Tom Ginsburg, Dawood Ahmed

Constitutional Islamization and Human Rights: The Surprising Origin and Spread of Islamic Supremacy in Constitutions

Can Islamic supremacy clauses advance democratic values?

Islamic supremacy clauses have been a major issue of political debate not just for Muslim countries involved in constitution writing, but for US foreign policymakers. Outsiders often view these clauses—which make Islamic law supreme or provide that laws repugnant to Islam will be void—as incompatible with constitutional democracy. Ginsburg tests this assumption by conducting a systematic, empirical examination of these clauses. Relying on an original dataset based on the coding of all national constitutions since 1789 and case studies from four countries—Iran, Afghanistan, Egypt, and Iraq—he traces the origin and adoption of Islamic supremacy clauses since their first appearance in Iran in 1907. He argues that these clauses are best understood not as impositions of theocracy, but as carefully negotiated provisions. In this sense, their incidence does not represent an inexorable tension with democracy; they advance basic values of liberal democracy. What’s more, essentially every instance of Islamization is accompanied by an expansion in the rights content of the constitutional order. Ginsburg suggests that constitutional advisors should focus more attention on the basic political structures of the constitution, including the design of constitutional courts and other bodies that will engage in interpretation.

Virginia Journal of International Law (2014)

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