Histoire, société et études islamiques au 21e siècle

Abstract

In manyMuslim countries,the aspiration for public shariahas been embodied in the establishment of sharia (Islamic law) in legal systems, or even in its constitu-tionalization. The call for public sharia has been the subjectofincreasinginterest in political and legal scholarship. It is widelydisputed whether Islamic lawcan or cannotbelegitimatelyaccommodated in the public sphere. The problem of public shariapertains to its legitimacy in aconstitutional sys-tem. In this regard, the coreissue in the relationship between constitutionalism and Islamiclaw centers on whether Islamiclaw can be publiclyimplemented and if so, how such an implementation can be normatively justified. This chapter attempts to examine this issue.Itcriticallyexamines models of the relationship be-tween constitutionalism and Islamic lawbywhich the state’ssupport of Islamic lawcan or cannot be religiouslycompatible with constitutionalism. In particular, this chapter suggests acritical examination of so-called ‘Islamic constitutional-ism’,¹ aprevailing concept identified with strong religious constitutionalism. To this end, the chapter firstly discusses the relevance of constitutionalism to Islamiclaw.Itdiscusses the general context in which modern Islamic lawhas en-gagedwith constitutionalism. Secondly, the chapter examinesreligiousjustifica-tions, proposed by Muslim scholars, in different models of constitutionalism, which this chapter calls exclusive secularism, strongreligiosity,inclusive secular-ism, and moderate religiosity.The chapter proposes four Islamic paradigms of jus-tification under those models. It argues that despitethe orthodoxy of Islamic con-stitutionalism, secular constitutionalism with its two versionscould also be an Islamicallyjustified model of constitutionalism. This would implythe pluralization