The Third Wave of Liberal Constitutionalism

POST-IDEOLOGICAL CONSTITUTIONALISM: return to the Rule of Law + Islamic law.

The third wave of constitutionalism is the latest one. The process of revolution that is going on today is leading towards unknown constitutional results.

The interim Egyptian Constitution is a constitution that will be modified soon. In the last period the parties affiliated to the Muslim Brotherhood are gaining a lot of importance that is transforming into power. Nowadays it is impossible to forecast how the new constitution will be like and whether in the future more “Islamic or Islamist constitutions” will be written.

The leading scholars are:
YUSUF AL-QARADAWI (1926) ➔ enforcement of shari’a as the first aim of an Islamic state (“the state follows the law”).
FAHMI HUWAYDI (1937).

They are not organized but have converged around MODERATE IDEAS.

They are post-ideological because they represent the syncretism between liberalism (XIX century accountability) and the Islamic thought. They think that the accountability should not be brought from the Western sources but from the four sources of law that come from the Islamic sources of law.
They affirm that they already know the principles of limitation of power of the Glorious, the American and French Revolutions. These principles appear in the Qur’an.

Their syncretism lies between the Rule of Law and the Islamic Law.

This principle is visible in the 1980 amendment to the Egyptian Constitution. The main elements that changed from the previous constitution are the first articles. Before it was said that the sources of the Islamic law had to be taken into consideration among all the other sources of the Egyptian Constitution.

In 1980 the Islamic sources of law became the source of the institutions.

In the Egyptian case there is a Constitutional Court that also has the role to check for the conformity to Islamic law of the new laws emanated.

The article that imports the Islamic law as main source of law is called REPUGNANCY LAW. According to this article every sentence and law must pass through the Constitutional court.

The shari’a has mostly converted into a civil law system and the Islamic law has almost the feature of code.
a) YUSUF AL-QARADAWI

He does not teaches in any university, he is called global mufti, everyone knows him.

He recalls al-Banna teachings.

The law must precede the State and not the oppose it as it is in the Western countries.

Muslims are sinners if they do not live in a Muslim state ➔ colonial age: separation between din wa dawla (e.g. Turkey).

Necessary enforcement of verses 58 and 59 of the IV Sura: principle of repugnancy clause:
- to govern with justice;
- to obey to God, to the Prophet and to the wali al-amr (whoever possesses the authority).

The Islamic state is an IDEOLOGICAL STATE based on:
Islamic ideology (fikra);
Islamic faith (‘aqida);
education of believers and transmission of the Islamic teachings.
In practice he means the community of Medina which was “a secular state governed by Islam” ➔ SECULAR, in this perspective, means administrated by people ➔ the Islamic state is Constitutional.