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Contemporary IjtihadLimits and Controversies$
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L. Ali Khan and Hisham M. Ramadan

Print publication date: 2011

Print ISBN-13: 9780748641284

Published to Edinburgh Scholarship Online: March 2012

DOI: 10.3366/edinburgh/9780748641284.001.0001

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PRINTED FROM EDINBURGH SCHOLARSHIP ONLINE (www.edinburgh.universitypressscholarship.com). (c) Copyright Edinburgh University Press, 2019. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in ESO for personal use.date: 15 October 2019

Islamic Constitutionalism

Islamic Constitutionalism

4 Islamic Constitutionalism
Contemporary Ijtihad

Khan L. Ali

M. Ramadan Hisham

Edinburgh University Press

This chapter focuses on Islamic constitutionalism, which is an integral part of contemporary ijtihad. As its defining attribute, an Islamic constitution submits to supremacy of the Basic Code, the Qur'an and the Prophet's Sunnah. Historically, constitutionalism has not been critical to the advancement of Islamic law. For centuries, Islamic law has developed without the notion of constitutionalism, and classical fiqh markets knew no constitution, nor was their vibrancy dependent on one. The absence of an Islamic written constitution is attributed to the presence of Basic Code, which served Muslim empires and communities as a written constitution. However, legal systems without written constitutions may gradually develop constitutional conventions that may provide political and normative stability. In the nineteenth-century Ottoman Empire, Islamic constitutionalism began to emerge through the Ottoman Constitution of 1876. Under the combined pressure of domestic unrest and the dominance of European colonial powers, this Constitution was established to infuse rudimentary elements of democracy in a dying empire that the Ottoman sultans had ruled for nearly four centuries. However, it was abandoned in favour of another constitution that would establish a secular Turkish state. While the 1876 Ottoman Constitution faltered, a new wave of constitutionalism rose to prominence in the twentieth century after a number of Muslim nations obtained independence from Western colonialism. Cognisant with the trend of written constitutionalism throughout the world, almost all Muslim nations of diverse cultures, political persuasions, historical experience and ethnic compositions have accepted constitutionalism as part of the legal system. In this chapter, discussions include: the submission principle and supremacy clause; the forms of theocracy and government; the constitutional methods; the institutional structure of ijtihad; the binding nature of constitutional ijtihad; the constitutional pluralism; and the threat of familism.

Keywords:   Islamic constitutionalism, Islamic constitution, Ottoman Constitution, constitutionalism, constitutional ijtihad, constitutional pluralism, familism

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