Nimer Sultany, “Religion and Constitutionalism: Lessons from American and Islamic Constitutionalism.” Emory International Law Review Volume 28, Issue 1 (2014).
Jadaliyya: What made you write this article?
Nimer Sultany (NS): The article is part of a larger project that originates in my dissatisfaction with both the English-speaking scholarship on shari’a and constitutionalism in Muslim-majority states, as well as the post-Arab Spring debates on constitution-making, specifically in Egypt. As a secular Arab person, I found little space for a discussion that eschews the binary polarizations that dominate these discussions. Existing scholarship vacillates between those who essentialize Islam and those who seek to reconcile Islam and democracy. Those who essentialize Islam posit an irreconcilable tension between Islam and democratic constitutionalism (or even modernity) and this leads them either to Islamophobia, or to secular fundamentalism, or to asserting Islam’s superiority over modernity and western legality. Those who seek to reconcile Islam with democratic constitutionalism end up accepting the inclusion of shari’a in the Arab constitutions. This position is hardly reconcilable with secularism if we understood that to require a formal separation between religion and state. I also found it remarkable that some US scholars would write book-length arguments defending the US separation between church and state, and then these same scholars would write book-length arguments for the opposite position in the Arab and Muslim-majority states.
Similarly, the debates on the Egyptian constitution since the popular uprising against the Mubarak regime have been divided between two primary positions: on the one hand, those who accepted the constitutional empowerment of the judiciary to review legislation on the basis of its compatibility with shari’a; on the other hand, the salafists wanted an even greater role for shari’a in the constitutional and legal order. A significant political force or popular demand for a constitution devoid of sectarian religious references has been glaringly lacking. Instead, the relatively liberal and secular forces have been on the defensive and were content with maintaining pre-existing levels of Islamization. This is unfortunate, because the Arab Spring should be an occasion to establish new legal and political foundations that are more conducive to human flourishing.
Therefore, this project seeks to present the case against the inclusion of shari’a in Arab and Muslim-majority states’ constitutions. It seeks to initiate a conversation on these issues. I already made similar previous attempts in journalistic writings in Arabic (see here).
J: What particular topics, issues, and literatures does the article address?
NS: My view is that the dominant scholarship on these issues has been thus far dominated by a conceptualist approach. By that I mean that scholars have been concerned with assessing whether religion, like Islam, is compatible with democracy or human rights. This leads to offering different conceptions of these allegedly competing concepts. My argument is that such a debate is futile given the instability of the concepts on which it is based. These concepts (Islam, democracy, rights, constitutionalism, etc.) are amenable to different competing, and yet rationally compelling, interpretations. These concepts are not merely contested, they are also contestable. As such, disputes around them are not likely to be resolved by logical and rational argumentation. The abstraction of these debates makes them purely intellectual and lack the proper foundation in concrete institutional settings. It is also a breeding ground for the illusion that social and political conflicts are not intractable. By pushing concepts to higher levels of abstraction we merely paper over disagreement rather than resolve it.
In this light, my work has consisted of two parts so far. On the one hand, I conduct a mapping exercise that assesses the conceptual debate and deconstructs it (see here). This exercise aims at mapping the primary positions in the conceptual debates, their typical moves, the recursive property of the debate, and grouping them in families of discourse. Ultimately, I show the methodological and rhetorical similarities between seemingly opposed positions and hence the vulnerability of their outcomes. On the other hand, I endeavour to show what an alternative debate would look like. I call this a pragmatic or consequentialist debate. By that I mean that the focus shifts from concepts to the evaluation of real-world consequences of different institutional arrangements. I believe that this leads to a more informed debate (though by no means less intractable). Within this pragmatic examination I assess the strength of the scholarly arguments for the inclusion of shari’a in the constitution (namely the normative argument and the political-realist argument). I question these arguments and their underlying assumptions. I then proceed to make my own arguments for the exclusion of shari’a from the emerging the constitutional order in states like Egypt and Tunisia.
