Book Review: Hirschl’s Constitutional Theocracy
Ran Hirschl, Constitutional Theocracy (Harvard University Press, 2010), pp.249, $45.00
Religion-state relations have always been a staple topic in comparative constitutional law scholarship. This is, however, the first work that takes a broad and comprehensive overview of a not-so-new but largely ignored landscape which Ran Hirschl calls “constitutional theocracy.” This term describes and at the same time, zeroes in on the basic issue that form part of every dilemma with regard to the proper relationship between religion and state. How does one reconcile divine and man-made law?
In this counterintuitive, rich and fascinating book, Hirschl identifies the prevalence of a new form of political phenomenon called a constitutional theocracy which he situates at the intersection between a pure theocracy and a liberal constitutional democracy. According to him, constitutional theocracy has four elements: first, it adheres to elements of modern constitutionalism including judicial review, second, there is usually an established state religion, third, the religion and its corresponding texts are considered sources of state legislation, and lastly, parallel religious tribunals exist alongside the civil adjudication system.
The conventional understanding is that we should view this development with caution. Hirschl identifies that view with local secular elites who see religion with disdain, both for its seeming irrationality and its propensity for unpredictability. Paradoxically, the solution that secular elites came up with is to embrace this development. To constitutionally incorporate religious symbols and directives is ultimately the most prudent and rational response to the pressures brought about by the rise of political religion. For one, it facilitates the deployment of various means of political control, such as delegation and cooptation. To get from one to the other, Hirschl’s previous work on the origins and consequences of new constitutionalism offers a clue.
In Towards Juristocracy, Hirschl advanced the hegemonic preservation thesis in which threatened political elites who seek to preserve or enhance their hegemony empowered the judiciary to decide even highly political matters in order to insulate policy-making processes from the vicissitudes of democratic politics. One can see similar themes at play in his new book, particularly the divide between secular elites and the religious masses, and the peculiar role of constitutional courts in managing political hot potatoes, which, in this setting, refers to religion.
Religion, however, is a special kind of political hot potato. For one, it goes right at the heart of the collective existential narrative. There cannot be a single formula then on how to contain it without taking into account the historical and political accidents that are peculiar to particular societies. No matter what form that formula may take however, the result is that bringing religion within the constitutional ambit achieves the twin goals of appealing to popular pressures but at the same time keeping those pressures in check by ensuring state involvement in its interpretation, and consequently, bringing it under state control and supervision.
Drawing from a broad array of interdisciplinary sources, Hirschl deftly surveys a wide-ranging trend on containing the radical possibilities of a constitutionally-enshrined religion. The case studies in this book are divided largely between two camps: the first focuses on how constitutional courts contain religious law in the largely religion-suffused world of Egypt, Kuwait, Pakistan, Malaysia, Nigeria, Israel and Turkey while the second focuses on how courts function as secularizing agents in the pluralistic liberal societies of Western Europe, Latin America, South Africa and Canada. The wealth of detailed and updated information in these chapters alone makes the book worth the read. And if these examples are not enough, Hirschl’s claim also gains currency in what is happening right now in Iraq. As Haider Hamoudi recently observed, the Federal Supreme Court of Iraq has yet to issue any ruling which utilizes the non-repugnancy clause present in Article 2 of the Iraqi Constitution which mandates that laws cannot contradict the tenets of the Sharia. Hamoudi argues that Iraqis appear to have reached a consensus that the judiciary is not the best institution equipped to address questions of whether a law is “Islamic” enough, consigning Article 2 to symbolic oblivion. But this proves Hirschl’s point – Article 2 was included because it had such a broad appeal but the secular elites who are in charge of the Iraqi government at present would rather not resort to it because it does not serve their interests at the moment, and especially because they still have a strong base of power in the legislature.
Another interesting part of the book is the author’s exposition on the parallels between constitutional law and religious law in the last chapter. Enumerating the surprising affinities between the two, Hirschl posits that constitutionalism and religion often fail to get along not because they are different but because they are similar. He injects a realist perspective on these clashes between the two realms, claiming that the divide between secular and religious powers is not motivated by ideological or existential worldviews alone, if even principally, but also by material factors, such as economics and politics. The implication of this is that by broadening the frame of analysis beyond the seemingly insurmountable clash of basic philosophies, bridging the divide does not seem so impossible after all. One can draw on human tools even as one tries to address the challenges posed by divine imperatives.
While this is a very persuasive realist account of comparative constitutional law and politics, one must also wonder about some of its premises, chief of which is that there is such a clear-cut divide between secular elites and religious masses. The Iranian example, not discussed in the book but which has all the elements of a constitutional theocracy, seems to show the opposite. At the very least, the Iranian elite are a mix of religious and secular. Moreover, if this was all power and class, one should also be able to explain how religion gets enshrined in the constitution in the first place. The elites might resort to tools of constitutionalism to keep theocracy in check successfully when it is already established, but his thesis does not explain why they cannot prevent its rise in the first place.
These questions however do not detract from the value of the book. It is very well-researched and offers an original and bold thesis. It should be a must-read for enthusiasts and students not only of comparative constitutional law but also religion and politics in general.
Anna Su is a currently an SJD candidate at Harvard Law School.