HIRSCHL, Ran. Constitutional Theocracy. Cambridge, MA: Harvard University Press, 2010. 306pp. Cloth, $46.50--Ran Hirschl's work addresses a question of fundamental importance for the contemporary world, the relationship between principles of the rule of law and the secular constitutional order on one hand, and religiously informed communities on the other. The book attempts to show how advocates of constitutional law and courts have emerged in many countries with established religions, serving as "bastions of relative secularism" in order to "hedge or mitigate" the influence of religiosity in the political order. Hirschl argues that the constitutionalizing of religion is itself an important step in asserting secular control over religious influences, allowing the law to restrict what is seen as the potentially dangerous excesses of religion.
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. …