SOAS Research Online

A Free Database of the Latest Research by SOAS Academics and PhD Students

[skip to content]

Sultany, Nimer (2013) 'Against Conceptualism: Islamic Law, Democracy, and Constitutionalism in the Aftermath of the Arab Spring.' Boston University International Law Journal, 31. pp. 435-463.

Text - Draft Version
Download (208kB) | Preview


This article examines the debate over the constitutionalization of shari’a in post-authoritarian Arab regimes. A shari’a clause would empower judges to review the validity of legislation on the basis of Islamic law. Thus, it raises for the first time the potential counter-majoritarian effect of judicial intervention. This article examines the conceptualist-style approach to the question of Islam and democratic constitutionalism. Such an approach, which has hitherto dominated the debate, seeks to show the compatibility of Islam and democracy, or the lack thereof, on the basis of conceptual analysis of abstract concepts like Islam and democracy. The article maps and evaluates the different discursive moves that moderate Islamists, Salafis, and secularists deploy in this debate. Comparing the debates to the U.S. constitutional debates between originalists and living constitutionalists, I show the unacknowledged methodological similarities between the opposing camps. I argue that the contestability of the basic concepts on which the debate is based shows the futility of the conceptualist debate. Furthermore, ignoring contestability, fleeing to abstraction, and falling prey to formalism produce bad normative effects that are detrimental to the debate. Ultimately, I seek to advance a different kind of conversation: a pragmatic, consequentialist-style analysis that takes into consideration prudential and normative arguments for or against the inclusion of shari’a law in the emerging Arab constitutional orders.

Item Type: Journal Article
Keywords: constitutionalism, democracy, Islamic law, Egypt, Tunisia, Arab Spring, conceptualism, pragmatism
SOAS Departments & Centres: Departments and Subunits > School of Law
Legacy Departments > Faculty of Law and Social Sciences > School of Law
School Research Centres > Centre of Islamic and Middle Eastern Law
ISSN: 07378947
Date Deposited: 21 Oct 2013 09:51

Altmetric Data

There is no Altmetric data currently associated with this item.


Download activity - last 12 monthsShow export options
Downloads since deposit
6 month trend
6 month trend
Accesses by country - last 12 monthsShow export options
Accesses by referrer - last 12 monthsShow export options

Repository staff only

Edit Item Edit Item