The Balance between Islamic Law, Customary Law and Human Rights in Islamic Constitutionalism through the Prism of Legal Pluralism

Abstract

This article examines how the inclusion or exclusion of Islamic law and Muslim-based customary law affects de facto or de lege universal human rights. The view adopted is that there is an Islamic form of constitutionalism that should respect Islam, Shari'a law and Muslim customary law. The author therefore suggests a different approach to constitution-making than the transnational constitutional theory and secular theories, looking at the interaction between sources of law and the role for legal pluralism. The originality of the article is to be found in the demonstration that Islamic constitutionalism is not a threat to transnational constitutionalism, or a competitor, but an alternative. The argument is that a constitutional inclusion of Islamic law and Muslim-based customary law is possible if the authoritative sources of Islam are interpreted in the light of the new hermeneutics of Shari'a law. Islamic law and Shari'a-based customary law need to be reformed, taking international human rights law as a yardstick. This approach to interpretation can then promote a more human-rights oriented reading of Islamic legal sources. The aim is to ensure that the Constitution is legitimate in the eyes of all while ensuring that legal pluralism does not undermine State law and violate universal human rights.