Comparative Public Law in an Islamic Context - NOTE: THE COURSE IS CANCELLED IN THE SPRING SEMESTER 2017

Course content

This course provides a thorough survey of the constitutional systems across the Muslim world in the modern period. Spanning all Muslim-majority states from Morocco to Indonesia, we will explore the transmission of institutional forms and constitutional ideas, examine the diversity of constitutional arrangements, evaluate how effective these arrangements are, and what role religious law plays in the different jurisdictions.
Since 2009 there has been a renewed wave of popular unrest sweeping throughout much of the Muslim world. Secular, but generally repressive and inefficient autocracies have come under pressure or been swept aside entirely. At the same time, the various Islamic Republics have not fared much better, but have been convulsed by internal unrest, economic and social decline.
Throughout the Muslim lands, existing constitutional arrangements are being challenged, often very violently. After this course you will be able to comprehend what the substantial content of these disputes is, who the main political and institutional actors are, how to account for startling degrees of violence, and why law plays such a prominent role.
This course has no formal academic prerequisites and no knowledge of Oriental languages is necessary. All literature will be in English and made available through Absalon. Jargon is generally avoided and necessary technical terminology will be explained in class. The focus of our readings and discussions lies on the modern period after 1798 – Napoleon’s Egyptian Campaign.
We will therefore look at the large body of classical writings on Islamic governance only in so far as they are necessary to understand the contemporary debate, but instead concentrate on the legal and political developments of the 20th and 21st centuries.

Three common themes will characterise the course:
• We privilege the study of the legal and social reality and seek to highlight where it is at odds with dogmatic stipulations, be they religious or constitutional
• We seek to illustrate the practical tensions posed by limited administrative capabilities and political legitimacy that resulted from the incomplete reception of modern bureaucratic statehood, especially those affecting the rule of law
• We seek to examine how popular dissatisfaction with the practical performance of Muslim governments has fuelled demands for greater accountability, with a particular attention to the role of the judiciary and the use of often religious law as a ‘language of justice’ under the guise of cultural authenticity.

Ultimately, the course aims to equip participants to better understand Muslim contemporary discourse about the res publica, better contextualise the demands for religious law in public life, and to better ascertain the theoretical and practical feasibility of postulated religious alternatives to the still-dominant secular model of governance. The course covers each week one sub-region centred on a particularly important country, highlighting the distinct approaches towards incorporating modern state institutions.

Week 1: Overview:
The Challenge of Modernity
Session 1: Early Modern History of the Region
Session 2: Four Models of Adaptation

Week 2: Secularism: Turkey
Session 3: Ottoman Legal Reform: Tanzimat and Majallah
Session 4: Kemalism and its Discontents

Week 3: Religious Modernism: North Africa
Session 5: Egypt and Japan: Contrasting Legal Reform
Session 6: Morocco and Tunisia: Constitutional and Personal Status Reform

Week 4: Traditionalism: The Gulf Monarchies
Session 7: Saudi Arabia: Patrimonial Law
Session 8: Rents and Religion: Traditional Law and Extractive Economics

Week 5: Fundamentalism: Iran
Session 9: Roots and Results of Revolutionary: Constitutional Contradictions
Session 10: Challenging the status quo: Between Extremism and Pragmatism

Week 6: Fragmentation and Chaos: The Levant
Session 11: Republics of Fear: Authoritarian Bargains and their Constitutions
Session 12: Consociationalism: Investiture of Order in Fractioned Societies

Week 7: Jihadi Gangsters: Afghanistan, Pakistan and Bangladesh
Session 13: Garrison or Failed State? Common Law and Common Sense
Session 14: Legal Archaeology: The Palimpsest of Afghan Law

Week 8: Liminal Successes: Malaysia and Indonesia
Session 15: Colonial Constitutions and the Use of Emergency Law
Session 16: Pluralist Transitions: Decentralisation, Federalism and Democracy

Week 9: Failure to Form: Sub-Saharan Africa
Session 17: Intangible Wealth and the Importance of Administrative Law
Session 18: African Awakening: Weak Institutions and Constitutional Responses

Week 10: Thrown into the Void: Post-Soviet Central Asia
Session 19: State Collapse and Authoritarianism: Secular Legacies and Religious Visions
Session 20: Constitutional Rhetoric and Legal Realities

Week 11: Minority Regimes: India and Europe
Session 21: Indian Muslims: Personal Status Laws and Political Engagement
Session 22: Euroislam: Uneasy Constitutional Accommodations

Week 12: Conclusions and Outlook
Session 23: Contending Visions on Blasphemy and Freedom of Expression
Session 24: Review

Learning outcome

At the successful completion of the course, students will have obtained the following learning objectives:

Knowledge Students will:
• Know the basic contours of the colonial history of present-day Muslim states
• Know the divergent administrative and legal paths that led to different state traditions
• Know the four basic responses to modernity in the Islamic world
• Know the main ideological movements and their respective positions on public law
• Know the main differences between sacred and bureaucratic law
• Know the basic functions of government in the modern international system
• Know how to decipher constitutional provisions and relate them to the functional division of administrative labour
• Know the difference between dogmatic ideal, whether religious or constitutional, and legal reality.

