by Ran Hirschl. Cambridge, MA: Harvard University Press, 2010. 314pp. Hardcover. $45.00/£33.95/€40.50. ISBN: 9780674048195.
Reviewed by Gary Jeffrey Jacobsohn, Department of Government, University of Texas at Austin. Email: gjacobsohn [at] austin.utexas.edu.
Encountering a book with a title such as the one under review is likely to provoke one of two responses. The first is bewilderment at the author’s apparent obliviousness to the presence of contradiction. The second, much more likely given the reputation of the author as one of our most prominent comparative students of constitutions, comes with a prediction that as a reader you will be asked to reflect counter-intuitively in ways that will transform your thinking about the essentials of constitutionalism. Ran Hirschl, it turns out, is not oxymoronically challenged, and CONSTITUTIONAL THEOCRACY is a signal achievement in the enhancement of constitutional understanding.
Specifically enhancement is required in response to two profoundly important global developments: the strong revival of religiously inspired politics and the great expansion and proliferation of constitutionalism and judicial review. The convergence of these unmistakable trends is manifest in regimes of very different types, ranging from those whose commitment to constitutional principles is conjoined with democratic aspirations, as well as those where a dominant religious presence is the polity’s primary source of law and policy. It is, of course, in connection with the latter type that the placement of the constitutional modifier with the theocratic form of governance appears initially so jarring. Hirschl’s goal is to disabuse us of this common misunderstanding, and further to argue that the dynamic that renders plausible the co-existence of these strange bedfellows also merits our attention in regimes of the first type, which in myriad ways must cope with the stresses of the newly energized religious challenge.
There is significant variation within these two types, and in his first chapter Hirschl details the characteristics associated with the spectrum of possibilities associated with each. In doing so, he provides an extraordinary range of examples from around the world to illustrate alternative models of constitutional practice, a method that is employed to great effect throughout the book. The “ideal” model of constitutional theocracy exhibits several defining elements, only one of which is unique to it; the others may be found in constitutional orders that are in varying degrees deferential to religious demands and sensibilities but which are ultimately non-theocratic in terms of their core constitutive commitments. For example, a constitutional democracy may grant official recognition to one or more religions and yet not be tethered to any particular faith system such that its laws and policies must conform to the theological requirements of that faith. [*159] Such, indeed, is the crux of a constitutional theocracy, namely that all laws must correspond with the injunctions of the state-endorsed religion.
It is this requirement that underlies the common assumption that a regime that includes religion cannot be a legitimate constitutional order. Hirschl acknowledges that a polity of this kind ought not be placed under the rubric of liberal constitutionalism, but the presence of elements it shares with regimes that can claim such recognition nevertheless provides a sufficient basis for achieving constitutional legitimacy. Thus a constitutional theocracy, whatever its other problematic characteristics, will include at least some of the fundamental features of modern constitutionalism, most importantly a formal distinction between political authority and religious authority, and some form of active judicial review. These elements, Hirschl maintains, work to circumscribe the theocratic aspirations of those in power, much as they function in constitutional democracies to check the occasionally illiberal inclinations of the popular will. “[C]onstitutional law and courts in virtually all such polities have become bastions of relative secularism, pragmatism, and moderation, thereby emerging as effective shields against the spread of religiosity and increased popular support for principles of theocratic governance” (p.13).
CONSTITUTIONAL THEOCRACY’s most important teaching is to be found in its third and fourth chapters, where constitutional politics is shown to be an effective force in upholding modern, secularist values in places that are known mainly for environments inhospitable to such values. There is a very useful chapter that precedes this account, in which Hirschl presents a taxonomy of contemporary approaches to state and religion. This taxonomy sets the stage for his subsequent development of the argument that the management of temporal/spiritual affairs spanning regime types is not so different as one might imagine given the cross-national variation that characterizes the legal primacy of theological determinism. Once one understands that the “apparently incoherent mix of constitutional sources and provisions is not something over which constitutional theocracy has exclusive monopoly” (p.41) it becomes easier to appreciate that the ubiquitous disharmonies of contemporary political life, however contrasting they may be in the seriousness of the challenge they pose to secular values, provide the conditions for a ubiquitous response, namely “the increasing reliance worldwide on constitutional law and courts to mediate the seemingly contradictory aims and commitments of constitutionalism and religion" (p.49).
