In Western political thought, terms such as “constitutionalism”, “rule of law” (and others) have come to express meanings which are richer, and more complex, than what is suggested by etymology, or mere juxtaposition of words. This is usually the mark of terms and concepts that have come to play a pivotal role in the theory of the subject matter in which the term is used. Such terms invariably carry a greater semantic burden that is suggested by their linguistic derivation or the sum of their parts.
Foundations of Islamic Constitutionalism:
A statement by an influential Islamic theorist of modern times, namely, Mawdudi, indicates that Islamic thinking does not draw a line between the laws which govern the system of nature (considered as mere physical reality), and the laws which govern (or ought to govern) human affairs in society. To the Muslim thinker all laws, ultimately considered, are God’s laws. In a statement which is reminiscent of Aquinas’s distinction between eternal law and divine (i.e. revealed) law (Aquinas 1944, v.2, 748-757), Mawdudi says:
“From the moment of their conception, till the very last day of their lives, human beings are completely subject to God’s natural law, unable to break it, or to go contrary to it. Those who believe in divine revelation must also believe that God rules over the voluntary part of our lives as well as the involuntary part, and the universe in its entirety.” (Mawdudi 1975a, 18)
The Scope of Islamic Constitutionalism: The Question of Rights:
In what follows, we shall keep to Lane’s idea of constitutionalism, the idea which is succinctly expressed in article 16 of The Declaration of the Rights of Man and the Citizen (1789): “A society in which rights are not secured nor the separation of powers established is a society without a constitution.” (Finer 1979, 271)
We begin with the question of rights, for this is easier than the question of the different branches of government, and the relations which may hold between them. What rights do individuals have in Islam? How does the Islamic scheme of individual (and human) rights compare to other schemes?
It is commonplace to say that Islam is not one thing to all who profess to believe in it, or practice it. This is true in many respects, but the subject of rights stands out as an area in which drastically different interpretations of the faith are possible.
It is useful to think of the range of possible interpretations in terms of the old rivalry between the Ash’arites and the Mu’tazilites. It is true that contemporary adversaries do not see themselves as historical continuations of that old rivalry, but there is no doubt that many of the concerns, rationales, even conflicting interests which caused that old split, are still operative now, and are likely to continue in the future.