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Chapter 4 The Contingent Role of Islam In this chapter I introduce and try to clarify the notion of contingency as a possible framework for mediating tensions between traditional understandings of Islam, on the one hand, and modern principles of constitutionalism , on the other. This framework can contribute to facilitating the development of constitutionalism by enhancing its cultural and religious legitimacy in African Islamic societies. Here I am seeking to apply to African Islamic societies the same basic premise discussed earlier, namely, that the sustainable development of constitutionalism needs to come to terms with the indigenous values and institutions of those societies . This is not to say that is only and exclusively in terms of Islam, but merely that there is an Islamic dimension to relevant values and institutions of predominantly Islamic societies in Africa. Moreover, such reconciliation cannot be assumed to exist or be readily available in any specific setting, nor should it be presumed to be impossible to promote through internal debate. These two chapters are therefore intended as a study in a proactive approach to the incremental success of constitutionalism in African societies whose cultural and institutional resources have a strong or clear Islamic dimension. Given the ambivalence and contingency of the relationship between Islam and constitutionalism, as explained in chapter 1 and further elaborated below, the basic question is whether it would be possible to develop deliberate strategies for promoting a positive relationship between the two. The rest of this chapter will be devoted to clarifying this notion of contingency in the role of Islam in politics, broadly defined. For our purposes here this means that the outcome of the interaction of Islam and constitutionalism can vary according to a variety of factors, rather than being permanently settled one way or the other. If this is true, it should be possible to influence this relationship by addressing the various factors that shape its outcome in any given context. To elaborate this thesis, I will begin with recalling some earlier theoretical reflections, and then outline the processes of the spread and adaptation of Islam in Africa in relation to the colonial and postcolonial stages, as the context in which the proposed contingency analysis is supposed to be applied. The 100 Chapter 4 chapter ends with a discussion of a proposed approach to reconciliation, to be further explored in the next chapter. Islam and Constitutionalism: Tensions and Possibilities of Mediation To recall the caveat in Chapter 1, the premise here is not that Islam is the sole or even primary determinant of the status of constitutionalism in Islamic countries (that is, those where Muslims constitute the majority of the population). Indeed, it is integral to my argument that the present status and future prospects of constitutionalism in those countries should be assessed in terms of the historical experience and present context of each country, like any other country in the world. The role of Islam in that experience and context would necessarily vary from one country to another, but always as only one among many factors and forces that may influence the course of developments in each setting. However, even where it is not so obvious or dominant at some point in time, the role of Islam in this field should not be underestimated because of its implications for the legitimacy and efficacy of the notion of constitutionalism itself in those societies. In other words, the role of Islam in this connection should be taken seriously, without unduly exaggerating or underestimating it. This relationship is problematic since Islam is commonly taken to be synonymous with historical understandings of what is commonly known as Shari'a, Whereas the term Shari'a refers to the normative system of Islam in general, the specific content Muslims have given to this system is necessarily a product of the history of their own societies. This point is extremely important for our purposes here, namely, that the term Shari'a always refers to human interpretation of the Qur'an and Sunna (traditions of the Prophet), and as such is neither divine nor immutable. The particular understanding of the content of Shari'a prevalent among Muslims today contains some principles that are incompatible with fundamental principles of constitutionalism, as briefly explained earlier and further elaborated below. This does not mean that Shari'a as such is incapable of being understood by Muslims in ways that are fully consistent with constitutionalism for their own society, but the contradictions must first be acknowledged before the reinterpretation can...

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