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No Sharīʿa in the Land of Sharīʿa

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Shari'a and the Constitution in Contemporary Legal Models

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Abstract

In this chapter, I analyze the interaction between the Western and the Islamic legal perspectives based on a first constitutional model, and assuming as examples Morocco and Turkey. The countries adopting this model are characterized by a Charter in which sharı̄ʿa is not present. Therefore, the Muslim heritage comes to be part of the juridical vision of these countries in different ways; for instance, maintaining Islamic elements simply as substantive inspiration for legal norms, but not as a philosophical way of understanding the juridical phenomenon.

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Notes

  1. 1.

    As previously explained, Tunisia adopted the first constitution of the Muslim world in 1861, although in force for only three years. After the independence, the sovereign Republic of Tunisia adopted a second constitution in 1959, and following the so-called Arab Spring a third one in 2014. More recently, a new constitution was adopted in 2022 following a popular referendum proposed by President Kais Saied. Among these four constitutions, no-one recognizes an official role for sharīʿa. In particular, the 2022 constitution recognizes a role for Islam however depriving it of its direct normative dimension. Nevertheless, in order to analyze the philosophical perspectives implied in this legal approach, I will focus in this chapter on Turkey and Morocco, due to their historical evolutionary path and due to the specificity of their legal systems, with particular reference to Morocco.

  2. 2.

    The constitution of the People’s Democratic Republic of Algeria, adopted in 1989 and amended in 1996, and the following constitution of 2016 presently in force, do not recognize any official role to sharīʿa in the system of the sources of law. However, it is interesting to note that with articles 171 and 172 of the 1989 charter and articles 195 and 196 of the 2016 charter, a High Islamic Council is established, with the aim of encouraging and promoting the practice of ijtihād, as well as providing “its opinion on matters submitted to it with regard to the sharīʿa rules” (only in art. 195, 2016 draft). Ijtihād being a fundamental conception of the use of human reason in relation with sharīʿa and fiqh, its mention in a constitution where sharīʿa is not recognized appears as a mere cultural heritage, deprived of actual juridical relevance. So does the mention of the respect of the Islamic ethic as an obligation of the public institutions (art. 9 in the 1989 draft, and art. 10 in the 2016 draft).

  3. 3.

    In the constitution of Brunei Darussalam of 1959, as amended in 2006, the Islamic religion has undoubtedly a preeminent role, although sharīʿa is not given any official role in the charter.

  4. 4.

    In the constitution of the People’s Republic of Bangladesh, adopted in 1972 and amended up to 2018, the text does not assign any official role to sharīʿa, albeit its mentions of Islam and Allāh.

  5. 5.

    Indonesia is actually the biggest country in the world in which Islam is the majoritarian religion. Nevertheless, due to historical and cultural reasons, its constitution does not recognize an official role for Islam, although attaching much importance to religion in general. In Indonesia, Islam exercises a relevant influence on the legal system of the autonomous province of Aceh, where local enacted legislation, evocatively called qānūn, is heavily influenced by sharīʿa-derived provisions, even in the criminal field. The case of Aceh, mirroring a different legal approach, will be examined in the next chapter.

  6. 6.

    The constitution of Djibouti, adopted in 1992 and amended in 2010, mentions Islam as State’s religion and invokes Allāh in the preamble, although not assigning sharīʿa any official constitutional role.

  7. 7.

    With the exceptions of African countries that will be mentioned in chapter II as examples of a different constitutional approach.

  8. 8.

    The aspiration toward a national character can be considered as the ultimate denial of Islamic universalism, in a context in which the progressive formation of a Western-like State-based model had already characterized the sultanate in its descending phase. It should be noticed, however, that the maturation of a national conscience was not limited to Turkey, but affected various territories of the empire, even before the participation to the war. For an analysis of the rise of a Turkish national awareness in the Ottoman context, with particular reference to literature and education, see Erol Köroğlu, Ottoman Propaganda and Turkish Identity. Literature in Turkey During World War I, I.B. Tauris, New York 2007, pp. 24 ff. Consider also Yeşim Bayar, Formation of the Turkish Nation-State, 1920–1938, Palgrave Macmillan, New York 2014.

  9. 9.

    About this issue, see once again Azmi Özcan, Pan-Islamism. Indian Muslims, the Ottomans and Britain, 1877–1924, Brill, Leiden 1997, pp. 48–54, and Caroline Finkel, Osman’s Dream. The Story of the Ottoman Empire, 1300–1923, John Murray Publishers, London 2005, Chap. 15.

  10. 10.

    Among the various volumes dedicated to Mustafa Kemal as father of the Turks, see Andrew Mango [1999], Atatürk. The Biography of the founder of Modern Turkey, The Overlook Press, New York 2002. Regarding the issue of modernization see İsmet Giritli, “Kemalism as an Ideology of Modernization”, in Atatürk and the Modernization of Turkey, ed. Jacob M. Landau, Westview Press-E.J. Brill, Boulder-Leiden 1984, pp. 251–254, and in the same volume Osman Okyar, “Atatürk’s Quest for Modernism”, pp. 45–56.

  11. 11.

    Not only the institutional framework adopted by the new regime substantially completed the process of juridical and political Westernization carried out in the last decades of the Ottoman rule, but the inspiring and substantive principles of the new State were basically taken from the Western world. Indeed, since “the proclamation of the Republic, Turkey has developed her legal and social order in accordance with Western norms; multi-party politics were introduced in 1946 and major strides were taken towards and open and participatory social order, first and foremost in areas of the freedom of press and labour union rights” (Turkish National Programme for the Adoption of the Acquis [2001], in Turkey. Terrorism, Civil Rights, and the European Union, eds. Yonah Alexander, Edgar H. Brenner, Serhat Tutuncuoglu Krause, Routledge, London-New York 2008, p. 439).

  12. 12.

    Cf. Robert Devereux, The First Ottoman Constitutional Period. A Study of the Midhat Constitution and Parliament, The Johns Hopkins Press, Baltimore 1963, p. 45.

  13. 13.

    It should be noted that the charter of 1921 was adopted before the official proclamation of the republic in 1923, although the text leaves no doubt about its republican nature.

  14. 14.

    Regarding the process of secularization in Turkey, see Niyazi Berkes, The Development of Secularism in Turkey, Routledge, New York-London 1998, especially pp. 461 ff.

  15. 15.

