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Constitutionalism in Islamic Countries: Between Upheaval and Continuity

Overview


Constitutionalism in Islamic Countries: Between Upheaval and Continuity examines the question of whether something similar to an "Islamic constitutionalism" has emerged out of the political and constitutional upheaval witnessed in many parts of North Africa, the Middle East, and Central and Southern Asia. In order to identify its defining features and to assess the challenges that Islamic constitutionalism poses to established concepts of constitutionalism, this book offers an integrated analysis of the complex ...
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Overview


Constitutionalism in Islamic Countries: Between Upheaval and Continuity examines the question of whether something similar to an "Islamic constitutionalism" has emerged out of the political and constitutional upheaval witnessed in many parts of North Africa, the Middle East, and Central and Southern Asia. In order to identify its defining features and to assess the challenges that Islamic constitutionalism poses to established concepts of constitutionalism, this book offers an integrated analysis of the complex frameworks in Islamic countries, drawing on the methods and insights of comparative constitutional law, Islamic law, international law and legal history. European and North American experiences are used as points of reference against which the peculiar challenges, and the specific answers given to those challenges in the countries surveyed, can be assessed. The book also examines ways in which the key concepts of constitutionalism, including fundamental rights, separation of powers, democracy and rule of law, may be adapted to an Islamic context, thus providing valuable new insights on the prospects for a genuine renaissance of constitutionalism in the Islamic world in the wake of the "Arab spring."
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Editorial Reviews

From the Publisher

"This is an ambitious, almost brash, collection. It seeks to bring together historical, legal, religious, political, and philosophical analysis in order to understand both the relationship between Islam and constitutionalism and the actual constitutional experiences of Muslim societies. The editors and contributors are to be commended for pooling their efforts to produce both breadth and depth. This will be a standard reference on the subject for many years to come."
--Nathan J. Brown, Professor of Political Science and International Affairs, George Washington University

"This volume is, without a doubt, the new standard for the field of constitutionalism and Islamic law. It is comprehensive in scope, sophisticated in its application and subtle in its identification of problems. It gathers in one place the absolute top authorities on the historical, conceptual, legal and political dimensions of constitutionalism in the Muslim world. There is no other single volume which comes close to accomplishing what this one has."
--Andrew March, Associate Professor of Political Science, Yale University

"This book is a solid, comprehensive, and enticing contribution to constitutionalism in the Muslim world. Some chapters provide novel and detailed studies of countries which have rarely been the subject of serious interest, and others revisit the experience of modern constitutionalism in places like Iran and Egypt with a fresh view drawn from the experience of constitutional courts and councils. Röder and Grote have succeeded in bringing in one volume an impressive collection of scholarly contributions in an understudied and crucial field at a time of great upheaval-and great need-in the Middle East and the Muslim world at large."
--Chibli Mallat, The Custodian of the Two Holy Places Visiting Professor in Islamic Legal Studies, Harvard Law School

"This volume presents a solid basis for further insight and research and should feature in any library dedicated to constitutionalism or the constitutions in the region." -Arab Regional Forum News, Dr. Achim-Rüdiger Börner, Attorney at law, Cologne

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Product Details

  • ISBN-13: 9780199759880
  • Publisher: Oxford University Press, USA
  • Publication date: 1/24/2012
  • Pages: 768
  • Product dimensions: 7.20 (w) x 10.10 (h) x 1.90 (d)

Meet the Author

Rainer Grote is a Senior Research Fellow at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg and an Adjunct Professor of Law at the University of Göttingen, Germany. He was a Visiting Professor at universities in France (Paris II), Turkey, and Chile and has worked as a legal expert and consultant on law reform projects in Latin America, Africa, and Asia. He is a coeditor of Constitutions of the Countries of the World (OUP) and teaches and writes in the fields of constitutional law, comparative law and public international law.

Tilmann J. Röder is a Senior Research Fellow and Head of the Asia and North Africa Projects of the Max Planck Institute for Comparative Public Law and International Law in Heidelberg, Germany. His recent research has focused on the subjects of rule of law and constitution building in Afghanistan, Pakistan, Iraq, Libya, and Kashmir. Together with Rainer Grote he organizes an ongoing series of lectures on Law & Development. He holds a law degree from Humboldt University of Berlin and a doctorate degree from Goethe University Frankfurt.

