—Shamshad Pasarlay, Visiting Lecturer, The University of Chicago School of Law
[Editor’s Note: This is one of our ICONnect columns. For more information on our 2022 columnists, see here.]
Within the thriving body of the literature on constitutionalism, “Islamic constitutionalism” continues to be understudied and undertheorized. Although the constitutional experiences of Muslim states have been sufficiently charted in recent years, Islamic constitutionalism still awaits a thorough and nuanced theorization. For decades, it was understood that Islamic “constitutionalism,” meaning the state empowering constitutionalization of the shariʿa (God’s law) with an apparatus and a set of procedures which, if followed, would justify any state action, is possible and seems plausible. However, the question in many peoples’ mind was (and perhaps still is) whether Islamic “constitutionalism” – where the shariʿa constrains rather than empowering the state – is also possible. Some scholars argue that Islamic “constitutionalism … seem[s] to be quite possible in theory, especially given the increasing emphasis on the shariʿa in Islamic writings” as well as in Muslim constitutions. By this, scholars mean that the shariʿa can (and does) operate as an important check on the exercise of public power, and it is enforced by judicial or specialized (and expert) Islamic institutions. These scholars draw on the classical Islamic tradition which forbids rulers from imposing laws that harm public welfare or do not benefit the goals of the shariʿa (protection of religion, life, lineage, intellect, property, and honor). Beyond this, a theoretical exposition of Islamic constitutionalism remains largely uncharted and seems to be a daunting task.
The challenges in theorizing Islamic constitutionalism ostensibly spring from the marked variation visible in Muslim constitutions – especially in those that enshrine the shariʿa as “a” or “the” principal check on state legislative and executive power. The difference concerns the core of the idea of Islamic constitutionalism and whether the shariʿa can serve as a separate, enforceable check on government and legislation. And this function of the shariʿa has been decidedly variable across time and space. As a result, scholars have discussed different “phases” of what can be described as Islamic constitutionalism. Each phase is separated by the varying role that the shariʿa has played in Muslim constitutions, specifically in imposing limits on the power of the state.
Historically, some Muslim constitutions have prescribed Islam and the shariʿa “as limitation[s] to government and legislation, without any presumption that [they] should be the basis of the constitution itself.” In several other constitutions, including the Taliban’s 1998 Constitution, the shariʿa is the basis of the constitution as well as the cornerstone of the entire political order. The implications of whether the shariʿa is the foundation of the constitution is significant. There are several constitutions in the Muslim world in which the shariʿa is one constitutional norm, among many others, that may function as a constraint on state power. At the same time, examples of constitutions in which the shariʿa was the foundation of the constitution also abound. In these constitutions, the shariʿa was a super constitutional principle or the “Grundnorm” from which flowed the legitimacy of not just the constitution itself but of the entire political order. When Islam and the shariʿa underpin the constitution itself, they do not, it seems, impose any meaningful limits on state power. As the experience of the Taliban’s views of constitutionalism indicate, the shariʿa as the basis of the constitution performs a function that empowers the state rather than limiting government and legislation. To some, this may seem a banal statement, but it is an issue that has some serious implications for the idea of “Islamic constitutionalism” which is not adequately addressed in the scholarship.
More importantly, the variation one sees in Islamic constitutions and constitutionalism across time is also notable within a single country. For example, in some of Afghanistan’s constitutions, such as the 1964 basic law, the shariʿa was one, but not the only, constitutional principle that acted, at least in theory, as a limitation on government and legislation. Other constitutions, by contrast, proclaimed God’s sovereignty as the foundation of the constitution based on Islam in which the shariʿa was interpreted as granting more power to the state. This discrepancy is further noticed clearly within a single Islamic school of law in Afghanistan. To put it differently, the followers of a particular Islamic school in Afghanistan do not share the view that the shariʿa can (or should) impose limits on government and legislation. For instance, Afghanistan’s Shiʿite Islamist parties publicized two draft constitutions in the 1980s and 1990s that represented their position on the idea of (Islamic) constitutionalism and their vision for a modern constitutional state. However, the role of Islam and shariʿa as limitation on state power was remarkably different in both drafts. Details about why the two drafts differed so significantly is outside the scope of inquiry here, but it should be stressed that one of these draft constitutions enshrined the sovereignty of God whereas the other seemed to adhere to a notion of the peoples’ sovereignty. In one of the drafts, the shariʿa was a limit on the power of the state, but in the other it seemed to have formed the basis of the constitution itself. Afghanistan’s Sunni, Hanafi, constitutions were indicative of similar variations.
Therefore, it seems to make sense that scholars have discussed different “variants” of Islamic constitutionalism. Each defined by the possibility that the shariʿa can be both a limit on state power as well as a state empowering element.
