The American Interest
Religion & Other Curiosities
Published on September 4, 2013
The Constitutional Status of Islam

On August 30, 2013, the Washington Post carried a story about a draft for the new Egyptian constitution, which is to replace the one promulgated in 2012 under President Morsi. The latter had pushed through that constitution in a parliament packed with supporters of his Muslim Brotherhood (this was one of the reasons for the massive popular uprising that toppled his government in mid-2013 and brought to power the military-led government presently in power). There is a certain similarity between the two constitutional processes, both hastily drafted by committees appointed by the respective governments. But there are significant differences between the 2012 constitution and the draft for its successor. The differences that interest me here have to do with the constitutional status of Islam.

Both mention “principles of Islam” as guiding legislation. But the new draft does away with the very specific description of what this means in the previous constitution—“its total evidence, its fundamental and jurisprudential basis, its accepted sources in the doctrines of Sunnis”. Although the wording leaves some room for different interpretations, I understand it to mean that specific decisions (fatwas) of Islamic courts would be followed. This of course is much more precise than the continuing mention of “principles of Islam”—and much more amenable to the radical Islamist agenda. A comparison would be helpful here: Islamic law, the sharia, is a kind of common law—specific cases being decided by following precedent in earlier cases. Compare this sort of jurisprudence practiced in American courts with a general statement that legislation should be guided by American principles. There are two other matters where the new draft does away with provisions of the previous constitution: The draft omits the article that says that Al Azhar University in Cairo (the most respected legal institution of Sunni Islam) must be consulted in all matters of Islamic law (acting, so to speak, as a supreme court of appeal). Also omitted is the inclusion of anti-blasphemy laws in the constitution itself (in addition to the specific anti-blasphemy legislation already in force). These are not insignificant changes. They would make the new constitution less Islamist.

The new constitution would continue the general mention of “principles of Islam”, as the principal sources of legislation. Also the new draft states that the government should “facilitate” the construction of houses of worship by the “heavenly religions” (Muslims and the People of the Book, historically identified as  Jews and Christians). Nina Shea (a long-standing defender of religious freedom, affiliated with the Hudson Institute) comments on this in the Christian Post, an Evangelical publication, on August 31, 2013: “This no doubt means that building churches would continue to be restricted by the state”, despite the attacks on Christian churches by enraged mobs during the Morsi regime and after its fall. In any case, the new constitution, if it followed the draft, would leave some openings for troublesome Islamist interpretations. There is a slippery slope from “facilitation” to control. And what about Baha’is, Hindus, atheists, or for that matter Muslims from sects considered to be heterodox?

The Egyptian debate about the constitutional status of Islam is particularly important at this moment. But it is not unique. It is replicated in virtually all Muslim-majority countries, from North Africa to Southeast Asia. Also, it has parallels in some countries with other religious majorities. Israel and India immediately come to mind. From the beginning Israel defined itself as a Jewish state, though its founders did not mean that this would be a state run by halacha (Jewish religious law, which has some interesting similarities with Islamic law). Yet it is very difficult to disentangle Jewish nationhood and Jewish religion. The increasingly powerful religious political parties have been pushing in the direction of Judaism becoming more like a state religion. At present there is something close to a culture war between the secular majority and the numerically increasing ultra-Orthodox subculture. For once the coalition led by Prime Minister Netanyahu does not contain any of the religious parties. It is pushing back on the privileges gained by the religious parties.  The present focus is on the exemption of (often lifelong) yeshiva  students from military service, and on the exclusion of  secular subjects from the curriculum of ultra-Orthodox schools (at present about 20% of Jewish children in elementary education are in ultra-Orthodox schools). The first topic has obvious implications for defense capability, but the second topic is probably more significant for the future, as it touches on the Israeli economy.  Its great success has been related to the availability of a well-educated labor force. Graduates of these ultra-Orthodox schools are, if not unemployable, very ill-prepared for participation in a modern economy. What is more, they and their typically large families become a burden on the generous Israeli welfare state, eventually making it unaffordable.

The constitution of India defines it as a “secular republic”. This means above all that, unlike Islam in Pakistan, Hinduism is not the official religion of the state. The two major political parties, Congress and the BJP, represent different views on this. Congress has always been “secular”, in the sense that it does not privilege Hinduism in the society (for which reason the Muslim minority is one of its reliable constituencies). The BJP, though it has different factions, has an influential one maintaining that Hinduism is not just a religion but a civilization (hindutva), to which Muslims and other religious minorities in India should owe allegiance (not many have rushed to agree with this view).

