieved.
— from Islam and the Secular State: Negotiating the Future of Shari'a (Harvard 2008)

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