J: How does this article connect to and/or depart from your previous research?
NS: My previous work focused on western progressive political and constitutional theory (see here). I critiqued high theory for its circularity, abstraction and conceptualism. It is quite common for constitutional scholars to attempt to resolve disputes on institutional arrangements by fleeing to abstract concepts and then claiming that their favoured conceptions of the concepts dictate their favoured institutional arrangement. In many ways, my work on Islamic constitutionalism is an application of the methodological tools and substantive insights I developed in this research. On the one hand, it provides a comparative setting for a similar shortcoming: the conceptualism of normative theory and its futility. I show that similar rhetorical tools and similar families of discourse exist in both debates. On the other hand, it develops this work by extending it beyond the deconstructive stage. My work on Islamic constitutionalism seeks to present an example of what a pragmatic debate would look like. It is a bit difficult to develop such alternatives because there is an extensive tradition of high theory that dominates and clutters the horizons of intellectual and academic discourse. Thus, it is necessary to provide an internal critique of this discourse to show that it fails to achieve its objectives and that it suffers from rational failings (circularity, inconsistency, conceptualism, etc.), and to relate these internal critiques to substantive outcomes, namely the justification of normatively undesirable or unjust political regimes. It is also equally important, however, to attempt to provide an example of an alternative discursive space. It is an attempt at a different relationship between theory and practice.
J: How does your use of US constitutional theory and law as a backdrop lead to a different sort of analysis of Islamic constitutionalism in Egypt and Tunisia?
NS: One of the goals of this project is to demystify the debate on Islamic constitutionalism. By grounding the discussion in US constitutional law and theory I hope to undermine the alleged exoticness of the debate on religion in Muslim-majority states. The more I read about the debates on the Establishment Clause in the US Constitution (that prohibits the state’s endorsement of a particular religion or its entanglement in religious considerations), the more I found them applicable to the Tunisian and Egyptian context. Traversing the disciplinary boundaries between both debates is fruitful in both comparative directions. On the one hand, the debates on Islamic constitutionalism benefit from considering a long tradition of debating similar questions in a different setting. On the other hand, I use the Tunisian and Egyptian contexts to contribute to American debates by defending the arguments that establishment of religion leads to alienation on parts of the citizenry and to religious division and hence distraction from other issues given the dominance of concerns over religious law and identity.
Finally, it shows the inadequacy of current theorizations that distinguish between western secularity and Islamic “constitutional theocracy.” Secular and liberal discourse is no less open to indeterminacy and manipulation than religious rhetoric. One can see this given the influence of religion in the US despite its secular constitution. Likewise, the liberalization of the Egyptian constitutional discourse occurred despite the incorporation of shari’a. Nevertheless, I argue that the secular constitution is a preferable alternative, all things considered, because a religious-based constitution changes the bargaining power of different groups operating within its framework.
It is important to note, that this position is consistent with my position in other contexts. An Islamic state is objectionable in the same way that a Christian state or a Jewish state (even if Israel is no longer an occupier) is objectionable (for my work on the Jewishness of Israel see here and here).
J: Who do you hope will read this article, and what sort of impact would you like it to have?
NS: Hopefully, this article will be read by scholars of the Middle East and legal traditions as well as political activists who are interested in changing current constitutional orders in Arab states. We should expand the boundaries of our academic and political discourse in order to create the space for projects not only as imagined alternatives but also as projects that could be pursued and paths that should be taken. Judgments about what is politically feasible under particular historical conditions should not be surrendered to “common sense” and what is “realistic.” This surrender betrays a reification of socio-political reality that makes it seem beyond our ability to change it and, consequently, undermines our ability to change it. The pragmatism I espouse seeks to interrogate such judgments and rejects uncritical acceptance of reality. The article is also directed to potential constitution-makers in the post-Arab Spring world and makes the case against the incorporation of shari’a.
