Religion and Constitutionalism: Lessons from American and Islamic Constitutionalism

• Citation: Vol. 28 No. 1
• Publication year: 2014
• topic: Constitutional Law

Religion and Constitutionalism: Lessons from American and Islamic Constitutionalism

Nimer Sultany

RELIGION AND CONSTITUTIONALISM: LESSONS FROM AMERICAN AND ISLAMIC CONSTITUTIONALISM

Nimer Sultany

Abstract

This Article examines the role of religious law in constitutionalism by focusing on Egypt and Tunisia as two main case studies: Egypt is an example of the so-called "Islamic constitutionalism " and Tunisia is an example of a more secular variety. Both cases are analyzed against the backdrop of U.S. constitutional theory and law. I begin by rejecting conceptualist approaches which focus on abstract concepts in order to assess the compatibility of religion, like Islam, with democracy. I show the futility of this kind of debate through a comparison to American debates between "living constitutionalists" and "originalists." I then elaborate a pragmatic account that assesses the consequences of different institutional arrangements. For that purpose Part I rejects the normative and political-realist arguments supporting the constitutionalization of religion, according to which constitutionalization of religion in a largely-liberal constitution is either an ideal compromise or a historical dictate. I focus on four assumptions that underlie these arguments: thatpopularacceptance requires Islamicconstitutionalism; thatpeople's identity includes religious law and should be reflected in Islamic constitutionalism; that Islamic law's indeterminacy belittles the possible risks of its constitutionalization; and that the legal order's transparency requires an acknowledgment of the religious aspect.

Part II considers two of the primaryarguments supportingthe U.S. Establishment Clause: alienation; political division and distraction; and corruption of religion. The first two arguments have been subjected to growing critiques in the United States. I defend these two arguments by connecting between alienation and internal effects within religious minorities, and

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between political division and instability and violence. Specifically, I argue that, first, the constitutionalization of religion is likely to produce an unequal status for religious groups given the pluralist conditions in Egypt and Tunisia. Second, constitutionalization is likely to polarize and destabilize the political system in these states. Finally, this polarization happens for the wrong reasons and may produce bad effects: the dominance of the debate over the constitutionalization of religion may distract the citizenry in these states from addressing other socio-economic and political questions that are not necessarily reduced to concerns over religious law; constitutionalization is an anti-participatory move because it empowers few jurists to make decisions rather than collective decision-making; delegating controversial religious questions to the judiciary is a form of secular escapism; and a constitutionalization of religion is part of a constitutional fetishism which-along with judicial empowerment-unduly legalizes political questions. The implication of these effects is to neglect political responsibility. Thus, the Article ends with a call for a Weberian consequences-driven ethics of responsibility. This ethical stance, in turn, should be part and parcel of the recognition of value pluralism and the attempt to transform politics into an adversarial "agonistic pluralism. "

By displacingthe conceptualistdebate, the Article seeks to avoid the generalizing tendency of conceptual debates; evade the unwarranted optimism of the normative argument; and reject the realist argument's despondency and uncritical acceptance of reality. Additionally, the Article seeks to demystify Islamic constitutionalism by grounding the discussion in American constitutional debates. Finally, the Article argues against Islamic constitutionalism without falling prey to essentialism.

Introduction..............................................................................................348

A. Overview of the Argument..........................................................351
B. A Brief History of Religion and Constitutionalism in Egypt and Tunisia.................................................................................355

1. Egypt.....................................................................................355
2. Tunisia..................................................................................360

C. From Conceptualism to Pragmatism..........................................363

I. Normative and Prudential Arguments For Islamic Constitutionalism .........................................................................367

A. Legitimation by Popular Acceptance .........................................368

1. Popular Will?.......................................................................368

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2. Synchronic vs. Diachronic ...................................................372
3. Stability and Legitimacy.......................................................374
4. Short Constitutional Life Span?...........................................375

B. Reflecting the People's Identity..................................................376

1. The Effects of Identity Politics..............................................376
2. Identity and the Constitution................................................380

C. Indeterminacy of Shari'a Interpretation and Liberalization......383

1. Limits of Judicial Legitimation.............................................385
2. Interpretive Authority...........................................................388
3. What's the Rationale?..........................................................390

D. Transparencyand Explicit Recognition: Lessons from the U.S.?...........................................................................................390

1. Religion in the U.S................................................................391
2. Transparency and Bargaining Power..................................392

II. NORMATIVE AND PRUDENTIAL ARGUMENTS AGAINST ISLAMIC CONSTITUTIONALISM .........................................................................394

A. Alienation and Religious Equality..............................................395

1. Alienation.............................................................................395
2. The Dualist Effect of a Shar'ia Clause: The Case of the Coptic Minority....................................................................399

B. Political Considerations: Polarization and Backlash................402

1. Polarization and Violence....................................................403
2. Polarization and Shari'a......................................................405

C. Distraction and Fetishism ..........................................................410

1. Distraction............................................................................410
2. Anti-participatory Arrangement...........................................416
3. Secular Escapism .................................................................416
4. Constitutional Fetishism and Legalization...........................417

CONCLUSION..................................................................................................420

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Introduction

Since the 2010 to 2011 uprisings, the Arab world has been in flux. The role of religion in politics and constitution-making, in particular, took center stage. The previously banned Islamist movements achieved impressive results in the electoral processes that followed the uprisings-except in Libya-and gained influential positions in the emerging political and constitutional order in Tunisia and Egypt.¹ However, these movements' rule encountered fierce opposition from state institutions and secular political forces. In Tunisia, the opposition demanded the dismissal of the Al-Nahda-led coalition government and the dissolution of the constituent Assembly after the assassination to two prominent opposition leaders.² In Egypt, the opposition expressed growing concerns regarding the increasing role of religion and religious parties in state institutions and in the constitutional order and opposed the Muslim Brotherhood's exclusive approach to governance.³ On June 30, 2013 mass protests erupted against Egypt's President Mohamed Morsi and the Muslim Brotherhood's rule.⁴ On July 3, the army ousted President Morsi, installed a temporary president and a civilian government, and suspended the December 2012 Constitution that Morsi's regime ratified.⁵ On August 14, 2013, Egyptian security forces used lethal and excessive force to break pro-Morsi sit-ins and killed hundreds of protesters.⁶ Following these events, Islamists attacked Coptic churches across Egypt.⁷ Once again, two years after the uprising and

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one year after rising to power, the Muslim Brotherhood faced calls for banning it from political participation.⁸

What does the brief rise and fall of the Muslim Brotherhood in Egypt teach us about constitutional law and comparative constitutionalism? What implications will it have for the role of religion in the post-Arab Spring constitutional order? Despite many uncertainties, one fact should be clear: Morsi's ouster is not a clear secular move against religious zealots. After all, the Salafis-who are generally perceived as more religiously extreme than the Muslim Brotherhood-supported the ouster and participated in the post-Morsi transition.⁹ Prior to February 2011, Salafis generally theorized against democratic regimes and refused to participate in electoral and party politics.¹⁰ Yet, they participated in the nascent post-Mubarak political order and struck a partnership with the Muslim Brotherhood.¹¹ Leaving the Brotherhood's sinking ship after June 30, they guaranteed retaining the controversial and most religious clauses of the 2012 Constitution in Interim-President Adly Mansour's constitutional declaration on July 8, 2013.¹²

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