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  1. Democracy and Islam in the New Constitution of Afghanistan
  2. Democracy and Islam in the New Constitution of Afghanistan by Cheryl Benard
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Trying to appeal to different Islamic constituencies and interested in pursuing different policies, states have chosen to employ very different SGC enforcement schemes. SGC enforcement schemes can be divided into three types: Theorists of liberal constitutionalism have long differentiated between political constitutionalism and legal constitutionalism. In making their decisions, they are accountable solely to the public.

In a democracy, they will be subject to public rebuke through the political process. Political and legal constitutionalism are Weberian ideal types, and in practice, few liberal democracies operate in a purely political or legal constitutionalist mode. Judges through their power of statutory interpretation, however, have always had room to frustrate the enforcement of laws that they feel violate protected rights and they have often been willing to do so. The United States is often held up as an example of a country that employs a system of legal constitutionalism. However, US political branches have various tools available to pressure courts either to forestall them from voiding laws or to prevent them from enforcing such a ruling.

As a practical matter, then, liberal democracies are probably better described as systems that rely primarily on political or legal institutions to ensure that rights are respected. Over the past few years, a growing number of countries have designed hybrid rights enforcement systems that formally combine in significant and similar ways important elements of both political and legal constitutional schemes. If the political branches exercise their override power, the law is restored and courts will henceforth hold, it does not, in fact, violate rights.

They may use different types of documents to identify the protected rights. They may use slightly different types of judicial review, and they may require parliaments to follow different procedures when exercising their power to override. Like institutional schemes to enforce rights, institutional schemes to enforce SGCs can be divided into ones that rely primarily on political institutions to interpret and force SGCs, ones that rely primarily on expert legal institutions and, finally, dialogic hybrids that subject laws to judicial review but also allow legislatures, under carefully controlled circumstances, to override judicial decisions voiding laws on the ground that the laws are inconsistent with constitutional rights guarantees.

It would be impossible here to describe all the SGC enforcement schemes that countries have adopted over the past 50 years. The following pages provide, however, a sample of schemes and a hypothesis as to why elites in different nations thought that a particular scheme would provide them with Islamic legitimacy for at least some important set of Muslim citizens while leaving them free to satisfy all of their constitutional commitments and most cherished policies.

Many states with SGCs have allowed political institutions to judge their own compliance with Islam. Since entering the modern era, Sunni Islam has been central to Afghan national identity. Amanullah Khan, a Westernized, modernizing monarch, enacted the constitution. Although it made Islam the religion of the state, it did not explicitly require the state to legislate in accordance with sharia principles.

Only in , after invasion and occupation by Western troops, did Afghanistan enact a constitution with an SGC that was not only formally enforceable through judicial review, but was also given to an institution that was actually expected to perform such review. Pakistan was created in , carved out of British India and designated as a homeland for the Muslims of the sub-continent.

After independence, its elites struggled to draft a constitution for the new state. As Pakistanis were deeply and often violently divided among traditionalist, conservative modernist, and liberal modernist factions, 40 it was hard to imagine any tribunal whose authority was likely to be accepted by a broad cross section of them.

Ultimately, the Constituent Assembly decided to let political institutions judge for themselves whether their law respected Islam. For thirty years after independence in , Pakistan failed to establish a robust democracy. Although a vast number of Pakistanis favored traditionalist or conservative modernist visions of Islam, the state never took their concerns into account when legislating.

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  • Democracy and Islam in the New Constitution of Afghanistan : Conference P.

The military and economic elites that alternated as rulers of Pakistan were almost uniformly committed to a liberal modernist vision of Islam—legislating entirely in accordance with their own vision of Islam and enacting many laws that conservatives felt were inconsistent with Islam.

Against this backdrop in , a new military dictator overthrew a civilian government. He believed Pakistan was dangerously divided and thought conservative Islam could provide a unifying vision. A convinced authoritarian, he also believed that, if he could provide conservatives with something that they recognized as an Islamic state, they would not demand a return to civilian rule—indeed they would try to prevent it, because it was likely to bring back to power the ousted modernist elites.

