On July 15, 2003, the American administrator of Iraq, L. Paul Bremer III, finally articulated a clear benchmark for ending the Coalition Provisional Authority's administration of Iraq: the governing council's promulgation of a democratic constitution and the subsequent holding of national elections. Bremer has said he expects the constitution writing process to take about six to eight months. Iraqi constitution drafters and their American overseers will confront a plethora of thorny issues, but none is likely to attract more attention than Islam's place in the new constitution. Some anticipate that this issue will be definitive in shaping the role of Islam in the new Iraq. But an examination of other Arab constitutions suggests that the outcome of the debate over Islamic provisions will be primarily symbolic; the practical effect is likely to be far less than the emotional nature of the debate might suggest.
All Arab constitutions, with the exception of Lebanon's, make some provision for Islam, generally in one of three different ways. First, they proclaim Islam as the state religion (and sometimes mandate a Muslim head of state). The intention behind these clauses is generally to sanctify institutions and practices that predate the constitution (such as a state mufti, responsible for advising political officials on religious laws). Second, constitutions often recognize religious law a role in matters of personal status (such as marriage and divorce and inheritance). Again, such clauses merely recognize existing practice.
Third, some Arab constitutions provide for a more ambitious role for Islamic law, proclaiming its principles to be "a chief source"-or, in the case of Egypt since 1980-"the chief source" of legislation. Such clauses are usually seen as attempts to Islamicize the legal (and political) system, though they have not had that effect in practice. Islamic clauses change little in the legal order, but send important signals about the balance of political forces and suggest more religious understandings of national identity.
The reason such clauses have limited effect is that the Sharia is not an easily identifiable set of rules that can be mechanically applied, but a long and varied intellectual tradition. Proclaiming Islamic Sharia "the principal source of legislation" places a burden on officials to draw on that tradition in drafting legislation, but it gives them little guidance on how to do so.
Egypt offers the best test case for the legal impact of Islamic language. Egypt's constitutional court, not reluctant to strike down legislation, divides Sharia principles into two categories: those that are unambiguously clear and authentic, and those that are subject to interpretation. The court has ruled that the constitution forbids violation of the first set of principles, but those are so few that the court turned primarily to the Sharia to strike down a law only once. In other matters where the Sharia admits of multiple interpretations, which comprise the vast majority of possible questions, officials may choose whatever interpretation they find appropriate or even to develop their own new ones. The effect is therefore not to Islamicize the legal order but to ensure that any attempts to draw on Islamic law operate through normal political and constitutional channels. If Egypt, with the advantage of a relatively homogeneous society, is unable to agree on a definitive interpretation of Islamic law for most issues, then the task seems nearly impossible in Iraq, where any attempt to implement Islamic law will demand choosing among many Sunni and Shiite variants.
If the legal effects of constitutional language on Islam are so minor, why does the matter excite such passion? The explanation lies in politics rather than law. The Iraqi constitution's language will not only be a litmus test of the new state's commitment to Islam, but also of the strength of various religious and political forces. Islamist groups often seize on strong constitutional language to buttress their case not in the courts, where they generally lose, but in the public sphere.
For instance, drawing in part on the Basic Law's provision establishing the Islamic Sharia as a source of legislation, Palestinian Islamist groups recently launched a campaign against a new draft penal code on the grounds that it violates Islamic law. Islamists are unlikely to succeed in their legal argument, but the political effect will be more significant (though perhaps mixed). Until now, Islamist groups have remained aloof from the Palestinian legislative process, fearful of legitimating the structures established by the Oslo Accords. The recent campaign may be evidence that they are being enticed into participation in the system.
Strong language on Islam in the Iraqi constitution will likely have little direct legal effect, but will be far more significant as a test of strength for Islamist groups. Perhaps more important, constitutional language may give Iraqi Islamists a symbolic stake in a political order that initially has provoked skepticism in some Islamist circles.
Nathan Brown is professor of political science at George Washington University and author of Constitutions in a Nonconstitutional World: Arab Basic Laws and the Prospects for Accountable Government (SUNY Press, 2001).