The influence of theocratic principles is rising around the world. This article from the William and Mary Law Review assesses the challenges this trend creates in post-conflict political and legal development. It identifies a new form of governance, ‘constitutional theocracy’, that has emerged from these tensions. Constitutional courts can play a key role in preserving the secular nature of polities against growing support for theocratic governance. In spite of some institutional progress, however, further study on religion in post-conflict constitutionalism is needed to address the growing theocratic challenge.
Religion creates unique challenges for constitutionalism in dealing with the theocratic wave because: it cuts across nations otherwise unified in cultural and social values; it traverses territorial boundaries; its factions are not monolithic but, rather, often subdivided into many competing sects; and its principles are fundamentally at odds with modern concepts of the rule of law. These factors make the drafting of constitutions in religiously fragmented settings, such as Palestine, inherently more difficult than when divisions run along ethnic or linguistic lines.
The tension between modern constitutionalism and the rising influence of theocratic governance has precipitated the emergence of a new legal order, the ‘constitutional theocracy.’ Hundreds of millions of people now live under regimes that feature all or many of the four main elements that characterise an ‘ideal’ constitutional theocracy:
- Adherence to core principles of constitutionalism, including separation of powers and the existence of judicial review
- Presence of a single religion endorsed as the ‘state religion’
- State religion is a primary source of legislation and legal interpretation; no law may infringe upon the doctrines of the religion
- Religious bodies carrying symbolic and often juridical power operate in parallel to the civil court system
Modern states have used five models to address secular/religious relations: separationist reformism; a weak form of religious establishment; selective accommodation of religion in certain areas of law; secular judical enclaves; and the mixed system where religious law and secular law exist in combination. A common strategy in managing the encroachment of religion on the rule of law has been the introduction of constitutional courts with robust powers of judicial review.
Whatever the political and cultural context, constitutional courts can play a key role in preserving the secular state and limiting the influence of religious values in public life. Further conclusions are that:
- The theocratic challenge is now a significant factor in world politics and constitutional law, stretching well beyond the most prominent examples in the Middle East.Any attempt to examine the complexities of constitution drafting in post-conflict settings must pay close attention to the secular/universal versus religious/particularist divide.
- The existing literature on post-conflict constitutionalism as a means of mitigating tensions, while adequate for many social divisions, is incapable of handling the secular/religious divide where the rule of law must compete with the rule of God.
- Constitutional theocracy is an important hybrid regime type that provides insights into the sociopolitical role of constitutionalism in religious settings. It represents a ‘living laboratory’ for further study.
Ran Hirschl is Professor of Political Science and Law at the University of Toronto and holds a senior Canada Research Chair in Constitutionalism, Democracy and Development: www.law.utoronto.ca/faculty/hirschl