As these groups had come to distrust political institutions, they also wanted guarantees that the government would continue to legislate in accord with Islam as they understood it. Zia thus agreed to subject the government to an institution that would perform Islamic review. As we will discuss below, he struggled to establish an institution whose decisions would be respected and, at the same time, would allow him wide discretion to pursue his preferred policies.

Africa too has seen a country enshrine into its constitution a non-justiciable SGC. Since the s, Sudanese Islamists had pushed for the country to adopt an Islamic constitution. Non-Muslim minorities fiercely resisted. In an attempt to replace this with Islamic legitimacy, the government began a process of highly public Islamization. The gambit failed, in part because the Islamists whose support the regime was trying to court did not believe that Islamization was being carried out in good faith.

In , a new military leader conspired with Islamists to take power. In , the new regime also adopted a constitution containing an SGC. By most accounts, however, it was simply using Islam to legitimize its authoritarian rule, and the regime had no intention of implementing it in a way that would restrict the discretion of the president any more than was absolutely necessary to survive. Article 65 thus declared:. Conservative Islamists were, in turn, highly supportive of the regime, even in the face of domestic opposition and fierce international condemnation of its policies.

In , however, when it seemed necessary to end a long insurgency by non-Muslims in the South, the regime enacted a new interim constitution which did not contain an SGC. From the s to , Iraq was governed by an authoritarian regime whose constitution did not contain an SGC. In , a US-led coalition overthrew this regime, and the US and its Iraqi allies quickly set out to establish what they hoped would be a model regime for the Arab Middle East—one that was both Islamically legitimate and liberal.

The courts themselves, however, came to doubt their ability effectively to exercise Islamic review. In a case, the Supreme Court resolved on the merits a case challenging a law as unconstitutional because it was inconsistent with Islamic law. The concerns arose because Iraq is majority Shiite, and most Shiites believe that the interpretation of Islamic law requires specialized training that most Iraqi judges lack.

At best, however, the Court felt its opinions could satisfy only a minority of Iraqis and, at worst, would satisfy none. Any rulings on Islam were likely to invite controversy and criticism that would be harmful to a court trying to reestablish its prestige and authority after years of subjugation under a dictator. In two cases, the Supreme Court ruled that as a prudential matter, many questions of Islamic review must be treated as non-justiciable.

In some countries, constitutional designers have concluded that political mechanisms are ill-suited to enforce SGC clauses.

There can be two reasons for this. Others have worried that political institutions will favor an interpretation of Islam that is inconsistent with their own priorities. In , an American-led military force conquered Afghanistan.

Tariq Ramadan Lecture: Islam and Democracy

The reliance on enforcing constitutional provisions through judicial review appears to reflect an assumption on the part of the international community and its Afghan allies that, as a general rule, constitutional best practices require that courts be empowered to exercise judicial review. Representative political institutions were likely to feel considerable political pressure to maintain an illiberal regime of laws.

A politically insulated judiciary would be more willing and more able to measure laws against a liberal interpretation of Islam and protect liberal rights. In , most Afghan judges had received significant specialized sharia training, and the populace recognized them as competent to interpret Islamic law. Some history is necessary to understand how this court came to be vested with the power of Islamic review, and why it has been permitted to keep it. Seeking support among liberal members of the opposition, the government in drafted a new constitution.

This guaranteed a variety of liberal rights and established a new Supreme Constitutional Court SCC with the power of constitutional review. By the s, these liberals had begun to issue liberal opinions that brought them into conflict with the authoritarian executive. Conservative Islamists, whose interpretation of Islam was partly but not entirely liberal were also coming into conflict with the executive. The court held it had no jurisdiction to hear Article 2 challenges to laws that had already been in force at the time Article 2 was enacted, but did have jurisdiction to hear challenges to any laws enacted thereafter—including any laws amending existing laws.

