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This chapter connects the study of Islam and constitutional law with the nascent material on Buddhism. First, it notes the surprisingly long delay in commencing a study of the relationship between Islam and constitutional law, and upon the political and academic developments that eventually inspired the academy to focus its energies productively onto studies in this area. Second, it discusses some of the central findings produced by scholars of this field over the past twenty-five years, focusing on the Sunni world. Third, this chapter will very cautiously draw upon the contributions in this volume to highlight some ways in which patterns found in the Sunni Muslim world seem to be absent in a number of Buddhist countries. The overlaps and contrasts between these two religious traditions and their approaches to constitutional law provide many opportunities for deeper engagement.
This chapter begins by surveying the current literature on constitutional design constitutions for divided societies and constitutional approaches to power sharing. It pays particular attention to the view that constitutions are best understood not as contracts, but rather as coordination devices. An implication of this view for constitutional design is that, in deeply divided societies, successful coordination (and thus successful constitution-writing) may be easier to achieve if the constitution deliberately leaves certain divisive constitutional questions unresolved, with the understanding that those questions will be resolved incrementally over time. Against this theoretical background, the chapter uses the history and constitutional history of Afghanistan to illuminate the challenges of developing a constitution that can coordinate politics in a deeply divided society, and it evaluates the pros and cons of different approaches to constitutional design in such contexts.
Few countries can claim as rich and varied an experience of extraordinary rule as Pakistan. Pakistan has been governed under either emergency rule or martial law for the greater part of its history. Pakistani lawyers and intellectuals have given a great deal of thought to the problems posed by these kinds of extraordinary rule and their effect on the rule of law. In this Chapter, I will discuss how one famous and thoughtful liberal judge in Pakistan responded to the repeated imposition of emergency rule, martial law and guided democracy during his years on the bench. I will describe how he came up with a most surprising proposal for strengthening the rule of law so that extraordinary rule was either unnecessary or, when imposed, restrained. The judge in question is A. R. Cornelius, a famous Christian justice of the Pakistani Supreme Court – renowned for his repeated defence of the position that judges must play an active role in defending fundamental rights against executive overreach. His proposal was to Islamise the Pakistani legal system.
Cornelius has long stood as a hero to liberals in Pakistan and abroad for his courageous defence of fundamental rights during periods of extraordinary rule. He is particularly admired for dissents he wrote during Pakistan's first state of emergency and first martial law. In these dissents, Cornelius decried his colleagues' unwillingness to challenge executive assertions of power.
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