A Review of Constitutional Theocracy by Ran Hirschl

Ran Hirschl's Constitutional Theocracy¹ is a comprehensive and sophisticated analysis of the relationship between religions, constitutions, and courts across much of the contemporary world. The book is based on extensive analyses of national debates and jurisprudence on issues of the relationship between state and religion and secular and religious law. The book draws on debates taking place among legal scholars, political scientists, political sociologists, and social philosophers and is uniquely poised to speak to multiple audiences. It also draws more general conclusions about trajectories of sociojuridical change in a world increasingly defined by the public resurgence of religious identities and claims-making.

The work is distinctive in several ways. First, it conceptualizes a new legal order—constitutional theocracy—that has emerged in the wake of the global resurgence of religion. Hirschl defines constitutional theocracies as characterized by simultaneous adherence to modern constitutional principles, including the core distinction between political and religious authority, and religious principles.² The latter aspect entails constitutional sanctioning of a "state religion" and religious law as a or the main source of legislation. Second, it examines the relationship between state and religion implicit in constitutional theocracies as part of a larger continuum of "state-and-religion models."³ One end of this continuum is occupied by communist regimes that have adopted active campaigns and policies to eradicate religion, and the other end is occupied by countries like Egypt, Israel, and Pakistan—some of the main exemplars of constitutional theocracy discussed in the book—that perennially struggle with reconciling foundational democratic ideals with equally core religious national identity issues. Between these two ideal types lie a host of countries in which the relationship between state and religion is mediated more moderately. Examples include the selective accommodation of religion in certain areas of the law (India, Kenya) and respect for religious difference through explicit adherence to ideals of multiculturalism and diversity (Canada, South Africa).

By bringing a larger set of national cases into a comparative framework, the book showcases the centrality of the religion question for constitution makers and interpreters across different political, cultural, and social settings. Such a focus leads Hirschl to make what in my view is the book's central and most original argument—constitutional theocracy allows modern states to contain the excesses of religion in contexts where there is popular support for imposition of religious law by delegating the state-and-religion issue to constitutional courts that are peopled by secularly inclined judges. In the process, these courts "have become bastions of relative secularism, pragmatism, and moderation, thereby emerging as effective shields against the spread of religiosity and garnering increased popular support for principles of theocratic governance."⁴

First, Hirschl devotes a chapter to examining the multiple rationales that make the space of constitutional courts and law appealing to "secularist, modernist, cosmopolitan, and other antireligious social forces."⁵ These include: (1) co-optation of alternative religious discourses from competing traditional authorities;⁶ (2) jurisdictional advantages that inhere from bringing religious law within the ambit of state law, which allows both the standardization and enforcement of the former;⁷ (3) strategic delegation of potentially thorny social issues by political elites to constitutional courts;⁸ (4) the very epistemology of constitutional law⁹ that makes it "a more hospitable domain for secularist worldviews and policy preferences than for religious ideology";¹⁰ (5) constitutional challenges to religion-based associations such as political parties;¹¹ and finally (6) political control of judicial appointments, which effectively means that political elites are able to promote judges who have secularist leanings.¹²

Next, Hirschl devotes two chapters to empirical cases to advance and substantiate his arguments. Chapter 4 draws on experiences of constitutional courts in seven countries (Egypt, Kuwait, Pakistan, Malaysia, Nigeria, Israel, and Turkey), and readers are taken on a voyage in which they get a glimpse of concrete issues ranging from Egypt's Supreme Constitutional Court's treatment of appropriate attire for women to the Supreme Court of Israel's handling of the foundational "Who is a Jew?" question. In these and most of the other examples presented, courts engage...