Hirschl, Ran. Constitutional Theocracy.
Hirschl commences with an overview of the rise of what he calls "constitutional theocracy" in the modern world. He defines constitutional theocracies as states that possess a clear constitutional arrangement, a religion "formally endorsed" by the state, and the "enshrining" of the religion as the main source of legislation for the state, as well as a set of religious bodies that function as important--if unofficial--transmitters of the customs and interests of the established religion. Iran is identified as perhaps the quintessential model of the "strong" form of constitutional theocracy.
Chapter two provides a taxonomy of the multiple forms of constitutional orders in terms of how they might reject, accommodate, or incorporate religion. Hirschl recognizes especially the way in which some modern states have dealt with the question of religious identity. The 1937 Turkish constitution, for example, explicitly incorporated the term "secular" to describe the state (Hirschl also says "atheist," but no support is given for the claim), and Saudi Arabia, among others, has willingly suspended Shari'a principles from being applied universally, so as to accommodate modern economic practices or the tourist industry.
The various reasons why secular constitutional law came to the forefront in the West, over against the claims of religious law, are analyzed in chapter three. That turn he attributes to multiple and sometimes opposing factors, including the attempt to distance religious authority from political responsibility, the desire to coopt sources of religious authority, and the view that secular courts are more reliable protectors of autonomous individual rights.
Chapter four contains what might be described as the heart of the argument of the book, as Hirschl here lays out the manner in which the promotion and practice of constitutional law regularly constrains theocratic impulses in nations with large religious majorities. He treats Egypt, Pakistan, Malaysia, Israel, and Turkey at length, showing how the secular courts have routinely exercised control over the attempts by religious entities to subject the law to their "theocratic" interests. Thus laws concerning conversion, property ownership, citizenship status, and marriage and divorce have often been controlled or regulated by secular courts. This is accomplished by variegated means--for example, by establishing the superiority of the constitution to religious law (even where the constitution ostensibly established religion within the law), or by appeals to principles of centralized authority against local religious customs.
While chapter four treats the courts and laws of mostly Muslim countries, chapter five examines the role courts have played as "secularizing agents" in nontheocratic political orders, including Europe and the Americas. In a multitude of examples we see that courts have limited the interests of religious groups, even where constitutions have explicitly protected such groups. In defense of concerns such as the freedom of conscience of the young, gender equality, tolerance, pluralism, "confessional neutrality," abortion rights, and assimilation, courts in these countries have often struck down attempts either to guide the law by religious interests or to carve out protection for religious practices.
Chapter six provides an overview of the contrasts and similarities between modern constitutional law and what Hirschl styles "religion law," largely treating the revealed law of the so-called Abrahamic religions. Hirschl notes that practitioners or supporters of both constitutional law and religion law often see themselves as fundamentally apolitical, and that this accounts in part for the status that both sometimes achieve, that of a place of sacred honor or trust.
Some of Hirschl's analysis would, of course, have to be reassessed in light of very recent fundamental shifts in the Muslim world, but that would not alter the importance of the patterns and principles he has thoughtfully outlined here. In light of those shifts, though, it is curious that the book seems to consider Christian believers a significant threat to the dominance of secular constitutional law. The Catholic Church, especially, is singled out for exercising undue influence over the law and society; Catholicism is "omnipresent" and "invidious," it "haunts," "hovers over," and has a "historic grip" on politics in many countries, possesses a "politically systemized church hegemony," and even changed its theology to combat rival denominations.
The work contains a wealth of information and careful analysis of political regimes around the world and is in many ways a model of comparative constitutional scholarship. By Hirschl's own account, though, we might also be led to think further about the real commitment to constitutional forms in the countries that formally vouch for that commitment. The degree to which secular constitutional courts are not truly autonomous, but themselves controlled by political and ideological forces, emerges throughout the discussion (for example, in chapters three and six).--Richard Dougherty, University of Dallas
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|Publication:||The Review of Metaphysics|
|Date:||Dec 1, 2013|
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