    The government of Atatürk abolished sharīʿa even in personal status matters in 1924. This abrogation, carried out not without initial hesitation, was particularly significant, in that it removed from the Turkish legal system even the last traces of the previous legal order, represented by sharīʿa-derived provisions in familiar and personal status issues, the fields in which sharīʿa is traditionally more incisive. On this point, see Herbert J. Liebesny, “Stability and Change in Islamic Law”, in Middle East Journal, vol. XXI, n. 1, Winter 1967, pp. 25–26.

  16. 16.

    For instance, the Turkish Civil Code, based on the Swiss model and adopted in 1926, was called Türk Medeni Kanunu, while the Turkish Criminal Code, largely inspired by Italian legislation and adopted in 1926 as well, was called Türk Ceza Kanunu.

  17. 17.

    Kubali argues that the adoption of Western laws in Turkey, such as the adoption of the Swiss Civil Code in 1926, did not represent a radical revolutionary act, due to the previous existence of the idea of qānūn in the Ottoman system (Hüseyin Nail Kubali, “Modernization and secularization as determining factors in reception in Turkey”, in International social science bulletin, vol. IX, n. 1, 1957, pp. 65–66). This opinion cannot be completely shared in that, as already explained, the idea of qānūn loses its sense of being in a sharīʿa-deprived and secularized context, where it could be simply classified as law or as another form of regulation. Nevertheless, Kubali correctly grasps the real core of the juridical revolution brought about by Mustafa Kemal, that it to say putting an end to the legal dualism of the Ottoman system, uniquely basing the new legal order on the Western idea of law (ibid., pp. 65–69).

  18. 18.

    Regarding this, particularly important is the political manifesto by Zniber known as Sauvegarde de l’indépendance et refus de la manipulation colonial, of 1904. See Abraham Lahnite, La politique berbère du protectorat français au Maroc, 1912–1956. Les conditions d’établissement du Traité de Fez, L’Harmattan, Paris 2011, p. 74; Jamaa Baida, “La pensée réformiste au Maroc à la veille du Protectorat”, in Hespéris Tamuda, vol. XXXIX, n. 2, 2001, pp. 51 ff.

  19. 19.

    See Jacques Robert, La Monarchie Marocaine, Librairie Générale de Droit et de Jurisprudence, R. Pichon et R. Durand-Auzias Paris 1963, pp. 57–62; Jacques Cagne, Nation et nationalisme au Maroc. Aux racines de la nation marocaine, Dār Nashr al-Maʼrifah, Rabat 1988, pp. 484 ff.

  20. 20.

    For a brief analysis of the Moroccan constitution of 1962, see Charles Pellat, “Maroc” (voice), in Dustûr. Aperçu sur les Constitutions des États arabes et islamiques, Brill Publishers, Leiden 1965, pp. 105–106.

  21. 21.

    For the reforms undertaken in Morocco at the time of the Arab Spring, see Eva Maria Maggi, “Change to Stay the Same: the European Union and the Logics Institutional Reform in Morocco”, in Euro-Mediterranean Relations After the Arab Spring. Persistence in Times of Change, eds. Jakob Horst, Annette Jünemann, Delf Rothe, Routledge, London-New York 2013, pp. 25–30. For a critical analysis of the constitution of 2011, with particular reference to the transition to an effective democratic system, see Drioss Maghraoui, “Constitutional reforms in Morocco: between consensus and subaltern politics”, in North Africa’s Arab Spring, ed. George Joffé, Routledge, London-New York 2013, pp. 175–196. Consider also Abdelhak Azzouzi, André Cabanis, Le néo-constitutionnalisme marocain à l’épreuve du printemps arabe, L’Harmattan, Paris 2011, pp. 131 ff.

  22. 22.

    Traditional Arabic term literally meaning warehouse, extensively used in Morocco and Tunisia to designate the ruling power. The warehouse was the place where grain was stored, where officials were paid and where taxes were collected, thus ancestrally pointing at the factual power of governing a community by the imposition of tributes. Makhzen, here used to indicate the sultanate, is sometimes used to generally designate the State, or the government. With regard to this, see Mohamed Daadaoui, Moroccan Monarchy and the Islamist Challenge. Maintaining Makhzen Power, Palgrave Macmillan, New York 2011, pp. 41 ff. It is particularly interesting to observe that from the Arabic makhzen comes the French word magasin, the Italian magazzino, the Spanish almacén and the Portuguese armazém, meaning warehouse.

  23. 23.

    For an analysis of the precolonial way of administering justice, with particular reference to the element of religious affiliations, see Jessica M. Marglin, Across Legal Lines. Jews and Muslims in Modern Morocco, Yale University Press, New Haven-London 2016, pp. 21–52.

  24. 24.

    See David Bensoussan, Il Était une Fois le Maroc. Témoignages du Passé Judéo-Marocain, iUniverse, Bloomington 2012, p. 16

  25. 25.

    From a procedural point of view, the passage from the jurisdiction of the qāḍī to the establishment of a Western-like circuit of tribunals, subjected to the same procedures, was marked by graduality and carried out by multiple acts of national legislation, and was started before the adoption of the constitution of 1962. Cf. Mohamed Charfi, “L’influence de la religion dans le droit international privé des pays musulmans”, in Recueil de Cours. Collected Courses of The Hague Academy of International Law, 1987, vol. III, Martinus Nijhoff Publishers, Dordrecht-Boston-Lancaster 1988, p. 420. Consider also Richard F. Nyrop et al., Area Handbook for Morocco, US Government Printing Office, Washington 1972, pp. 168–170. For an analysis of the transition to the sharīʿa-based justice to the postcolonial unified judiciary system, see Herbert J. Liebesny, The Law of the Near and Middle East. Readings, Cases, and Materials, State University of New York Press, Albany 1975, pp. 112–113.

  26. 26.

    The instrument of qānūn, intended as an earthly regulation, derives from pre-Islamic Turkish and Mongols populations and from their customary rules (cf. Boğaç A. Ergene, “Qanun and Sharia”, in The Ashgate Research Companion to Islamic Law, eds. Rudolph Peters, Peri Bearman, Ashgate, Farnham-Burlington 2014, pp. 109–110). However, another important inspiration came from Roman law, in which the emperor came to be considered as a legislating authority (Francis Edward Peters, The Monotheists. Jews, Christians, and Muslims in Conflict and Competition, vol. II, The Words and Will of God, Princeton University Press, Princeton-Oxford 2003, p. 122). This last point is clearly visible in the context of the Ottoman sultanate, which considered itself to be the heir of the Roman empire after the conquest of Constantinople.

