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School of Law

Religion & Comparative Constitutionalism

Course Code:
15PLAH052
Unit value:
0.5
Taught in:
Term 1

Objectives and learning outcomes of the course

1. Identify the variety of existing constitutional regimes with respect to religion and comparatively evaluate them.
2. Critically examine the concept and practice of “Islamic constitutionalism” in Islamic-majority states in the Middle East and beyond.
3. Problematize the distinction between western secular and Islamic religious constitutional orders through applying a comparative approach to demystify the question of religion in the Middle East.
4. Have a sophisticated inter-disciplinary approach to religion through mastery of a variety of historical, sociological, philosophical and anthropological texts on the religious experience
5. Evaluate case studies like Egypt, Tunisia, Turkey, Iran and U.S. from a comparative perspective while distinguishing between conceptual approaches and pragmatic (anti-formalist, anti-foundational) approaches to debates on religion and constitutionalism.   
6.Apply critical legal tools (like legal realism, critical legal studies, and post-structuralism) to the study of religion, society and the constitution in the context of the Middle East.

Scope and syllabus

The course will allow students to engage in high level debates on religion and constitutionalism against the background of (1) the rise of the so-called Islamic constitutionalism since the 1970s and the accumulation of constitutional jurisprudence to address the role of religious law in constitutionalism; (2) Constitution-making after the Arab Spring led to a contentious process with specific reference to the role of religious law in the constitutional text and practice. Unlike other courses in SOAS that focus on Islamic law, here the interest in Islamic law is the extent to which it interacts with constitutional law, and the focus is more on public aspects rather than private law arrangements of Islamic law. The course contextualizes the debates on Islamic constitutionalism within North American and European debates in constitutional theory and political theory to show the similarity between these debates. It illustrates how different approaches to conceptualizing both religion and constitutionalism may lead to different consequences and constitutional arrangements. The topics division and syllabus are tentatively as follows (the following is merely indicative and may change according to the convener’s discretion):   

Class 1: Religion, Secularism, Modernity

Friedrich Nietzsche, The Gay Science (Bernard Williams—ed., Cambridge University Press, 2001)(sections 108, 125, 343)
Emile Durkheim, The Elementary Forms of the Religious Life (Trans. Carol Cosman, Oxford University Press, 2001)
Talal Asad, Genealogies of Religion: Discipline and Reasons for Power in Christianity and Islam (Johns Hopkins University Press, 1993)
Talal Asad, Formations of the Secular: Christianity, Islam, Modernity (Stanford University Press, 2003)

Extra reading:

William E. Connolly, Why I am not a Secularist (University of Minnesota Press, 1999)
Ronald Beiner, Civil Religion: A Dialogue in the History of Political Philosophy (Cambridge University Press, 2010)

Class 2: Law, Religion and State

Ran Hirschl, “Comparative Constitutional Law and Religion”, in Comparative Constitutional Law 422-438 (Tom Ginsburg and Rosalind Dixon – eds., 2011)
H. E. Chehabi, “Religion and Politics in Iran: How Theocratic Is the Islamic Republic?” 120(3) Daedalus 69-91 (1991).
Extra reading:
Martin Lau, The Role of Islam in the Legal System of Pakistan (2006).

Class 3: What is Islamic Law?  

W. B. Gallie, “Essentially Contested Concepts”, 56 Proceedings of the Aristotelian Society 167 (1956).
Clifford Geertz, Islam Observed: Religious Development in Morocco and Indonesia (University of Chicago Press, 1971)
Robert Gordon, “Critical Legal Histories,” 36 Stanford Law Review 57 (1984) (mainly pp. 100-102, 112-113).
Amr Shalakany, “Islamic Legal Histories”, 1 Berkeley Journal of Middle East & Islamic Law 2 (2008)

Extra reading:

Mohammad Fadel, A Tragedy of Politics or an Apolitical Tragedy, 131 Journal of American Oriental Society 109 (2011)  

