Many today view “constitutional theocracy” as either a contradiction in terms or, at minimum, a deeply suspicious notion. In Constitutional Theocracy, Ran Hirschl, professor of law at the University of Toronto, gives a rich analysis of this modern phenomenon. He argues that this form of constitutionalism, combining the establishment of religion and some degree of religious control over politics with the traditional norms of constitutionalism, actually affords secular political regimes control over radical religious movements. Backed by a wealth of examples from around the globe, Hirschl shows how constitutionalism, in the context of theocracy, functions to coopt the persuasive power of religious institutions and channel that power into support for the reigning constitutional order. A mild establishment of religion, then, serves to limit the power of religious institutions by affording them a place in government as a source of law or a part of the judiciary. Constitutional courts, broadly, align themselves with the values of secular constitutionalism and frequently make decisions further limiting the power and influence of religion.
In a reflexive move, Hirschl turns his analysis of constitutional courts back on to “secularized” societies, finding that courts in Europe, South Africa, Canada, and the United States are also bulwarks of secularization against new, postsecular forms of public religion. This clarifies and expands Hirschl's hypothesis that secular constitutional law is a counterreligion in the sense that its values and narrative must take priority over traditional, religious sources of law. Constitutional courts, “as stakeholders in the civil religion, [] may feel obliged … to restore the superiority of its sources and legitimacy, rules of engagement, methods, and style of reasoning” (204).
Despite its creative arguments regarding the interaction of religious authority and political authority in the context of the phenomenon of “constitutional theocracy,” Hirschl's analysis frequently relies on an outmoded conception of religion as “radical” and anti-modern. From his perspective, constitutional theocracies are an epicycle in the larger global movement towards the privatization and waning influence of religion. It is telling that many of his examples involve postcolonial nations, where religious traditions may have been adopted as forms of political resistance to colonial power alongside forms of nationalism. Hirschl makes a compelling case, nonetheless, that in many countries with new constitutional orders, state establishment of religion prevents or hinders the use of religion as a tool to undermine state power.
His book is quite strong as an example of realistic comparative constitutional analysis, giving what could be a set of dry and abstract comparisons a concrete basis in social institutions and political realities. His argument that courts, as nondemocratic institutions, are able to resist and stem the influence of public religion is a provocative and worthwhile read.
CJM