  27. 27.

    As it will be shown, in the case of Turkey the new Kemalist nationalism imposed a forced secularization that deeply affected not only the philosophical perspective on law and State, but the substantive contents of the norms as well. On the contrary, the Kingdom of Morocco rather coherently inscribed the post-sultanate society within the Western constitutional framework, however maintaining some fields of law under the inspirational influence of Islam, as for the substantive content of the norms.

  28. 28.

    I define it static because the very term descends from the Arabic aṣāla, which means firmness, steadfastness or purity of origin. Cf. Hans Wehr [1952], “Uṣūl” (voice), in A Dictionary of Modern Written Arabic, ed. J. Milton Cowan, Harrassowitz Verlag, Wiesbaden 1979, p. 23.

  29. 29.

    The very etymology of the term fiqh is eloquent, descending from the Arabic verb faqiha, which actually means “to understand”. The same be said about the word faqīh (jurist, pl. fuqahā), highlighting also from a linguistic point of view that Muslim jurists are those who understands norms, and not those producing them. Cf. Raj Bhala, Understanding Islamic Law. Sharīʿa, Matthew Bender & Co., Newark 2011, p. 289.

  30. 30.

    Muhammad-Basheer. A. Ismail, Islamic Law and Transnational Diplomatic Law. A Quest for Complementarity in Divergent Legal Theories, Palgrave Macmillan, New York-Basingstoke 2016, p. 51.

  31. 31.

    Alexander Boer, Legal Theory, Sources of Law and the Semantic Web, Ios Press, Amsterdam 2009, p. 80. Cf. Riccardo Guastini, Le fonti del diritto. Fondamenti teorici, Giuffrè, Milan 2010, p. 46.

  32. 32.

    Vincent J. Cornell, “Fruit of the Three of Knowledge. The relationship between faith and practice in Islam”, in The Oxford History of Islam, ed. John L. Esposito, Oxford University Press, Oxford 1999, p. 91.

  33. 33.

    Hallaq emphasizes this point, stating that “the transposition of the command of the law from the hands of the faqīhs (the traditional legal professionals) to those of the state represents the most important phenomenon of modem legal reform, one that signified simultaneously the eternal loss of epistemic authority and the dawning of the much-abhorred authority of the state” (Wael B. Hallaq, “Juristic Authority vs. State Power: the Legal Crises of Modern Islam”, in Journal of Law and Religion, vol. XIX, n. 2, 2003–2004, p. 258).

  34. 34.

    In this subparagraph, I will follow a Kelsenian pure theory of law, to highlight the difference between (State) law, as an overall and abstract expression of a philosophical orientation, and its substantive content. I will therefore consider State law as a general category, whose substantive content is here irrelevant. Kelsen’s definition of the law as a “scheme” of qualification and comprehension (once again, Kelsen, Pure Theory of Law, p. 3) helps grasping this differentiation, which must be taken into account to understand why positive law can never coincide with sharīʿa.

  35. 35.

    It is possible to share Layish’s thesis, according to which the lawmaking activity of modern Muslim States in drafting laws inspired by sharīʿa-derived provisions cannot be considered expression of sharīʿa, because of the deep process of transformation through which these concepts undergo as for their philosophical qualification. This position appears to be largely sharable, with a single caveat regarding sharīʿa, which is not to be conceived as created by the jurist, but derived and systematized by the jurist, for all the reasons that have already been exposed. Cf. Aharon Layish, “The Transformation of the Sharīʿa from Jurists’ Law to Statutory Law in the Contemporary Muslim World”, in Die Welt des Islams, New Series, vol. XLIV, n. 1, Brill, Leiden-Boston 2004, pp. 85–113.

  36. 36.

    This point is particularly evident in the case of criminal law, where Islamic principles are usually transposed into State-drafted and State-enacted national legislation, and therefore inscribed inside a Western-like legal framework (cf. Rudolph Peters, Crime and Punishment in Islamic Law. Theory and Practice from the Sixteenth to the Twenty-First Century, Cambridge University Press, Cambridge 2005, p. 148; Tahir Wasti, The Application of Islamic Criminal Law in Pakistan. Sharia in Practice, Brill, Leiden-Boston 2009, pp. 1–2). In the case of Morocco, Mouaqit speaks about “positivization” and “secularization” of the legislation, marking the transition from sharīʿa to law. (Mohammed Mouaqit, “Droit et changement politique et social au Maroc”, in Le Maroc au present. D’une époque à l’autre, une société en mutation, eds. Zakaria Rhani, Baudouin Dupret, Assia Boutaleb, Jean-Noël Ferrié, Centre Jacques-Berque, Casablanca 2015, p. 595). While the idea of positivation in Moroccan legislation is surely sharable, the concept of secularization seems here to be referred to the substantive content of the norms, which falls outside of the analysis of the present work for the reasons that have already been exposed.

  37. 37.

    Const., Bulletin Officiel, n. 5964 bis, 28 shaʿbān 1432 (July 30, 2011), arts. 60–86.

  38. 38.

    Const., Official Gazette n. 17,844, October 20, 1982, and n. 17,863, November 9, 1982, by act. 2709, amended on July 23, 1995, by act n. 4121, arts. 7, 75–100.

  39. 39.

    In Turkey, for instance, the entire judicial system is completely secularized and based on the Western model, through the establishment of courts and tribunals (see briefly Nisrine Abiad, Sharia, Muslim States and International Human Rights Treaty Obligations. A Comparative Study, British Institute of International and Comparative Law, London 2008, pp. 146–147). In Morocco, the Court Unification Law of 1965 unified all the preexisting judicial instances, including religious courts, into a national and hierarchical circuit of tribunals. However, given that in Morocco personal status law may vary for Muslims and Jews according to the religion, the sadad conciliative courts of first instance mirror this distinction. However, as it will be explained further in the course of this chapter, personal status law in Morocco may reflect a religiously-inspired substantive content, but in the form of codified national legislation, regardless of its prescriptive provisions. Similarly, as far as sadad courts apply personal status law and are regulated by national law, they cannot be considered sharīʿa courts as in the case of the ancient qāḍī jurisdiction. On this point, the constitution of 2011 at its article 110 is clear in stating that “The presiding magistrates are only subject to the application of the law alone. The decisions of justice are rendered on the sole foundation of the impartial application of the law alone. The prosecuting magistrates are held to the application of the law and must conform to written instructions, conforming to the law, emanating from the hierarchic authority.” Therefore, the charter leaves no place for traditional sharīʿa courts as properly defined and considered, whose rules of functioning and whose philosophical views fall outside of the application of positive national law. For the sadad courts, which could be compared to Western peace courts, see Jeswald W. Salacuse, An Introduction to Law in French-speaking Africa, vol. III, North Africa, Michie Company, Charlottesville 1969, pp. 291 ff.

