The Law Library of Congress, along with the Library of Congress African and Middle Eastern Division, held a panel discussion on June 4, 2013,on the role and impact of Islamic law in the developing constitutions and laws of transitioning Arab Spring countries in the Middle East/North Africa region. The session was moderated by Mary-Jane Deeb, Chief of the African and Middle Eastern Division.
The distinguished panelists included Nathan J. Brown, Professor of Political Science and International Affairs at the Elliott School of International Affairs at the George Washington University; Lama Abu-Odeh, Professor of Law at Georgetown University Law Center; and Issam Saliba, Foreign Law Specialist at the Law Library of Congress.
The first speaker, Issam Saliba, began his formal remarks by noting the importance of the interrelationship between faith and politics in the Islamic religion, often expressed in the Arabic maxim al-Islam din wa dawla, meaning “Islam is a religion and a state.” Mr. Saliba then went on to focus on the nature of an Islamic state from a classical Islamic legal and political perspective. He first noted that there is no legal framework or definition of Islamic state in the original divine sources, namely the Koran, or the traditions of the Prophet Muhammad. However, based on the traditions of the Prophet Muhammad and the writings of traditional Islamic scholars, Mr. Saliba argued that for a state to be Islamic, the rulers must discharge their responsibilities consistent with Islamic principles, which includes the principles that a government must be representative and just, and that a government does not have the power to restrict personal freedom at its own discretion. Mr. Saliba also argued that though there were instances during the history of the Caliphate where Islamic principles and values were respected, for most of its history, the Caliphate has not honored these principles. In conclusion, Mr. Saliba, found that the challenge for the Muslim polity of the Arab Spring countries “is not whether they can adopt, with or without assistance, our western norms of democratic rule, but rather whether they can adopt the rigorous norms of their own Islamic principles and values.”
Before delving into his prepared remarks, the second speaker, Prof. Nathan Brown, commented that the Library of Congress is one of the best places in the world to conduct research on the laws of Arabic-speaking countries.
Prof. Brown noted that prior to 2011 the constitutional drafting process in the Arab Spring countries was by and large dominated by the political elite and existing authoritarian regimes. Although the documents typically included boiler plate language on commitment to Islamic principles, these provisions were not generally enforceable and remained symbolic. This led to a process of “Islamic inflation” in which regimes found it useful to augment their symbolic commitment to Islam without concerning themselves with implementation.
Prof. Brown observed a major change in the nature of constitutions as a direct result of the Arab Spring. Today, constitutional drafting is a far more participatory process with higher stakes. With the rise of Islamists in both Egypt and Tunisia one might expect an increase in Islamic inflation, this time with clauses meant to be enforced. However, the outcomes of these processes have not always been the same. He said that some Islamists who are more optimistic about their electoral chances place far more importance on controlling legislative institutions and processes than worrying about specific Islamic clauses in the constitution. Prof. Brown noted that it is parties that expect to lose elections that seek to nail down specific details on religion; large Islamist movements like the Muslim Brotherhood in Egypt and Ennahda in Tunisia, are often satisfied with very broad language in Islamic provisions that defers things to the political process. In Tunisia, Prof. Brown noted that the most recent draft constitution does not increase the number of Islamic provisions and leaves references to Islam, more or less, as found in Tunisia’s previous constitution. In Egypt, as a result of the complex negotiations between the Muslim Brotherhood, Salafis, and secular groups, the results are quite different. Prof. Brown concludes that because of the complex bargaining positions, which vary from country to country, we are seeing an increase in differences rather than similarities in the religious provisions in emerging constitutions across the Arab world.
Prof Abu-Odeh, the third speaker, began her remarks by stating that commenting on women’s rights in the aftermath of the Arab Spring has become tricky given the differing perspectives on the issue, namely from the academic left in the U.S., the Mubarak era feminists, and the newly empowered Islamists. She stated that this alone leaves feminists and human rights organizations in the country, who appear to be politically weak and divided, to raise the alarm about the Islamist platform on women. She went on to discuss the two competing paradigms or approaches to women’s rights at work in Egypt today: the one offered by the feminists and the other by the Islamists. She stated that both paradigms use notions of equality or sameness and difference between the sexes, but they allocate them in varying ways. Both paradigms affirm women’s equality to men as citizens and insist on non-discrimination against women. Feminists, however, assert that the family is the “joint and equal responsibility of the parents” and “insist that women should be equal beneficiaries with men of a socialized state that offers them public health care and social benefits.” Feminists also insist that the state should affirmatively ensure equality between the sexes in representation in government and that the state should pass laws to protect women from violence. The Islamists’ notion of sameness or equality, on the other hand, is subject to the “particularity of women’s role in the family,” the normative role of mother or wife (etc.), “a role that is seen as fundamentally different from that of men and that places husbands and wives in a relationship of complementarity of roles and reciprocity of rights and obligations, as opposed to sameness and equality.”
After the opening remarks from the main speakers, the moderator, Mary-Jane Deeb, posed a question for each speaker and then opened the discussion to questions raised by the audience. Discussion focused on the differences between the platform of the Muslim Brotherhood and other Salafi Islamists and the internal contradictions within these platforms; the role of female professionals, particularly judges, in Egypt; and the role of the revolutionary youth in the present political situation in Egypt.
We thank Dr. Deeb and the panel for a very engaging and thought-provoking discussion, and for sharing their views on the current state of constitutional action in Arab Spring countries.
For a deeper look at the new Tunisian Constitution, see the report, “The Role of Islamic Law in Tunisia’s Constitution and Legislation Post-Arab Spring” by George Sadek, Senior Legal Information Analyst at the Law Library of Congress.