Comparative constitutional law has recently emerged as an exciting, genuinely interdisciplinary field of inquiry where legal scholars, students of comparative politics, and, not least, political theorists can mingle and have meaningful conversations. At the same time, the methods and central conceptual tools as well as the ultimate normative goals (if any) of the field have remained highly contested, or sometimes simply unclear: in the eyes of some, comparison of constitutional law is in danger of reifying different legal traditions or even national identity as an ultimate explanation of differences; for others, the field has seemed crypto-normative in that its practitioners seem to search for a generic constitutionalism (or, for that matter, an ideal liberal constitutionalism); other observers again have suspected that comparison is ultimately to legitimate borrowings from foreign constitutional jurisprudence—the very practice that conservatives in the United States have so strenuously opposed.

Given these uncertainties, the two books under consideration here (which partly overlap in the history and the legal cases they treat) are highly welcome. Both make important contributions to understanding the enterprise and purposes of comparative constitutional law more generally: Gary Jeffrey Jacobsohn provides a number of concepts and distinctions that will be useful for anyone in the field; with Ran Hirschl's volume, readers get an exemplary exercise in how to link a number of case studies to genuine conceptual innovation and to larger insights into the nature of constitutionalism as such.

Jacobsohn's Constitutional Identity is the more philosophical of the two works. Jacobsohn is not the first to use the term “constitutional identity”—a notion that will seem intuitively plausible to many scholars (and citizens, for that matter), but that has been hard to operationalize in research and precisely courts the peril of reification. Jacobsohn insists that “the concept of constitutional identity should be at the center of constitutional theory”(p. 3)—which it presumably can be only if the concept (which generally suggests both uniqueness and continuity) is capable of being made sufficiently clear both for empirical inquiry and normative reflection.

According to Jacobsohn, “a constitution acquires an identity through experience” (p. 7) and develops “dialogically” over time—so far, so good, but also fairly abstract. More interestingly, Jacobsohn draws on two conservative theorists of tradition—Edmund Burke and Alasdair MacIntyre—to claim that constitutional identity necessarily contains elements of Burkean prescription and, at the same time, what MacIntyre famously called “continuities of conflict.” In other words, a static identity (or, for that matter, a fully Burkean tradition) effectively means death; a constitutional identity (or, in MacIntyre's original example, a tradition) is in good order only as long as it remains what Jacobsohn calls “an artifact of the dissonance in a nation's divided inheritance” (p. 19). Real constitutions, then, are characterized by “disharmony,” which in turn requires a “dialogical engagement” with various actors representing different solutions of how (at least temporarily) to resolve disharmony.

On the one hand, this sounds eminently plausible—all constitutions are open to contestation, yet, at least in the West, it remains rare that they are overturned altogether—but on the other hand, this might still be too general, even if Jacobsohn aims to do nothing less than illuminate the “constitutional condition” itself. However—and this is where the strength of the book lies—he goes over a number of cases—Ireland, India, and Israel, with some further glances at Turkey, Korea, and the United States—to demonstrate how disharmony (either as already found in the constitution itself, as in the Israeli tension between aspirations to be a Jewish and a democratic state, or as “external,” when a constitution's values clash with actually existing practices) and dialogue actually work. Arguably, the most convincing of these cases is India (on which Jacobsohn has written extensively in the past). Here, he draws a further and potentially seminal distinction between militant and acquiescent constitutionalism: The former entails a “transformative constitution” whose identity does not so much reflect an existing social order as a commitment fundamentally to reshape it; the latter essentially protects it. Jacobsohn draws extensively on the thought of B. R. Ambedkar (the principal architect of the Indian constitution, and himself an “untouchable” by origin) to illuminate how Indian militancy was directed against elements of Hinduism, the caste system, and oppressive family structures in particular. By contrast, the United States has experienced the occasional militant moment (post–Civil War reconstruction being the prime example), but overall, American constitutionalism has been much more acquiescent.

The concepts and distinctions Jacobsohn suggests, and in particular the philosophically nuanced thinking about continuity and change on which his conception of identity relies, will be useful for anyone engaged in comparative constitutional inquiry. At the same time, one is left wondering how much work these can do for addressing somewhat more normative questions: Jacobsohn a number of times engages the possibilities of “unconstitutional constitutional amendments” and even “constitutional identity theft”—in other words, questions about the limits to legitimate constitutional change. But at least this reviewer was left wondering how much the concept of identity or the notion of “bounded fluidity” helps here—especially because Jacobsohn is clear throughout that constitutional identity contains not just the constitutional document and its attendant interpretations, but all kinds of social practices and traditions (though, as Jacobsohn rightly insists, “the text is a start”). But how then can we judge some forms of dialogue to be more legitimate or at least more clearly successful than others? Jacobsohn borrows Anne Norton's phrase “unending dialectic of becoming and overcoming” (quoted on p. 27) to describe the process of working out constitutional disharmony. But then is Verfassungsgeschichte equal to Verfassungsgericht (to parody Hegel's notion that world history is the world court of judgment)? In other words, will whatever history yields as outcomes of dialogue count as constitutional identity, barring some obvious break to do with, let's say, occupation?

