Islamic Constitutionalism Before Sovereignty: Two Defenses of the Tunisian Constitution of 1861
Authors: March Andrew 
Published: May 2020

The 19th-century witnessed the first efforts to draw up constitutions in traditional Muslim monarchies. Far from emerging out of popular pressure, never mind revolution, these documents were largely motivated by the desire of rulers and their chief advisors to rationalize state legal and bureaucratic authority, in order to both strengthen central state control internally and also deal with increasing European pressure, particularly in fiscal and economic matters. Nonetheless these texts reflect a language of authority and legitimacy that is to a large extent a reflection of traditional Islamic constitutional theory, before the rise of popular, mass politics and the associated ideological transformation of Islamic political thought. This article focuses instead on the Tunisian constitutional moment of 1857-1861. I focus on two important sources for the study of the emergence of modern Islamic political-constitutional thought and the problem of sovereignty. The first set are the first attempts to create written constitutions for existing regimes and dynasties. The second set are the writings of important reformist intellectuals, both from within the lineage of traditional Islamic scholarship and from the class of new elites educated along “European” models, that sought to provide the intellectual and doctrinal justification for formal, written constitutions.
The primary goal of this article is to explore an important moment in Islamic modernity for the purposes of drawing a contrast with 20th-century, post-caliphal Islamist thought. The primary themes visible in 19th-century Islamic constitutional thought, on my reading, are a primarily “descending” conception of sovereign constituent power with a strong emphasis on the pre-political existence of a divine law that is both binding and guiding, but not necessarily the exclusive source of lawmaking. So-called “descending” tropes of political authority are in evidence in two primary forms: first, specific offices (most notably the Caliphate) are seen as ordained by God and obligatory on the Muslim community, which does not create them; second, power is frequently spoken of as being bestowed on rulers directly, without any mediation or authorization by the people. Where the ruler is said to derive his authority from human appointment, authorization or acclamation, this is usually done by the “People Who Loose and Bind” (scholars or other social notables) on their own authority (whether grounded epistemically or in social recognition) without election by the people they are meant to represent. Finally, while the authority of God’s law is uniformly asserted, the texts in question—from constitutions to scholarly treatises—do not tend to be preoccupied with the concept of “sovereignty” and its precise location. As 19th-century constitutionalist movements were largely elite driven affairs that pursued limited, legally-constrained governance as a path to political and economic modernization, they did not yet face opposition from mass movements using the language of Islam as a mobilizing ideology. Rather, their opposition came from entrenched elites (including traditional Islamic religious authorities) who had not yet formulated a coherent counter-revolutionary language.