Fifty-five constitutions out of the fifty-seven officially registered member states of the Organisation of Islamic Cooperation declare that Islam is either the religion of the state or of the head of state. These constitutions also state that Islamic jurisprudence (fiqh) is a principal source of legislation.
This reference to religion in state constitutions is not unique to the Islamic world. According to data from the United Nations, 106 out of the 194 recognised countries in the world make some formal or preferential reference to a religion within their political systems; including highly democratic nations such as Britain, Canada, Australia, and the Scandinavian countries.
However, religious reference in Christianity, Buddhism, or Hinduism no longer poses a challenge to democratic life. These faiths withdrew from legislative authority centuries ago, adopting the principle that “God advises, but does not command.” What priests or monks say may be spiritually binding, but it carries no legal or political force. It took Europe nearly a thousand years – through the age of faith, inquisitions, and religious persecution – to arrive at this understanding. A similar transformation occurred in Buddhist and Hindu-majority nations such as China, Cambodia, India, and Thailand, where religious orders once wielded coercive power “by the will of the gods.”
By contrast, Islamic political jurisprudence remains distinct. In its traditional form, Islamic discourse resists the separation between religion and state. Many clerics continue to insist that Islam is both “religion and polity, scripture and sword.” Sermons across the Muslim world still link the community’s decline to neglecting “God’s prescribed punishments” (hudud) and demand the full application of Sharia law, including corporal and capital punishments.
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Yet, despite this rhetoric, most modern Muslim-majority states – even those whose constitutions cite Islam as the basis of legislation – do not apply Sharia literally. Their criminal, civil, and constitutional laws largely conform to international legal standards. Nearly all have signed international conventions against torture and human trafficking, which directly contradict classical interpretations of corporal punishments such as amputation, flogging, stoning, enslavement, or concubinage.
Historically, this matter was resolved through a clear division within Islamic jurisprudence into two rigid schools: reason and transmission, or opinion and interpretation, or in another expression, fiqh and text. Thus, a natural separation emerged between two groups; the juristic scholars engaged in public affairs, such as judiciary, consultation, and governance; and the preachers and clerics devoted to religious guidance and moral instruction.
The latter – men of religion – confined themselves to scriptural evidence and the sayings of the early generations (al-Salaf), whereas jurists adopted rational sources that could balance or even supersede literal texts, such as Istihsan (juristic preference), Istislah (public interest), ‘Urf (custom), and al–Dhara’i (blocking the means to harm or forbidden things).
A deeper reading of this divergence shows that the two schools represent two opposing foundations of authority. The Salafi trend, rooted in clerical literalism, restricts jurisprudential reference strictly to scripture and analogy. By contrast, most Muslim states have chosen the principle of Ijtihad (independent reasoning) as their legal foundation, granting qualified jurists the right to draw upon both Sharia and international law, and to rely on rational legal sources to formulate modern, applicable legislation.
Throughout Islamic history, states have consistently turned to pragmatic and realist scholars to draft laws suited to contemporary realities. Meanwhile, the Salafi school has remained bound to textual proofs – the Qur’an and the Sunnah – and insists that interpretation must not depart from the understanding of the early generations, even when such interpretations conflict sharply with international law and the Universal Declaration of Human Rights.
Today, Islamic political parties operate in the parliaments of nearly forty Muslim-majority nations, from Indonesia to Mauritania. They campaign under slogans like “sovereignty belongs to God” and “return to the true faith.” But in practice, none – except in Iran and Afghanistan – have proposed reinstating punishments such as amputation, flogging, or stoning. Their legislative focus is instead on moral and social issues: promoting virtue, combating immorality, and preserving family values; aims shared with conservative parties worldwide, religious or secular alike.
Even in Gulf countries that lack full democratic systems but maintain consultative councils grounded in Islamic values, no parliamentary or advisory body has recently demanded the return of traditional Sharia penal codes or revival of slavery and jihad regulations. These same states are, in fact, among the most active in combating extremist and jihadist ideologies.
Thus, the reality of legislative authority in the Islamic world reveals a clear divide. Legal and judicial institutions operate according to national and international law, guided by modern jurisprudential scholarship – while clerics and preachers occupy a separate moral domain. The contribution of academically trained jurists, many holding doctorates in Islamic law and comparative jurisprudence, has been to craft national laws rooted in the objectives of Sharia, not its literal injunctions.
Meanwhile, the role of the traditional cleric – the imam or preacher concerned with worship, ethics, and spiritual life – remains respected but limited. He may advise on faith and morality, but he no longer dictates law. In the words of the Prophet Muhammad, a principle that remains foundational to the modern Islamic legal state:
“You are more knowledgeable about the affairs of your worldly life”
