An increasingly common approach to governing religion and state relations in non-secular settings is a mixed system of religious law and general legal principles. Despite their many past and present variations, such hybrid legal regimes defy the Franco-American ideal of separating religion and state along private/public lines. At least one billion people now-live under a legal order that enshrines religion and its interlocutors as "a" or "the" source of legislation (meaning that legislation must comply with principles of that religion), granting religious tribunals jurisdiction over important aspects of life, public and private, in addition to the tremendous symbolic weight religious edicts often carry.
At the same time, religious institutions and interpretive hierarchy are expected to comply with overarching constitutional norms and are subject to review by constitutional courts and judges. A unique hybrid of apparently conflicting commitments, worldviews, and sources of authority, these constitutional theocracies thus offer an ideal setting--a "living laboratory"--for studying the formation of these legal amalgams and the challenges they pose.
Regimes throughout the non-secularist world struggle with questions of a profoundly foundational nature and have been forced to navigate between cosmopolitanism and parochialism, modern and traditional meta-narratives, constitutional principles and religious injunctions, contemporary governance and ancient texts, and judicial and pious interpretation. More often than not, the clash between these conflicting visions results in fierce struggles over the nature of the body politic and its organizing principles. These tensions are evident in virtually every aspect of public life, from court hearings to university lectures, and from crowded soccer stadiums to secluded board meetings. Consequently, throughout the world of constitutional theocracies--be they soft or rigid, formal or informal--we find fascinating, largely unexplored jurisprudential landscapes. These reflect uneasy amalgams of universal aspirations and domestic realities.
Despite the general agreement that the world has witnessed a convergence in principles of constitutional supremacy and international human rights alongside an increasingly popular support for principles of theocratic governance, we still know precious little about constitutional law and practices in countries facing the dilemma of constitutional theocracy. Akin to early maps of the globe where tracts of emptiness cover much of the non-Western world, the jurisprudential landscape of constitutional theocracies remains almost completely uncharted, let alone theorized. This task is undertaken elsewhere. Here, a few illustrative examples of mixed constitutional commitments are discussed. They highlight cases of jurisprudential innovation that often follows in an attempt to respond to competing and at times conflicting sources of law, morality, and identity.
Mixed Constitutional Commitments
From 1994 to 2001 Afghanistan was ruled by the radical Islamist Taliban, but the US-led military campaign removed the Taliban from power and installed a more moderate regime representing an array of groups hitherto in opposition: moderate religious leaders and the country's elites and intellectuals in exile. The new Constitution of Afghanistan came into effect in January 2004. It states that Afghanistan is an Islamic republic (Article 1); that the "sacred religion of Islam is the religion of the Islamic Republic of Afghanistan" (Article 2); and that "[n]o law shall contravene the tenets and provisions of the holy religion of Islam in Afghanistan" (Article 3). Courts are allowed to use Hanafi jurisprudence in situations of constitutional lacunae (Article 130). At the same time, the constitution also enshrines the right to private property (Article 40) and resurrects a woman's right to vote, as well as to run for and serve in office (Article 22). …