How does this happen? In two chapters, “The Secularist Appeal of Constitutional Law and Courts” and “Constitutionalism Versus Theocracy,” Hirschl offers numerous examples from such disparate settings as Israel, Singapore, Chechnya, Iran, Turkey, Egypt, Pakistan, Malaysia, and Nigeria, to highlight the epistemological, ideological, and strategic resources available to societal interests seeking to constrain the expansive reach of religiously-based particularism. In Chapter 3 he discusses six ways in which constitutionalism in predominantly religious nations work to achieve this result. Thus, one might [*160] think that the formal enshrinement of a specific religion as the “state religion” could only be a bad thing for those worried about theocratic domination of civil society. But with enshrinement comes statutory regulation and monitoring, enabling the government to maintain an effective arsenal of checks on the decision-making of the “official” religious authority. Similarly, formal codification of religious law represents the antithesis of secular legalism, but in transferring authority to interpret this law from sectarian jurists to state-appointed judges the state typically exerts a moderating influence in shaping the course of public policy making. Co-optation, then, can be a very effective device to restrain the more ominous impulses of divinely inspired power brokers.
So can other devices, such as strategic delegation (where, as Hirschl has written in previous works, politicians make strategic use of the judiciary to shield secular-nationalist elites from the dangers associated with theocratic populism), and the constitutional delegitimation of religious associations, as occurred in Egypt with the banning by President Mubarak of the Muslim Brotherhood. These strategies suggest that virtue is not a monopoly of one side of the religious/secular divide; indeed they signify that constitutional checks may very well be tainted by authoritarianism. Key to the containment enterprise however, is what Hirschl refers to as the “epistemology of constitutional law,” which refers to the fact that “the very logic of modern constitutional law, with its embedded notion of overarching objectives and conceptual supremacy, state-driven legitimacy and authority, separation-of-powers structure, procedural rules of engagement, methods and styles of reasoning, and its often measured approaches to politically charged questions, seems intrinsically appealing to those advocating a moderate approach to matters of religion and state” (p.72) Nathan Brown has made much the same point in his study of constitutions in the Arab world, but Hirschl employs the insight much more generally, enabling us to see it as intrinsic to the enterprise of constitutional politics.
In his longest chapter Hirschl considers some of the interpretive techniques employed by constitutional courts to block the spread of religious law in countries that either meet the criteria for constitutional theocracy or feature a major political/legal challenge to secular governance. In each instance the high court has been instrumental in influencing and articulating questions of foundational collective identity. The examples explored provide considerable range: from Pakistan, where the law experienced full Islamization in 1973 and 1985, to Egypt whose Constitution was amended in 1980 to make Shari’a the main source of legislation, to Malaysia, which incorporates the federal principle to regulate the propagation of Islamic law, to Israel, whose Court has from its inception confronted the duality of the constitutional order’s commitments to Judaism and democracy, to Turkey, where the imposition of a Western-style model of strict separation has increasingly encountered the resistance of a population whose heightened religious sensibilities demand public recognition. The creativity of the judicial efforts in these instances is evident from both [*161] strategic and jurisprudential perspectives.
These efforts also raise the question of whether a similar secularizing judicial role is present in the constitutional jurisprudence of the non-theocratic world. The question speaks not only to the specific issue under consideration by the author but also to a more general concern within comparative judicial scholarship as to whether the political functions of courts show significant variation in democratic and authoritarian regimes. The common wisdom is that they do, but Hirschl’s comparative survey suggests a more complicated explanation. Thus in Chapter 5, he looks at how courts in Western Europe, Latin America, Canada, and South Africa have responded to the challenges of religion to democratic politics, the latter two locales notable in particular for illustrating the workings of the antireligious jurisprudential impulse in societies famous for their accommodating politics of multiculturalism. His conclusion is that the courts in these more liberal polities share with their more authoritarian counterparts “an embedded judicial sympathy for modernist, religion-light visions of society over traditional, customary, or religion-driven visions” (p.204).
A final substantive chapter is devoted to a very skillfully constructed analysis of the striking similarities between constitutional law and religious law. Here again Hirschl draws upon an extensive array of fascinating examples – historically as well as geographically disparate – to reveal the conceptual parallels in these two domains: 1) their similar apolitical characteristics, more symbolic than real, but critical to their systemic importance; 2) the tradeoff in both spheres between amendment and interpretation, with the prominence of the latter related to the rigidities associated with the former; 3) the presence within their respective interpretive traditions of jurisprudential schools featuring “originalist” and “living tree” approaches; and 4) the strong connections between both sacred and secular law to the political economies within which they are situated. This latter conceptual affinity underscores a larger point about the similarities of the two legal orders, namely that much of the systemic tensions related to secular/religious rivalries flow not so much from their dissimilarities as from their resemblances. Readers familiar with Hirschl’s previous work will not be surprised to learn that these rivalries are inspired as much, if not more, by competition over distributive politics and access to resources as by ideational aspirations.
