Ran Hirschl, Constitutional Theocracy (Harvard University Press, 2010), pp.249, $45.00
Religion-state relations have always been a staple topic in comparative constitutional law scholarship. This is, however, the first work that takes a broad and comprehensive overview of a not-so-new but largely ignored landscape which Ran Hirschl calls “constitutional theocracy.” This term describes and at the same time, zeroes in on the basic issue that form part of every dilemma with regard to the proper relationship between religion and state. How does one reconcile divine and man-made law?
In this counterintuitive, rich and fascinating book, Hirschl identifies the prevalence of a new form of political phenomenon called a constitutional theocracy which he situates at the intersection between a pure theocracy and a liberal constitutional democracy. According to him, constitutional theocracy has four elements: first, it adheres to elements of modern constitutionalism including judicial review, second, there is usually an established state religion, third, the religion and its corresponding texts are considered sources of state legislation, and lastly, parallel religious tribunals exist alongside the civil adjudication system.
The conventional understanding is that we should view this development with caution. Hirschl identifies that view with local secular elites who see religion with disdain, both for its seeming irrationality and its propensity for unpredictability. Paradoxically, the solution that secular elites came up with is to embrace this development. To constitutionally incorporate religious symbols and directives is ultimately the most prudent and rational response to the pressures brought about by the rise of political religion. For one, it facilitates the deployment of various means of political control, such as delegation and cooptation. To get from one to the other, Hirschl’s previous work on the origins and consequences of new constitutionalism offers a clue.
In Towards Juristocracy, Hirschl advanced the hegemonic preservation thesis in which threatened political elites who seek to preserve or enhance their hegemony empowered the judiciary to decide even highly political matters in order to insulate policy-making processes from the vicissitudes of democratic politics. One can see similar themes at play in his new book, particularly the divide between secular elites and the religious masses, and the peculiar role of constitutional courts in managing political hot potatoes, which, in this setting, refers to religion.