  40. 40.

    As it has been stated, “procedural law” is not simply a “branch” of law, but a dimension. This suggests the possibility of locating processual philosophy in an intersectional point of a great division of legal philosophy between philosophy of private law and philosophy of public law (and of the State) and therefore of showing that these dualisms such as processual/material and private/public need to be overcome together with the traditional views usually based on them” (Henrique Garbellini Carnio, “Filosofia do direito processual e procedimentalização do direito”, in Revista de Processo, vol. CCXXXI, May 2014, p. 370).

  41. 41.

    As previously mentioned, An-Naʿim observes how a regulation enforced by the State, and according to procedures of the State, cannot be considered as sharīʿa. See Abdullahi Ahmed An-Naʿim, Islam and the Secular State. Negotiating the Future of Sharīʿa, Harvard University Press, Cambridge 2008, p. 191.

  42. 42.

    Regarding Morocco, Algeria and Tunisia (2014 const.), Le Roy observes that “their constitutions make ample reference to Islam; but compliance of the legislation with the Sharīʿah is not explicitly required; at the same time, laws can be inspired by the Sharīʿah without meeting any constitutional obstacle” (Thierry Le Roy, “Constitutionalism in the Maghreb: Between French Heritage and Islamic Concepts”, in Constitutionalism in Islamic Countries. Between Upheaval and Continuity, eds. Rainer Grote, Tillman J. Röder, Oxford University Press, Oxford 2012, p. 115).

  43. 43.

    Const., 1982, art. 2.

  44. 44.

    Const., 2011, preamble, par. 2.

  45. 45.

    Dupret significantly speaks about fiqh as a possible inspiration for national legislations of Muslim countries in certain domains such as family law. The author stresses the inspirational dimension of Islamic principles, which cannot be properly qualified as sharīʿa in spite of their possible adherence to it as for their substantive dispositions. Cf. Baudouin Dupret, La charia. Des sources à la pratique, un concept pluriel, La Découverte, Paris 2014, Chap. 8.

  46. 46.

    On this case, see Hakan Köni, Transformation of Political Islam in Turkey. Causes and Effects, Cambridge Scholar Publishing, Newcastle Upon Tyne 2018, especially pp. 53 ff.

  47. 47.

    The king issued Sherifyan Dahir (Royal Edict) n. 1.04.22 on 12 dhū l-Ḥijja 1424, (February 3, 2004) to implement law n. 70.03 as the mudawwana (family code).

  48. 48.

    On this subject, see Jonathan Wyrtzen, Making Morocco. Colonial Intervention and the Politics of Identity, Cornell University Press, Ithaca-London 2015, pp. 290–291.

  49. 49.

    “His Majesty, may God cherish him, provided the Commission with his constant enlightened guidance and advice in order to prepare a new Family Code bill, and insisted upon their fidelity to the provisions of sharīʿa and Islamic principles of tolerance, and encouraged the use of ijtihād to deduce laws and precepts, while taking into consideration the spirit of our modern era and the imperatives of development, in accordance with the kingdom’s commitment to internationally recognized human rights.” Mudawwana, 2004, preamble, par. 3.

  50. 50.

    Mouaqit states that Islamic principles are present in the Moroccan legal order uniquely in personal status law, “but in a positivized form because it is now embodied in the law as the expression of the parliamentary power of lawmaking” (Mouaqit, Droit et changement politique et social au Maroc, cit., p. 595). On the contrary, it is not possible to agree with Janin and Kahlmeyer as for the terminology used when stating that “Morocco’s legal system is based on Islamic law and on French and Spanish civil law” (Hunt Janin, André Kahlmeyer, Islamic Law. The Sharia from Muhammad’s Time to the Present, McFarland & Company, Jefferson-London 2007, p. 152). The same be said, among others, of Zahia Smail Salhi [2004], “Maghrebi women film-makers and the challenge of modernity: breaking women’s silence”, in Women and Media in the Middle East. Power Through Self-expression, ed. Naomi Sakr, I.B. Tauris, London-New York 2007, p. 64, and of Abiad, Sharia, Muslim States and International Human Rights Treaty Obligations, cit., pp. 49–50.

  51. 51.

    According to article 399 of the 2004 mudawwana, “for all issues not addressed by a text in the present code, reference may be made to the Malikite school of jurisprudence and to ijtihād, which strive to fulfil and enhance Islamic values, notably justice, equality and amicable social relations.” The same disposition was present in article 82 of the first version of the code as enacted in 1957. This clause appears to be an exception to the general principle according to which Morocco is completely regulated by national legislation, in that it allows, even in a residual way, elements of the traditional Islamic normativity to enter into the legal system of the country. However, being a residual clause and not being present in the constitution as the majority of the Muslim countries discussed in the next chapter, Morocco was selected to be analyzed in this section.

  52. 52.

    The dimension of self-sufficiency of a sharīʿa-based system is highlighted by Hallaq as well. According to the author, “the traditional jurists operated within a self-sufficient system in which practice, hermeneutics, and positive legal doctrine were conjoined to produce the legal culture, which largely defined their world” (Wael B. Hallaq, “Can Shariʿa Be Restored?”, in Islamic Law and the Challenges of Modernity, eds. Yvonne Yazbeck Haddad, Barbara Freyer Stowasser, AltaMira Press, Walnut Creek 2004, p. 40).

  53. 53.

    Scholarly compilations of fiqh have sometimes been defined as “codification of sharīʿa” (as in Muhammad ʻAzīz Ahmad, The Nature of Islamic Political Theory, Maʻaref, Karachi 1975, pp. xv, 183, 192). This definition tends to be however misleading, provided that compilations of fiqh are a way to collect doctrinal and hermeneutical interpretations in a changing context, while Western codification is an act of legislative production, aim at regulating a certain field of reality in a possibly definitive way. On the compilations of fiqh, see Muhammad Amanullah, Habibur Rahman, “The Origin and Evolution of Fiqh Codification. A Preliminary Analysis”, in Journal of Islam in Asia, vol. XIII, n. 1, June 2016, pp. 194–219.

  54. 54.

