Constitutional Courts Vs. Religious Fundamentalism: Three Middle Eastern Tales
University of Toronto - Faculty of Law
Texas Law Review, Forthcoming
U Toronto, Public Law Research Paper No. 04-08
Over the past few decades, principles of theocratic governance have gained enormous public support in developing polities worldwide. The countries experiencing this resurgence of religious fundamentalism are diverse, spanning the globe from Central and South East Asia, to Northern and sub-Saharan Africa and the Middle East. While populist Western academic and media accounts tend to portray the spread of religious fundamentalism as a monolithic, and ever-accelerating phenomenon, in practice most countries that have recently experienced a fundamentalist revival have long been caught between secular and religious identities, worldviews, and commitments.
The growing popular support for principles of theocratic governance poses a major threat to the cultural propensities and policy preferences of secular and relatively cosmopolitan elites in these countries. An increasingly common strategy undertaken by political power-holders representing these secular voices has been the transfer of fundamental collective identity, or religion and state quandaries, from the political sphere to the constitutional courts. Drawing upon their disproportionate access to, and influence over, the legal arena, social forces in polities facing deep divide along secular/religious lines aim to ensure that their secular Western views and policy preferences are less effectively contested. The result has been an unprecedented judicialization of foundational collective identity, particularly religion and state questions, and the consequent emergence of constitutional courts as important guardians of secular interests in these countries. In this article I explore the scope and nature of this phenomenon.
This article is divided into four major sections. In the first three parts, I explore the crucial secularizing role of constitutional jurisprudence in three countries facing a secular/religious divide - Egypt, Israel, and Turkey. These three countries have witnessed a considerable increase in the popular support for, and influence of, theocratic political movements. At the same time, these three countries differ in their formal recognition of, and commitment to, religious values. For example, Article 2 of the Egyptian Constitution, as amended in 1980, states that principles of Muslim jurisprudence (the Shari'a) are the primary source of legislation in Egypt, while Israel defines itself as a Jewish and Democratic state; modern Turkey, conversely, characterizes itself as secular, adhering to the western model of strict separation of state and religion. Accordingly, there are considerable differences in the interpretive approaches and practical solutions adopted by the three countries' respective high courts in dealing with core religion and state questions. Egypt's Supreme Constitutional Court has developed its own moderate interpretation from within of religious rules and norms. The Israeli Supreme Court has tackled the tension between these conflicting values by curtailing the jurisprudential autonomy of religious courts and tribunals, and by subjecting their jurisprudence to general principles of administrative and constitutional law. The Turkish Supreme Court, on the other hand, has opted for the outright exclusion of religious values and policy preferences from legitimate political discourse. Despite these dissimilarities, there are striking parallels in the way constitutional courts in these and other similarly situated countries have positioned themselves as important secularizing forces within their respective societies. I conclude this paper by suggesting that anti-religious judicial activism in constitutional theocracies provides important insights for understanding the political origins of judicial power.
Number of Pages in PDF File: 43
Keywords: Constitutional jurispurdence, constitutional theocracy, law and religion, Israel, Egypt, Turkey, political origins of judicial activism
Date posted: November 22, 2004 ; Last revised: July 27, 2009