I also hope the article will shed light on various negative phenomena like constitutional fetishism in Egypt. I find it remarkable that the Egyptians overly focused on constitutional declarations and documents. This serves only to conceal the nature of political conflicts as if it were legal questions. And it also serves as an evasion of political responsibility. This preoccupation seems to stem from the illusion that once the Egyptians establish a constitution they will have a stable political and legal order. But it seems to me that stability cannot be achieved through parchment barriers. Certainly, the several constitutional drafts and declarations since the ouster of Mubarak show the futility of such hope. Crucially, one can imagine a workable political order without any constitution, or with a minimalist constitution that lacks the controversial value-based articles.
Furthermore, the preoccupation with religious law is lamentable because it has marginalized other no less important questions. I mention examples of the marginalization of debates on social justice in Egypt. For example, I found fewer than desired op-eds in the Egyptian press arguing for social justice since the ouster of Mubarak. Lacking serious debates social justice becomes a political slogan lacking specific content. I hope these kinds of questions will return to the public debate and will not continue to be overshadowed by the reification of identities through destructive and polarizing identity politics.
Excerpt from “Religion and Constitutionalism: Lessons from American and Islamic Constitutionalism”
From the Conclusion
…[This] article argued that the constitution makers in Egypt and Tunisia are better advised not to include such a clause given its assessment of the stakes involved and the likely implications.
This argument may seem politically unfeasible. That, however, would be a quick conclusion. To begin with, judgments concerning feasibility or practicality or realism are not merely factual judgments devoid of normative judgments and goals. The Article contested the facts that underlie the realist argument either by presenting new facts or by showing how these facts necessitate a normative judgment regarding how one arrives at these facts (e.g., how we should measure popular will). If the realist concedes that a shari’a clause is not an ideal arrangement, then there is a need to identify a desirable alternative arrangement. Once this goal is identified, it can become a regulative idea towards which political action can be oriented. The answer cannot be: “[A]ccept the existing bad arrangement and hope it will change in the future” because, as previously indicated, choices made at the present influence the availability of options in the future. If one disagrees normatively with a shari’a clause then one undermines her own position, at least over the long-term, when she agrees to it under the banner of realpolitik. Ultimately, this realpolitik is no more than an apology to the status quo.
As the Tunisian example shows, it is quite realistic to expect at least some of the processes of post-Arab Spring constitution making to result in a constitution that is free of a shari’a clause. Admittedly, in Egypt, the political reality seems more intractable and volatile, but it would be a mistake to take this option off the constitutional table. At a time of constitution making, constituent assemblies should address all the fundamental questions in the polity in order to lay down the foundations for a fair and stable political-legal order. It is unfortunate that at the time Salafis demanded a stricter version of the shari’a clause in Egypt, there was virtually no debate on the prudence of having a shari’a clause in the first place. But as I indicated, this should be understood as part of—and contributing to—larger processes like polarization and constitutional fetishism.
It should be clear, however, that this Article does not consider the arguments it offers as less contestable or indeterminate than the arguments it rejects. Unlike the conceptualist arguments, the arguments offered here do not seek a closure of the debate. This Article proposes them as a reasonable assessment of historical conditions, given a knowledge of the past and a hope for the future. Unlike the move to abstraction—which seeks to avoid disagreement on the ground level by seeking agreement on the abstract level —here, the attempt is to recognize disagreement at all levels. Given the inescapable fact of disagreement, there is a need to advance a more concrete case-by-case examination of the relevant issues given all the circumstances. Disagreement on the ground level is more enlightening than disagreement on the abstract conceptual level, because it is grounded in actual consequences. This nuanced focus seeks to: (1) avoid the generalizing tendency of conceptual debates; (2) evade the unwarranted optimism of the normative argument; and (3) reject the realist argument’s despondency and uncritical acceptance of reality.
This contextualization does not imply that one should circumvent a principled position. Quite the contrary, this contextualization is performed against the backdrop of normative principles. Clearly, the arguments in this Article would effectively contribute to the outcomes desired by the liberal secularist camp. However, the arguments advanced here make no claims that Islam and democracy are a priori incompatible (or that they are a priori compatible, for that matter). Nor do they preach modernization, because the distinction between traditional and modern societies on which this outlook relies is a myopic simplification of reality.