    This position is shared by Hallaq, according to whom codification “is not an inherently neutral form of law, nor is it an innocent tool of legal practice, devoid of political or other goals. It is a deliberate choice in the exercise of political and legal power, a means by which a conscious restriction is placed on the interpretive freedoms of jurists, judges, and lawyers. In the Islamic context, the adoption of codification has an added significance since it represents potently efficacious modus operandi through which the law was refashioned in structured ways. Among other things, it precluded the traditional means of the law from ever coming into play” (Hallaq, Can sharīʿa be restored?, cit., pp. 22–23). Peters, in his historical analysis of the transition to sharīʿa-based systems to State-based models, emphasizes the pragmatic function of codifying sharīʿa-derived rules and enacting them as State law, that is to say “greater control by the state (i.e. the power of the legislature and the executive power) of the law. For these reasons, Islamic criminal law has been introduced by means of legislation enacted by the state and not by giving authority to the body of classical fiqh doctrine. The result of the reintroduction of Islamic criminal law, in most countries, is that something new with particular attention to criminal law is created, a form of criminal law consisting of Islamic substantive rules in a Western garb and embedded in a Western-type courts and Western institutions such as the state prosecutor” (Peters, Crime and Punishment in Islamic Law, cit., p. 148).

  55. 55.

    As Burak states, because of “its explicit dialogic nature involving both the questioner and the muftī, the fatwā, unlike other genres, functioned as a kind of propaganda that required the active participation of its target (i.e., the questioner)”. As the author further observes, “Taken together, the two fatāwā (that is, the questions and the answers) convey a sense of the dialogic nature of the process of the solicitation and dispensing of the muftī’s opinion. As this case demonstrates, at times it was a dialogue that went on for decades” (Guy Burak, The Second Formation of Islamic Law. The Ḥanafī School in the Early Modern Ottoman Empire, Cambridge University Press, Cambridge 2015, respectively p. 190 and p. 176).

  56. 56.

    “The Council is the sole instance enabled to comment on the religious consultations before being officially agreed to, on the questions to which it has been referred, and this on the basis of the tolerant principles, precepts and designs of Islam. The attributions, the composition and the modalities of functioning of the Council are established by royal decree.” Const., 2011, art. 41, pars. 3–4. The mention of “religious consultations” is referred to the fatāwā.

  57. 57.

    The religious role of the king and its relationship with the Nation-State will be analyzed in a following paragraph.

  58. 58.

    Const., 2011, art. 41, par. 2.

  59. 59.

    Mouaqit observes that the religious prerogatives of the king of Morocco, in spite of their nominal reference to the traditional idea of Islamic normativity, is practically used in order to contrast the reemergence of sharīʿa in the legal order as in the cases of hybrid systems such as the Egyptian one. See Mouaqit, Droit et changement politique et social au Maroc, cit., p. 595.

  60. 60.

    On this second point, in a comparative perspective, see André Cabanis, “Autour de la nouvelle Constitution marocaine: les permanences, les évolutions programmées, les éléments de rupture”, in Annuaire marocain de la stratégie et des relations internationales, vol. I, ad. Abdelhak Azzouzi, L’Harmattan, Paris 2012, pp. 1011–1013. From a political point of view, it is not to be forgotten that the institution of the council in Morocco and its incorporation in the constitution was first made by king Hassan II after the Iranian revolution of 1979, in which the ʿulamāʾ played a primary role. This decision could be interpreted in the sense of establishing a mechanism of constitutional control on the ʿulamāʾ, which in the Sunnī context are not subject to a hierarchy or to univocal designation processes. With regard to this, see Okacha Ben Elmostafa, Les mouvements islamistes au Maroc. Leurs modes d’action et d’organisation, L’Harmattan, Paris 2007, p. 203.

  61. 61.

    The establishment of the council inserts the ʿulamāʾ in a de facto hierarchy, which is basically inexistent in the Sunnī context, thus denaturing and reinterpreting completely the concept of fatwā. As it was sharply but correctly observed with regard to the original context in which the fatāwā are inserted, “in a non-hierarchical context, the validity of a Fatwa is rather like the validity of a monetary currency—its value depends on who issues it and their reputation on reliability” (Antoine Sfeir et al., The Columbia World Dictionary of Islamism, trans. John King, Columbia University Press, New York 2007, p. 324).

  62. 62.

    Mohamed Tozy, Monarchie et Islam politique au Maroc, Les Presses de Sciences Po, Paris 1999, p. 111. As Bruce suggests, the regional councils that were established in 1980 before the Superior Council “proved to be an effective tool for state supervision of religious affairs: they oversaw the naming of preachers in the mosques and the content of the Friday khuṭba, which similarly came under official state control” (Benjamin Bruce, Governing Islam Abroad. Turkish and Moroccan Muslims in Western Europe, Palgrave Macmillan, London 2019, p. 57). With regard to the region of Maghreb in its entirety, Shahin is even more direct in speaking of “nationalization of Islamic ideology” in order to “bring Islam under direct state control through the institutionalization and organization of religious activities” (Emad Eldin Shahin, Political Ascent. Contemporary Islamic Movements in North Africa, Westview Press, Boulder 1998, p. 45).

  63. 63.

    Once again, consider Hallaq on this point: “in contemporary Muslim thinking there exists an obvious dislocation between two perceptions of legal authority, one emanating from the state and the other from elsewhere. This second source of authority has been the dominant, indeed unrivaled, conception for over a millennium, while the perception of authority lodged in the states was introduced in these nations only during the 19th and 20th centuries. The dislocation between the two sources of authority sums up the legal (if not cultural and social) rupture that occurred” (Hallaq, Jurist Authority vs. State Power, cit., p. 243).

  64. 64.

    I will come back to this point in chapter V, while discussing the possible applicability of sharīʿa in the West.

  65. 65.

    It is the case of the criminal code of Morocco, which criminalizes certain forms of non-Muslim religious propaganda as apostasy (art. 220, par. 2) and public acts deemed as offensive to the fasting Muslim believers in time of ramaḍān (art. 222). On the nature of State law of these provisions, stranger to the conceptual domain of sharīʿa, see Marguerite Rollinde, Le mouvement marocain des droits de l’homme. Entre consensus national et engagement citoyen, Karthala, Paris 2002, pp. 96–97. It is also interesting to note that according to the Moroccan criminal code apostasy per se, intended as the conversion of a Muslim to another religion, is not considered to be a crime, while some forms of religious propaganda may be, based on the aforementioned art. 220. On this last point, see briefly Abdessamal Dialmy, Le féminisme au Maroc, Toubkal, Casablanca 2008, p. 184.