That judges could try this reflects the fact that neo-traditionalism is not nearly as strong in Egypt as it is among Iraqi Shiites or Afghans. Over time, they appear slowly to have accepted this. Starting in the late s and increasingly in the s, the judiciary issued a number of highly publicized Article 2 opinions that resolved Islamist challenges to laws. In cases where conservative Islamist views were consistent with liberalism, including property rights, it upheld Islamist challenges. The government at this time had closed electoral politics and the media to Islamists. Court cases and the public discussion that surrounded them became one of the few public forums in which Islamists could debate publicly with each other and with the government about what Islam required.

Although they criticized rulings, these Islamists as a rule did not claim that the Court was incompetent or had acted in bad faith. All indications are that the SCC over time came gradually to be seen by many liberals and Islamists as legitimate mediators of Egyptian debates about Islam and liberal rights. Strikingly, this was criticized not only by liberals, but by some important members of the Brotherhood itself. Events after the fall of Mubarak suggest even more strongly that a broad cross-section of Muslims came to see the Court as a valuable institution that mediated between rival visions of Islam and rights.

During this period, there were many tensions between the Brothers who controlled the parliament and the courts. This led to a further series of conflicts between the Court and the Brotherhood. Indeed, they were more likely to be successful at resolving these disputes going forward than elected representatives. As the Constituent Assembly began to draft a constitution, polls showed that 81 percent of Egyptians said that Egypt needed a fair judiciary—far more than thought it was very important to have fair elections.

Not surprisingly, perhaps, the Constitution does not contain a provision allowing for parliamentary override of SCC decisions, even in Article 2 cases. Instead, to mollify Islamic conservatives, it includes new constitutional provisions that instruct the SCC to take more account of conservative interpretations of Islam when it interprets Islam. When, in , General Zia al-Haq ousted a civilian government dominated by these elites, he sought to build support for his new regime among disaffected traditionalist and conservative modernist groups.

He revised many existing statutes to reflect conservative, illiberal understandings of Islam—particularly in the area of family law and criminal law. However, Zia seems not to have been personally sympathetic to all the views of traditionalists and conservatives, and he clearly wanted to maintain at least some laws that conservatives view with suspicion. Zia first gave the power of Islamic review to special benches within the regular courts but soon came to think that the courts were an unsatisfactory choice.

Worse, past judges had publicly speculated that the power of Islamic review could be used to constrain the political branches. It was not easy to do this.

Democracy and Islam in the New Constitution of Afghanistan

As finally composed, it included a majority of regular judges supplemented by Islamic scholars. The FSC could not hear Islamic challenges to the constitution, family laws and, for a period, laws governing the economy. With its hybrid staffing, limited jurisdiction and lack of independence, this tribunal was ill-equipped to gain the trust of multiple factions and to build support for a broadly shared understanding of Islam.

Nevertheless, Pakistanis may have come to see it as better than the alternatives. In this environment, Pakistanis increasingly turned to the courts to deal with a large number of issues the political institutions are incapable of resolving. In this environment, the FSC has had more staying power than one might initially have expected. After a civilian government replaced Zia, that new government was in turn supplanted by a new military regime led by Perwez Musharraf. The Musharraf regime was itself removed by a popular movement to restore democracy.

Successive regimes always left the FSC in place and, in the past few years, a civilian government strengthened its independence by changing the appointment and removal processes for judges. Like Pakistan, however, Iran has struggled to come up with an alternative forum whose interpretation is respected by a broad cross section of Iranians.

Iranians are primarily Shiite, and Shiite legal and political theory has historically evolved separately from Sunni theory. In the modern era Shiites have generally maintained a traditionalist outlook. The vast majority has continued to recognize the fuqaha as having unique insights into the sharia. Nevertheless, Shiite discourse has slowly incorporated over the past 50 years some concepts long associated with Sunni Islamists.

