Islamic Reform and the Challenge of Nomocracy: The Constitutional Theories of Fazlur Rahman and Javed Ahmad Ghamidi

Abstract

This study describes and evaluates the constitutional theory of two influential scholars of Islamic thought from contemporary Pakistan who offer alternatives to the sharia state that incorporate representative self-government and individual rights: Fazlur Rahman and Javed Ahmad Ghamidi. Rahman promoted what I call an ethicist approach to Islamic reform, focused on discerning the underlying principles of the core sources of the Islam. Ghamidi promoted a scripturalist approach, focused on careful exegesis of the Qur’an. Each of these approaches contrasts with a third approach, which I refer to as juristic constitutionalism, which emphasizes the authority of religious scholars as guardians of Islamic law, independent of the state. This study argues that the institutional implications of the ethicist approach, favored among Western advocates of Islamic reform, tends to undermine the nomocratic principle of a law above the state, a principle widely thought essential to Islamic society and political thought, and that some scholars consider a contributor to the rule of law dimension of liberal constitutionalism. On the other hand, traditional jurisprudence does not support equal rights, notably in the area of family law and with regard to freedom of religion and free expression. Herein lies the paradox of divine law and liberal constitutionalism. Not only the content, but also the institutional context, must be of concern to the advocate of liberal constitutionalism in societies where belief in divine law is prevalent. Even though Rahman found problematic the notion of “reform through tradition,” an approach that incorporates an authoritative role for traditional jurists in determining the content of Islamic law, it is one that merits serious consideration.