The author emphasizes the self-determination of local actors who must struggle on their own terms, and the internal dynamics of how rebellions may evolve into transformative revolutions over time. Regarding the outcomes of 2011 rebellions across the Arab world the author proposes engaging Islamists in open political contestation, within the same constitutional and democratic framework that apply to all citizens. The article focuses on the mediation of tensions in this relationship between Sharia (the normative system of Islam) and the post-colonial state through the separation of Islam and the state, while affirming and regulating the connectedness of Islam and politics.
The Arab Spring has seen the fall of dictators in Tunisia, Yemen, Libya, and Egypt as well as serious protests and uprisings in other countries across the Arab world. While each movement is based upon different factors, two persistent strains can be heard within each: a demand for economic justice and a call for a return to Islam. Amongst the diverse population that comprises Egypt, calls for the former have been undeniably unified while calls for the latter have been varied and fragmented.
Notwithstanding religious elements, Islamic law has something important to say about economic justice. However, former Egyptian president Hosni Mubarak worked hard to suppress Islamist voices and discouraged any form of Islamic law during his rule. Mubarak succeeded until February 11, 2011, when he officially resigned after massive protests. Thereafter, Egyptians elected to the presidency the Muslim Brotherhood-backed candidate Mohamed Morsi. Now, the world is pondering to what extent Islamic law will be implemented in Egypt post-Revolution. Specifically, the legal world is wondering what, if anything, Islamic banking law will have to say about economic justice in Egypt.
Upon initial post-Revolution parliamentary elections, Muslim Brotherhood political leaders drafted a bill that sought to increase the market share of Islamic banks within the current, secular legal framework. However, the bill would likely not achieve its purpose due to complications of competition with conventional banks in a dual-banking regime. Thus, Egypt’s next parliament should adopt strict Islamic banking and finance law, thereby forbidding conventional banking in Egypt.
Although an overhaul of the secular banking law regime in Egypt would be complex, harsh, and perhaps injurious in some respects, the future benefits of adopting strict Islamic banking law outweigh those challenges. Specifically, a wholly Islamic banking sector will allow Egypt to cultivate and make use of its excellent source of human capital while promoting fairness in monetary dealings and appeasing those who seek a return to the religious and cultural roots of Islam.
This article examines the debate over the constitutionalization of shari’a in post-authoritarian Arab regimes. A shari’a clause would empower judges to review the validity of legislation on the basis of Islamic law. Thus, it raises for the first time the potential countermajoritarian effect of judicial intervention. This article examines the conceptualist-style approach to the question of Islam and democratic constitutionalism. Such an approach, which has hitherto dominated the debate, seeks to show the compatibility of Islam and democracy, or the lack thereof, on the basis of conceptual analysis of abstract concepts like Islam and democracy. The article maps and evaluates the different discursive moves that moderate Islamists, Salafis, and secularists deploy in this debate. Comparing the debates to the U.S. constitutional debates between originalists and living constitutionalists, I show the unacknowledged methodological similarities between the opposing camps. I argue that the contestability of the basic concepts on which the debate is based shows the futility of the conceptualist debate. Furthermore, ignoring contestability, fleeing to abstraction, and falling prey to formalism produce bad normative effects that are detrimental to the debate. Ultimately, I seek to advance a different kind of conversation: a pragmatic, consequentialist-style analysis that takes into consideration prudential and normative arguments for or against the inclusion of shari’a law in the emerging Arab constitutional orders.
In recent years a growing number of countries have adopted constitutional provisions requiring that state law respect Islamic law (sharia). Muslims today are deeply divided, however, about what types of state action are consistent with sharia. Thus, the impact of a “Sharia Guarantee Clause” depends to a large degree on questions of constitutional design — on who is given the power to interpret and apply the provision and on what procedures that they follow when making their decisions. This article explores the trends that gave rise to SGCs and provides a history of their incorporation into national constitutions. It then surveys a number of the remarkably varied schemes that countries have developed to interpret and enforce their SGC’s, and it considers the impact that different schemes have had on society. Building on this background, the article considers what type of SGC enforcement scheme, if any, are likely to permit (and ideally promote) a state to pursue democratic policies. As it notes, SGC’s are often found in authoritarian or imperfectly democratic constitutions. Unsurprisingly, the designers of SGC enforcement schemes in non-democratic countries have generally tried to ensure that their SGC will be interpreted and applied in a way that permitted or even promoted non-democratic policies. Nevertheless, we can draw from the experience of these countries some important lessons about the types of SGC enforcement scheme that will allow more democratic states to promote both democratic political participation and rights. At the same time, recent debates have erupted in Western liberal democracies about how best to reconcile rights enforcement with democracy. These debates clarify some issues that aspirational Islamic democracies will face as they try to develop SGC enforcement schemes for a democratic society, and they provide insight into the qualities that an institution must possess if it is to address such issues effectively. A number of Muslim countries are currently debating how best to square a constitutional commitment to respect Islam with parallel commitments to democracy and rights. Acknowledging that these countries will need to tailor their SGC enforcement schemes to very different local conditions, this paper describes some basic design features that effective democratic SGC enforcement schemes are likely to share.