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Since 1950, a large number of Arab countries have enacted constitutions containing provisions that declare Islamic norms to be a source of legislation. The wording of these provisions varies in subtle but significant ways. Arab constitutions use different terms to describe the Islamic norms that serve as a source of law. Some refer to "fiqh," others to "sharia," and still others to "the principles of sharia." Furthermore, these constitutions characterize the role of Islamic norms differently. Most clauses describe Islamic norms either as "a chief source of legislation" (masdarun raisiun li'l tashri') or as "the chief source of legislation" (al-masdar al-raisi li'ltashri'), 1 although a few use slightly different formulations.2 Many constitutions drafted or amended in the wake of the so-called Arab Spring of 2011 are likely to include such sharia-as-source-oflegislation ("SSL") provisions.
Where did SSL provisions come from, and what do they accomplish? Today, most academics and policy makers seem to accept that the impact of an SSL provision will depend on its wording. Provisions making Islamic norms "a chief source" of legislation have never been understood to require that state legislation be consistent with sharia norms; conversely, constitutions making sharia norms "the chief source" or "the only source" of legislation have always been understood to create such a requirement.3 The distinction is important, they believe, because a constitution that requires legislation to respect Islamic law is inconsistent with liberal values. Working from these assumptions, the U.S. government in 2004 worked hard to prevent the government of occupied Iraq from drafting a constitution that made Islam "the chief source" of legislation.4 More recently, media accounts of constitutional deliberations in Arab countries have followed closely the debates about whether to make Islamic norms "the chief source of legislation." These accounts have implicitly assumed that the role of Islam in the legal system will be determined largely by the outcomes of these debates.5
This article will examine the history of SSL clauses in the Arab world. It will discuss how such clauses came to be included in Arab constitutions in the first place and how different clauses have been interpreted over the years. It will demonstrate that Arab understandings of these clauses have evolved over time. If we focus on the way in which SSL...