Document Type

Article

Publication Date

2012

Abstract

“Repugnancy clauses” -- those constitutional provisions that, in language that varies from nation to nation, require legislation to conform to some core conception of Islam -- are all the rage these days. This clause, a relatively recent addition to many modern constitutions, has emerged as a central focus of academic writing on Muslim state constitutions generally, and on Arab constitutions in particular. Much of the attention it has received has been enlightening and erudite. Yet one aspect of the broader repugnancy discourse that deserves some attention is an important, often de facto, temporal limitation on the effect of the clause. There appears to be a rising sentiment that repugnancy in the Arab world should not apply to legislation enacted prior to the date that the repugnancy clause was inserted into the constitution. Irrespective of electoral results throughout the region heavily favoring parties that seek a more robust role for shari'a in public life, the trend seem to be growing deeper roots.

This is particularly ironic because the non-retroactive canon is fundamentally incoherent, both from the perspective of constitutional structure as well as substantive policy. As to the former, surely a constitutional amendment of this sort must generally have retroactive effect. It would make little sense to amend a constitution to grant all citizens equal protection under the law and then for a court to suggest that existing slavery laws might be exempted because enacted before the amendment in question. Such a result would be one that courts would generally resist to the extent it was possible to do so, given how much violence is done to the amendment by the limitations. This would seem to be no less the case for a clause requiring legislative conformity with Islam.

Moreover, as a matter of policy, if there exists in any state a broad view that law should conform to Islam (a commonly stated Islamist position), and if that view is widespread (a fair conclusion given recent electoral results), then surely the advocates of that view should be as willing to apply it to past legislation as to future. Either the Islamicity of legislation is a cornerstone of the Muslim state or it is not. If it is, then the date of the legislation vis-à-vis the date of the repugnancy amendment is surely beside the point for the advocates of shari'a conformity. Indeed, the fact of the incoherence may well explain the reluctance to discuss it often, particularly openly.

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