Islamic Theology, Constitutionalism, and the State

By Lukas Wick

One of the most critical questions facing the world today is whether Islam is capable of accommodating itself to the constitutional forms of government that first arose in the West. Needless to say, opinion is sharply divided on this question.

In Islamic Theology, Constitutionalism and the State, Lukas Wick engages in a detailed analysis of the relevant issues and offers some sober, well-researched answers. Avoiding exaggeration and focusing on the history and writings of prominent Muslim scholars, Wick illustrates that theology matters in the framing and answering of these issues in ways that are unexpected and which should give us all pause for thought.

• Language: English
• Publisher: Acton Institute
• Release date: Dec 25, 2012
• ISBN: 9781938948473

Book preview

Islamic

Theology,

Constitutionalism,

AND THE STATE

LUKAS WICK

Translated by Gerald Malsbary

Acton Institute

Smashwords Edition

Copyright © 2012 by Acton Institute

Contents

Foreword

1. Introduction

2. The Constitutional State in Europe: Definition and Origins

3. Constitutionalism and Islam

4. Theology in Islam

5. Political Modernity in Islamic Theological Discourse

6. Selected Ulama and Political Modernity

Conclusion

About the Author

Foreword

Lukas Wick has written a very important book about the theological underpinnings of constitutionalism. Constitutions are the epitome of the rule of law and require for their conception a certain view of man, reality, and God. What are the theological presuppositions without which constitutionalism cannot flourish?

Wick deals with this profound question by examining the answers in two religions, Christianity and Islam. He demonstrates that, in Christianity, while there may have been ambivalence toward constitutionalism, there was a bedrock of realist metaphysics and theological doctrine that allowed for its development and ultimate legitimacy. This entailed the natural integrity of the world, as asserted by Thomas Aquinas, and the autonomy of man within it, as allowed by Judaic and Christian revelation. The concept of natural law, essential for the development of constitutionalism, was aided and abetted by the biblical doctrine of man made in the image of God. As a result, Wick points out, Christianity itself supported and defended the secularization of the political order necessary for the development of constitutionalism.

The success of the West inspired the spread of constitutionalism to other parts of the world, including the vast Muslim realm. Wick gives the interesting history of the deployment of constitutions in Islamic countries beginning in the nineteenth century. However, he raises the question as to whether these constitutions are any more effective than their namesakes were in the former Soviet empire. None of them seems to have prevented tyrannical rule. What has prevented constitutionalism from taking root in a meaningful way?

Wick’s answer to this question makes his book highly pertinent to the current developments throughout the Middle East, where the Arab Spring has brought the question of constitutionalism to the fore again. In fact, the importance of this work is such that any consideration of future possibilities there cannot be undertaken without knowing what it contains. If one wishes to discern the reasons why the elections resulting from the Arab Spring produced what they have, the reasons are here, even though this book was written before they took place.

Wick delves into Muslim theology to consider its compatibility with the underlying premises of constitutional rule. In order to do this in a serious way, he first examines what is meant by theology in Islam and who are its theologians. Here he shows that theology means something different in Islam than it does in Christianity. Islam does not invite discursive thought in theology because its epistemological horizon is limited by the notion that knowledge is restricted to revelation. Thus, theology devolves into jurisprudence—the examination and application of divine rules.

Even more important is that part of Muslim revelation that counters the Judeo-Christian notion that man is made in the image and likeness of God. Absent this likeness, man has no grounds for the exercise of sovereignty, which as a result belongs exclusively to God. In Islam, there is no such thing as natural man, as all men are born Muslim. Wick suggests that this doctrine strikes a blow to the concept of natural rights that lies at the very heart of the Western concept of constitutionalism.

In the last part of the book, Wick examines an assortment of important Muslim thinkers from the Islamist to the more orthodox persuasion to see if, within this variety, any one of them is more disposed than the others to the legitimacy of constitutional rule. Despite their significant differences, none of them are. For all of them revelation (no matter how variously interpreted) is the single source of legitimacy; therefore, how likely is it that they will (or can) even consider the ideas that historically have given rise to constitutionalism? They do not have a theological framework within which to do so because, as Wick says, the majority of Islamic theologians are jurists above all else.

As Iranian philosopher Abdulkarim Soroush has elsewhere said, You need some philosophical underpinning, even theological underpinning in order to have a real democratic system. Your God cannot be a despotic God anymore. A despotic God would not be compatible with a democratic rule, with the idea of rights. So you even have to change your idea of God. As the triumph of the Salafists and Islamists in the 2011–2012 Arab Spring elections have shown, that change is nowhere on the horizon. This insightful book shows why this is so. Wick’s thoroughness makes his devastating conclusions all the more convincing. He does not discount the eventual development of genuine constitutionalism within Islam, but he convincingly demonstrates the obstacles that must be overcome for this to happen. One might wish this were otherwise, but hope that is not founded upon a grasp of the realities that are laid out here will be misplaced.

