—Ali Shirvani, Associate Professor of law, Northwest University, China, specializing in transnational constitutionalism, comparative law, and the intersection of international human rights standards with constitutional legitimacy
The Myth of the Secular Prerequisite
Few questions have haunted modern constitutional theory as persistently as the relationship between divine authority and popular sovereignty. While this tension is a global phenomenon present in various religious traditions, it has acquired a particular urgency in the context of the Muslim world, where the role of the sacred in public life remains a central site of political contestation. For decades, the dominant narrative—popularized in policy discourse and reinforced by authors like Samuel Huntington—has framed this as a “clash”: a binary choice between Islam and liberal democracy. However, this framing is increasingly recognized as intellectually obsolete. To understand the future of governance in the Muslim world, we must move beyond asking whether Islam is compatible with democracy and instead examine how societies constitutionally negotiate faith, power, and modern statehood.
Drawing on the empirical framework presented in the recent book Democracy Under God (2023), we can see that constitutional Islamization is not necessarily an imposition of theocracy, but often a negotiated product of democratization itself. This suggests that the challenge of the 21st century is not to separate God from the state, but to ensure that when they meet, they sign a covenant that respects human dignity. Human dignity serves as the ultimate yardstick in this negotiation because it provides a “shared normative language” that can bridge the gap between religious and secular worldviews. Within Islamic thought, dignity (karamah) is viewed as inherent to all human beings, while in liberal constitutionalism, it is the from which all rights are derived. By centering dignity, a constitution can move beyond abstract doctrinal disputes and focus on the practical protection of the individual, ensuring that neither the “will of God” nor the “will of the people” is used to justify the degradation of human life.
Constitutions as Risk-Distribution, Not Moral Manifestos
We must reject civilizational binaries in favor of a “bargaining model” of constitutional development. Constitutional Islamization is rarely about the triumph of religious absolutism; rather, it is about coalition-building under conditions of political uncertainty. In this view, the constitution acts not as a moral manifesto (à la Rousseau), but as a risk-distribution device—a site where rival elites insure themselves against future losses. These losses are not limited to the forfeiture of electoral power; they encompass the loss of legal immunity, the erosion of cultural hegemony, and the risk of institutional marginalization or state-led persecution. By entrenching certain religious or secular guarantees, rival factions create a “constitutional safety net” that protects their core interests even when they no longer control the apparatus of the state.
This aligns with Madisonian constitutionalism: negotiating settlements among factions rather than expressions of a unified “general will”. In this exchange, Islam functions as symbolic capital exchanged for rights guarantees, institutional continuity, or regime legitimacy.
The Paradox of Rights and “Coalitional Insurance”
A counterintuitive reality in modern constitutional drafting is that documents containing Islamic supremacy clauses often contain more, not fewer, rights. For example, the post-2003 Constitution of Iraq and the 2014 Constitution of Tunisia both entrench Islam as a primary source of legislation while simultaneously adopting some of the most expansive and progressive bills of rights in the region, including explicit protections for gender equality and freedom of association. This challenges the standard liberal assumption that religious entrenchment necessarily erodes individual freedom.
This phenomenon can be explained through the logic of “coalitional insurance”. As developed by Ran Hirschl in his work, this model suggests that secular liberals may accept Islamic clauses in exchange for expansive rights catalogs, betting that courts will mediate future conflicts. By transferring sensitive foundational disputes from the volatile political arena to the courtroom, embattled secular elites engage in “hegemonic preservation”—seeking to empower a judicial branch that shares their worldviews as a bulwark against the rising tide of religious majoritarianism. This results in a strategic, rather than principled, consensus. However, this leaves rights in a precarious position. If a right is constitutionally conditional on religious interpretation, its existence becomes contingent rather than inherent. This stems from the “repugnancy” logic often found in these constitutions: because all laws—including human rights—must not contradict Islamic principles, the judiciary is structurally compelled to consult religious materials (such as the Quran, Sunnah, or classical fiqh) to determine a right’s valid scope. In effect, the court does not just protect a right; it must first “Islamicize” its justification to ensure its constitutional survival. While this resembles communitarian constitutionalism more than liberal individualism—as it prioritizes the shared values of the religious community over autonomous individual choice— it raises a critical question: Is a right still a right if its content depends on doctrinal theology?
