Constitutionalism and Islamic Law: A Critique of M. H. Kamali’s Approach

Abstract

The paper aims to discuss the M. H. Kamali’s views regarding Islamic state and, thus, Islamic constitutionalism. In constructing the theory of what he calls ‘Islamic constitutionalism’, he employs the terms Imamah, Khilafah, Shura, Bay‘at and many more, used throughout the history of Islamic governance, to describe the various parts of a modern form of government. However, the differences, rather, contradictions between Islam, in which these terms were originally introduced, and the modern state, to which these terms are employed, were totally overlooked. The metaphysics and ingredients of the modern state, this paper argues, are radically contradicting with Islam. Modern state claims sovereignty for itself while Islamic law claims it for the God. The state owns and produces citizens with monopoly of massive violence while in Islamic law there is no room for violence to such an extreme level. The state intervenes between human beings and their God and permits them purely by its own choice to do, even, the acts of worship. Moreover, the theory of separation of powers, one of underlying principles of constitutionalism, is not only ambiguous; rather, it is most confusing, riddled with so many exceptions, and infected with notorious difficulties and much imprecision and inconsistencies. If the principle per see is so, then how it may blindly be applied to Islamic law based on certain instances from the history of Islamic governance. On the basis of the arguments forwarded above, it seems that ‘Islamic constitutionalism’, as advocated by M. H. Kamali, is a figurative theory.