  66. 66.

    According to art. 31, “The State, the public establishments and the territorial collectivities work for the mobilization of all the means available to facilitate the equal access of the citizens to conditions that permit their enjoyment of the right […] to education concerning attachment to the Moroccan identity and to the immutable national constants”, one of them being the relevance of the “moderate Muslim religion” (art. 1).

  67. 67.

    As mentioned, according to art. 9 of the Algerian constitution, the institutions “shall not indulge in […] practices contrary to Islamic morals and the values of the November Revolution”. While not directly, this provision may have indirect implications on the cultural life of the country, explicitly defined in the preamble as “land of Islam”.

  68. 68.

    Tunisia’s 2022 constitution at art. 44 reaffirms the State’s commitment to favor an Islamic and national dimension to the education of the younger generations. A similar provision was contained in art. 39 of the 2014 constitution.

  69. 69.

    With regard to this, however in a broader sense, Cesari speaks about “the creation of Islam as a foundational element of the modern nation” (Jocelyne Cesari, The Awakening of Muslim Democracy. Religion, Modernity, and the State, Cambridge University Press, Cambridge 2014, p. 31). The author speaks about “creation” of Islam as a founding myth of the nation, implicitly highlighting that in these cases—and mostly with this first constitutional approach—Islam does not impose its normativity in an autonomous way, but is defined in its—newly reinterpreted—essential significance and role by the Constitution, as the real source of established powers.

  70. 70.

    “Islam is the religion of the State, which guarantees to all the free exercise of beliefs.” Const., 2011, art. 3.

  71. 71.

    “Islam shall be the religion of the State”. Const., 1996, art. 2.

  72. 72.

    “The official religion of Brunei Darussalam shall be the Islamic Religion” (Const., 1956, art. 3, par. 1), which is defined to be the Islam of the Shāfiʿī school (art. 2, point 19).

  73. 73.

    “The state religion of the Republic is Islam, but the State shall ensure equal status and equal right in the practice of the Hindu, Buddhist, Christian and other religions.” Const., 1972, art. 2A as modified by Act XIV of 2011. It is interesting to note that the constitution of Bangladesh defines Islam as State’s religion while at the same time describing secularism as one of the country’s fundamental principles, along with nationalism, socialism and democracy (art. 8, par. 1; art. 12).

  74. 74.

    “Islam is the religion of the State.” Const., 1992, art. 1, par. 1.

  75. 75.

    As mentioned, Morocco is defined as a “sovereign Muslim State”, one of whose fundamental and federative constants is the “moderate Muslim religion” (Const., 2011, art. 1). The same preamble openly speaks of the “preeminence accorded to the Muslim religion”. Algeria is defined “land of Islam” in the preamble of its charter. Djibouti’s fundamental law declares in the preamble to adopt its constitution in the name “of God All-Powerful”. The preamble of the charter of Bangladesh is proclaimed “in the name of Allah, the Beneficent, the Merciful”. The case of the Tunisian constitution of 2022 is peculiar, in that Islam is not defined as the religion of the State as in the 2014 charter, but the new Fundamental Law reaffirms the belonging of the Tunisian people to the Muslim ummah and the commitment of the State to pursue the objectives (maqāṣid) of Islam (art. 5), while the role of Islam is also affirmed in the preamble.

  76. 76.

    To define a spiritual cult as “religion of the State” means to mutually characterize both the State and the religion. The State, becoming confessional, officially supports the affirmation, the preservation of the defense of a determined religious belief, while at the same time religion can in turn engage in political and legal relationship with the State’s authority, thus potentially acquiring a national dimension. This is particularly evident, for instance, in the case of the autocephalous Orthodox Christian churches in their relationship with their respective States. Therefore, given the specific historical and political context where this concept emerged, the idea of “religion of the State” can only be considered as a product of Western modernity, as for its cultural and philosophical perspective.

  77. 77.

    The applicability of the idea of “religion of the State” to Islam is particularly problematic, because of its normative intrinsic dimension. In Malaysia, for instance, the possibility of applying sharīʿa on the basis of Islam being the religion of the State has been advanced, provided that Islam possesses an autonomous non-codified idea of normativity, strictly inherent to its essence and inseparable from it. Therefore, the real question is how would it be possible to give effect to the prevision of Islam intended as State’s religion. Effectively recognizing Islam as religion of the State, according to this perspective, would necessarily imply recognizing its normative dimension in the legal system, which on the contrary cannot happen without a specific constitutional clause. On this point, regarding the Malaysian case that will be mentioned in the following chapter, see Sayed Sikandar Shah Haneef, “Discourse on Hudud in Malaysia: addressing the missing dimension”, in Journal of Islamic Law and Culture, vol. XII, n. 2, July 2010, pp. 134–137.

  78. 78.

    Here, I intend this concept based on a twofold idea. Firstly, neutrality with respect to the various religions, thus supposing the existence of an abstract genus of “religion” somehow constituting the less common denominator of all religious beliefs (see following note). Secondly, neutrality with respect to the State, thus universalizing the idea of (Western) secularization in heterogeneous contexts. In my opinion, this latter point is particularly relevant in analyzing contemporary constitutional attitudes regarding the religious phenomenon, where the interpretation of religion as a private system of belief not affecting the public sphere of life is by no means to be taken for granted. However, the neutrality and abstractness of the category of religion in contemporary Western constitutionalism is a necessary consequence of the affirmation of the fundamental principles of equality and non-discrimination, with respect to which the elaboration of a comprehensive, although simplistic and non-defined concept of religion is a logical assumption.

  79. 79.

    While it is undoubtedly true that every civilization shares a sort of spiritual experience, starting from the primitive beliefs in natural forces, it is nevertheless problematic to define “religion” as a common genus for the generality of particular religions. Such definition would be termed as “neutral”, because it would basically represent a lowest common denominator for all of the singular cults. However, religion being so deeply rooted in their respective historical development and cultural contexts, it would result in an excessively simplistic reduction, which would necessarily describe specific religious groups while ignoring others. As a consequence, it is possible to conclude, with William James, that “the word ‘religion’ cannot stand for any single principle or essence, but is rather a collective name” (William James [1902], The Varieties of Religious Experience. A Study in Human Nature, Routledge, London-New York 2002, p. 26). For the problems inherent to a general definition of religion, see once again Ugo Bianchi [1970], The History of Religions, Brill, Leiden 1975, pp. 201–212.