CONSTITUTIONAL THEOCRACY is an exemplary scholarly achievement and will take its rightful place on the shelves we reserve for our most important books in religion and law as well as in comparative constitutional studies. What distinguishes such books is of course the quality of their insights into the human condition, but also their capacity to engage the reader in a conversation with the author regarding his principal arguments. Here, for example, are two issues this reader would want to pursue with the author:
1) The evidence Hirschl adduces for the secularizing dynamic of constitutional structures in even the most theocratically [*162] driven regimes is impressive. Nevertheless, what one experiences within the polities that conform to the ideal type varies considerably from place to place; thus an informed perusal of the lives people live in a range of countries that are formally under the sway of religious law would make it clear that a person of secular leanings would be much better off living in country X as opposed to country Y. How much of the variation can be attributed to the institutional formalities associated with constitutional structures of power and how much to the more indeterminate world of political culture?
The news reports from two of the constitutional theocracies featured in Hirschl’s book speak directly to this conundrum. In Pakistan the assassination of an important secular political leader who had challenged his nation’s grotesque blasphemy laws was met with a stunning outpouring of support for the religious zealot who perpetrated the crime. A striking aspect of this response was that it was extremely concentrated within the educated middle class; indeed it attracted the passionate backing of many young lawyers, who had in recent years shared with other elements in Pakistani society – including the army and the police -- in the drift to religious extremism. These lawyers protested openly on behalf of the suddenly celebrated assassin, and they also were to be found among the large numbers of Facebook subscribers who posted their support for the bloody deed soon after it had occurred.
Contrast this with the reports out of Egypt, in which the behavior of comparable elements in that society aligned with a decidedly modernist, secular agenda to fundamentally transform that nation’s constitutional politics. A new Constitution will doubtless strengthen the anti-theocratic forces within Egyptian society, perhaps even resulting in something that approximates Turkey’s rejection of constitutional theocracy. More likely it will retain at least some features of the old regime’s embrace of Islamic law, and it surely will continue the tradition of a relatively independent constitutional court. But when all is said and done, cannot the same question be asked of constitutional democracies as of constitutional theocracies, namely whether the degree of their success in curtailing indigenous illiberal forces is mainly attributable to the biases of institutional design or the engrained habits of the people.
What’s more, consistent with Hirschl’s emphasis on the similarities of institutional effects in the theocratic and non-theocratic worlds, the same question needs to be pressed with regard to the latter. For example, the Dutch Constitution, while it includes protection for religious liberty, does not provide for the broad power of judicial review that we have come to associate with modern constitutionalism. Yet given the robust and extensive Dutch public acceptance of the value of secular toleration, the Netherlands has earned and maintained a reputation for forbearance in matters of religious freedom. How well it survives the current threat posed by political interests opposed to the increasingly visible Islamic presence in the country, particularly when considered in comparison with other countries similarly situated but with more powerful courts, should illuminate and [*163] perhaps clarify the institutional design/political culture problem.
2) The very idea of constitutional theocracy presents us with a classic instance of the more general phenomenon of constitutional disharmony, which involves either tensions or contradictions within the body of explicit constitutional commitments or friction resulting from the dissonance between the document and the social order it seeks to regulate. If we consider again the difference between country X and country Y, how much of the variation in the actual resistance to theocratic authority observable in the comparison might be connected to the politics of constitutional disharmony?
For example, some Muslim countries that have incorporated “repugnancy clauses” in their constitutions have also included additional provisions as mandated sources of legislation, specifically principles of democracy. What effect, if any, do these non-Islamic directives have in moderating the impact of theocratic ambition? Is there a jurisprudential dynamic created that results in more liberal and secular policies and rulings? In Israel, as Hirschl deftly documents, the dual commitments to both Jewish and democratic aspirations, provide judges with considerable interpretive resources to diminish the influence of religion on the people’s lives. But how much of the diminution is actually the result of the formal constitutional recognition of these twin aspirations? Would there be a different outcome if judges had to rely on the richness of the religious tradition alone, which, as in Islam, includes schools of thought that promote values respectful of human dignity and equality?
Judges are, as Hirschl points out, often the vehicle through which questions of “foundational collective identity” are addressed. In the end, the question that lingers after reflecting on this groundbreaking study relates to the specific nature of that undertaking. As important as the constitution is in determining that identity, the disjunctions between the document and the people for whom it is intended may be more important than the text itself. And so the specific content of the collective identity will vary over time, tethered to the text, but only loosely, to accommodate the dialogical interactions between codified foundational aspirations and the evolving mores of the people. Ran Hirschl’s wonderful book will nudge us to think more seriously about this and other questions critical to constitutionalism in the twenty-first century.
Brown, Nathan J. 2001. CONSTITUTIONS IN A NONCONSTITUTIONAL WORLD: ARAB BASIC LAWS AND THE PROSPECTS FOR ACCOUNTABLE GOVERNMENT, Albany, NY: SUNY Press.
Hirschl, Ran. 2004. TOWARDS JURISTOCRACY: THE ORIGINS AND CONSEQUENCES OF THE NEW CONSTITUTIONALISM. Cambridge: Harvard University Press.
© Copyright 2011 by the author, Gary Jeffrey Jacobsohn.