Ran Hirschl

Ran Hirschl is Professor of Political Science and Law, and holds a senior Canada Research Chair in Constitutionalism and Democracy at the University of Toronto. Besides Constitutional Theocracy, featured in his Rorotoko interview, Hirschl is the author of Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Harvard University Press, 2004 & 2007) and of numerous articles and book chapters, and he is currently writing a book on the evolution, purpose and logic of comparative inquiry in legal studies. Ran Hirschl has been a Fellow at the Center for Advanced Study in the Behavioral Sciences at Stanford, a Fulbright Scholar, and a Fellow at Princeton University’s Program in Law and Public Affairs. Most recently, he served as the Jeremiah Smith, Jr. Visiting Professor of Law at Harvard Law School, received a University of Toronto Outstanding Teaching Award, and delivered the 2010 Annual Lecture in Law and Society at Oxford University.

Constitutional Theocracy - 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.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.

Editor: Erind Pajo
December 20, 2010

Ran Hirschl Constitutional Theocracy Harvard University Press314 pages, 9 1/4 x 6 inches ISBN 978 0674048195

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