Skills Students will have learned to:
• Read basic macro-economic, social, and governance indicators
• Evaluate the relative performance of administrative and political systems
• Assess the importance of legal systems for economic performance and political stability
• Identify legal and administrative shortcomings and link them to popular dissatisfaction

• Assess the feasibility of competing ideological governance programmes
• Carry out independent interdisciplinary research
• Communicate academic findings to an interdisciplinary audience
• Distinguish between dogmatic ideal and practical reality
• Analyse complex socio-political phenomena in current events
• Synthetize their public law implications
• Communicate these effectively.

Competencies: Students will be able to
• Conduct independent interdisciplinary research
• Critically examine the validity and reliability of scientific data
• Disaggregate complex phenomena in the Islamic world
• Question explanatory hypotheses relating to that area
• Identify independent and intervening variables in explanatory theories describing it
• Distinguish legal from related argumentation
• Critically assess claims about cultural and legal immutability.

This course is offered and examined in a stand-alone fashion as a normal credit course at master’s level. The two weekly sessions will follow a seminar format in which that week's assigned readings and constitutional texts are jointly analysed, problems discussed, and questions clarified. Participants are, however, expected to simultaneously complete the online course “Constitutional Struggles in the Muslim World,” offered by the instructor on the Coursera platform (https:/​/​​course/​muslimworld). Students are therefore able to familiarise themselves with the historical, political, and institutional background through pre-recorded lectures, allowing us to focus in our personal class sessions on the analysis and critical discussion of legal texts and their
interpretations. The course will, thus, consist of both the online component and twice weekly class sessions. The online part consists of 7-8 relatively short lectures per week offered as downloadable videos (each 15-55 min), each of which will be followed by a short exercise in which participants can test their grasp of the new material. The exercises will combine multiple-choice with essay-type questions.
Participants are therefore expected to prepare the assigned readings prior to each week’s sessions. The readings will clearly differentiate between those of central and peripheral importance.

Students are expected to complete all requirements outlined for the online component of the course, in particular the weekly quizzes, the two short, peer-graded essays, and the relatively modest reading requirements outlined there (ca. 200 pages). In addition, students will be provided with weekly readings of approximately 500 pages, drawn primarily from Otto 2010 and Grote & Röder 2012 below. No dedicated textbook is prescribed for this course (or, indeed, exists), but those new to the field might find it worth their while to complement the assigned readings with independent background readings, including from:

Malcolm Yapp, The Making of the Modern Near East, 1792-1923, Vol. 1 (London: Longman, 1987).

Malcolm Yapp, The Near East Since the First World War: A History to 1995, Vol. 2 (London: Longman, 1996).

Sami Zubaida, Law and Power in the Islamic World (London: I.B. Tauris, 2005).

Jan Michiel Otto (ed.), Sharia Incorporated. A Comparative Overview of the Legal Systems of Twelve Muslim Countries in Past and Present (Leiden: Leiden University Press, 2010).

Rainer Grote and Tilmann Röder (eds.),Constitutionalism in Islamic Countries: Between Upheaval and Continuity (New York: Oxford University Press, 2012).

Albert Habib Hourani, A History of the Arab Peoples (London: Faber and Faber, 2005).

Nathan J. Brown, Constitutions in a Nonconstitutional World. Arab Basic Laws and the Prospects for Accountable Government (Albany, N.Y.: State University of New York Press, 2002).

Hamid Enayat, Modern Islamic Political Thought: The Response of the Shi’i and the Sunni Muslims to the Twentieth Century (London: I.B. Tauris, 2005).

By choice and necessity, this course will be interdisciplinary and has no prerequisites. No knowledge of Arabic or other oriental languages is assumed; neither is previous familiarity with the study of religion in general and Islamic beliefs in particular. Unlike the online component, which is designed for a general audience, we will focus in the weekly sessions on more explicitly legal analysis. Previous knowledge of constitutional, international, or administrative law is therefore welcome but not a prerequisite. Students from beyond the law faculty are explicitly encouraged to join, and we will make reasonable accommodation to make the legal exegesis accessible. Rather than assuming a common frame of reference, it is expected that students’ diverse disciplinary backgrounds will complement each other.

This course is not mutually exclusive with any other offering

Type of assessment
Written examination, 3 days
Assigned individual written assignment, 3 days
Marking scale
7-point grading scale
Censorship form
No external censorship
Criteria for exam assessment

This course will be assessed by a written three day take-home, open book exam. Students will have to answer two questions out of six, thus accommodating to some degree personal preferences. The exam is aimed to motivate a renewed thorough engagement with the course material and to cement the retention of the stated learning outcomes, which will guide grading. Special attention should be given to the testable criteria listed in the goal description above under the heading 'Competencies'.

Single subject courses (day)

  • Category
  • Hours
  • Seminar
  • 48
  • Preparation
  • 364,5
  • English
  • 412,5