Constitutional Theocracy

At the Intersection of two sweeping global trends---the rise of popular support for principles of theocratic governance and the spread of constitutionalism and judicial review---a new legal order has emerged: constitutional theocracy. It enshrines religion and its interlocutors as "a" or "the" source of legislation, and at the same time adheres to core ideals and practices of modern constitutionalism. Unique hybrids of apparently conflicting worldviews, values, and interests, constitutional theocracies offer an ideal setting for studying constitutional law as a form of politics by other means. Ran Hirschl combines insights from legal theory, economics, theology, and political sociology with rigorous comparative analysis of religion-and-state jurisprudence from dozens of countries worldwide to explore the evolving role of constitutional law and courts in a non-secularist world.

Counterintuitively, Hirschl argues that the constitutional enshrinement of religion is a rational, prudent strategy that allows opponents of theocratic governance to talk the religious talk without walking most of what they regard as theocracy's unappealing, costly walk. Many of the jurisdictional, enforcement, and cooptation advantages that gave religious legal regimes an edge in the pre-modern era are now aiding the modern state and its laws in its effort to contain religion. The constitutional in a theocracy fulfills the same restricting function it carries out in a constitutional democracy: it checks theocratic governance and sets up law and courts as bulwarks against the threat of radical religion.

Constitutional Theocracy demonstrates that precisely because the canonical constitutional scripture has certain religion-like aspects, it may be better positioned than blunter, more forceful means to control and pacify principles of theocratic governance. In that respect, Hirschl argues, constitutionalism might emerge, or perhaps has already, as tomorrow's "opiate of the masses."

Ran Hirschl is Professor of Political Science and Law at the University of Toronto, and Canada Research Chair in Constitutionalism and Democracy.