An SGC required that all government legislation and regulations be based on Islamic principles. A new institution called the Guardians Council was given sole authority to conduct abstract constitutional review of laws. The other members were clerics appointed by the Supreme Leader. Only clerics voted on whether the law violated the constitutional Islamization provision. In the s, progressives dominated the Iranian parliament, while the Guardians Council continued to represent the views of a conservative clerical faction.

The Guardians Council thus repeatedly struck down as un-Islamic parliamentary legislation supported both by society at large and by some progressive clerics. The conflict threatened both the Islamic legitimacy of the state and its ability to realize important policy objectives.

Democracy and Islam in the New Constitution of Afghanistan by Cheryl Benard

Traditionally trained clerics, such as those on the Guardians Council, were not always well suited to judge the utility of laws, and they were liable occasionally to overturn laws that should be upheld on grounds of their benefit. In keeping with this position, the Supreme Leader created an appellate body that could under certain circumstances override decisions of the Guardians Council on questions of Islamic review. In , the Constitution was amended to include this new institution.

The law would then be reviewed by a third body composed of both clerics and lay people all appointed entirely by the Supreme Leader to determine whether the law in question was necessary to promote maslaha. It is not easy to characterize this new scheme. Arguably, it creates a second tier of expert Islamic review. Within the Muslim world, a few countries over the past sixty years have flirted with SGC enforcement schemes that combine elements of Islamic review with elements of political control—systems that move in the direction of the formally hybridized systems that Gardbaum considers a distinct new model of constitutionalism.

Two countries have flirted with schemes that include some mechanism of review by a politically insulated group of experts and a mechanism by which the legislature could override a judicial decision declaring a law to violate the constitution. When a bill was passed by the federal legislature, it would then be sent to the Head of State together with any objections raised by the members of the legislature on the grounds that the bill was either wholly or partially repugnant to the Islamic guidelines; the Head of State would consult the Board and if it unanimously held that it is against the Islamic guidelines, [the Head of State] would send it back to the legislature for reconsideration.

This proposal to hybridize legal and political constitutionalism proved unappealing both to secularists and lay Islamists who did not want to give fuqaha any privileged role in the process in the process of judicial review and to traditionalists who refused on principle to approve a scheme in which the fuqaha , the sole legitimate authorities on questions of Islamic law, could be overridden. This occurred during a tumultuous period in when there was tension between an Islamist dominated legislature and the SCC. In response, the SCC dissolved the legislature.

As noted above, however, it instructed the Court to use more traditional reasoning in its opinions and allowing al-Azhar to opine on questions about how best to interpret Islamic law. Was creating the Maslaha Council a step toward hybrid review? As noted already, Iran currently employs a unique system of Islamic review. A popularly elected legislature is supposed to consider Islam when it enacts a law.

All laws are subject to expert review by expert Islamic scholars on the Guardians Council. If the legislature believes that the Guardians have voided a law wrongly, the parliamentarians can refer the law to the Maslaha Council—a body of figures with large and diverse training who are appointed by an unelected quasi-executive. The Guardians Council determines whether the law is so beneficial to society that it must be considered Islamic even if it seems inconsistent with the formal strictures of Islamic law.

As noted already, this scheme could be seen as a scheme of legal SGC control with two layers of expert Islamic review. It could also be seen as a scheme by which an elected legislature can appeal a decision by judges to a bureaucratic institution under the control of an authoritarian executive.

With changes to the process by which the Maslaha Council is appointed, such as by giving the elected legislature control over appointments, the Iranian model could in theory morph into something resembling a dialogic model of Islamic review analogous in some ways to hybrid dialogic forms of rights review of the sort that Gardbaum studies. Section 3 provides a few takeaway lessons.

Second, the lack of agreement arises because no single model will serve the needs of all different types of regime. Third, diversity has been promoted, until recently, by a lack of democracy. Undemocratic Islamic regimes do not need to ensure that their SGC is interpreted in a way that satisfies a majority of Muslim citizens. It is sufficient for them to identify an interpretation of Islam that satisfies only some favored subset of the citizenry and to impose it through non-democratic means.