Hirschl also examines a clear case of disharmony, namely the uneasy marriage between constitutionalism and religion, for which he coins the concept of “constitutional theocracy.” As with Hirschl's previous work on “juristocracy,” one finds that he makes sense of a phenomenon that, once one has understood Hirschl's conceptual approach and argument, seems almost obvious—but that up to now has been largely overlooked and not really been grasped systematically. “Constitutional theocracy” refers to political and legal systems that establish or at least highly privilege religion, but where religious actors are nevertheless constrained by constitutional courts and other forms of checks and balances, or, as Hirschl himself puts it, “a formal separation” remains “between political leadership and religious authority” (p. 2). More historically or sociologically speaking, constitutional theocracy is the combination of two major trends of our time: the return of religion (as it is often put in a rather clichéd way) and the global success of constitutionalism (and Hans Kelsen's great invention, the constitutional court, in particular). According to Hirschl, almost a billion people could now be said to live in outright constitutional theocracies or systems that at least share important features with it.

While constitutional theocracy is not quite a contradiction in terms, it certainly is a constant source of friction or what Jacobsohn would probably term a disharmonic invitation. The value of Hirschl's work is not least that he goes beyond notions of contestation and dialogue as a necessary consequence of disharmony and argues that in fact “constitutionalism in predominantly religious settings plays a key role in curbing the spread and impact of theocratic governance” (p. 13); in other words, constitutional courts—which, according to Hirschl, are mostly staffed by relatively secular and liberal elites—systematically try to contain religious aspirations (including ones that might be enshrined in a constitution itself). This is the real twist in his story: While constitutionalizing religion at first sight might seem to suggest strengthening religious influence by entrenching it, in fact different forms of constitutionalization, according to Hirschl, “allow non- or antitheocratic elites and leaders to talk the talk of commitment to religious values without walking much of the actual walk of that commitment” (p. 13). Constitutionalization, far from necessarily benefiting religion, actually subordinates religion to state authority, the rule of God to the rule of law.

Hirschl marshals an impressive range of evidence—focusing primarily, but not only, on the Middle East—to demonstrate how these constitutional containment operations work in practice. But he goes a step further and makes a claim that should be relevant to any constitutional theorist: namely, that even in Western democratic states, constitutional courts are almost always secularizing agents (who might tolerate certain exemptions, as long as they can be contained with the principle of diversity as inclusion, but who always balk at the creation of parallel nonsecular legal systems). Hence the differences, as far as Jacobsohn's basic disharmonies are concerned, between authoritarian and nonauthoritarian countries are not nearly as great as one might assume in the abstract.

This is already an ambitious conceptual and empirical enterprise—and one that, I'd argue, largely succeeds. But Hirschl wants to make an even larger argument along the lines that constitutionalist containment of religion works partly because constitutionalism and religion are in fact much more similar than generally thought (especially if the former appears in the form of a civil religion). Here I am more skeptical: Of course at a very general, almost metaphorical level, there is something to this idea (judges as high priests, the notion of “living tree interpretation” applying to both, etc.). But by the same logic, so many modern phenomena could be (and have been) construed as substitutes for religion (from art with its high priests to the more obvious examples of communist and fascist ideologies, now often seen as political religions). But whether they really compete with and can substitute for religion would require much more detailed empirical work. And in fact, Hirschl's own case studies seem to suggest that secular elites precisely do not try openly to offer alternative sources of public and private meaning, but find much more subtle jurisprudential ways of containing religion, while as much as possible avoiding direct competition and conflict. On the other hand, the example of American civil religion does not really work in this context—after all, unlike a French republican cult of the state, let's say, it retains direct connections to religion. In any event, beyond the American case, there are very few countries that could be said truly to exhibit a constitutional religion, let alone ones where constitutionalism, of all things, could become the “opiate of the masses,” as Hirschl, with characteristic rhetorical flourish, speculates in the very last sentence of the book.

Still, Hirschl's is a major contribution—one that is more, not less, relevant after the upheavals in the Middle East. Having said that, his suggestion that constitutional theocracies and constitutional democracies are not as much at odds as generally thought, since in the former the demos also has “some nontrivial say” and “popular legitimacy” matters, seems even more questionable now than when the book was written. While the “say” might not have been trivial, it clearly has not been enough to establish legitimacy in many Middle Eastern countries, and the analogy between constitutional theocracy (for the most part authoritarian) and constitutional monarchy (for the most part not authoritarian, let alone repressive) simply does not hold.

As Jacobsohn points out, there is on occasion “no escaping consideration of whether the proposed constitutional accretion should seek a ratification of what exists in the patterns of prevailing societal conduct or attempt to transform it” (p. 27). In deeply religious societies, constitutionalism can not only contain the total theologization of law, as Hirschl's work suggests; it can also reshape what after all are almost always contestable and conflicted religious traditions. National and religious identities are not given—this has become a cliché in both the humanities and the social sciences. What this means for constitutionalism both books—Jacobsohn's even more than Hirschl's—show admirably.