The Concert of Civilizations

The Common Roots of Western and Islamic Constitutionalism

Jeremy Kleidosty

• Publisher: Taylor & Francis
• Year: 2016
• eBook ISBN: 9781317037477
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Comparative Politics
• Index: Politics & International Relations

Are Western and Islamic political and constitutional ideas truly predestined for civilizational clash? In order to understand this controversy The Concert of Civilizations begins by deriving and redefining a definition of constitutionalism that is suitable for comparative, cross-cultural analysis. The rule of law, reflection of national character, and the clear delineation and limitation of governmental power are used as lenses through which thinkers like Cicero, Montesquieu, and the authors of The Federalist Papers can be read alongside al-Farabi, ibn Khaldun, and the Ottoman Tanzimat decrees. Bridging the civilizational divide is a chapter comparing the Magna Carta with Muhammad'sConstitution of Medina, as both documents can be seen as foundational within their traditions. For the first time in political theory, this text also provides a sustained, detailed analysis of Khayr al-Din al-Tunisi's book The Surest Path, which explains his fusion of Muslim and Western ideas in his writing of Tunisia's first modern constitution, which is also the first constitution for a majority-Muslim state. Finally, the book discusses the Arab Spring through a brief overview of the revolutions in Egypt, Libya, and Tunisia, and offers some early thoughts about Tunisia's uniquely successful revolution.

Chapter 1

Constitutional Conversations—Alternative Models for the Challenge of Civilizational Conflict

Contextualizing the Argument

In the case of the present work there is very little literature that fits within the discourse of Comparative Constitutionalism from Western and Islamic Political Theoretical Perspectives. A recent undertaking can be found in Antony Black’s The West and Islam (2008). The stated argument of this particular work is that

up to c.1050 Christian Europe, Islam, and the Byzantine world had more in common than is usually thought; and, secondly, that what decisively differentiated them was the papal revolution of the late eleventh century followed by Europe’s twelfth-century renaissance … it goes without saying that in 1450 western political theory as we know it today had barely got off the ground. Since then, western political thought has become more and more different from anything that had gone before, either in its own past or in other cultures. Islamic political thought remained almost completely fixed. The West and Islam simply became more and more different, and that is about all there is to say by way of comparison after the fifteenth century.¹

This discussion however, addresses fundamentally different concerns and comes to equally different conclusions, although perhaps with a degree of similar motivation in seeking to understand “in which respects ideas put forward in one culture differed from, or were similar to, those put forward in another.”² Any comparative work likely has such an aim. Rather than focusing on political thought generally however, and rather than primarily assessing that thought during a fixed period of time that ends with a proposed fundamental divergence, this book looks specifically at foundational constitutional values as they are and have been enumerated in Western and Islamic contexts. Furthermore, it ultimately interrogates the very categories of “Western” and “Islamic” and questions their continued usefulness in light of the relentless growth of globalization and particularly in light of the ubiquity of the modern state and adherence, at least in the sense of being treaty signatories, to various human rights and international legal conventions.³ It may even be, that upon closer examination, the constant intercourse of European (and later North American) ideas and people with those of the majority Muslim regimes stretching from North Africa to Southeast Asia will be so sustained, substantial, and significant that the categories of Western and Islamic will be shown to be contrivances meant to reinforce a sense of otherness that may not be entirely justified by philosophical and historical analysis.

Having addressed the aforementioned comparative study of Western and Islamic political thought, this overview of relevant literature will address the key components of the book. The first of these is comparative political theory. The second is constitutionalism as an object of study separate from discourses on political theory and particularly as distinct from democratization. Finally, the third area of relevant literature looks at some of the work being done on the specific subject of Islamic political thought.

On Comparative Political Theory, Constitutionalism, and Islamic Political Thought

As discussed above, the relatively new field of comparative political theory is one which is still struggling to differentiate itself from other subfields of comparative politics, area studies, and political though. Excellent examples of the quest to properly define this field include Andrew March’s “What is Comparative Political Theory?”⁴ and Roxanne Euben’s more specific articles on comparing Western and Islamic political theory.⁵ Equally important is Kimberley Hutchings admonition that comparativists recall that their work contains insights from people whose identities cannot simply be amalgamated under simplistic labels and which are highly contingent and fractured. Thus, the insights gleaned from comparative work must be treated with a healthy dose of humility and appreciated for their contingency.⁶ Jürgen Gebhardt’s “Political Thought in an Intercivilizational Perspective,” is also highly instructive in its proposition that comparative political theorizing is properly and meaningfully located in “the common ground of the intercivilizational modality of human existence in history and society” because it “intends to bring to our attention the essence of the political in all of its historical modalities.”⁷ There are several more comparative thinkers treated throughout this work, and many more like Charles Taylor who are incredibly significant to this sub-field, but these and Fred Dallmayr are by far the most influential on this text.

