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Copyright (c) 2012 Willamette Law Review
Willamette Law Review


Summer, 2012

Willamette Law Review

48 Willamette L. Rev. 427


Haider Ala Hamoudi*


I. Introduction
"Repugnancy clauses" - those constitutional provisions that, in language that varies from nation to nation, require legislation to conform to some core conception of Islam - are all the rage these days. 1 This clause, a relatively recent addition to many modern constitutions, has emerged as a central focus of academic writing on Muslim state constitutions generally, and on Arab constitutions in particular. 2 Much of the attention it has received has been enlightening and erudite. 3 Yet one aspect of the broader repugnancy discourse that deserves some attention is an important, often de facto, temporal limitation on the effect of the clause. There appears to be a rising trend that repugnancy in the Arab world should not apply to legislation enacted prior to the date that the repugnancy clause was inserted into the Constitution. Irrespective of electoral results throughout the region heavily favoring parties that seek a more robust role for shari'a in public life, parties I will describe for the purposes of this Article as "Islamist," this trend seem to be growing deeper roots.

The trend is particularly ironic because the canon is fundamentally incoherent, both from the perspective of constitutional structure as well as substantive policy. As to the former, surely a constitutional amendment of this sort must generally have retroactive effect. It would make little sense to amend a constitution to grant all citizens equal protection under the law and then for a court to suggest that existing slavery laws might be exempted ...
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