Constitution (isl.)

 Citation link: Constitution (isl.)  

(Arab. Dustur, Turk. Anayasa ve Din)

The constitution is the fundamental legal document that sets forth the constitutive principles and institutions of a state. The latter are binding upon the state by virtue of their function.

Constitutions also contain provisions that govern the relationship between state and religion. In this sense, the Constitution of Medina, which was concluded shortly after the Hijra of Muhammad in 622, is considered to be the first constitution in the history of Islam. This is justified as this is a document that describes the establishment of a state, its basic elements, state institutions and their workings as well as various fundamental rights and freedoms. Also clear, however, is that in terms of its form and content this document does not mark the beginning of the tradition of written constitutions. Since the Jewish population of Medina violated the agreement, the document was rendered factually invalid. No legal text comparable to this was drawn up during Muhammad’s lifetime, during the era of the first four caliphs or thereafter. Where the eras of the four Rightly Guided Caliphs and the Islamic states of the Umayyads, Abbasids, Fatimids, the Andalusian Umayyads, Seljuks, and Ottomans, one can speak of oral constitutions.

In describing state entities, institutions and their functions, fundamental rights and freedoms, an important role was played by the basic sources of jurisprudence (fiqh) – namely the Qur’an, the teachings and practices of Muhammad (sunnah), consensus, analogy, the practice of considering good (istihsan), the public interest (maslaha), and societal custom or knowledge (urf).

Legal arrangements were made particularly in the framework of the principles contained in the Qur’an and Sunnah. Principles not found there were sought in other sources, provided that these sources were not in conflict with the Qur’an or the sunnah.

In the Islamic world, the first efforts towards a constitution laid down in writing began during the Ottoman sphere of influence. The first concrete example is the constitution adopted in Tunis in 1861. The legal reforms introduced in the Ottoman Empire following the Tanzimat period (1839-1876) culminated in 1876 in the adoption of the Ottoman Constitution (Kanunu Esasi).

After decolonisation, constitutions were drafted in the Western model in most Islamic countries. The influence of Islamic tradition is discernible as well. It can be seen in the generally broad principles contained in the Qur’an and the sunnah that form the legal foundations, and also in the customary law, particularly customary law dating to the era of the first four caliphs. The role of the head of state, for instance, was oriented around the teachings and practices of Muhammad; the institution of government (divan) was modelled after the second caliph Umar (d. 644), while the function of a minister (wazir) was based on the practices of the Abbasids (750-1258).

Today, Islam is anchored as the state religion in the constitutions of many Islamic states. In Turkey, the separation of state and religion has been in effect since the adoption of the Constitution of the Republic of Turkey in 1937. The constitutions of 1921 and 1924 had delegated the task of carrying out Sharia law to the National Assembly; after the introduction of secularism, all legislative authorities were entrusted to Parliament. Constitutional guarantees protect religious education, training, and religious services. This was the result of the view of meeting the needs of the people.

The function of religious services, the training of personnel in all areas relating to the Islamic faith and religious practice, and the ethics of Islam (Constitution of 1924, Law no. 429) are the responsibility of the Presidency of Religious Affairs (Diyanet İşleri Başkanlığı). The establishment of theological faculties and professional schools for imams and preachers (ImamHatip Liseleri) for the training of expert personnel entrusted with religious education and religious services is constitutionally guaranteed, as this meets the needs of the people (Constitution of 1924, Law no. 430).

In addition to this, under Article 24 of the Constitution of 1982 still in force, in the interest of promoting a general standard of education, all primary and secondary schools must provide instruction in religion and ethics.

Constitutional practices vary across Islamic countries. In non-Islamic countries, on the other hand, the basic principle in effect holds that Muslims, too, are subject to the constitution and the laws in force. In cases of dispute, they are obliged to seek agreement on a legal basis.

Cemal Tosun

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