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Table of Contents

INTRODUCTION (Grote and Röder)
PREFACE (Grote and Röder)

PART I: CONSTITUTIONALISM AND ISLAM: CONCEPTUAL ISSUES
1. Constitutionalism in Islamic Countries: A Contemporary Perspective of Islamic Law (Kamali)
2. The Centrality of Shar?'ah to Government and Constitutionalism in Islam (Abou El Fadl)
3. The Separation of Powers in the Tradition of Islamic Statehood (Quraishi)

PART II: INTERRELATIONS BETWEEN CONSTITUTIONALISM AND SHARI'A: ANTAGONISM OR COMPLEMENTARITY?
1. Constitutionalism in Islamic Countries: A Survey from the Perspective of International Law (Wolfrum)
2. The Limited Applicability of Shar?'ah under the Constitution of Nigeria (Ebeku)
3. Constitutionalism in the Maghreb: Between French Heritage and Islamic Concepts (Le Roy)
4. The Relation between Constitution and Shar?'ah in Egypt (Sherif)
5. Secularism in Islamic Countries: Turkey as a Model (Özbudun)
6. The Kingdom of Jurists: Constitutionalism in Iran (Arjomand)
7. Islam and the Constitutional Foundations of Pakistan (Lau)
8. Constitutionalism, Islam and National Identity in Malaysia (Harding)

PART III: INSTITUTIONAL CONTROL OF CONSTITUTIONALISM
1. Models of Institutional Control: The Experience of Islamic Countries (Grote)
2. Constitutional Jurisdiction and its Limits in the Maghreb (Gallala)
3. The Turkish Constitutional Court as a Defender of the Raison d'Etat (Can)
4. A Different Approach to the Control of Constitutionalism: Iran's Guardian Council (Shirvani)
5. The Last Defender of Constitutional Reason? Pakistan's Embattled Supreme Court (Khan)
6. Malaysia: The Politics of the Judiciary (Lee)

PART IV: CONSTITUTIONALISM AND SEPARATION OF POWERS
1. The Separation of Powers: Historical and Comparative Perspectives (Röder)
2. Strong Presidentialism: The Model of Egypt (Bernard-Maugiron)
3. The Separation of Powers in a Fragmented State: The Case of Lebanon (Koch)
4. Yemen: A Burgeoning Democracy on the Arab Peninsula? (Shamiri / Würth / Glosemeyer)
5. Post-Soviet Central Asia: The Limits of Islam (Akbarzadeh)
6. The Rise of Presidentialism in Post-Soviet Central Asia: The Example of Kazakhstan (Kembayev)
7. Westminster Democracy in an Islamic Context: Pakistan, Bangladesh, Malaysia (Grote)
8. Indonesia: A Presidential System with Checks and Balances (Hosen)

PART V: EMERGING CONSTITUTIONS IN ISLAMIC COUNTRIES
1. Constitution-Making in Islamic Countries - A Theoretical Framework (Afsah)
2. Constitutionalism and Islam in Libya (Mezran)
3. Shar?'ah and Human Rights in the Interim Constitution of Sudan (Böckenförde)
4. Statehood and Constitution Building in Somalia: Islamic Responses to a Failed State (Elliesie)
5. Constitution-Making and State-Building: Redefining the Palestinian Nation (Khalil)
6. The Protection of Human Rights in the Palestinian Territories (Cotran / Brown)
7. Islam and the State in Iraq: The Post-2003 Constitutions (Istrabadi)
8. Constitutional Legitimacy in Iraq: What Role Local Context? (Al-Ali)
9. The Separation of Powers and the Problem of Constitutional Interpretation in Afghanistan (Hashimzai)
10. Constitutionalism in an Islamic Republic: The Principles of the Afghan Constitution and the Conflicts between them (Moschtaghi)

LIST OF CONTRIBUTORS

INDEX

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