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  7. Furthermore, undemocratic regimes may promote any number of policies, unconstrained by a shared need to respect liberal rights. Democratization in the Muslim world appears to be leading to convergence in many countries both on questions of who should be satisfied and on questions of what the SGC must permit. Democratizing Muslim countries are all diverse, and they tend to agree that a broad cross section of their diverse Muslim population needs to be satisfied—ideally, a majority.

    Although democratizing countries may disagree about the precise constraints that liberal rights place on a state, they agree on the general principle that rights matter. Even if it is quixotic to ask what type of SGC enforcement scheme is generally best for Muslim countries, it may be possible to ask whether certain types of SGC enforcement scheme might tend to be more effective in democratizing Muslim countries.

    Recently, the Muslim world has gone through a period of democratization. Ran Hirschl noted, even before the events of the Arab Spring, that a number of Muslim countries have recently drafted constitutions that require the state to respect both Islam and the principles of liberal democracy. Resurgent Muslim citizenries seem to have an appetite for what Nathan Brown and Bruce Rutherford have called Islamic constitutionalism and I prefer to call here Islamic democracy. In an Islamic democracy, constitutions require state actions to respect democracy, sharia and at least some liberal rights.

    Institutions are created to harmonize these competing demands and constrain states to respect them. Democratization leads to some convergence between countries both about whose interpretation of Islam the state must satisfy and as to the substantive policies that the SGC must permit. While the exact constellation of Muslims varies from country to country, most countries have some combination of liberal modernists, conservative modernists and traditionalists.

    Furthermore, among those whose interpretation is rejected, the method of choosing one interpretation over another must be seen as democratically legitimate. Finally, the interpretation must allow the state to respect its constitutional obligation to respect rights—in practical terms, if constitutional rights guarantees are officially interpreted to preclude certain types of law, then the SGC must not be officially interpreted to require those types of law. In thinking about how to satisfy these shared imperatives, constitutional designers can draw insights from two places: Islamic democracies face a challenge similar to that of liberal democracies.

    Each must balance a commitment to respect majority views with a commitment to respect contested moral values. Islamic democracies might thus benefit from studying debates in the West about what types of institution are best suited to negotiate these twin commitments. In the post war period, the West seemed for some time to be coalescing behind the view that democracies should enforce rights through judicial review. As a practical matter, many democracies that had not previously allowed for judicial review, began to embrace it. Democratic theorists who favored judicial review concluded that people recognized, correctly, that democratic political institutions are inherently less able than courts to generate outcomes that were clearly reasonable, fair and legitimate.

    Democratizing countries continue regularly to adopt systems that include some mechanisms of judicial review and many theorists continue to champion the practice. Nevertheless, consensus has broken down that judicial review is always superior to political review. Debate has emerged on an issue that some had thought closed. At the extremes, theorists like Jeremy Waldron argue that courts are actually in ferior to legislatures in making difficult decisions about the scope of moral rights.

    To such thinkers, disagreement about whether a law violates a rights guarantee does not always arise because the public is uninformed or unable to think through the moral issues at stake. Rather, in many cases, there is simply no one correct answer.

    In such cases, in a robust democracy, political institutions are generally better suited than legal institutions to reach a fair answer, and the only ones that can impose a solution that a loser could reasonably accept as democratically legitimate. More subtly, some theorists have suggested that arguments about the relative merits of purely legal and purely political modes of rights enforcement are largely theoretical and that under real world conditions, the best type of system is a hybrid. Theorists generally agree, in fact, that the superiority of one approach over another usually depends upon certain conditions being met—conditions that are rarely entirely satisfied in real democracies.

