Constitutionalism in Islamic Countries: Between Upheaval and Continuity

Prov.-Doz. Dr. Rainer Grote, LL.M. is a Senior Research Fellow at the Max Planck Institute for Public Comparative Law and Public International Law in Heidelberg, Germany. He worked as a legal adviser in the Department of Legal Affairs of the German Ministry of Foreign Relations in Berlin and taught international law at the University Panthéon-Assas Paris II. He holds a doctorate degree from the University of Göttingen.Dr. Tilmann J. Röder is a Head of the Middle East and Central Asia Projects of the Max Planck Institute for Comparative Public Law and International Law in Heidelberg, Germany. His recent research has focused on Afghanistan, Libya, Israel/Palestine, Iran, Azerbaijan, Sudan, Somalia and Kashmir. He has published essays on the subject of constitution building and he has been involved in an ongoing series of lectures on Law & Development. He holds a law degree from Humboldt University and a doctorate degree from Johann Wolfgang Goethe University.

• INTRODUCTION (Grote and Röder)PREFACE (Grote and Röder)PART I: CONSTITUTIONALISM AND ISLAM: CONCEPTUAL ISSUES1. Constitutionalism in Islamic Countries: A Contemporary Perspective of Islamic Law (Kamali) 2. The Centrality of Shar?'ah to Government and Constitutionalism in Islam (Abou El Fadl) 3. The Separation of Powers in the Tradition of Islamic Statehood (Quraishi)PART II: INTERRELATIONS BETWEEN CONSTITUTIONALISM AND SHARI'A: ANTAGONISM OR COMPLEMENTARITY?1. Constitutionalism in Islamic Countries: A Survey from the Perspective of International Law (Wolfrum) 2. The Limited Applicability of Shar?'ah under the Constitution of Nigeria (Ebeku) 3. Constitutionalism in the Maghreb: Between French Heritage and Islamic Concepts (Le Roy) 4. The Relation between Constitution and Shar?'ah in Egypt (Sherif) 5. Secularism in Islamic Countries: Turkey as a Model (Özbudun) 6. The Kingdom of Jurists: Constitutionalism in Iran (Arjomand) 7. Islam and the Constitutional Foundations of Pakistan (Lau)8. Constitutionalism, Islam and National Identity in Malaysia (Harding) PART III: INSTITUTIONAL CONTROL OF CONSTITUTIONALISM 1. Models of Institutional Control: The Experience of Islamic Countries (Grote) 2. Constitutional Jurisdiction and its Limits in the Maghreb (Gallala) 3. The Turkish Constitutional Court as a Defender of the Raison d'Etat (Can) 4. A Different Approach to the Control of Constitutionalism: Iran's Guardian Council (Shirvani) 5. The Last Defender of Constitutional Reason? Pakistan's Embattled Supreme Court (Khan) 6. Malaysia: The Politics of the Judiciary (Lee) PART IV: CONSTITUTIONALISM AND SEPARATION OF POWERS 1. The Separation of Powers: Historical and Comparative Perspectives (Röder) 2. Strong Presidentialism: The Model of Egypt (Bernard-Maugiron) 3. The Separation of Powers in a Fragmented State: The Case of Lebanon (Koch) 4. Yemen: A Burgeoning Democracy on the Arab Peninsula? (Shamiri / Würth / Glosemeyer) 5. Post-Soviet Central Asia: The Limits of Islam (Akbarzadeh) 6. The Rise of Presidentialism in Post-Soviet Central Asia: The Example of Kazakhstan (Kembayev) 7. Westminster Democracy in an Islamic Context: Pakistan, Bangladesh, Malaysia (Grote) 8. Indonesia: A Presidential System with Checks and Balances (Hosen) PART V: EMERGING CONSTITUTIONS IN ISLAMIC COUNTRIES 1. Constitution-Making in Islamic Countries - A Theoretical Framework (Afsah)2. Constitutionalism and Islam in Libya (Mezran) 3. Shar?'ah and Human Rights in the Interim Constitution of Sudan (Böckenförde) 4. Statehood and Constitution Building in Somalia: Islamic Responses to a Failed State (Elliesie)5. Constitution-Making and State-Building: Redefining the Palestinian Nation (Khalil) 6. The Protection of Human Rights in the Palestinian Territories (Cotran / Brown) 7. Islam and the State in Iraq: The Post-2003 Constitutions (Istrabadi) 8. Constitutional Legitimacy in Iraq: What Role Local Context? (Al-Ali) 9. The Separation of Powers and the Problem of Constitutional Interpretation in Afghanistan (Hashimzai) 10. Constitutionalism in an Islamic Republic: The Principles of the Afghan Constitution and the Conflicts between them (Moschtaghi) LIST OF CONTRIBUTORSINDEX

"This is an ambitious, almost brash, collection. It seeks to bring together historical, legal, religious, political, and philosophical analysis in order to understand both the relationship between Islam and constitutionalism and the actual constitutional experiences of Muslim societies. The editors and contributors are to be commended for pooling their efforts to produce both breadth and depth. This will be a standard reference on the subject for many years tocome." --Nathan J. Brown, Professor of Political Science and International Affairs, George Washington University"This volume is, without a doubt, the new standard for the field of constitutionalism and Islamic law. It is comprehensive in scope, sophisticated in its application and subtle in its identification of problems. It gathers in one place the absolute top authorities on the historical, conceptual, legal and political dimensions of constitutionalism in the Muslim world. There is no other single volume which comes close to accomplishing what this one has." --Andrew March, Associate Professor of Political Science, Yale University"This book is a solid, comprehensive, and enticing contribution to constitutionalism in the Muslim world. Some chapters provide novel and detailed studies of countries which have rarely been the subject of serious interest, and others revisit the experience of modern constitutionalism in places like Iran and Egypt with a fresh view drawn from the experience of constitutional courts and councils. Röder and Grote have succeeded in bringing in one volume animpressive collection of scholarly contributions in an understudied and crucial field at a time of great upheaval-and great need-in the Middle East and the Muslim world at large." --Chibli Mallat, The Custodian of the Two Holy Places Visiting Professor in Islamic Legal Studies, Harvard Law School"This volume presents a solid basis for further insight and research and should feature in any library dedicated to constitutionalism or the constitutions in the region." -Arab Regional Forum News, Dr. Achim-Rüdiger Börner, Attorney at law, Cologne