  80. 80.

    With regard to this, regarding the specific case of Morocco that is however similar to the ones of Tunisia and Algeria, Dupret observes that “the preeminence of Islam is not related to a reference to sharīʿa or to fiqh. Islam, the State religion, is first and foremost a national referential. The text specifies, in effect, that in its “moderate version” the “Muslim religion” constitutes one of the federative constants of the State, with national unity, territorial integrity and the unitarian and indivisible identity of the Nation” (Dupret, La Charia. Des sources à la pratique, cit., Chap. 9, par. 3). To be noted that the authiors writes before the adoption of the Tunisian constitution of 2022.

  81. 81.

    Const., 2011, preamble.

  82. 82.

    Const., 2022, art. 5.

  83. 83.

    On the Arab Union of Maghreb intended as a form of international cooperation, see Laura-Theresa Krüger, Mohamed Nidhal Zaier, “The Arab Maghreb Union: a new quality of foreign policy cooperation?”, in Tunisia’s International Relations since the ‘Arab Spring’. Transition Inside and Out, eds. Tasnim Abderrahim, Laura-Theresa Krüger, Salma Besbes, Katharina McLarren, Routledge, London-New York 2017, Chap. 11.

  84. 84.

    This ethnic element in a nominally universal community was recurrent in classical Islam, and leaves traces even today. For instance, the sovereigns of Morocco and Jordan, through their declared descendance from Muḥammad, strengthen their political prestige as well as their religious legitimation. Cf. Abdessamad Belhaj, La dimension islamique dans la politique étrangère du Maroc. Déterminants, acteurs, orientations, Presses Universitaires de Louvain, Leuven 2009, pp. 58.

  85. 85.

    Cf. Abdullah Saeed, “The Nature and Purpose of the Community (Ummah) in the Qurʼān”, in The Community of Believers. Christian and Muslim Perspectives, eds. Lucinda Mosher, David Marshall, Georgetown University Press, Washington 2015, p. 17; Recep Santurk, “Muslim Community and Polity, or Ummah” (voice), in Medieval Islamic Civilization. An Encyclopedia, ed. Josef W. Meri, Routledge, New York-London 2006, p. 536. On the ummah in the case of modern Turkey, see S. N. Eisenstadt, “The Kemalist Regime and Modernization: Some Comparative and Analytical Remarks”, in Atatürk and the Modernization of Turkey, ed. Jacob M. Landau, Westview Press-Brill, Boulder-Leiden 1984, pp. 12–13.

  86. 86.

    In the case of Morocco, Austin observes that “the identification with Ummah is in some respects similar to other instances of identification with larger systems of meaning and value, such as the “communities of value” found in traditional models of Buen Vivir in Latin America” (Annie Austin, A Universal Declaration of Human Well-being, Palgrave Macmillan, New York-Basingstoke 2019, p. 87). The ambiguities of the usage of the term ummah in Morocco legal texts, such as the mudawwana, may involve the inclusion or the exclusion of Moroccan non-Muslim in what was once seen as a necessarily Muslim community, but by no means such ambiguities involve the anachronistic return to an universalistic conception by transcending the national borders of the country (cf. Roberta Aluffi, “Morocco: introduction”, in Religions and Constitutional Transitions in the Muslim Mediterranean. The Pluralistic Moment, eds. Alessandro Ferrari, James Toronto, Routledge, London-New York 2017, p. 128).

  87. 87.

    It is interesting to note, with Camau, that the official French translation of the Moroccan constitution of 1962 freely translates ummah with the term nation, thus with a necessary reinterpretation of the original concept. See Michael Camau, “L’évolution du droit constitutionnel au Maroc depuis de l’indépendance”, in Jahrbuch Des Offentlichen Rechts Der Gegenwart. Neue Folge, vol. XXI, ed. Gerhard Leibholz, J. C. B. Mohr (Paul Siebeck), Tübingen 1972, pp. 442–443.

  88. 88.

    It should be noted that the idea of a “nationalized” ummah was used by nationalist thinkers to support the cause of independence in the time of colonialism. Therefore, this reinterpretation is not an innovation brought about by Western constitutionalism, but by independentism and nationalism just before it. es is the case of Morocco, where “the notion of ummah doesn’t have just a religious meaning anymore”, because “Muslim and Jewish Moroccans belong to the same Moroccan ummah” (Hassan Rachik, L’esprit du terrain. Études anthropologiques au Maroc, Centre Jaques Berque, Rabat 2016, p. 277). Indeed, the integration of the national element in the newly interpreted notion of ummah brings necessarily about a loss of exclusivity of the Muslim religious element, where not a progressive overcoming of it in favor of a marked identification between the ummah and the modern Nation (cf. Sabine Lavorel, Les Constitutions Arabes et L’Islam. Les Enjeux du Pluralisme Juridique, Presses de l’Université du Québec, Sainte-Foy 2005, p. 9).

  89. 89.

    El Houdaïgui speaks about “solidarity for esprit de corps”, characterizing “a circle of countries that share the fundamental values ​​and objectives of the Islamic ummah and that engage in an ever-closer relationship, which goes beyond purely material considerations” (Rachid El Houdaïgui, “La politique étrangère de Mohammed VI ou la renaissance d’une ‘puissance relationnelle’”, in Une décennie de réformes au Maroc (1999–2009), ed. Centre d’études internationales, Khartala, Paris 2009, p. 303).

  90. 90.

    It is worth recalling the words of Hasbi, who refers to the Moroccan case, but whose reflections can be applied even to the other countries above mentioned: “Nowadays, the Muslim space adheres to the rules of international law and adopts the national State model that has become universal. The feeling of belonging to the Islamic ummah survives in a widespread manner, but it is often transcended by the more operational territorial nationalism, because it is linked to the rules of positive law and to a human evolution which, in the case of Morocco, founds the desire to live together that underlies the national feeling” (Aziz Hasbi, “Les intérêts nationaux du Maroc par rapport au nouveau système international”, in Annuaire marocain de la stratégie et des relations internationales, vol. I, ed. Abdelhak Azzouzi, L’Harmattan, Paris 2012, p. 27).

  91. 91.