    Thus, those who favor political enforcement of rights in a democracy generally concede that political institutions are superior to courts only when they are truly representative and informed about all views. However, in many countries, supposedly representative institutions do not fully satisfy these conditions. These conditions are not always met. Empirically, many successful liberal democracies seem implicitly to recognize that in practice neither political nor legal institutions are well placed by themselves to determine how to enforce rights in a democratically legitimate way by themselves.

    Thus, few successful liberal democracies seem to place their trust entirely on political institutions or entirely on legal ones. Successful political enforcement schemes tend to embed mechanisms—sometimes formal and sometimes informal—which allow legal institutions who have concerns about the impact of a law on rights to interfere with the operation of that law.

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    8. The converse is also true. A number of countries that are considered to employ judicial review, create mechanisms by which political institutions influence the staffing, jurisdiction, or powers of constitutional courts, and thus create incentive for courts to pay attention to their strongly held beliefs.

      Most not ably, a number of former commonwealth countries have recently developed systems that formalize a discursive process through which political and legal institutions both weigh in on the question of whether a law violates rights—with the legislature getting the final word. Theorists such as Stephen Gardbaum have applauded these systems, suggesting that they combine the best aspects of political and legal rights enforcement schemes. It is beyond the scope of this article to explore the nuances of this debate. Given what we have described, though, the debate seems to contain lessons for the designers of SGC enforcement schemes in aspiring Islamic democracies.

      Constitutions often provide that the state will respect moral principles -- such as rights principles or, in some Muslim countries, religious principles. People will inevitably disagree about how to interpret these principles. Many Western theorists believe that, at least in practice, neither political nor legal institutions can, by themselves interpret and enforce such contested moral principles in a democratically legitimate way.

      Sensitivity can be promoted either through informal mechanisms or can be institutionalized explicitly through the construction of a hybrid dialogic scheme. Which system works best is likely to depend upon the way in which the legislative or judicial branches are structured and on national political culture. The case studies in Section 3 appear to provide some support for this hypothesis. Most of the countries discussed in Section 3 were authoritarian or imperfectly demo cratic. The experience of such countries provides us with some insight into how governments can successfully develop SGC enforcement schemes for an Islamic democracy.

      The case studies do not tell us everything we would like to know. For one, they provide little insight as to whether democratic countries that rely primarily on political institutions to enforce SGCs will be able to ensure compliance with Islam in a manner that is democratically legitimate. Of the countries that used a primarily political process, none has been sufficiently democratic for a long enough time to enable any firm conclusions about the ability of democratic systems to ensure state compliance with sharia in a democratically legitimate way.

      Some countries might in the future provide us with the type of data needed. Until then, it would be premature to draw any conclusions about what types of primarily political scheme, if any, might be able to develop a democratically legitimate interpretation of Islam that allowed the state to meet its constitutional obligations to protect liberal rights. The case studies of countries with primarily legal SGC enforcement schemes are a bit more informative.

      They suggest such schemes have been most effective when courts are widely considered expert by all the major Islamic factions in society and when they are incentivized, to consider seriously and engage respectfully with all of them. To begin, the experience of countries that have enforced SGCs through Islamic review suggest unsurprisingly that unelected institutions performing Islamic review are likely to issue democratically legitimate opinions only if they are staffed with judges whom a majority of citizens consider credible interlocutors on questions of Islamic law.

      Courts may not need to be staffed with figures whose views are accepted as indubitably authoritative by all factions in society—something that would be exceptionally hard in any case to achieve. They do need to be staffed by figures with sufficient expertise and access to information that they can serve as informed mediators of competing Islamic interpretations, can identify interpretations that will be widely accepted as plausible, and can provide meaningful explanations for why they prefer one of these interpretations over another. Intuiting this, the Pakistani government in the s tinkered with the staffing of its Federal Shariat Court in an attempt to ensure that it included judges with a range of different training.

