Theocratic Constitutionalism: An Introduction to a New Global Legal Ordering
Larry Catá Backer
Penn State Law
July 28, 2008
Indiana Journal of Global Legal Studies, Vol. 16, No. 1, 2008
Islamic Law and Law of the Muslim World Paper No. 08-44
The 20th century has seen a fundamental shift in the ways in which constitutions are understood. By the middle of that century a new sort of constitutionalism emerged, rejecting the idea of the legitimacy of every form of political self-constitution. The central assumptions of this new constitutionalism were grounded in the belief that not all constitutions were legitimate, and that legitimate constitutions shared a number of universal common characteristics. These common characteristics were both procedural (against arbitrary use of state power) and substantive (limiting the sorts of policy choices states could make in constituting its government and exercising governance power). These process and substantive norms were, in turn an articulation of a "higher law" of the community of nations, reflecting a global communal consensus evidenced in common practice or international agreements. The authority and legitimacy of this global secular transnational constitutionalism has not gone unchallenged. On the one hand, state power traditionalists reject the notion of extra-national normative constraints on constitution making. On the other, there has been an intensification of challenges from universalists of different schools, from natural law theorists to pluralist constitutionalists. Among the most potent of these groups have been religious transnational constitutionalists who have argued that one or another of the current crop of universalist religions ought to serve as the foundation of normative disciplining of constitution making. But do these movements represent constitutionalism? If it does, then what are its characteristics? This article examines these questions from the context of the most developed form of theocratic transnational constitutionalism, that of Islam. The object will be to examine the great variation of Islamic and Islamic influenced constitutions to see if these represent the emergence of a constitutionalism with characteristics that can be clearly articulated, that it is possible within this system to distinguish between legitimate and illegitimate constitutions, and that there are characteristics of this constitutionalism that clearly distinguish it from secular transnational constitutionalism. The article starts with a critical examination of the main currents of constitutionalism. Section II focuses on an extraction of an understanding of the concept of constitutionalism as system and its synthesis into a working definition of constitutionalism in general and transnational constitutionalism in particular. Section III extracts from this examination a possible set of characteristics of legitimate Islamic constitutionalism, distinguishing Islamic constitutions from Islamic constitutionalism. Section IV then applies this understanding of theocratic constitutionalism to the constitutional "families" of religious constitutions in which Islamic law has become part of the structural architecture of the constitution itself, suggesting points of convergence and divergence with the values and norms of secular transnational constitutionalism.
Number of Pages in PDF File: 81
Keywords: theocracy, constitutionalism, Sri Lanka, Malaysia, Iran, Pakistatn, international law, human rights, religion
JEL Classification: K33, K49Accepted Paper Series
Date posted: July 29, 2008 ; Last revised: January 12, 2009
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