Constitutional Law as Ethico-Political Discourse

Several scholars and commentators have argued that constitutional law is “one of the most under-developed areas of fiqh.” That this is so is hardly surprising: constitutional law as it has been conceived thus far developed in the context of the modern nation-state and is thus historically foreign to Islam. For the most part of history, the various caliphates, sultanates and governments which together constituted dar al-islam (territory of Islam) operated under unwritten constitutions, yet firmly under the purview of the Shari’ah, so that, according to Noah Feldman, “the arrival of written constitutionalism in the Muslim world marked the beginning of the end of the Islamic state.”