    The really distinctive point of the idea of the emirate of the believers is its call to universalism, which is necessarily translated to the call of a political unity of the community. As Donner observes, the believers “inaugurated a number of distinctive institutions that were instrumental in establishing their rule, and the social order that came with it, on a firm and enduring basis. The most important institution of all was that of the amīr al-muʾminīn or “commander of the Believers”. The creation of this office effectively institutionalized the notion that the whole community of the Believers should be politically united, as it was agreed that it should have henceforth a single leader” (Fred M. Donner, Muhammad and the Believers. At the Origins of Islam, Harvard University Press, Cambridge 2010, p. 135). See also Hamilton Alexander Rosskeen Gibb [1955], “Constitutional Organization”, in Law in the Middle East, vol. I, Origin and Development of Islamic Law, eds. Majid Khadduri, Herbert J. Liebesny, The Lawbook Exchange, Clark 2009, p. 5. For the caliphal titles, see Michael L. Bates, “Khurasani Revolutionaries and al-Mahdi’s Title”, in Culture and Memory in Medieval Islam. Essays in Honor of Wilferd Madelung, eds. Farhad Daftary, Josef W. Meri, I. B. Tauris Publishers, London 2003, p. 280.

  92. 92.

    The prerogatives of the king as head of State are numbered in art. 47 of the constitution of 2011.

  93. 93.

    Const., 2011, art. 41, par. 1.

  94. 94.

    For an analysis of the religious policy of king Mohammed VI, see Abdelilah Bouasria, “The second coming of Morocco’s “Commander of the Faithful””, in Contemporary Morocco. State, Politics and Society Under Mohammmed VI, eds. Bruce Maddy-Weitzman, Daniel Zisenwine, Routledge, London-New York 2012, especially pp. 38 ff.

  95. 95.

    Apart from the historical evolution of the European monarchies, it is enough to consider the religious role of the British sovereigns as heads of the Anglican church.

  96. 96.

    With regard to this point, Darif describes the kings as exercising a “monopoly on the religious interpretations”, which highlights the coincidence between his office as head of State and his office as commander of the believers. Cf. Mohamed Darif, “The Moroccan Islamist Movement, from Secessionism to Participation”, in Islamic Movements of Europe. Public Religion and Islamophobia in the Modern World, eds. Frank Peter, Rafael Ortega, I. B. Tauris Publishers, New York 2014, p. 59. It is interesting to note that in the caliphal context a possible analogy may be drawn with the peculiar religious view of the already mentioned Abbasid caliph al-Maʾmūn (786–833), who tried to centralize in the caliphal office the religious prerogatives, with particular regard to authentic interpretation. This view, however, was soon abandoned after the caliph’s death, and has been since then considered as erroneous alongside the idea of the “created Qurʼān”. On this, see Ira M. Lapidus [1988], A History of Islamic Societies, Cambridge University Press, Cambridge 2014, pp. 104–105, 130, 173, and Malise Ruthven [1984], Islam in the World, Oxford University Press, Oxford 2006, pp. 191–194.

  97. 97.

    The king is officially described as Notre Majesté Chérifienne in the dahir 1–11-91 of 27 shaʿbān 1432 (July 29, 2011).

  98. 98.

    The sole case of non-coincidence between the concepts of monarchy and emirate of the believers is constituted by non-Muslims Moroccan citizens, who are to be considered subjects of the king as a political leader but not to the king as amīr al-muʾminīn. However, it is not questionable that, in spite of an active international religious policy carried out by king Mohammed VI, the religious leadership of the king cannot be referred to non-Moroccan Muslims, with the consequence abdication to the universalistic approach that characterized the title in its original conception.

  99. 99.

    On the bayʿah in Morocco, see Abdelilah Bouasria, Sufism and Politics in Morocco. Activism and Dissent, Routledge, London-New York 2015, pp. 40–41.

  100. 100.

    On the contrary, Sater notes that the bayʿah confers legitimacy “on the King’s title Amir Al Mu’minin, which makes the King effectively stand above constitutional constraints and the division of state powers into legislative, executive and judicial institutions” (James N. Sater, Morocco. Challenges to tradition and modernity, Routledge, London-New York 2016, p. 6). However, this position is not sharable, in that we must distinguish between a normative legitimacy, provided by the constitution in the case of Morocco, and a cultural legitimacy, which can follow different paths of development and does not necessarily coincide with the legally official one. In this case, the king of Morocco exercises his prerogatives by virtue of a normative act—the constitution—whose mechanisms of functioning are detailed in the same document, neither this latter is a charter given graciously out of a condition of a legibus solutus sovereign. The bayʿah does not legitimize the king’s rule as a Muslim ruler who does not recognize the constitutional restraints or the powers of the State, but on the contrary it might be a cultural element of continuity that strengthens the bond between the monarchy and its subjects. A completely different case, in which the oath of alliance plays a more incisive role in the definition of the relationship between king and subjects, as well as of the conception of power, is represented by Saudi Arabia, whose model I will analyze in chapter III.

  101. 101.

    For an analysis of the conception of a political Islam in Morocco, with particular reference to the role of the monarchy, see Daadaoui, Moroccan Monarchy and the Islamist Challenge, cit., pp. 97 ff.

  102. 102.

    As Bouasria correctly observes, the institution of the emirate of the believers “serves a dual purpose: to define the strategic field of action as exclusive possession by the king, and to control the interstices of politics and religion. In fact, the Moroccan constitution clearly states that the religion of the country is Islam, but the latter is more seen as a belief system than as a source of law” (Bouasria, Sufism and Politics in Morocco, cit., p. 40).

  103. 103.

    Geertz describes the monarchy both as “the key institution in the Moroccan political system” and “the key institution in the Moroccan religious system” (Clifford Geertz [1968], Islam Observed. Religious Development in Morocco and Indonesia, The University of Chicago Press, Chicago-London 1971, p. 75).

  104. 104.

    One of them is undoubtedly Muhammad Allal al-Fasi (1910–1974), nationalist thinker and one of the founders of the Hizb al-Istiqlal independentist party. In his view, “In the spirit of Allal, the party is the carnal embodiment of the unity of the people, more projected toward the future, while the king is the embodiment of the unitary soul of the Nation, of the pride she draws from her near and distant past. Allal considers that only the monarchy is capable of safeguarding the unity of the ethno-cultural groups that constitute the Moroccan people. The throne is the supreme symbol of national cohesion” (Maâti Monjib, La Monarchie marocaine et la lutte pour le pouvoir. Hassan II face à l’opposition nationale, de l’indépendance à l’état d’exception, L’Harmattan, Paris 1992, p. 181).

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Ramaioli, F.L. (2024). No Sharīʿa in the Land of Sharīʿa. In: Shari'a and the Constitution in Contemporary Legal Models. Global Issues. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-031-37836-2_2

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