Osgoode Hall Law Journal, Vol. 49, p. 151, 2011
9 Pages Posted: 13 Jul 2011 Last revised: 3 Oct 2014
Date Written: July 11, 2011
When I was a child, the chant I always associated with Islamism was “the Qur’an is our constitution.” Gradually it has been replaced, however, with the mantra of the Muslim Brotherhood in Egypt, “Islam is the solution.” These simplistic tropes seem similar, but the difference between them is significant. In many ways, this distinction lies at the heart of the considerable contribution that Ran Hirschl has made in his fine work, Constitutional Theocracy, to the understanding of constitutional governance in societies where there is a substantial legal and formal recognition of religion. However, this distinction also reveals the biggest problem in his analysis. Simply stated, one of these slogans (“the Qur’an is our constitution”) is logically incompatible not only with modern constitutional governance but also with the very notion of the Westphalian nation-state, while the other (“Islam is the solution”) is not.
To many people raised in a secular tradition, constitutional governance is necessarily secular. It is precisely this belief, often so thoroughly internalized that it is not questioned, that Hirschl convincingly critiques. While he acknowledges that the marriage of theocratic and constitutional governance is one fraught with friction, Hirschl also points out – correctly – that the two systems have far more in common than has been previously acknowledged. Less convincing is what I might describe as an ancillary thesis, though one Hirschl takes quite seriously, which is that the constitutional theocratic structure is a rational and prudent secular response to growing global religious fervor. Hirschl argues that constitutional theocracy is designed to empower courts, with their secularly trained elite judges, to interpret religious mandate, thereby constraining, limiting, and in some cases neutering the more radical religious claims. I do not mean that Hirschl is entirely wrong about this, for surely he is describing some fair number of constitutional theocratic states accurately. Yet understood as a global feature of constitutional theocracy, his description seems flawed in at least two respects. First, the notion of court as secularizing agent may be widely applicable but, as Hirschl well knows, is by no means universal.
Second, and more importantly, Hirschl seems to be conflating two different phenomena. The first are traditional and informal forces of law-making and law interpretation, from tribal councils to local priests (i.e., those likely to proclaim Qur’an as constitution), that any state instrument, including a court, would seek to constrain and limit for reasons that anyone who has read her Weber knows well. The second are religio-political movements operating within the state and competing for maximum control over state institutions and apparatus. To assume that these immensely popular movements, which are perfectly comfortable within a national constitutional structure (but still believe Islam to be the solution), will not be able to exercise significant influence over a judiciary seems fanciful and difficult to defend, at least as an empirical matter. It seems that Hirschl therefore describes not so much the successful constraining of religion by forces of secularism so much as the destruction of the traditional mechanisms for the creation of religious law and their replacement with something altogether different – whether the new mechanisms be secular or simply some dramatic mutation of religio-legal norms as to enable them to fit better within a modern state paradigm.
The review proceeds in two Parts. Part One describes Hirschl’s central thesis and explains why it is a fresh and compelling contribution. Part Two describes the ancillary claim that the courts in constitutional theocracies operate as secular agents and some of the problems associated there with.
Keywords: Constitutional Theocracy, Religious Law, Islamic Law, Islamic Consitutionalism
Suggested Citation: Suggested Citation
Hamoudi, Haider Ala, Book Review: Constitutional Theocracy by Ran Hirschl (July 11, 2011). Osgoode Hall Law Journal, Vol. 49, p. 151, 2011; University of Pittsburgh Legal Studies Research Paper No. 2011-21. Available at SSRN: https://ssrn.com/abstract=1883929