Ran Hirschl

In a nutshell

Religion and the belief in God have made a major comeback. From the fundamentalist turn in predominantly Islamic polities to the spread of Catholicism and Pentecostalism in the global south, and from the increase in religiously devout immigrants in Europe to the rise of the Christian right in the United States, it is hard to overstate the significance of the religious revival in late twentieth and early twenty-first century politics.

At the same time, the world has witnessed the rapid spread of constitutionalism and judicial review. Constitutional supremacy—a concept that has long been a major pillar of the American political order—is now shared, in one form or another, by over one hundred and fifty countries and several supra-national entities across the globe.

At the intersection of two sweeping global trends—the rise of popular support for principles of theocratic governance, and the spread of constitutionalism and judicial review—a new legal order has emerged: constitutional theocracy.

Constitutional theocracy enshrines religion and its interlocutors as “a” or “the” source of legislation, and at the same time adheres to core ideals and practices of modern constitutionalism.

Unique hybrids of apparently conflicting commitments, worldviews, and sources of authority, constitutional theocracies thus offer an ideal setting—a “living laboratory” as it were—for studying constitutional law and innovation as a form of politics by other means.

In this book, I combine insights from legal theory, economics, theology, and political sociology with a rigorous comparative analysis of religion-and-state jurisprudence from dozens of countries worldwide to explore the evolving role of constitutional law and courts in the emerging non-secularist world.

I argue that, counter-intuitively, the constitutional enshrinement of religion may be a rational, prudent strategy that allows opponents of theocratic governance to talk the religious talk without walking most of what they regard as theocracy’s unappealing, costly walk.

Many of the jurisdictional, enforcement, and cooptation advantages that gave religious legal regimes an edge in the pre-modern era, are now aiding the modern state and its laws in its effort to contain religion. The “constitutional” in a constitutional theocracy thus fulfils the same restricting function it carries out in a constitutional democracy: it brings theocratic governance under check, and assigns to constitutional law and courts the task of a bulwark against the threat of radical religion.

Precisely because it has certain religion-like aspects to it, the canonical constitutional scripture may control and pacify the principles of theocratic governance more effectively than blunter and ostensibly more forceful means. In that respect, I argue, constitutionalism might very well emerge—or perhaps has already emerged—as tomorrow’s “opiate of the masses.”

The rise of constitutional theocracy, much like the process of separation of church and state before it, is merely another stage in the ongoing tug-of-war between two of the most powerful belief systems of our time. Constitutional theocracy is a politically driven synthesis that is already becoming the new thesis throughout much of the developing world.

Turning to constitutional law and courts to bring religiosity under check or defuse its potentially radical edge is a rational choice of action by secularists and moderates. Despite occasional and inevitable setbacks, it is a prudent, judicious gamble.

As de facto civic religion, constitutional scripture may be an effective counterpoint to religious scripture.

The wide angle

As of 2010, perhaps more than half of the world’s population lives in polities where religion not only has remained public but also has been playing a key role in political and constitutional life. Of these people, approximately one billion live in national or sub-national polities that feature key elements of what I have termed “constitutional theocracy.”

Populist academic and media accounts tend to portray the spread of religious fundamentalism in the developing world as a near-monolithic, ever-accelerating, and all-encompassing phenomenon. The reality in most pertinent settings is notably more complex and nuanced. Various secularist, modernist, or otherwise anti-religious stakeholders vie to advance their worldviews and policy preferences against the backdrop of religion-infused politics and morality.

Regimes throughout the new world of constitutional theocracies—as well as in countries where religion-centered morality has been dominating law and politics for generations: think India or Catholic Europe and Latin America—have been struggling with questions of a profoundly foundational nature. They are forced to navigate between cosmopolitanism and parochialism, modern and traditional meta-narratives, constitutional principles and religious injunctions, contemporary governance and ancient texts, and judicial and pious interpretation.

Constitutional courts find themselves at the forefront of this struggle as they attempt to address constitutional theocracy and translate its uneasy bundle of seemingly contradictory aims and commitments into practical guidelines for public life.

The constitutional incorporation of religious directives is not done for the pure love of religion. It is a response to fundamentalist threats—and at times even a preemptive move: appropriation of religion to counter to fundamentalist threats.

As support for theocratic governance continues to grow, the constitutional establishment of religion becomes an increasingly attractive—the lesser evil—solution for secularists, statists, modernists, and other religion-taming interests that strive to protect or advance their agendas in a non-secularist world.

A close-up

The book explores the world of constitutional theocracies through six different lenses.

First, I define constitutional theocracy and describe its basic tenets, functioning, and intrinsic existential tensions. These embedded disharmonies pose serious challenges to modern constitutional courts operating in such settings.

Second, I place the rise of constitutional theocracy in the context of other models—from the distant past to the present day; Christian, Muslim, Hindu, and Jewish; and from east, west, north, and south—for arranging religion and state relations. I point to some serious shortcomings of canonical constitutional theory in accounting for the jurisprudential and socio-political realities of the secular/theocratic rift in a non-liberal context.

Third, I explore the secularist appeal of constitutional law and courts. I identify six broad rationales—from the most abstract epistemological platform to the most concrete political level—that make these institutions attractive to secularist, modernist, cosmopolitan, and other antireligious social forces in polities that face deep divisions along secular/religious lines. Drawing on all these rationales, the state—even in the most theocratic settings let alone in more lax ones—invests tremendous energy to bring religion under constitutional check.

Fourth, I examine in considerable detail how constitutional courts in seven countries—and each court within the different constitutional framework and political context in which it operates—advance secular or secularizing solutions to problems of state and religion. The seven countries are Egypt, Kuwait, Pakistan, Malaysia, Nigeria, Israel, and Turkey. In all of them popular support for political religion is widespread, and courts these have developed extraordinary interpretive ingenuity—of richness that makes the vibrant interpretive debates in the United States look rather meager. To press forward with their religion-taming agenda, courts in these countries have been engaged in zealous jurisdictional wars unseen in any liberal constitutional setting. I also show how and why, under certain politically charged circumstances, constitutional courts in these and similarly situated polities may side with religion law and authorities against their own secularist, religion-subjugating tilt.

Fifth, I show how constitutional law and courts in several non-theocratic settings—from the battle over religious attire in Europe to the struggle over reproductive freedoms in Colombia and Mexico, the status of customary law in South Africa, and the erection of boundaries to multicultural accommodation in Canada—essentially display the same secularist sentiment as their counterparts in predominantly religious settings. Courts in these polities—each operating in a different political context and preoccupied with a distinct state and religion challenge of their own—have nonetheless positioned themselves at the secularist end of the acceptable continuum in each of their respective polities. Even some of the most accommodating polities—think of South Africa’s “rainbow nation” or Canada’s “mosaic” conception of citizenship—are open to diversity-as-inclusion claims but resist nonstate-law-as-competition claims that seek to establish “islands of jurisdictions” lying outside the governance of the state and its official agents. Constitutional courts worldwide share a secularist tilt relative to the context within which they operate.

Sixth, I point to a conceptual affinity, indeed a near-equivalence, among the sociology and cosmology of interpretive debates in the constitutional and religious domains, the tension between interpretation and amendment in constitutional and sacred texts, the striking parallels between “originalist” and “purposive” interpretive approaches in constitutional and sacred law, and the political economy of intra-religious and secular/religious rifts. This suggests that although constitutional law and religion law seem fundamentally different from each other, they ultimately have much more in common than meets the eye.

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.