Toward a New Theory of Islamic Constitutionalism
It helped to refocus some of my own thinking about this topic, particularly on the notion of Islamic Constitutionalism.
A caveat is in order at the outset: Detailing out this argument is a very ambitious project, and I cannot do justice to it in such a short synopsis. I hope to provide a brief outline or framework of my main ideas in this post. I will try to post from time to time as I develop my arguments. These preliminary thoughts are put out to solicit some initial reaction. I welcome feedback, criticisms and whatever else you may wish to throw my way
My proposal is to theorize the development of a new Islamic Constitutional model by relying on John Rawls‘ theory of “overlapping consensus” and the notion of constructively engaging with the moderate Islamists (including Islamic feminists) who should be encouraged and enabled to internally work out and negotiate their own consensus on their societal values. Obviously, there are serious criticisms that can be lobbed at these arguments, especially when there has been no opportunity to detail them out in any substantive way. In any event, I hope to address these in the fully articulated version of this paper.
I believe there is enough in the interaction between the two ideas and the existing doctrinal and conceptual tools within Islamic legal and political theory for us to work with. These three considerations provide us with a workable starting point in theorizing a more tolerable yet robust model of Islamic Constitutionalism. Such a model must be acceptable to both the Western and Islamist perspective. This of course envisions a role for both the moderates among us in the west and the moderates in the Muslim world.
The “overlapping consensus” thesis set out in Rawls’ Political Liberalism refers to how proponents and adherents of different ideologies or world views can concur on a political agreement based on justice. This consensus is reached, in part, by avoiding the deepest religious and philosophical divides between the various camps. This of course assumes that there are core commitments common to “reasonable” people and that people can, in fact, keep their deepest subjective beliefs and convictions to themselves. Rawls argued that citizens who held diverse religious and moral beliefs could agree on the constitutional basics — the essential or minimum constitutional principles necessary for a society to advance the interests of justice as fairness and maintain some sort of cohesive structure in the pursuit of the common good. Rawls accepted that total agreement on justice as fairness might be impossible, but he concluded that an “overlapping consensus,” is possible.
My arguments will build on the work of Mohamed Fadel who used Rawls’ framework to examine how Muslim citizens of a liberal state could participate in a Rawlsian “overlapping consensus.” I would like to push the envelope a little further and argue that a viable Islamic Constitutional model (revolving around the reasonable middle ground) can be achieved by respecting the role of religion, the traditions of Islam (including legal and political theory), and the right to self-determination. These three pre-conditions, as trite as they may be, are too often overlooked, minimized, assumed away or dismissed both in scholarly work and in policy formulation. Yet, these are critical if we are to engage with the Islamic world in any meaningful way based on mutual respect and in the spirit of co-existence.
If we can get beyond the clash of extremism – that has been prevalent to date in exchanges between the two sides — then we may be able to communicate and appreciate the legitimate interests and views of the other. If we can respect the role of religion, the traditions of Islam and provide some breathing space to Muslim societies to struggle with their own demons, we may indeed give the opportunity for aql (reason) to prevail in the pursuit of adl (justice) and the common good of humanity.
I argue that an ummah (Muslim community) led, bottom-up approach, which Mashood Baderin has accurately labeled the socio-cultural and harmonistic approach to Islamic reform, is the most sustainable and peaceful route to devise a workable and acceptable or tolerable model of Islamic Constitutionalism.
Granted, this project, or more likely series of projects, will not be a quick or smooth process. In fact, consistent with Etzioni’s view, the factions within the Islamic civilization and the western world will clash. There will be a contest within the Western camp on whether or not to engage with the moderates (and if so with who) and whether or not we accept the outcome of the process. Within the Islamist camp, various factions will vie for the power to set the agenda.
None of this, of course, means that the governance structure that evolves into existence will be an exact replica of western models. Herein lies a challenge to us in the West and in the secular camp; will we accept that there are other viable models for governance that deserve our respect?
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