Review :: Clark Lombardi on Sharīʿa as a Source of Legislation

The constitutions of many Muslim-majority countries contain clauses that declare sharīʿa a source of legislation. These “sharīʿa clauses” may name sharīʿa as “a chief source,” “the chief source,” or “the only source,” among others, of national laws. Though the phrasing of these clauses seems quite similar, some scholars and government officials have ascribed importance to the differences between them. By examining the history of sharīʿa clauses, one can gain an understanding of why they are written and how they are interpreted. Using these insights, it is possible to analyze the ways in which sharīʿa clauses interact with liberal ideas about governance and about the role of religion in law. This post provides a “plain English” review of the following article: Clark B. Lombardi, “Constitutional Provisions Making Sharīʿa ‘A’ or ‘The’ Chief Source of Legislation: Where Did They Come From? What Do They Mean? Do They Matter?,” American University International Law Review 28, 3 (2013), pp. 733­–774.

Narrative Abstract

The constitutions of many Muslim-majority nations contain clauses that declare sharīʿa a source of legislation. These “sharīʿa clauses” may name sharīʿa as “a chief source,” “the chief source,” or “the only source” of national laws. Though the phrasing of these clauses seems quite similar, some scholars and government officials have ascribed great importance to the differences between them. By examining the history of sharīʿa clauses, one can gain an understanding of why they are written and how they are interpreted. Using these insights, it is possible to analyze the ways in which sharīʿa clauses interact with liberal ideas about governance and about the role of religion in law. This post provides a “plain English” review of the following article: Clark B. Lombardi, “Constitutional Provisions Making Sharīʿa ‘A’ or ‘The’ Chief Source of Legislation: Where Did They Come From? What Do They Mean? Do They Matter?,” American University International Law Review 28 (2013), pp. 733­–4.

 

The Inception and Proliferation of Sharīʿa Clauses

The first sharīʿa clause was written into Syria’s constitution in the 1950s. It provided “that ‘Islamic fiqh [traditional scholarly interpretations of Islamic law] shall be the chief source of legislation’” (p. 737). Starting in 1962, other Arab countries began following suit as they shook off colonial rule and established their own constitutions. Kuwait, Sudan, Yemen, Egypt, the United Arab Emirates, Qatar, and Bahrain all adopted sharīʿa clauses. The last such clause enacted before the Arab Spring was written into Iraq’s 2005 constitution, over the objection of the United States.

 

What Now? Sharīʿa Clauses Going Forward

Despite the ubiquity of sharīʿa clauses in the Arab World, they are not interpreted the same way in every country. Countries differ as to whether laws that conflict with the principles of sharīʿa are susceptible to constitutional challenge under these provisions. Popular opinion among scholars and others interested in sharīʿa clauses is that an article naming sharīʿa “the chief source” of law creates the ability (indeed, the obligation) for judges to review laws for consistency with Islam, while an article making sharīʿa “a chief source” of law does not. However, this conventional wisdom lacks nuance. An analysis of how sharīʿa clauses are interpreted by different courts reveals a more complex picture, one dependent on domestic politics, the role of the judiciary, and the political will to conform legislation to the principles of Islam.

Originally, governments did not attach much significance to whether “a” or “the” was used in sharīʿa clauses.

“When [sharīʿa] clauses first appeared in 1950, and for almost two decades thereafter, they were understood to be ambiguous on the key question of whether the legislation inconsistent with sharīʿa was void. Courts interpreted each clause in light of the circumstances in which they were adopted and in light of the broader constitutional and legislative scheme into which the clauses were embedded” (p. 767).

Therefore, countries often interpreted their clauses in ways that were not consistent with a neat “a”-“the” dichotomy.

However, as scholarship and public discourse on the issue has grown, judges and lawmakers have begun to pay more attention to the wording of sharīʿa clauses. The conventional wisdom has gained increasing acceptance: “If, today, an Arab government adopts a new constitution including [a sharīʿa] clause that makes Islamic norms ‘the’ chief source of legislation (or revises a constitution to include such a phrase), courts will most likely assume that drafters intended” for all legislation to conform with the values of Islam (p. 768).

However, it is not so clear how a court would interpret a clause making sharīʿa “a” chief source of law.

“Going forward, [such sharīʿa clauses] will be situated in constitutions that make Islam the official religion of the state and may contain provisions instructing courts to permit regulations that are necessary to preserve morality or public order—words that can be read, if one wants to, as a proxy for Islamic legal values” (p. 769).

Some courts, like those in the UAE, have interpreted their supposedly weaker “a chief source of law” sharīʿa clauses to require their laws to be consistent with the principles of Islam, as well as with other legal principles. For drafters of future constitutions, it would be unwise to assume that naming sharīʿa as one source of legislation among many will be enough to exempt laws from having to comply with the principles of Islam.

Given that any sharīʿa clause could be interpreted to allow the invalidation of laws inconsistent with Islam, most commentators believe that their inclusion can have serious negative impacts on liberal governance. But how accurate is this assumption? History shows that very few courts have dared to strike down legislation under sharīʿa clauses. They usually defer to the political branches, either because they are not trained in Islamic legal thought or because they lack the political capital to defy elected lawmakers. Even those courts that consider religion-based constitutional challenges to legislation tend to “[adopt] a modernist approach to Islamic legal interpretation. That is to say, [they] hold that sharīʿa imposes upon governments only a handful of requirements—most of which are very general” (p. 771). Under this approach, sharīʿa clauses need not be inconsistent with liberal governance. Sharīʿa is a broad concept, and Muslims the world over disagree about the responsibilities of governments under Islam. Given this diversity of opinion and the fact that courts are so deferential to legislatures, a better strategy for advocates of liberal governance is likely to focus on strengthening democracy and garnering political support for legislation that promotes liberal values.