Intisar A. Rabb, We the Jurists': Islamic Constitutionalism in Iraq, 10 U. Pa. J. Const. L. 527 (2008).
Abstract: This article examines the implications of incorporating Islamic law in a modern democratic constitutional context. The new Iraqi constitution's designation of Islamic law as "a source of law" placed the issue of Islamic law's role in new democracies at the forefront of the debates on "Islamic constitutionalism" - governing structures characterized by written constitutions that incorporate Islamic law. With its incorporation of both Islamic law and democratic/human rights provisions, the Iraqi constitution establishes a scenario where the government must legislate or adjudicate with respect to a set of dual norms. What challenges does the government face in attempts to legislate and adjudicate vis-a-vis an ostensibly religious legal system? Must it delineate a relationship between its traditional three branches and Islamic law's traditional interpreters (the jurists)? This article takes up these questions, positing that the role of Islamic law in an Islamic constitutional regime revolves around issues of interpretation and the institutional relationship between the government and the jurists. Taking the debates about family law reforms as a case study, the article assesses ways in which sentiments about Islamic law play out in discussions of popular sovereignty ("we the people"), juristic input ("we the jurists"), and legal reform. By comparing Iraq to existing models for Islamic constitutionalism, the article shows how the prospects for progressive laws and legal reform in Iraq depend on the form of Islamic constitutionalism adopted. More generally, the article offers insights in the areas of Islamic law and legislation in contemporary contexts of democracy - building, legal reform, and rule-of-law.