The Taliban’s constitutional project views the shariʿa as a state-empowering element and apparently revives a type of Islamic constitutionalism that had fallen from favor in Afghanistan and in other parts of the Muslim world. In the Taliban’s otherwise ambiguous posture on questions related to a formal constitution, a few important points are clear: (1) sovereignty belongs to God only; (2) the shariʿa (as interpreted by the classical Hanafi jurists) should be the only source of “all laws and policies,” including the constitution itself; and (3) the state’s primary duty is to enforce the shariʿa. In official statements and several proposed draft constitutions attributed to the Taliban, Islam and the shariʿa are clearly described as the basis of the constitution, without any indication that the shariʿa should be a limit on government and legislation. It is only respect for the shariʿa and the state’s ability and will to implement God’s laws that entitles it to the citizens’ absolute allegiance and obedience.
Tellingly, in this conception of what is defined as “Islamic constitutionalism,” or more accurately “Islamic constitutionism,” the shariʿa does not seem to serve as an enforceable constraint on the power of the state. Rather, the constitution – which is deployed in the service of the shariʿa – grants to the state a significant degree of power to implement God’s law because without some broad powers the state would be unable to enforce God’s will – a task that the Taliban understand is ordained by the shariʿa itself. For the Taliban, the shariʿa requires that the will and order of the head of state (the Amir) be treated as the order of God deviation from which is not warranted. Hence, the state is highly autocratic, bound by no meaningful checks.
In short, most of Afghanistan’s past constitutions defined the shariʿa as one of principles that should constrain government and legislation. However, the Taliban’s constitutional project thus far appears to define the shariʿa as a principle to which the constitution itself must conform, and in this function, the shariʿa seems to have vested a significant degree of unchecked power in the “state.” And it is challenges like these that would inevitably confront any project of theorizing Islamic constitutionalism.
Suggested citation: Shamshad Pasarlay, The Taliban and Islamic Constitutionalism in Afghanistan: Reviving an Old Episode? Int’l J. Const. L. Blog, Dec. 23, 2022, at: http://www.iconnectblog.com/2022/12/the-taliban-and-islamic-constitutionalism-in-afghanistan-reviving-an-old-episode/
 Nathan Brown, Constitutions in a Nonconstitutional World: Arab Basic Laws and the Prospects for Accountable Government (State University of New York Press 2022) 192.
 Saïd Amir Arjomand, ‘Islamic Constitutionalism’ (2007) 3 Annual Review of Law and Social Science 115. For a helpful survey of constitutional institutions designed to ensure that the state respect the shariʿa, see Clark Lombardi, ‘Designing Islamic Constitutions: Past Trends and Options for a Democratic Future’ (2013) 11 International Journal of Constitutional Law 615.
 For more on this, see e.g., Baber Johansen, Contingency in a Sacred Law: Legal and Ethical Norms in the Muslim Fiqh (Brill 1998); Clark Lombardi, State Law as Islamic Law in Modern Egypt: The Incorporation of the Sharīʿa into Egyptian Constitutional Law (Brill 2006).
 It should also be stressed that there is a separate source of ambiguity, which is related to the meaning of the shariʿa itself. I wish to elaborate this a bit further. The shariʿa, or God’s law, is the sacred building block of the Islamic legal tradition. However, God has revealed only some the norms of shariʿa in the sacred text. In other words, God’s law “is not given to man ready-made, to be passively received and applied; rather, it is to be actively constructed on the basis of those sacred texts which are its [authentic and divinely revealed] sources.” Bernard Weiss, ‘Interpretation in Islamic Law: The Theory of Ijtihād’ (1978) 26 The American Journal of Comparative Law 199, 199. However, those who ventured into constructing God’s law and interpreting the sacred texts did not follow a unified approach. Over time, several interpretive schools emerged and used different interpretive methodology to discover God’s law, and they developed different, but equally authentic, interpretations of the shariʿa (or a body of Islamic law). Hence, one can find scores of different opinions on almost every legal issue in the classical Islamic legal tradition. This is true not only across different interpretive schools but also within a given legal school.
 Arjomand, note 2; Clark Lombardi, ‘Constitutional Provisions Making Sharia “A” or “The” Chief Source of Legislation: Where did they come from? What do they Mean? Do they Matter’ (2013) 28 American University International Law Review 733.
 Arjomand, note 2, at 115.
 Ibid. 137. It should be noted that for decades constitutional framers in the Muslim world assumed that there is no difference between constitutional provisions making sharīʿa as one of the main sources of legislation and provisions making sharīʿa as the only source of legislation. The belief that these formulations had different meanings and only one of them could be interpreted as imposing limits on government and legislation emerged only recently. See Lombardi, note 5.
 For a detailed discussion of these draft constitutions, see Shamshad Pasarlay, ‘Shīʿī Constitutionalism in Afghanistan: A Tale of Two Draft Constitutions’ (2020) 20 Australian Journal of Asian Law 277.
 For a detailed exploration of Afghanistan’s turbulent constitutional history including the Sunni draft constitutions, see Shamshad Pasarlay, ‘Making the 2004 Constitution of Afghanistan: A History and Analysis Through the Lens of Coordination and Deferral Theory’ (2016) PhD Dissertation, University of Washington) (on file with the author).
 Arjomand, note 2.