SEARCH ARTICLE

15 Pages : 142-154

http://dx.doi.org/10.31703/gssr.2024(IX-II).15      10.31703/gssr.2024(IX-II).15      Published : Jun 2024

Islamic Jurisprudence and Constitutional Interpretation: Conflict or Harmonization?

    In this paper, the connection between Islamic jurisprudence (fiqh and uṣul al-fiqh) and the modern constitutional interpretation is examined in terms of their incompatibility or the possibility to reconcile them with the modern constitutional systems. The mixed doctrinal-qualitative study will examine the text of constitutions, statutes and landmark cases of Pakistan and Malaysia. It compares major Islamic principles of juristic (ijtihad, qiyas, maq2si) with constitutional interpretive principles(textualism, purposivism, proportionality). The findings indicate that harmonization is probable when courts rely on structural reasoning and the rule-of-law principles to resolve the tension between religious claims and the constitutional values. There are however tensions in spheres of system-wide changes (e.g., finance) and restrictions on identity-based public order, where conflicting religious and constitutional norms intensify the conflict. The research suggests a reconciliation model whereby an institutional design is crucial, interpretive techniques, and the ability of courts to reconcile both systems.  

    Islamic Jurisprudence; Constitutional Interpretation; Maqāṣid Al-Sharīʿah; Maṣlaḥah; Proportionality; Constitutional Identity; Judicial Review
    (1) Kamran Abdullah
    Lecturer, Department of shariah and Law, Islamia College Peshawar, KP, Pakistan.