It is unlikely that many Muslim-majority countries will adopt a clear separation of the state and religion (be it in the American or French version). This becomes even more unlikely if they become democracies, in which case the usually religious masses outvote the secular elites. The very DNA of Islam works against state/religion separation. The umma, the community of Muslims, is both a religious and a political community. This was so from the early days when Muhammad in Medina was not only the prophetic leader, but also the head of state and military commander. This unity of faith and governance continued subsequently under caliphs, sultans or emirs. In modern times there were indeed efforts to establish secular states in Muslim-majority countries. Arguably the most significant was the foundation of the Republic of Turkey by Kemal Ataturk in 1923. Its ideology was rigorously secularist, greatly influenced by French laicite. As long as Turkey was an authoritarian state, this secularism was strictly enforced by the Kemalist elite. In recent years, as Turkey became more democratic, the putatively unwashed masses made their voices heard and formed political parties—to the horror of secular types sitting in cafes, officers’ clubs and faculty lounges. Even more shocking, many children of secularists grew beards or wore headscarves despite (and maybe because of) the disapproval of their parents.

Thus in Turkey a culture war has developed between the secular and the religious subcultures. The latter, represented by the AKP political party, was voted in by fair elections. Early on some of its leaders explained: “We don’t want an Islamic state. We want to be good Muslims in a secular republic”. I am not sure how many in the AKP constituency share these sentiments today, as the Erdogan regime has shown some (as yet relatively mild) inclinations toward an Islamization of society. I think that one may now ask whether a “Turkish model” actually exists, and, if it does, whether it is exportable to other countries.

Given the likelihood that many if not most Muslim-majority states will define themselves as Islamic in some sense, the aforementioned difference will be very important: Is the state to be defined in terms of the specifics of Islamic law? Or only in terms of “Islamic principles”? There is a special problem here for the United States, which is both a democracy with strict separation of church and state, and a public space with a cacophony of diverse religious voices. Congressional legislation instituted both an agency within the State Department mandated to issue annual reports on the state of religious freedom throughout the world, and also the independent (but tax-supported) US Commission on International Religious Freedom, with a similar monitoring mission. How will these institutions react to states in the Muslim world that consistently refuse to adhere to American definitions of church-state separation and of religious freedom? How will American voters react? How will Nina Shea?

I think that the case of the United Kingdom is curiously relevant to the ongoing Muslim debate. The Church of England continues to be established by the state, the monarch continues to be its head, and its bishops still sit in the House of Lords. This despite the fact that Britain is as secularized as most other countries in Europe.  (More people in Nigeria than in England worship every week in Anglican churches.)

One of the titles of the British monarch is “defender of the faith”. The title was bestowed by the Pope on Henry VIII, for having written a tract against Luther as a young man. This of course was before his (presumably non-religious) interest in divorcing his wife and marrying his mistress changed his theological views until, finally, he severed the Church of England from allegiance to Rome. Queen Elizabeth II still holds the same title, ever since she was crowned years ago by the Archbishop of Canterbury. A few months ago she made a speech, strongly endorsing the continued establishment of the Church of England and then going on to a truly astounding sentence: She said that she considered herself “the defender of all the faiths represented in the United Kingdom”. You could not have a more solemn legitimation of religious pluralism! The Queen’s speech was greeted with approval by Catholic, Jewish and Muslim spokespersons.

Grace Davie, the always insightful British sociologist of religion, has proposed a very intriguing thesis: Strong establishments of religion are usually bad for both the state and religion. For the state, because those left out are outraged and, if there are enough of them, they may become a destabilizing force. Bad for religion, because every grievance against the state (there always are many) leads to antagonism against the religious institution identified with the state. (I understand that this idea now has followers even in Qum, the city famous  for training Iranian mullahs. For obvious reasons they are rather soft-spoken. ) But, Davie further argues, weak establishments can be good both for the state and religion—because it is resented by few people and because it is non-threatening, it can be a public voice for moral policies. Davie’s thesis clearly fits the history of the Church of England. It was definitely a bad idea to be a Catholic or a Nonconformist Protestant in, say, the 17th century. By contrast the new Archbishop of Canterbury and his predecessor have been cited in the secular media when speaking out on various issues, including the rights of Muslims.

Should the present incumbent, Archbishop Justin Welby (an appealing man), be sent on a mission to Cairo?

  • Casey

    I thought of Tocqueville when I read the sentence stating, “Every grievance against the state (there always are many) leads to antagonism against the religious institution identified with the state.” See Democracy in America: “Religion cannot share the material strength of the rulers without being burdened with some of the animosity roused against them” (p. 297).

    • FrankArden

      Excellent observation.

      That’s one reason James Madison wrote the First Amendment to be the first amendment. Unlike Israel, a Jewish state that was built upon liberal democratic principles and experience influenced by The Enlightenment, Islamic nations and their so called constitutions will fail endlessly so long as they ignore religious freedom and democratic pluralism.

  • Wayne Lusvardi

    Berger’s concluding remarks about constitutionally weak institutions in Egypt perhaps signals an inadvertent step toward modernity in the Middle East. If pluralism not only means competing religious world views but weak institutional structures then the regime change in Egypt (sparked by a food shortage resulting from China’s demand for more grain feed to grow animals for protein) is also serendipitously resulting in modernization. As sociologist Max Weber pointed out, history is quirky and there are unpredictable “elective affinities” that arise. That a “conservative” military regime in Egypt paradoxically ends up inching the Mideast toward modernity is a story in itself.