All countries have religion. Virtually all countries also have constitutions and most countries today also have conflicts about the place of religion in the political order. Constitutionalism has spread and religion has become newly salient, politically speaking. How and whether constitutionalism and religion are, or should be, understood as related in some deep sense is a thorny and complex historical and sociological question, one that is garnering considerable interest at the present time.

Ran Hirschl, a comparative constitutionalist at the University of Toronto, enters this conversation with the plea that we look more carefully at how religion is actually being governed — and, inevitably, how religion is at the same time also being re-modeled — by constitutional courts today. He wants us to expand our constitutional competence beyond the usual suspects and see how constitutional courts across the world are using a common range of tools and strategies to address the legal questions presented to them when there is competition between political and religious authority. Constitutional courts, Hirschl asserts, have been given this job because they have become a safe domain for adjudicating issues of collective identity — or — perhaps, merely safer domains in which to handle the “hot potatoes” of contemporary politics, including, among others, the law governing marriage and divorce, religious conversion, the wearing of headscarves, the availability of abortion, and the display of religious symbols.

Hirschl argues that the old model in which constitutional orders were understood as secular and democratic while their political counterparts were often regarded as theocracies is out of date. Instead, he says, what we should do is to add what he calls “constitutional theocracies” to the spectrum of types of constitutional orders, ranging from those espousing state atheism through various models of religious accommodation. Pure theocracy, he suggests, may only really exist now in the Vatican state, that is, a political order in which the religious and political governments are one. All of the others are simply variations on a theme.

The project of this book is an admirable and important one. Hirschl knows a lot about constitutions and how they are interpreted and made effective. The most interesting parts of the book are chapters four and five where Hirschl shows us in detail how in country after country constitutional courts have been useful to governments as secularizing or moderating agents. These courts, using a range of interpretive strategies and doctrines, employing “interpretive ingenuity,” as Hirschl calls it, both recognize the demands of religious communities and submit them to constitutional norms. Time after time what Hirschl considers universal values trump sectarian religious goals. Chapter four considers constitutional court decisions in Egypt, Kuwait, Pakistan, Malaysia, Nigeria, Turkey, and Israel. Chapter five considers the secularizing effects of court decisions in the United Kingdom, France, Italy, the European Union, Colombia, Mexico, and, Canada, and South Africa. Simply to put these courts next to one another is an achievement.

Hirschl's comparative constitutionalism has impressive range. He is most persuasive when he is showing the clever mechanisms used by judges to encompass and tame their religious subjects. But Hirschl's effort to explain why constitutions can do this is less so. There are two not entirely compatible narratives at work. One narrative tells a remarkably consistent story across virtually all constitutional orders, not just the constitutional orders of Europe and North America. That narrative is that constitutions inevitably “tame” religion. That is, after all, in a sense, why they were invented. They prioritize the rule of law. The second narrative singles out problem countries, those Hirschl terms constitutional theocracies, countries where a single religion is given priority and a single religio-legal tradition appears to dominate, and suggests that these countries are somehow different. While he speaks of these countries collectively as if what makes them different is simply that their religious identities are enshrined in their constitutions, they are, with one exception, Muslim-majority countries in which Islam is explicitly constitutionally privileged. The one exception is Israel. Here Hirschl wishes to call attention to the unexpected strength of constitutional law and constitutional courts even in countries outside the “non-theocratic world,” in countries that are not thoroughly modern and democratic, particularly when it comes to religion.

This second narrative and the over-heated rhetoric that is used to describe these countries — he says they are places haunted by a theocratic “spectre” and struggling with the “threat” of theocratic rule — undermines the purported universality of the first. The reader is left wondering whether these countries are a special case or not — and why? Does Hirschl want to say that constitutions tame religion because that is what constitutions do, or does he want to say that, surprisingly, constitutional courts in non-democratic and non-secular countries have unexpectedly, and counter-intuitively, developed strategies to curb the excesses of the strongest religionists in their midst? Suddenly religion takes on more importance.

In setting up his explanation for why constitutions are able to tame even fundamentalist Islam and ultra orthodox Judaism, Hirschl employs a set of dubious dichotomies: religion/secular, east/west, democracy/theocracy, dichotomies that he himself doesn't seem to really believe in. Furthermore, the historical narrative in which he locates his work becomes very difficult to pin down. While he gives a lengthy treatment to ancient Jewish legal interpretation, a potted history of the medieval church and the subsequent disestablishment of the churches, and offers some parallels between legal and religious institutions and practices, he does not seem to have decided whether negotiations between political, social, economic, and religious aspects of human societies are a constant taking different forms at different times or whether he is describing something very new. Are modern constitutions by their nature secularizing in a way different from these earlier political arrangements that also limited the reach of religious authority?

Part of the difficulty lies in Hirschl's insufficient engagement with the deeply problematic term, “religion.” As long as he is using the term loosely to gather together a set of practices that contemporary legal and political instruments denominate religion, his comparative narrative holds. It is when he tries to explain constitutional theocracy by suggesting that religion and constitutional law are the same kind of thing that the argument becomes somewhat incoherent. Both religion and constitutionalism are, he says, symbol systems that are characterized by a tendency toward organic Lamarckian adaptation over time (211). It is the religion-like nature of constitutionalism that suits it for its religion-taming role. Indeed, so religion-like is constitutionalism, according to Hirschl, that the last sentence announces that it might eventually emerge as “tomorrow's opiate of the masses” (249).

The entry of Marx in this last sentence not only calls attention to the lack of critique in his account of religion, it further suggests that “religion” might be a bit of a red herring in this story — and that all of the talk of theocracy might be provocative rather than elucidating. If we sober up and widen the lens to include all of the many other cases in which constitutional courts shape the legal spaces in which people live their lives, might we not see that what Hirschl is showing us is simply one more way in which government employs constitutional courts as a space for collective negotiation and adjustment. Religion is not different in this respect from other aspects of a particular country's particularity and multiplicity.

While Hirschl gestures at one point to the field of comparative religions and the recent scholarly effort to tell the history of the invention of modern religion (211), he has not really taken on the ways in which this history undermines the very categories he is using. Work by Talal Asad, Tomoko Masuzawa, Webb Keane, Russell McCutcheon, Gil Anidjar, and others, has persuasively shown that various institutions, including colonial governments and the academic study of religion, have shaped the object that is religion, homogenizing and re-modeling a wide variety of ideas and practices into a single phenomenon, a phenomenon largely defined by the preoccupations of Christians and their secular avatars. On this reading of the modern story of religion, what constitutions do to religion is unsurprising. How they do it is the interesting story and one that Professor Hirschl tells well.