ABSTRACT
There is much talk about Islamic government today, but little attention to Islamic constitutional theory. This is largely because modern political Islamism has adopted the legal monism of the nation-state wholesale, with virtually no critique. Islamically oriented political movements, many born in colonial resistance, generally focus on “Islamizing” their inherited nation-state systems, but they do not offer an Islamic alternative to the nation-state itself. Indeed, most Muslims are unaware that before the colonial intrusion they were governed by a very different rule of law, one that might today be called legal pluralism. Contrary to the legal monism and centralism of the European nation-state, Muslim societies for centuries before colonialism were organized in a constitutional structure that involved two types of law: ruler-made (siyasa) and jurist-made (fiqh), or—to use the terminology of legal pluralism—state law and non-state law, operating in a parallel but interdependent relationship with each other. This chapter will show how Islamic constitutionalism based on the legal pluralism of the fiqh-siyasa bifurcation of law offers a better model for Islamic government than those that exist today. It will also demonstrate that Islamic constitutionalism itself offers a new contribution to constitutional theory by illustrating a qualitative alternative to the nation-state: constitutionalized legal pluralism.