Robert R. Reilly

Chairman

Committee for Western Civilization

Senior Fellow

American Foreign Policy Council

1

Introduction

Constitutional government in its various forms is almost assumed as a given in the political landscape of Europe and perhaps still more so in America. The procedures and guarantees of constitutional government have so deeply entered our collective subconscious, that an alarm is sounded whenever there is even a scent of danger. As a result of globalization and the consequent emigration from non-Christian cultures, the West, with all its indifference toward religion, is increasingly confronted with individuals who practice their religion more openly than we (at least in Europe) have grown accustomed to over the last fifty years. Under these circumstances it is perfectly understandable that many Westerners feel that their view of political order is being challenged. Consequently, voices can be heard calling for constitutional patriotism, together with demands that immigrants (those with Muslim backgrounds, in particular) be required to pass an examination proving their fitness for a constitutional system of government.

The constitutional state, its concrete political expression, and the values it espouses are intriguing issues, but they should not distract us from investigating just where this constitutionalism actually comes from. Is it merely (as in the prevailing view of Europeans today) the product of a secularizing movement to check the political influence of religion—in this case, of Christianity—or does it, in the final analysis, have something intrinsically to do with the Christian religion as such? Is it not, perhaps, based on that and not so easily transferred into other cultural contexts? It is with such questions in mind that the present book undertakes a study of the Christian theological reaction provoked by the birth of constitutionalism. The constitutional paradigm seemed at times to be heretical and was long considered unacceptable and presumptuous to many Christians and their churches, but the irreversibility of constitutional government then set in motion a theological paradigm-shift that led to an acceptance of constitutional government by Christian authorities. In the Western world today, church and state coexist in relative harmony, and despite occasional tensions, each side recognizes the other’s independence. At the same time, the various churches and denominations even maintain that the value system of the constitutional state is ultimately based on a Christian foundation and would have been inconceivable without that basis.

The paradigm of constitutional government has been adopted the world over, and that includes the Muslim world, where—this is something that must be emphasized from the beginning—it forms the institutional structure of most countries. Ironically, even after the 1979 revolution in Iran, the mullahs with all their concern for Islamic authenticity took pains to draw up a constitution. Using Christian theology as an example in this book, I attempt to show how this imitation of the constitutional paradigm, and especially the specific goals that were sought thereby, have found expression in Islamic theological debates. Only to a secondary degree will attention be paid to the description of practical politics and legal formalities: in the forefront will stand an evaluation of the possibilities and limits of theological discourse.

CONSTITUTIONAL GOVERNMENT AND ISLAMIC THEOLOGICAL STUDIES

Surprisingly, constitutional government in the context of Islamic theology is still a neglected area of study, and Orientalists pay little attention to it despite the volatile nature of the subject. The first edition of Enzyklopädie des Islam (1913) contains no entry under the word constitution, and mentions only the 1876 constitution of the Ottomans and the 1906 constitution of Persia in an article entitled kānūn-i esāsī. The very short article makes no mention of the Islamic implications of the Ottoman Empire constitution, and in reference to Iran states only that Shiite Islam is the official state religion, and that Iranian law guarantees the equality of all citizens.¹

A 1917 article by the German jurist Gotthard Jäschke in the journal Die Welt des Islam discusses the legal aspects of the origins of the Ottoman constitutional state, and says nothing about its theological aspects. At the end of the article, however, Jäschke says that the Islamic heritage should be given more weight and adds the following optimistic observation: "That Islam is capable of developing and is completely in step with the needs of the modern era is demonstrated by the writings of high religious officials, particularly the legal opinions of the sheik ul-islam."²

Interestingly, in the second edition of Enzyklopädie des Islam (1963), the entry under kānūn-i esāsī has disappeared and the reader is referred instead to dustūr, which comprises a more than forty page historical outline of constitutional development in the various Islamic countries in turn, although the treatment of the actual substance of the constitutions is only superficial.³ Only by way of conclusion are some questions raised regarding the role of Islam in the constitutions.

A 1976 doctoral dissertation by the German Orientalist Monika Tworuschka discusses the role of Islam in Arabic constitutional states: she divides the development of constitutionalism in Arabic countries into four stages.⁴ However, as in Enzyklopädie des Islam, this dissertation does not enter directly into the Islamic theological implications of a constitutional government, and the author is content with a relatively superficial mention of some of the major problem areas.