      And when the legislature failed to appoint such fuqaha , the Supreme Court so feared that its opinions would be dismissed by a majority of Iraqis that it declared SGC cases non-justiciable. Credentials by themselves are not enough. In short, it developed the type of interpretation that Islamic democracies require. One reason seems to be that its judges engaged sensitively with the full range of competing opinions in their society about Islamic law. Notwithstanding their personal preference for liberal modernist interpretation of Islam, the Supreme Constitutional Court during the Mubarak era made a point to engage respectfully with conservative Islamists.

      Its opinions employed a method that traditionalists and conservatives recognized and respected as legitimate. Thus, the Court did not preclude the possibility that it would in the future move towards a more conservative Islamist position. It also explains why, since the fall of Mubarak in , popularly elected, Islamist-dominated political institutions have drafted a new constitution and so far have left the power of Islamic review in the hands of the Court and, more strikingly, left much of its liberal staffing in place. So long as it does this, Egyptians will likely see the SGC enforcement schemes as democratically legitimate.

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      This leads to a third point. A court performing Islamic review is always in the process of establishing its legitimacy. Whatever amount of credibility a group of judges has at the outset, they can add to their legitimacy over time through a dynamic public process of reasoning that forces them to demonstrate the reasonability of their opinions. Looking at debates about how best to enforce rights in a liberal democracy and looking also at the experience of Muslim countries that have tried to enforce SGCs in keeping with a broadly acceptable, generally liberal interpretation of Islam, we might cautiously make some suggestions for countries which intend to enforce their SGC through Islamic review.

      One must proceed with caution. Given the limited evidence at hand, and particularly given the limited number of successful cases of SGCs being enforced in a way that is liberal and democratically legitimate, we can only tentatively identify some general characteristics that effective schemes are likely to share.

      Further case studies will be required to confirm any hypotheses on this score or to generate a more detailed set of suggestions. With those caveats, the designers of governments in Islamic democracies might wish to consider the following suggestions. To begin, institutions that perform Islamic review in Islamic democracies should be staffed with people who have at least the minimum qualifications necessary to be re cognized by all important Islamic factions as, at the very least, reasonably competent and fundamentally fair mediators of competing views.

      In different countries, there will be different constellations of Muslims who need to be satisfied. Appointments must thus be highly sensitive to local religious dynamics. Second, states should recognize that in all likelihood no panel of judges will be able to issue opinions with unquestionable authority among all different groups. They should thus create procedures to ensure that judges are informed about the full range of Islamic views in their country and incentivized to engage respectfully with the views that they ultimately reject.

      States could take any number of steps to do this. Some are as simple as encouraging amicus briefs. Courts could also hire research staff with expertise in all the major strains of Islamic thought in the country. Courts should be required to publish and distribute widely their opinions in cases of Islamic review. Dissenting opinions should be permitted—at least insofar as this creates pressure on judges in the majority to engage respectfully with views that they do not personally hold.

      Public discussion about court opinions should be encouraged so that courts have a chance to see how their reasoning is being received. Freedom of speech on this subject needs to be strongly protected. Paperback , 62 pages. To see what your friends thought of this book, please sign up. To ask other readers questions about Democracy and Islam in the New Constitution of Afghanistan , please sign up. Lists with This Book. Mary Lyon rated it it was amazing Mar 21, Ammar marked it as to-read Dec 22, Khairun marked it as to-read Jul 09, Akbar Quraishi marked it as to-read Oct 08, Hany marked it as to-read Aug 10, Sarkar Qasimi marked it as to-read Jun 18, BookDB marked it as to-read Sep 27, Michele marked it as to-read Mar 10, There are no discussion topics on this book yet.

      About Khaled Abou El Fadl. Khaled Abou El Fadl. Khaled Abou El Fadl is the most important and influential Islamic thinker in the modern age. He holds degrees from Yale University B. A high-ranking shaykh, Dr. Abou El Fadl is a world renowned expert in Islamic law and an American lawyer, offering a unique and seasoned perspective on the current state of Islam and the West. He was also named a Carnegie Scholar in Islam for He was also previously appointed by President George W.