The Arab Spring has generated unprecedented and seismic political and social upheaval across the Arab world. The reasons for the outbreak of widespread and vociferous public protest are myriad, but generally understood as including long-simmering resentment of government corruption and repression, underwhelming economic development, chronic unemployment and poor respect for human rights, including the treatment of individuals and groups affiliated with political manifestations of Islam. Despite the initial drama surrounding the street rallies, two years on, the pace of change has grown fitful and uncertain.

The purpose of this chapter is to consider one narrow aspect of the Arab Spring. Namely, what does this historic moment augur for securing the right to freedom of thought, conscience, and religion or belief? Further to this question, how — if at all — have the emerging post-Arab Spring governments differentiated themselves from their predecessors on issues including non-discrimination, equality, freedom of expression and the rights of religious minorities — including Muslims dissenting from state-sanctioned Islam, non-Muslims, new religious movements (NRMs), and nonbelievers? And finally, what role, if any, should the larger international community play in advocating or facilitating the adoption of new constitutional and legislative safeguards designed to uphold international human rights norms?

In the end, this chapter argues that the revolutions hold the promise of correcting years of discriminatory and unequal treatment. However, such an outcome remains contingent upon overcoming a dangerous historical paradox that often finds formerly persecuted groups morphing into the role of persecutor. The direction emerging regimes tip will be determined by a combination of internal and external factors.

The increased role of technology in constitution-making and its improved possibilities for popular contributions in the Arab Spring and elsewhere raises interesting questions regarding public constitution-making and the obligation to obey the law.

The question that will be addressed in this paper is what methods of public participation in constitution-making will create an obligation to obey the new constitutional regime under a “completed” version of John Simmons’ theory of fair play. In answering that question, this paper will first canvas methods of public participation, using examples from three states where public involvement in constitution-making was significant, Iceland, South Africa, and the United States. This paper will then explore Simmons’ theory of fair play and “complete” it, rendering it capable, under certain circumstances, of recognizing fair play obligations to obey the law that are more easily scalable. This paper will also develop a construct implied within Simmons’ theory in identifying when a community constitutes a “cooperative scheme.”

Finally, this paper will then analyze whether and what kinds of participatory drafting methods and schemes qualify under Simmons’ “completed” theory in creating scalable, prima facie fair play obligations to obey the law.

The constitutions of many Arab countries provide that Islamic law (“shari’a”) is a “source” of national law. Indeed, some make shari’a norms “a chief source,” of state law. Other stronger provisions even declare them to be “the chief source” or “the only source” of legislation. There has been surprisingly little historical scholarship about these clauses, either in Arabic or in Western languages. There has also been almost no systematic comparative scholarship looking at the way that these clauses have been interpreted in different countries. In both Western scholarship and in popular Arab discourse one finds considerable confusion about where these clauses came from and about the implications of a country adopting them. In particular there is confusion about when a “source” clause will be interpreted to prohibit the state from enacting laws inconsistent with shari’a.

This article provides a comprehensive history of the origins of these clauses in Syria and their spread to the Gulf States, Egypt and beyond. It also provides a comparative survey of their interpretation in Arab courts. It demonstrates that when they were first adopted, these clauses were understood to be ambiguous. Furthermore, for some time, the courts in different countries developed different interpretations of them. Weak provisions declaring shari’a “a source” or “a chief source” of law were understood in some countries to permit the state to enact legislation inconsistent with shari’a, but were understood in others to prohibit such legislation. Stronger clauses making shari’a “the chief source” were also interpreted in conflicting ways. Over time, however, interpretation of SSL language evolved and converged. Constitutional courts seem increasingly to agree that weak SSL clauses do not require governmental respect for shari’a while strong ones do. At the same time, courts in countries with strong SSL clauses have developed some surprising views about what sorts of law are consistent with shari’a. Most notably, courts in Egypt have insisted that Islamic values overlap significantly with liberal values and thus strong SSL clauses require the state to respect the liberal rule of law.

The history of SSL clauses to date thus reminds us that interpretations of Arab constitutions, no less than “Western” ones, constantly evolve and, at times, they grow in surprising ways. One should thus be cautious about evaluating Arab Spring constitutions or about predicting the impact that certain types of constitutional language will have going forward. Language that does not today seem to require governmental respect for shari’a may, in time, be reread to require this. At the same time, a society’s understanding of shari’a is likely to be contested and over time to evolve. Liberals can only hope that if constitutions are interpreted to require respect for shari’a, social understandings of shari’a will develop in a way that harmonizes Islamic and democratic values.

The events of the Arab Spring and recent military coup in Egypt have highlighted the central importance of the constitutional treatment of Islam. Many constitutions in the Muslim world incorporate clauses that make Islamic law supreme or provide that laws repugnant to Islam will be void. The prevalence and impact of these “Islamic supremacy clauses” is of immense importance for constitutional design — not just for Muslim countries but also for U.S. foreign policy in the region, which became engaged in the issue during constitution-writing in Afghanistan and Iraq. However, to date, there has been no systematic or empirical examination of these clauses. Many questions remain unexplored: Where did these clauses originate? How have they spread? Are they anti-democratic impositions? What determines their adoption in national constitutions?

This Article fills this gap. Relying on an original dataset based on the coding of all national constitutions since 1789 and case studies from four countries — Iran, Afghanistan, Egypt and Iraq — it traces the origin and adoption of Islamic supremacy clauses since their first appearance in Iran in 1907. We make three major, counterintuitive claims: First, we argue that the repugnancy clause — the most robust form of Islamic supremacy clause — has its origins in British colonial law, and indeed, that all forms of Islamic supremacy are more prevalent in former British colonies than in other states in the region. Second, we argue that in many cases, these clauses are not only popularly demanded, but are also first introduced into their respective jurisdictions during moments of liberalization and modernization. Third, contrary to the claims of those who assume that the constitutional incorporation of Islam will be antithetical to human rights, we demonstrate that almost every instance of “Constitutional Islamization” is accompanied by an expansion, and not a reduction, in the rights provided by the constitution. Indeed, constitutions which incorporate Islamic supremacy clauses are even more rights-heavy than constitutions of other Muslim countries which do not incorporate these clauses. We explain the incidence of this surprising relationship using the logic of coalitional politics.

These findings have significant normative implications. On a broader level, our work supports the view of scholars who argue that the constitutional incorporation of Islam is not only compatible with the constitutional incorporation of basic principles of liberal democracy, but that more democracy in the Muslim world may mean more Islam in the public sphere; in fact, we find that more democratic countries are not necessarily any less likely to adopt Islamic supremacy clauses. Our findings also suggest that outsiders monitoring constitution-making in majority Muslim countries who argue for the exclusion of Islamic clauses are focused on a straw man; not only are these clauses popular, but they are nearly always accompanied by a set of rights provisions that could advance basic values of liberal democracy. We accordingly suggest that constitutional advisors should focus more attention on the basic political structures of the constitution, including the design of constitutional courts and other bodies that will engage in interpretation, than on the Islamic provisions themselves.