Sunday, July 20, 2008

Theocratic Constitutionalism Part I: An Introduction

I have been exploring the nature and character of theocratic constitutionalism. A fuller examination will appear in published form as Larry Catá Backer, Theocratic Constitutionalism: An Introduction to a New Legal Global Order, 16:1 Indiana Journal of Global Legal Studies – (forthcoming 2009). A short abstract of the manuscript can be accessed here.

Here is a short abstract:
The 20th century has seen a fundamental shift in the ways in which constitutions are understood. By the middle of the 20th century a new sort of constitutionalism emerged, rejecting the idea of the legitimacy of every form of political self-constitution. The central assumptions of this new constitutionalism were grounded in the belief that not all constitutions were legitimate, and that legitimate constitutions shared a number of universal common characteristics. These common characteristics were both procedural (against arbitrary use of state power) and substantive (limiting the sorts of policy choices states could make in constituting its government and exercising governance power). These process and substantive norms were, in turn an articulation of a “higher law” of the community of nations, reflecting a global communal consensus evidenced in common practice or international agreements. The authority and legitimacy of this global secular transnational constitutionalism has not gone unchallenged. On the one hand, state power traditionalists reject the notion of extra-national normative constraints on constitution making. On the other, there has been an intensification of challenges from universalists of different schools, from natural law theorists to pluralist constitutionalists. Among the most potent of these groups have been religious transnational constitutionalists who have argued that one or another of the current crop of universalist religions ought to serve as the foundation of normative disciplining of constitution making. But do these movements represent constitutionalism? If it does, then what are its characteristics? This article examines these questions from the context of the most developed form of theocratic transnational constitutionalism—that of Islam. The object will be to examine the great variation of Islamic and Islamic influenced constitutions to see if these represent the emergence of a constitutionalism with characteristics that can be clearly articulated, that it is possible within this system to distinguish between legitimate and illegitimate constitutions, and that there are characteristics of this constitutionalism that clearly distinguish it from secular transnational constitutionalism. The article starts with a critical examination of the main currents of constitutionalism. Section II focuses on an extraction of an understanding of the concept of constitutionalism as system and its synthesis into a working definition of constitutionalism in general and transnational constitutionalism in particular. Section III extracts from this examination a possible set of characteristics of legitimate Islamic constitutionalism, distinguishing Islamic constitutions from Islamic constitutionalism. Section IV then applies this understanding of theocratic constitutionalism to the constitutional “families” of religious constitutions in which Islamic law has become part of the structural architecture of the constitution itself, suggesting points of convergence and divergence with the values and norms of secular transnational constitutionalism.


What follows are materials draw from the introduction to that work. I suggest a way to approach the study of the theocratic element in constitutionalism. Later posts will draw on materials (1) exploring the idea of constitutionalism, (2) suggesting a definition of theocratic constitutionalism, and (3) applying the principles of this theocratic constitutionalism to examine the constitutions of states that have embraced religion within their constitutional systems in a number of different ways.

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The 20th century has seen a fundamental shift in the ways in which constitutions are understood. Demonstration of this shift had been an object of my earlier article. (Backer 2008). The century saw a movement away from a consensus, however tenuous, that constitutions were necessarily expressions of the internal social, political and economic choices of a unique, territorially bounded, political community. (Willoughby 1924, 30) Rejecting a natural law or universalist approach to constitutional settlement, Willoughby, like his contemporaries embraced the notion that “State may be conceived of as itself the sole source of legality, the fons et origo of all those laws which condition its own actions and determine the legal relations of those subject to its authority.” Id.

Constitutionalism, then, was internally directed and focused on legality—rechtsstaat notions. As originally understood it focused on the lawfulness of action—that is that a governmental action be taken strictly in accordance with law—but did not limit the range of lawful assertions of government power. “The Rechtsstaat could provide redress against administrative action but stopped short of providing a general sanction against governments. As a result, the Prussian government was strictly non-responsible in both a political and legal sense.” (Smith 1979. 53; on traditional rechtsstaat see id., at 202-205; see also Ukai 1957, 735-37 on rechtsstaat principles in Japan).) “In most national communities, a law draws support from its having been made in accordance with the process established by the constitution, which is the ultimate rule of recognition.” (Franck 1995, 41).