Class 4: Law, Identity, and Distribution

Amr Shalakany, “Between Identity and Redistribution: Sanhuri, Genealogy and the Will to Islamise”, 8 Islamic Law & Society 201 (2001).
Lama Abu Odeh, “The Supreme Constitutional Court of Egypt: The Limits of Liberal Political Science and CLS Analysis of Law Elsewhere”, 59 American Journal of Comparative Law 985 (2011)

Extra reading:

Haider Ala Hamoudi, “Ornamental Repugnancy: Identitarian Islam and the Iraqi Constitution," 7(3) University of St. Thomas Law Journal 692-713 (2010)

Class 5: Containment/Secularization or Reconciliation?  

Ran Hirschl, “Constitutional Courts vs. Religious Fundamentalism: Three Middle Eastern Tales”, 82 Texas Law Review 1819 (2004)
Clark B. Lombardi & Nathan J. Brown, “Do Constitutions Requiring Adherence to Shari’a Threaten Human Rights? How Egypt’s Constitutional Court Reconciles Islamic Law with the Liberal Rule of Law”, 21 American University International Law Review 379 (2006)

Class 6: Co-existence but not Reconciliation?

Abdullahi Ahmed An-Na’im, “The Compatibility Dialectic: Mediating the Legitimate Coexistence of Islamic Law and State Law”, 73 Modern Law Review 1 (2010)  
Mohamed H. Fadel, “Seeking an Islamic Reflective Equilibrium: A Response to Abdallahi A. An-Na’im’s Complementary, Not Competing, Claims of Law and Religion: An Islamic Perspective”, 39 Pepperdine Law Review 1257-1272 (2012)

Class 7: Religious Minorities

Haider Ala Hamoudi, “Religious Minorities and Shari’a in Iraqi Courts”, 31(2) Boston University International Law Journal 387-412 (2013)   
Ahmed El-Gaili, “Federalism and the tyranny of religious minorities: challenges to Islamic federalism in Sudan”, 45 Harvard International Law Journal 503-546 (2004).

Class 8: Political Theology (i): the (Secular) Constitution as Scripture

Sanford Levinson, Constitutional Faith (Princeton University Press, 1988)
Thomas C. Grey, The Constitution as Scripture, 37 Stanford Law Review 1 (1984).
Martin Loughlin, Foundations of Public Law (Oxford University Press, 2010)

Extra reading:

F. W. Maitland, The Church, in The Constitutional History of England 506-526 (1908)

Class 9: Political Theology (ii): Religious Influences on Secular Courts:

George Kannar, The Constitutional Catechism of Antonin Scalia, 99 Yale Law Journal 1297 (1990)
Stephen M. Feldman, Empiricism, Religion, and Judicial Decision-Making, 15 William & Mary Bill of Rights Journal 43 (2006)
Jay Alan Sekulow, Witnessing Their Faith: Religious Influence on Supreme Court Justices and Their Opinions (2006).

Extra reading:

John Jr. Witte & Frank S. Alexander. Christianity and Law: An Introduction. Cambridge University Press (2008).  

Class 10: Assessing Islamic Constitutionalism: Egypt and Tunisia after the Arab Spring   

Nimer Sultany, “Against Conceptualism: Islamic Law, Democracy and Constitutionalism in the Aftermath of the Arab Spring”, 31(2) Boston University International Law Journal 435-463 (2013).  
Nimer Sultany, “Religion and Constitutionalism: Lessons from American and Islamic Constitutionalism”, Emory International Law Review (forthcoming, 2014).   

Extra reading:

Haider Ala Hamoudi, “Death of Islamic Law”, 38 Georgia Journal of International & Comparative Law 293-337 (2010).

Method of assessment

Assessment weighting: 100% coursework (three reaction papers 1,000 word 10% each and one 4,000 word essay 70%). Resubmission of coursework regulations apply.