Islamic Constitutionalism Before Sovereignty: Two Defenses of the Tunisian Constitution of 1861

Abstract

This article focuses on the Tunisian constitutional moment of 1857-1861. Its goal is to explore an important moment in Islamic modernity for the purposes of drawing a contrast with twentieth-century, post-caliphal Islamist thought. The primary themes visible in nine-teenth-century Islamic constitutional thought are a “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. The debates of the 1860s and Ottoman constitutionalism more gen-erally do not lead directly to a non-sovereigntist political vision. But they are representative of a pre-colonial (and thus, to a certain extent, pre-apologetic) Islamic thought that centralizes the public interest, the varieties of political judgment, and the compatibility of distinct kinds of expertise with a desacralized centralized author-ity. This period may hold relevance for our present moment when twentieth-century ideals of both divine and popular sovereignty seem to no longer dominate Islamic (and Islamist) approaches to political life.