Judges as Theologians by Proxy
The “engine” of this constitutional model is the judiciary. Constitutional courts, particularly in jurisdictions like Pakistan and Egypt, have become the key institutions managing the tension between Islam and democracy. Through doctrines like maqasid al-shari‘a (objectives of Islamic law), courts translate religious supremacy into ethical generalities compatible with modern governance. For example, in Pakistan’s landmark environmental jurisprudence (such as the Shehla Zia case), the judiciary has utilized the maqasid framework to argue that the state’s duty to protect the environment is a religious obligation. Rather than looking for specific “environmental statutes” in classical texts, the court interprets the “Objective of Protecting Life” (hifz al-nafs) as a broad ethical mandate. This allows the court to rule that polluting the water supply is “un-Islamic” because it violates the divine objective of preserving human life. In this way, the court uses a religious doctrine to uphold a modern, secular-style right to a healthy environment, effectively “translating” theology into sustainable development policy.
This “judicialization of theology” turns judges into theologians by proxy, even when they are trained in civil or secular law. While this arrangement can stabilize democracy, it remains structurally fragile. Courts can balance Islam and rights when insulated from populist pressure, but they struggle when captured by authoritarian regimes or religious majoritarianism. The persecution of scholars like Nasr Hamid Abu Zayd serves as a warning: once theology enters adjudication, dissent risks being criminalized as heresy. Abu Zayd, a prominent Egyptian academic, was declared an apostate not for a criminal act, but for his scholarly interpretations of the Quran. Under the doctrine of hisba, which allows any Muslim to file a lawsuit to protect “divine rights,” a group of Islamist lawyers successfully sued to have Abu Zayd forcibly divorced from his wife on the grounds that a non-Muslim cannot be married to a Muslim woman. This case demonstrates the “Sovereignty Paradox” in practice: a civil court, exercising state authority, used religious doctrine to strip an individual of his most basic personal and civil status, eventually forcing him into exile.
The Colonial Roots of “Shari’a”
It is essential to recognize that many “Islamic” constitutional features are not purely indigenous revivals but possess deep colonial genealogies. Islamic supremacy clauses often trace their lineage to British “repugnancy doctrines”. Under these doctrines, colonial authorities allowed the application of “native” religious laws only insofar as they were not “repugnant to justice, equity, and good conscience”—a standard defined entirely by British judicial values. This established a hierarchy where religious law was valid only if it received the state’s seal of approval, a precursor to modern clauses that subordinate Shari’a to constitutional review. Colonial administrators did not preserve shari‘a; they fossilized it, codifying selective doctrines and stripping them of interpretive plurality to lay the groundwork for modern legal Islamism.A prime example is the development of “Anglo-Muhammadan Law” in British India. The British replaced the diverse, scholarly interpretations of traditional muftis with rigid, English-style textbooks and precedents. By translating complex Arabic legal texts into static English codes, they transformed Shari’a from a flexible ethical system into a state-managed legal tool, a process that modern post-colonial states have continued to use to centralize religious authority.
The irony is profound: contemporary demands for “authentic” Islamic constitutions driven primarily by Islamist political parties (such as the Muslim Brotherhood in Egypt or the Ennahda Movement in Tunisia) and conservative legal activists often rely on colonial legal architecture. While these actors frame their demands as a “return” to pre-colonial purity, they are actually utilizing the centralized, state-centric legal tools inherited from the colonial era to enforce religious uniformity. This suggests that debates about Islam and democracy are not clashes between tradition and modernity, but conflicts between rival modernities.
Conclusion
The relationship between divine authority and popular sovereignty remains the “Sovereignty Paradox” of our time. While empirical data show that Muslim-majority societies can be democratic, the question remains whether constitutionalizing divine sovereignty is compatible with the foundational liberal commitment to equal citizenship.
Liberal constitutional theory must confront uncomfortable questions: Is secularism a prerequisite for democracy, or merely one historical path among many? Can divine authority be constitutionalized without becoming despotic? Rather than waiting for the Muslim world to become “secular” to consider it “free,” we must engage with the reality of these hybrid regimes. The reconciliation between vox populi and vox Dei remains incomplete, but acknowledging this tension is the first step toward a functional constitutional order.
Suggested citation: Ali Shirvani, Beyond the Secular Binary: Bargaining with God in Modern Constitutions, Int’l J. Const. L. Blog, Feb. 18, 2026, at: http://www.iconnectblog.com/beyond-the-secular-binary-bargaining-with-god-in-modern-constitutions/