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This Article examines the role of religious law in constitutionalism by focusing on Egypt and Tunisia as two main case studies: Egypt is an example of the so-called “Islamic constitutionalism” and Tunisia is an example of a more secular variety. Both cases are analyzed against the backdrop of U.S. constitutional theory and law. I begin by rejecting conceptualist approaches which focus on abstract concepts in order to assess the compatibility of religion, like Islam, with democracy. I show the futility of this kind of debate through a comparison to American debates between “living constitutionalists” and “originalists.” I then elaborate a pragmatic account that assesses the consequences of different institutional arrangements. For that purpose Part I rejects the normative and political-realist arguments supporting the constitutionalization of religion, according to which constitutionalization of religion in a largely-liberal constitution is either an ideal compromise or a historical dictate. I focus on four assumptions that underlie these arguments: that popular acceptance requires Islamic constitutionalism; that people’s identity includes religious law and should be reflected in Islamic constitutionalism; that Islamic law’s indeterminacy belittles the possible risks of its constitutionalization; and that the legal order’s transparency requires an acknowledgment of the religious aspect.
Part II considers two of the primary arguments supporting the U.S. Establishment Clause: alienation; political division and distraction; and corruption of religion. The first two arguments have been subjected to growing critiques in the United States. I defend these two arguments by connecting between alienation and internal effects within religious minorities, and between political division and instability and violence. Specifically, I argue that, first, the constitutionalization of religion is likely to produce an unequal status for religious groups given the pluralist conditions in Egypt and Tunisia. Second, constitutionalization is likely to polarize and destabilize the political system in these states. Finally, this polarization happens for the wrong reasons and may produce bad effects: the dominance of the debate over the constitutionalization of religion may distract the citizenry in these states from addressing other socio-economic and political questions that are not necessarily reduced to concerns over religious law; constitutionalization is an anti-participatory move because it empowers few jurists to make decisions rather than collective decision-making; delegating controversial religious questions to the judiciary is a form of secular escapism; and a constitutionalization of religion is part of a constitutional fetishism which—along with judicial empowerment—unduly legalizes political questions. The implication of these effects is to neglect political responsibility. Thus, the Article ends with a call for a Weberian consequences-driven ethics of responsibility. This ethical stance, in turn, should be part and parcel of the recognition of value pluralism and the attempt to transform politics into an adversarial “agonistic pluralism.”
By displacing the conceptualist debate, the Article seeks to avoid the generalizing tendency of conceptual debates; evade the unwarranted optimism of the normative argument; and reject the realist argument’s despondency and uncritical acceptance of reality. Additionally, the Article seeks to demystify Islamic constitutionalism by grounding the discussion in American constitutional debates. Finally, the Article argues against Islamic constitutionalism without falling prey to essentialism.
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