In 1991 Hans-Georg Ebert published a study on constitutionalism in the Islamic context under a title that can be translated, On the Interdependence of State, Constitution, and Islam in the Contemporary Near and Middle East.⁵ Ebert’s interest is primarily in legal questions, but he deserves much credit for recognizing the significance of the ulama and for making that a topic of discussion. Ebert also addresses the problem of the freedom of religion but remains strictly at the legal standpoint and limits himself to asking whether or not such a right is legally protected. Ebert holds the erroneous view that the denial of religious freedom is a specific characteristic of fundamentalist Islamic regimes alone, which is to misunderstand the theological and anthropological dimensions of this significant issue.

Gudrun Krämer’s study Gottes Staat als Republik (1999) provides a thorough discussion of the theme of Islam in the modern state. Using an impressive array of sources, Krämer describes the challenges that a modern constitution presents to certain Islamic concepts. In particular, there is a most valuable collection of the outlines of various Islamic constitutions in the book’s appendix.

However, the leading Islamic spokesmen considered by Krämer are for the most part activists rather than theologians. Of course, as Krämer correctly observes, now that the time has long since passed when Islamic jurists (fuqaha’) and theologians (ulama) monopolized the debate on Islam, the state and the law,⁶ but this does not necessarily mean that the discourse of intellectuals and the representatives of the Egyptian Muslim Brotherhood is the sole barometer of the theological norm. Although Islamic theological discourse exists in competition with that of other social groups, it still has a life of its own beyond the realm of everyday political calculations. It is these specifically theological aspects that Krämer appears to me to neglect.

In many other works dedicated to Islam can be found discussions of enlightenment, modernity, secularization, and human rights,⁷ as well as the establishment of constitutionalism. Detailed studies on debates in specific countries, however, are still lacking. Many of these works follow a political science approach that has been influenced by the methods of Middle Eastern studies. Another group of writings, on the other hand, shows a fixation on the opinions of Islamic philosophers and literati. Even the very informative proceedings from a conference entitled Freedom of Religion: Christianity and Islam and the Challenge of Human Rights⁸ exclusively contain, on the Islamic side, contributions from Islamic intellectuals whose views hardly coincide with what is normative within the Islamic world. On the other hand, the Christian side is represented by prominent theologians equipped with all the appropriate institutional legitimacy. Owing to this imbalance of discourse-relevance, the specific theological implications of political modernity and the freedoms it guarantees with respect to Islam and its institutional theology are clearly neglected.

There are, to be sure, comparative studies of theological issues related to political modernity in Christianity and Islam found in the journals Islamochristiana and Mélanges de l’Institut dominicain d’Etudes Orientale.⁹ Recently, a collection of essays of Iranian Shiite theologians edited by Katajun Amirpur (with in-depth discussions of political modernity from a theological standpoint) comes to some surprising conclusions.¹⁰ Unfortunately, such works are few and far between, and the single-minded focus on the socioeconomic and political aspects of Islamic culture (and cultures) has clouded our vision in recent years. The truth of the matter is that transcendence remains as greatly significant in the Islamic world as it always has been. Without a deeper understanding of the relevant theological categories, we cannot hope for even a halfway correct understanding of the current situation, let alone have a just estimate of future developments.

ISSUES AND STRUCTURE

In this book, I attempt to fill a gap in current scholarship by researching the theological challenges faced by political modernity. The long struggle through which Christian churches became reconciled with the political principles of a constitutional state will be taken as a model for the possibility of theological reconciliation as such. In chapter two, rather than describe conclusive constitutional reality, I will present a theological paradigm. I am well aware of the fact that in many countries of Christian tradition there still exists even to this day a kind of politico-religious amalgam in spite of the constitutional state. Such things as the constitutional requirement that the king of Sweden must be Lutheran, or the circumstance that the British prime minister formally appoints the Anglican bishops are both historical relics without any theological justification. It is therefore safe to assume that such anomalies will disappear over the long run with the increasing distance between church and state. Nor is it my explicit purpose in chapter two to systematically reconstruct the Christian debate (which would in any case be impossible in the present context) but rather to reconstruct a paradigmatic conflict, with a view to having it serve as a hermeneutic platform for my discussion of Islam.

Taking this as my point of departure, I then attempt to elucidate the historical context that led to the establishment of constitutionalism in Islamic countries. I forego a discussion of the Community Regulation of Medina, promulgated by Mohammed in 624; this is occasionally referred to in modern usage as a constitution (dustūr), but it would be clearly anachronistic for me to consider it here.¹¹ Constitutionalism in the Islamic world is not an outgrowth of the Medina Regulation. These connections were only invented after the fact to give an Islamic legitimacy to constitutions that had already been established.

After that, I will have to raise the question of just what constitutes theology in the Islamic world and just how far its significance extends to parallels existing outside the boundaries of religion. In my view, it is only after answering this question that we can determine the status and importance of the positions taken by the prominent theologians (the so-called ulama); something I attempt to do at the end of this work).

