The Medina Charter is a 7 th century document believed to be drafted by Prophet Mohammed. Its relevance for the notion of Islamic Constitutionalism lies in the fact that it adopted, for its time, a surprisingly liberal approach to determine community membership. It appears that the meaning of this concept has evolved over time.
However, what is interesting about the Medina Charter is that, despite its antiquity, this term was used more broadly, to include people belonging to the Qureshi tribe as well as migrant Jews, thereby effectively affording membership on the basis of a geographic community. Ali is quick to flag this, and points out that the Medina Charter has been conspicuously absent from the history of Islamic jurisprudence today. She ponders why native Arabs of today are less aware of the Medina Charter than Muslims from other parts of the world. The author hopes that this enquiry will provide answers for questions such as these: how do constitutional courts in the Muslim world apply Islamic Constitutions?
Are there any common trajectories that Islamic Constitutions across Muslim countries have taken? Devji, the primary discussant, adopted an avowedly historical approach in his comments. His focus was on the Medina Charter and its absence from Muslim legal history. He suggested that, a potential explanation may be found in the opposition between political history and religious history. V Conclusions: Yemen, a Burgeoning Democracy? Sign up for alerts.
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Part 1 Constitutionalism and Islam: Conceptual Issues, 1. Prev Next. Users without a subscription are not able to see the full content. Please, subscribe or login to access all content. Among such thinkers, Ghannouchi, Turabi, Mawdudi, and M. Khatami are probably the best-known. Despite his conservatism, Mawdudi offers a clear treatment of the questions at hand. It is a right which belongs to all those who recognize divine sovereignty, and who believe in the supremacy of divine law. It must also be recognized that the system which is called democracy in the West is not one that allows the people to be sovereign.
Similar positions have been taken by both Turabi and Ghannouchi. With two organs of government at hand, the question of the relation- ship between them immediately arises.
Islam and democracy - Wikipedia
With this question we finally reach a point on which modern Western constitutionalists and Islamic constitutionalists see eye to eye. In both cases there is a concern with the possibility that the legislative power may pass wrong or unjust laws. This can be illustrated by referring to the writings of Ghannouchi and Turabi. IV, After this comes the power which the people exercise. They fail to distinguish between democracy, pure and simple which can degenerate into populism or anarchy , and constitutional democracy, which presumably has inherent protections against such deformations.
To them the qualifications which Ghannouchi and Turabi would impose on the power of the legislative branch are a violation of democracy and they cite these as evidence of the spuriousness of the Islamic claim to democracy. We shall not discuss here the various concepts of democracy in relation to secularism more about this issue will be found in the final section of this chapter.
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We will focus instead on the significance of the restrictions which Islamic democrats intend to place on the power of the legislative branch of government. It is fairly obvious that an agency is needed in order to review the laws that the Parliament can propose and approve. The most natural way to conceptualize this function is in terms of a third branch of government, a judicial branch, including a Constitutional Court charged with the task of reviewing legislation. It is here that critics begin to see threats to the very concept of democracy.
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It is also here that Islamic constitutionalism has to step carefully, if it is to succeed in avoiding this charge. It is instructive to look at the way these matters are dealt with in the constitution of the Islamic Republic of Iran. Here are some of the relevant articles: All civil, penal, financial, administrative, cultural, military, political laws and regulations, as well as other laws or regulations, should be based on Islamic principles. This principle will in general prevail over all of the principles of the constitution, and other laws and regulations as well.
Any judgment in regard to this will be made by the clerical members of the Council of Guardians Article 4. The Islamic Consultative Assembly cannot enact laws contrary to the usul fundamen- tals and ahkam judgments of the official religion of the country or to the Constitution. It is the duty of the Guardian Council to determine whether a violation has occurred in accordance with Article 96 Article The Guardian Council is not a popularly elected body.
