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After more than 25 years of foreign invasion and civil war — and two years after the U.S. military campaign there began — Afghanistan has a reconstituted government and enjoys a modicum of social order. Among the more important achievements of the new Afghan government has been the recent promulgation of a proposed constitution. Last week President Hamid Karzai convened a constitutional assembly known as a loya jirga. Elected representatives from the whole nation gathered in Kabul to decide whether or not to ratify the proposed document. The world too is watching: The adoption of this new constitution not only is important for Afghanistan, but also might serve as a precursor of sorts to the constitution that Iraq will eventually adopt as a means of resuming its own sovereignty. The proposed Afghan constitution attempts to reconcile the various ethnicities and religious sects that make up Afghanistan’s citizenry, while at the same time committing Afghanistan to respecting international human rights norms. But what has drawn the attention of most observers is the new constitution’s commitment to Islam. There is no question that the document explicitly and firmly sets Islam’s role in Afghanistan. Chapter 1 of the constitution states that “Afghanistan is an Islamic Republic,” that “The religion of Afghanistan is the sacred religion of Islam,” and that “In Afghanistan, no law can be contrary to the sacred religion of Islam and the values of this Constitution.” STATE BEFORE CLERICS But it would be wrong to focus solely on criticisms questioning the legitimacy of establishing religion in a constitutional democracy. It is more important to note that the Afghan constitution clearly commits itself to making governmental policy through state agency. In other words, while the Islamic Republic of Afghanistan is ideologically committed to Islamic values, it vests state agents — not a group of clerics — with the political power to determine those values. While no law can be contrary to Islam, judges are to decide cases based on the rules of Islamic jurisprudence only when the constitution or other laws are silent on the issue. Likewise, the constitution stipulates that judges should have either higher education in law or in Islamic jurisprudence. Accordingly, one can expect that, over time, as the Afghan legislature enacts additional legislation, an ever greater body of Afghan substantive law will be the result of political deliberation rather than the product of clerical learning. Likewise, one would expect that as the volume of legislative enactments increases over time, education in positive law, rather than traditional Islamic law, will become increasingly the path of training chosen by new generations of Afghan jurists. The primacy of secular agents over clerical agents appears elsewhere in the Afghan constitution — notably, in educational policy. The constitution states in Chapter 2, “The state shall devise and implement a unified educational curriculum based on the provisions of the sacred religion of Islam, national culture, and in accordance with academic principles, and develop the curriculum of religious subjects on the basis of the Islamic sects existing in Afghanistan.” Thus, while the educational system must be based on Islamic principles as well as other elements of Afghan national culture, it is the obligation of the state to develop the curriculum used in the educational system. One can therefore expect that, in the context of education, clerical influence over the contents of education will decline in time as the Afghan Ministry of Education gains more authority and experience. A PROVEN METHOD The division of labor between secular law and Islamic law contemplated by the Afghan constitution is not uncommon in Muslim countries. For instance, Egypt has a constitutional commitment to Islam not only as a state religion, but also as the primary source of legislation. But Islamic law relevant to the Egyptian constitutional framework is Islamic law as interpreted by the organs of the state, not Islamic law as taught by clerics. In theory, therefore, while Egyptian courts and the Egyptian state are constitutionally obliged to rule by reference to Islamic law, in practice that means simply that the state cannot promulgate laws in open contradiction to clearly established rules of Islamic law. What counts as “clearly established” is, of course, often an open question. And where the sources of Islamic law suggest some ambiguity, even if the learned tradition of Islamic law deemed the question settled, the state has the leeway to pass the legislation it deems appropriate to achieve the public interest. A clear example of this approach to Islamic law is the recently enacted legislation in Egypt giving Egyptian women the right to obtain a divorce from their husbands in exchange for forgoing their dowry. While this type of divorce is well-established in the Islamic law of the clerics, they all agreed that it requires the consent of the husband. The Egyptian law in question, however, negates entirely the requirement of the husband’s consent. It is deemed to be consistent with the constitutional command that Islamic law be the source of all legislation by treating Islamic law to include not only those rules developed by learned jurists but also rules consistent with the revelatory texts of Islam (interpreted broadly to permit acts not expressly forbidden) so as to allow the state to substitute its own judgment regarding the content of Islamic law for that of the clerics. One would expect the future course of Afghan legal development to take a similar tack: The traditional rules of Islamic jurisprudence will remain important interstitially, but over time their relevance will decrease as the volume of Afghan positive legislation increases. At the same time, debates within Afghanistan regarding the consistency of secular legislation with Islam will turn on the extent to which a particular provision of Islamic law should be viewed as a universal commandment or as merely one rule among many others that could be viewed as being consistent with a general commitment to Islam. For example, clerics interpreted Islamic law to provide husbands with a unilateral right to divorce their wives without any judicial proceeding. Despite great resistance from clerics, most Islamic states have passed legislation refusing to recognize a divorce that had not been entered pursuant to a legal proceeding. In one sense, this positive legislation is “contrary” to Islamic law insofar as it prohibits a husband from exercising a lawful entitlement in the manner he sees fit. Viewed from another perspective, however, it is not contrary to Islamic law, because it does not require a husband to commit an act in disobedience to God, and thus the rule does not implicate any issue of religious conscience. ABSENCE OF CONTRADICTION If the experience of other states with constitutional commitments to Islamic law is any guide, it is likely that Afghan legal institutions will follow the lead of other states and interpret constitutional commitments to Islam to mean simply absence of clear contradiction, rather than a thicker conception of Islam that would require adherence to specific rules of Islamic law as developed over the centuries by Muslim clerics. A successful synthesis of Islamic legal traditions and Islamic religious values into the public structures of the Afghan republic is a project fraught with difficulty even in the best of circumstances. It will take years of “muddling through,” getting by on legal debate and the resolution of scores of cases in which judges and commentators are required to face the task of reconciling the competing demands of Islamic law and modern human rights law before one could realistically believe that a successful synthesis has been achieved. In the meanwhile, it will certainly be the case that both human rights advocates and Islamists will be disappointed with particular results of Afghan justice. Nevertheless, the experiment in Afghanistan ought to be given a chance to run its full course before it is declared a failure. Human rights advocates should take some comfort in the fact that, despite the constitution’s facial commitment to the establishment of Islam as a state religion and enshrining Islamic law as part of the country’s legal fabric, the principle of legislative supremacy is firmly established. Islamists should likewise take comfort in knowing that insofar as the religious character of the Afghan state is enshrined in its constitution, the Afghan state’s interpretations of both Islamic law and human rights norms should be consistent with the religious scruples of its citizens. BEYOND CONSTITUTIONS More important than its simultaneous commitment to human rights values and Islamic values, however, the success of the Afghan constitutional experiment will depend on the overall success of the Afghan state in returning Afghanistan to peace and prosperity. That, in fact, is a much more daunting challenge in the short term than discovering the proper intellectual formulation that would result in a reconciliation of Islam and human rights law. For a country that, over the last quarter-century, has seen a third of its population flee and its gross national product plummet, the success of a constitutional apparatus necessarily depends on the success of the state. (The same, of course, might be said about the challenges of nation-building in Iraq.) A peaceful and prosperous Afghanistan that is actively involved in legitimate cultural and commercial exchange with other members of the world community will undoubtedly interpret its Islamic commitments differently from an Afghanistan cut off from the world and reduced to a nation of hungry refugees. With this proviso, let us all hope that the world does not yet again turn its back on Afghanistan. Mohammad H. Fadel, who practices corporate law in New York, is president of the National Association of Muslim Lawyers. The association’s Web site can be found at www.namlnet.org.

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