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Hastings International and Comparative Law Review

Abstract

The military coup in Egypt and the Taliban insurgency in Pakistan and Afghanistan have once again highlighted the political stakes of incorporating Islam within a constitution. Many constitutions in the Muslim world contain clauses that recognize the Islamic character of the state; yet, there is little scholarship empirically analyzing these clauses; indeed, while much has been written about the effects of incorporating a particular type of clause-the Islamic supremacy clause, to date, we know very little about the comparative constitutional universe of Islamic clauses: How prevalent is Constitutional Islamization? Which countries have the most or least Islamized constitutions? Do secular countries in the Muslim world promise more human rights than Islamic countries? Does having more Islam in the constitution correlate with weaker political participation and gender equality?

This Article tries to fills this gap. Relying on an original dataset based on the coding of the constitutions of all Muslim majority countries globally, it introduces the Islamic Constitutions Index (ICI) -the first index to measure and rank constitutions according to their Islamicity. Using this index as a proxy for Constitutional Islamization, we investigate the universe of Islamic constitutions. Our analysis shows that roughly half of all Muslim majority countries have Islamic features in their constitutions and geography and colonialism seem to have some influence on Islamicity. Further, Saudi Arabia, Iran and Pakistan lead the rankings of Constitutional Islamization while the Central Asian countries all have secular constitutions. We also show that while Muslim countries' constitutions generally promise a number of important human rights and none explicitly incorporate corporal punishments, constitutions that privilege secularism tend to, on average, promise more rights than constitutions that privilege Islam. Indeed, of the top 10 countries in the Muslim world measured in terms of de jure constitutional promise of rights, all but one-Maldives, are secular. We also find that Islamicity of the constitution seems to correlate negatively with democracy, gender equality and political stability. Although preliminary and not implying causation, our correlation analysis has considerable implications: not only can it provide some support to peace-making efforts with Islamic militant groups doubting the Islamic character of the states they are fighting, it implies that the Muslim world may in fact chart its own version of "Islamic constitutional democracy" that may be different from the Western paradigm of democracy. Further, our work lays the foundation for a research agenda that investigates the relationship between political Islam and constitutional democracy.

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