The clerical members, who are six in number, are appointed by the religious leader, while the remaining six are nominated by head of the Judicial Power, who is appointed by the religious leader. There are no easy, obvious, or perfect solutions to these problems, which are discussed at length by Mawdudi in Tadwin al-Dustoor al- Islami. It is worth following his train of thought on this matter, because it is representative of the ideals which move many Islamic thinkers.
Mawdudi seems to think of these as Islamic proto- types of the modern branches of government. The reason for this, according to Mawdudi, is that members of the latter group headed by the caliph were men of great insight. The first caliph waged war against the apostates al-murtaddin despite advice to the contrary. The caliph was perceptive enough, and his companions had faith in his good judgment, so that all things went well.
However, this remains clearly his ideal. Short of attaining it, he suggests to resort to plebiscites in cases of irresolvable conflict between the legislative and the executive branches of government.
Islamic Theology, Constitutionalism, and the State
They are held in esteem not as a consequence of their wealth or inherited position, but on account of their courage, wisdom, dedication to Islam, and public service to the community. Constitutionalism, democracy, and the separation of powers are closely connected, both conceptually and in practice. In the West they have arisen in the context of secularism, which as some have argued is a condition presupposed by all three.
Since most Islamic thinkers firmly reject secularism, the question often arises of how one can speak of Islam, constitutionalism, and democracy in the same breath. How can an Islamic regime be democratic, if it is not secular? Democracy requires giving citizens equal political rights, but to think of the possibility of a head of an Islamic state to be Christian, Jewish, or atheist strains credulity.
Islam is therefore incompatible with democ- racy. Thus, if constitutionalism presupposes democracy and democracy presupposes secularism, constitutionalism, too, presupposes secularism. Yet Islam rejects secularism.
It follows that Islam is incompatible with both democracy and constitutionalism. Obviously, secularism lies at the heart of the problem here. Unless a way is found to put secularism aside as being only contingently related to democracy and constitutionalism, there may be no way to combine Islam with either of these forms. Let us look at how some contemporary Islamic democrats propose to deal with these problems.
This outlook has been classically expressed by Joseph Schumpeter in these words: Democracy is a political method, that is to say, a certain type of institutional arrange- ment for arriving at political — legislative and administrative — decisions, and hence incapable of being an end in itself, irrespective of what decisions it will produce under given historical conditions.
Secularism, nationalism, There is nothing in these procedures which necessarily conflicts with Islamic values. Democracy means popu- lar sovereignty, political equality, representative government, and major- ity rule. None of these things spell secularism. Hence there is no call from an Islamic point of view for rejecting democracy.
Ghannouchi welcomes free elections, believing that an Islamic society will want to live in an Islamic way. His has an equally welcoming attitude toward political pluralism, party competition, parliamentary debates, and other aspects of democratic practice. This is because he imagines that all the competition, opposition and debate will take place within limits set by a national consensus on an Islamic constitution. Ghannouchi does not call for suppressing these groups.
Many Western political writers recognize this. Opposition is the legitimate disagreement with particular policies of specific leaders within the mutu- ally accepted framework of the principles of an underlying constitution that is either written or based on long-established practice.
In their case, however, the constitution derives from the basic principles of the faith. This is how Western democra- cies have achieved their stability: the people, through a process of cultural and political development, have eventually reached a consensus on the foundations, and have succeeded in isolating the matters which are subject to consultation and parliamentary debate. For example, the difference between Labour and the Conservatives in Britain is very limited, and so is the difference between the Republican and Democratic Parties in America.
Islamic democrats propose to free democracy from secularism, to adopt the former, and leave the other one behind. This proposal also goes a long way toward solving or alleviating the perceived conflict between Islam and constitutionalism. Such an Islamic democrat can expect much criticism from many Islamic quarters, to the effect that conformity to all international human rights legislation is bound to dilute Islam beyond recognition, and that acceptance of these bills is just a polite way of rejecting Islam altogether.