Ran Hirschl

 

On his book Constitutional Theocracy

Cover Interview of December 20, 2010

Lastly

In the area of constitutional law, the world grows increasingly smaller, but the domestic and particular persist. Constitutional theocracy stands at the intersection of the general and the contextual, the universal and the particular.  Constitutional theocracy may very well be constitutional law’s version of what has been termed glocalization—the process whereby the global and the local merge to form a new, perfectly authentic synthesis.

Constitutionalism in the abstract, with its “virtues” or “vices,” has been a fertile topic for countless normative debates in legal and political theory.  But for those interested in the political foundations of constitutional orders and institutions, it has always been about who gains and who loses.

The rise of constitutional theocracy, despite the important normative quandaries it poses, is no different.  It cannot be understood in purely ideational terms or in isolation from the concrete social, economic, and cultural rifts from which it emerges and that it attempts to maintain, contain, or defuse.  In other words, constitutional theocracy is more an artefact of political sociology than a byproduct of either constitutionalism or theocracy.

The formal establishment of religion and the granting of limited jurisdiction to its tribunals may be portrayed as surrender to religion, but in reality it helps limit the potentially radical impact of religion by bringing it under state control.

More important, this process makes the state (and its courts) key in picking religion’s official authorities and jurists, giving the state a stake in the interpretive game.  Although the establishment of religion does not come without some compromise on universal outlooks, the jurisprudence of constitutional courts in such settings, even if formally religious in some sense, will inevitably reflect a less militant view of religious identity.

At a more abstract level, the key to understanding why constitutionalism may be effective in taming the impact of religious thought lies in the similarity, not the difference, between constitutionalism and religion.

Although constitutionalism and religion are often portrayed as diametrically opposed—or at least unrelated—domains, they are in fact two analogous symbolic, but also workaday, systems.  Each with its own constitutive texts, sets of beliefs, high priests, and earthly interests, they both vie to establish, maintain, or enhance their hegemony, worldviews, and preferences vis-à-vis each other.

And precisely because of being a religion-like domain, a civic faith fostered by the modern state and by the international community, constitutionalism is distinctly better positioned than blunter, ostensibly more forceful means to defuse, mutate, co-opt, or mitigate principles of theocratic governance.


© 2010 Ran Hirschl