UC Berkeley

Since the Islamic resurgence of the 1970s, many Muslim postcolonial countries have established and empowered constitutional courts to declare laws conflicting with shariʿa as unconstitutional. The central question explored in this dissertation is whether and to what extent constitutional doctrine developed in shariʿa review is contingent on the ruling regime or represents lasting trends in interpretations of shariʿa. Using the case of Pakistan, this dissertation contends that the long-term discursive trends in shariʿa are determined in the religio-political space and only reflected in state law through the interaction of shariʿa politics, regime politics, and judicial politics. The research is based on materials gathered during fieldwork in Pakistan and datasets of Federal Shariat Court and Supreme Court cases and judges.

In particular, the dissertation offers a political-institutional framework to study shariʿa review in a British postcolonial court system through exploring the role of professional and scholar judges, the discretion of the chief justice, the system of judicial appointments and tenure, and the political structure of appeal that combine to make courts agents of the political regime. Using this framework, the dissertation undertakes historical-interpretive case studies involving two puzzles. First, why the Federal Shariat Court declared the (largely symbolic) punishment of stoning for unlawful sex as un-Islamic in 1981, and why the Court reversed its ruling upon review in 1982. Second, why the Federal Shariat Court declared interest in banking, finance, and fiscal laws as un-Islamic in 1991, and why the Supreme Court upheld the ruling in 1999 but then overturned its ruling and remanded the case back to the Federal Shariat Court in 2002.

The project shows how competing approaches to shariʿa interact with the evolving judicial politics and regime politics in authoritarian and democratic periods. While the institutional structure of constitutional courts gives the ruling regime considerable control over the direction of shariʿa review, ruling regimes often depend on religio-political forces for legitimacy. When the regime draws upon conservative religio-political movements, representatives of such movements are appointed to courts and allowed to assert traditional doctrines of shariʿa. But when the regime draws its legitimacy from a broader group of religio-political and intellectual forces, a more diverse set of judges is appointed and enabled to rethink the tradition. The study questions approaches that consider shariʿa review in post-colonial states either as a liberal or as a conservative phenomenon. In contrast, the project shows how courts are agents of the political regime and judicial outcomes are products of authoritarian and democratic political processes. The dissertation also invites scholars of shariʿa review in Arab constitutional courts to study courts as political institutions and judges as political actors.