These ulama deserve a hearing not because they are particularly original thinkers but, rather, because their training and function authorize them to be interpreters of the Islamic sources. Though many Islamic intellectuals and political activists have also written about the relationship between Islam and political modernity and though their observations are in some cases astute and can exhibit striking theological insight, these authors all lack institutional legitimization. I therefore focus solely on what established ulama have to say about constitutionalism, its mechanisms, and its paradigms. Their observations can inform us on the extent to which Islamic authorities are aware of any problem at all regarding the conflict between Islamic theology and political modernity, and whether there might be any opportunities for a theological reconciliation process along the lines of what has occurred in Christianity.

My principal interest throughout this book is a theological issue, which I think brings to light quite effectively the problems of constitutionalism in a cross-cultural context. To this extent, then, the book also differs from a political commentary. Politics, which has ever been the art of the do-able, is far more pragmatic in this regard than any theological reflection. Politics rarely concerns itself with absolutes, and with a little bit of pragmatism can toss overboard the most well-established structures. Theology, by contrast, lays claim to a discursive justification of the absolute, the transcendent, the true, and the timeless. Changes in the theological realm are consequently neither abrupt nor rapid, but slow and well-considered, and yet they are also possible—and in my view, Christian theology ought really to be exemplary in this regard.

Finally, a word about Islam. With a critical undertone, the Syrian intellectual Aziz al-Azmeh has written, Islam presents itself to us as an extraordinarily multi-faceted category.¹² The events of recent years have graphically illustrated the truth of this statement, but there is nothing new about this situation. Well over half a century ago Wilfred Cantwell Smith made a thoroughgoing investigation into this problem in his book, On Understanding Islam.¹³ On the basis of his analysis, Smith was able to show that the semantic content of the term Islam had undergone significant transformations in history. From its first meaning as personal commitment to the meaning, religion and institution, and then to the sense of a historical movement of political expansion, there have been substantial changes in the meaning of Islam. In the present book, I use the term in the sense of a religious institution and a civilization. The term Muslim, however, will have a sociological dimension here, in order to avoid awkward formulations such as people from countries whose majority religious culture is marked by Islam.

NOTES

1. Enzyklopädie des Islam (1st ed.), s.v. kānūn-i esāsī.

2. Gotthard Jäschke, Die Entwicklung des Osmanischen Verfassungsstaates von den Anfängen bis zur Gegenwart (Berlin: Verlag Der Neue Orient, 1917), 48.

3. Enzyklopädie des Islam, (2nd ed.), s.v. Dustūr.

4. Monika Tworuschka, Die Rolle des Islam in den arabischen Staatsverfassungen (Walldorf-Hessen: Verlag für Orientkunde Dr. H. Vorndran, 1976), 18–19.

5. Hans-Georg Ebert, Die Interdependenz von Staat, Verfassung und Islam im Nahen und Mittleren Osten in der Gegenwart (Frankfurt: Peter Lang, 1991).

6. Gudrun Krämer, Gottes Staat als Republik (Baden-Baden: Nomos Verlag, 1999), 36.

7. Geert Hendrich, Islam und Aufklärung—Der Modernediskurs in der arabischen Philosophie (Darmstadt: Wissenschaftliche Buchgesellschaft, 2004).

8. Johannes Schwartländer, ed., Freiheit der Religion—Christentum und Islam unter dem Anspruch der Menschenrechte (Wiesbaden: Matthias-Grünewald-Verlag, 1993).

9. Maurice Borrmans Catholiques et Musulmans—Deux approches de la modernité, Islamochristiana, no. 24 (Rome: Pontificio Istituto di Studi Arabi e d’Islamistica, 1999); Emilio Platti, Islam et Occident—Choc de théologie? MIDÉO (Mélanges de l’Institut dominicain d’Etudes Orientales), no. 24 (Cairo : Dār al-Ma‘arif, 2000).

10. Katajun Amirpur, Unterwegs zu einem anderen Islam—Texte iranischer Denker (Freiburg: Herder 2009).

11. Ebert, Die Interdependenz von Staat, 29.

12. Aziz al-Azmeh, Die Islamisierung des Islam (Franfurt: Campus Verlag, 1996), 43.

13. See Wilfred Cantwell Smith, On Understanding Islam (Den Haag: Mouton Publishers, 1981).

2

The Constitutional State in Europe

Definition and Origins

At the beginning of the twenty-first century, constitutional government enjoys a high reputation. As an ideal form of modern political government, beginning with the American and French paradigms, it has now spread around the world and become established on all continents. With few exceptions, virtually all countries with popular sovereignty today are based on a written constitution.¹ This fact alone attests clearly to the success of constitutionalism. Nevertheless, the geographical spread of constitutional structures over the course of the last century has also been accompanied by a serious evacuation of meaning that would seem to call for new efforts to understand the foundations and original meaning of the