Prior to the Arab Spring, the choice may have seemed limited to secular dictators and Islamic democrats. In the aftermath of the Arab Spring, however, there is no reason to maintain this binary choice: scholars and Arab constitution makers should be able to imagine a political regime that is neither non-democratic, nor religious. Constitution makers, who may still feel uncertain and are reluctant to overcome this binary choice, are advised to consult Max Weber. Weber posits an irreconcilable conflict between the “ethics of ultimate ends”—according to which, the judgment concerning the rightness of conduct is decoupled from its possible consequences—and the “ethics of responsibility”—according to which, the rightness of actions is judged by their potential consequences. As politics requires the deployment of coercive state power, including through law, the application of our convictions and principles requires attention to the consequences given our judgment of the situation. For Weber, a politician must be capable of making hard choices between contradictory ethical demands and taking responsibility for their consequences, even the unforeseen ones. The ethics of ultimate ends avoids making these hard choices and taking this responsibility, given its occupation with rightness of conduct, moral purity, or the salvation of the soul. Weber’s “situated consequentialism”—as opposed to utilitarianism—posits that “causal sequences and outcomes are intelligible to us only from horizons of meaning that are themselves constructed from the vantage point of our ultimate practical values.”
This Article mentions Weber here for three reasons. First, the notion of responsibility is important, because—as the Article shows—the effect of different arrangements and choices is to avoid responsibility. Distraction from fundamental questions evades taking political responsibility for these questions. Secular escapism neglects political responsibility. Constitutional fetishism allows running away from political responsibility. Legalization and delegation of questions of religion to judges permits avoiding political responsibility. This evasion of responsibility at various levels is connected to the question of Islamic constitutionalism: that the identity politics that focus on constitutionalizing shari’a leads to distraction; that judicial empowerment through a shari’a clause is an escapist secular tactic; that the preoccupation with a shari’a clause is part of constitutional fetishism; and that legalization of religious issues throws the ball from the political arena to the legal arena. Accordingly, the constitutionalization of shari’a hinders acknowledgment of political responsibility.
Second, Weber’s situated consequentialism may not necessarily dictate the result this Article advocates, because judgments of consequences and situations differ. However, this Article attempts to provoke a conversation along these lines by providing constitution makers with an analysis of the consequences of the available constitutional arrangements in Egypt and Tunisia. The arguments provided here against Islamic constitutionalism show that there is a choice, because this institutional configuration is not a predetermined fate. They also show that on balance the consequences of excluding shari’a are preferable, and it is this choice that constitution makers should take responsibility for.
Third, Weber’s situated consequentialism should be understood against the backdrop of value pluralism, i.e. the existence of irreducible and irreconcilable value conflict. This conflict cannot be resolved by value monism, i.e. by positing a superseding meta-value or super-principle, or through a harmonious conceptual marriage of the competing values (as in “constitutional democracy” or “Islamic constitutionalism”). The recognition of the paradoxical existence of constitutionalism and democracy or Islam and democracy and hence the futility of the illusory stability under the hands of a priori conceptualism should lead to the continuous openness of the negotiation between the ethical and political. This pragmatic vantage point provides us with a more accurate reading of modern-day politics that is not consensus-driven but antagonistic. It also emphasizes practice and experience, as opposed to the focus on the argumentative modes and rational resolution of conceptual and moral conflicts that excludes the role of the passions. The recognition of value pluralism may lead from political “antagonism,” in which opponents treat each other as enemies, to “agonistic pluralism” in which politics is adversarial.
[Excerpted from Nimer Sultany, “Religion and Constitutionalism: Lessons from American and Islamic Constitutionalism,” Emory International Law Review, by permission of the author. Copyright © Emory University School of Law 2014. For more information, or to read this article and view the full issue, click here.]