In terms of literature on constitutionalism as a broad subject of enquiry, the array of writers and various related subjects is truly vast. The primary limitation of most of this literature, at least until recently, is that despite many of its universal claims, it is predominantly and overwhelmingly Western in orientation. In terms of this traditional approach to constitutionalism, Charles McIlwain’s Constitutionalism, Ancient and Modern is absolutely essential reading and will be discussed in much greater detail later in this work. It established many of the methodologies and discourses surrounding constitutionalism and also helped to solidify the Western political canon while simultaneously developing a canon of literature specific to constitutional thought. Furthermore, it presents a cogent defense of the constitution as a natural growth of a given society, and as such, provides an implicit defense of the natural law school of constitutional thought. This is in stark contrast to the work of Hans Kelsen, as seen in his General Theory of Law and the State, which is perhaps far more influential in terms of its application by policy makers and presents a thoroughly positivist vision of constitutionalism. A much more recent and self-aware book on constitutionalism is Loughlin and Walker’s (2007) The Paradox of Constitutionalism. This edited volume contains chapters from several present scholars, the most relevant of which for this work are those in its final section on “Extension and Diversification of Constituent Power.” It may be noted that this title emphasizes the element of identity and individuals in the idea of a constitution as being a representative social arrangement, rather than simply an amalgamation of various legal norms and institutions. As such, Stephen Tierney’s chapter on “Plurinational States” and James Tully’s argument about the “Imperialism of Modern Constitutional Democracy” make incredibly cogent points on the challenge of claiming representativeness in states with mixed populations and the problematic conflation of constitutionalism with democratization.⁸ Larry Alexander’s Constitutionalism: Philosophical Foundations, and Alan Brudner’s Constitutional Goods are excellent volumes to read alongside this discourse as they highlight the questions posed by constitutionalism from a philosophical perspective, in contrast to the history of political thought method of McIlwain.

Of course, constitutionalism is often broken down into institutional works that discuss the functions of various organs of state. These works are essential, but not directly relevant to this discussion. However, as this work is primarily concerned with constitutional values, the other main sub-category of constitutionalism that focuses on particular ideas like justice, the rule of law, etc. is crucial. These works are extremely diverse in their normative orientation and philosophical underpinnings, but they generally advocate stronger adherence to a particular core constitutional norm. These would include Justice by Sandel, Richard Tuck’s Rights of War and Peace, Tom Bingham and Brian Tamanaha, both on The Rule of Law, Kymlicka’s work on nationalism and identity,⁹ and Larry May’s Global Justice and Due Process. Additional considerations on issues such as the tension between positivist and natural law justifications for constitutionalism will be considered later in this text.

The Western constitutional canon itself does not require repeating in depth here, but it bears mentioning that it generally traces the evolution of Western thought from Socrates onward, with a great deal of emphasis on the Enlightenment ideals of rationality and individuality. Therein lays one of its key weaknesses from a comparative perspective. The canon, as such, is designed with an often unacknowledged teleology that is meant for the reader to arrive philosophically convinced of the inevitability and suitability of the modern liberal state as the definitive political model, representative of the pinnacle of social achievement, and worthy of universal imitation and perhaps even imposition. Thus, when one searches for resources on constitutionalism, references to democracy and liberalization are absolutely rife. Mohammed Khatami identified this very danger in the speech quoted at the start of this book. He cautions that “We cannot simplistically speak of an end to history, as liberalism cannot be introduced as the sole image of wickedness or the sole symbol for perfection of social thought.”¹⁰ Whether from institutional approaches like those of Donald Lutz¹¹ or theoretically-based works like those of Bellamy,¹² Elster and Slagsted’s (1998) Constitutionalism and Democracy, and Cass Sunstein’s (2001) Designing Democracy: What Constitutions Do, the conflation of these closely-related, yet nonetheless distinct, concerns is pervasive and generally goes unquestioned.

This leads to a great deal of spillover once one ventures into the rather newer field of Islamic political theory, which can be broken into two further groupings of writings which proceed on a history of thought or history of philosophy model, and others which seek to use Islamic thinkers to advance a particular normative political agenda. The first category includes works by Patricia Crone, who provides a sophisticated and extremely thorough historical and philosophical context for understanding medieval Muslim thought in books such as God’s Rule: Government and Islam.¹³ One could also include Antony Black’s History of Islamic Political Thought in this group, which is more or less a literary introduction to various Muslim thinkers arranged in a chronological fashion.¹⁴ John Esposito largely subscribes to this approach, but with a more explicitly conciliatory aim in works including Islam: the Straight Path and Islam and the West: Muslim Voices of Dialogue.¹⁵ In contrast, Nathan Brown deals with concrete observation of majority Muslim states and their constitutional norms, and his primary normative argument seems to be quite simply for a constitutional, though not necessarily liberal, mode of governance. In light of recent events, his The Rule of Law in the Arab World: Courts in Egypt and the Gulf is highly relevant and may offer some explanation for why revolution has broken out in some states and not others. From a more general perspective, his insistence on decoupling constitutionalism and democratization, seen in Constitutions in a Nonconstitutional world, is crucial to this project.¹⁶

Providing a bridge between these works and those advocating a particular political vision are the writings of Tariq Ramadan. Key amongst his writings for the present enquiry are Islam, the West, and the Challenges of Modernity, Globalisation: Muslim Resistances, and The Quest for Meaning: Developing a Philosophy of Pluralism.¹⁷ Working with an explicitly pluralist and liberal perspective, Abdullahi an-Naim’s African Constitutionalism and the Role of Islam and his more recent Islam and the Secular State lay out a role for Islam as guarantor of social and political rights and advocates pluralist government to be the only form of political organization that can satisfy the demands of sharīʿa.¹⁸ These works will...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• Acknowledgements
• Preface
• Introduction—The Challenge of Comparative Constitutional Analysis, Questions and Methods
• 1 Constitutional Conversations—Alternative Models for the Challenge of Civilizational Conflict
• 2 Western Constitutionalism—Universal Norms or Contingent Cultural Concepts
• 3 From Medina to Runnymede—Comparing the Foundational Legacies of the Constitution of Medina and the Magna Carta
• 4 Comparing Constitutionalisms—Is there an Islamic Constitutionalism?
• 5 Constitutional Conversations—The Fusing of Political Tradition in Khayr al-Din al-Tunisi’s The Surest Path
• 6 The Arab Spring—Constitutional Thought in Contested Political Space, Questions and Conclusions
• Bibliography
• Index