The critical questions of constitutionalism were the authenticity of the polity, the formal legality of the power of the state apparatus to act, and the conformity of the actions of the state (legislature, executive and courts) to the requirements of law (protection against arbitrary action). (Schmitt 1932, 18; Rosenbaum 1988 4 (for its American restatement)). The results could be perverse, but as long as they conformed to the law, they might be considered legal. The archetypical modern examples of such perversity, ones that have served as a model against which much in constitutionalism has been developed, were a product of the legalism and moral reprehensibility of the French, in the construction of their Vichy republic, and the Germans, in the construction of their third empire. (Curran 2002).

Still, those choices, however odious, were legitimate to the extent there was power to enforce them. A lively theoretics of constitutions was produced at the end of the 19th century to reflect these concerns. The loci of authority, sovereignty, elections, citizenship, formalist conformity to process (due process without substantive values) were the key variables. (Dicey 1915, 3-35; Ito 1916). Verticality of authority was not a necessary prerequisite. The American constitution expressly insisted on its supremacy in writing and provided a difficult procedure for modification. (Corwin 1955). This was a matter not necessarily obvious to others; in later constitutions, the relationship between the law of the constitution and that of other acts was ambiguous, with a power in the legislature, for example, to amend either without much difficulty. Other states might express their agreement or disagreement with the internal constitutive choices of other states, and the local population might seek to change the choices or rebel, but the legitimacy of the constitution itself was a function principally of the legality of its constitution and the integrity of the system employed to enact and enforce it. Where the choices were substantially offensive enough to powerful enough foreign states in ways that conflicted with the interests of those more powerful states, offending states might be reduced to secondary status or reduced to colonial status. Relying on contemporary academic opinion, Willoughby, for example, understood that:

Just as, in municipal law, they are regarded as the possessors of independent wills and as the entities in which are vested certain rights and responsibilities, so, in international law, they are viewed as political persons having definite rights and obligations. This status they have, however, in full effect at least, only insofar as they are regarded as members of what is known as the "Family of Nations," which Family does not include all the States of the world but only those nations which have reached a certain degree of civilization. (Willoughby 1924, 307)

But this consensus changed. This change was led by American academic and political elites (Backer 2008, 25-31; American Constitutionalism Abroad 1990) seeking to remake a world upended by a half century long war. (Albrecht-Carrié 1961, (“The two world wars and the intervening period thus constitute a single unit”, id., 10)). The global order after 1945 presented a reality in which most political and power relationships developed through the end of the 19th century had been upended in ways adverse to the ability of Europeans to maintain their direct control over global affairs and which were tinged by a sense that the old order was to some extent morally bankrupt. (Spengler 1942). Something else was needed, something that would serve as an instrumentalist capacity—to civilize both dominant and subordinate political entities within a universal system of values through international law. (Anghie 2004).
“Seeking to restore a moral component to political thought, political theorists were determined to adapt the old ideal of the rule of law to the conditions of the modern state. Eminent scholars, such as Friedrich von Hayek, Louis Hartz, and Seymour M. Lipset, extolled the virtues of constitutionalism, defining it as a commitment to the rule of law. That core characteristic of the liberal state included limited government, protection for individual rights, and a role for the judiciary under such protection.” (Wiecek 2002, 861, citing Lipset 1963 and von Hayek 1960)

By the middle of the 20th century there emerged the notion, articulated first successfully in the German (Basic Law 1949) and Japanese (Japanese Constitution 1946) post War constitutions, that not all constitutions were legitimate.

The “legitimation effect can be defined as the process through which systematic losers come to understand themselves as part of the system, as self-governing, and as having willed their losses and their subordinate status.” (Lobel 2007, 958; Hart 1994, 110-110; Bernstein 2005). Constitutionalism required more than the enactment of a written constitution, even one concerned with formal protection against arbitrary use of power (that is the use of power not otherwise conferred by law). (Okoth-Ogendo 1993). Constitutionalism in this vein has been understood as the memorializations of a methodology for the protection of fundamental values, but values not limited to legality, process and protection against arbitrary use of state power. (Whittington 2002). “The period after 1945 can be said to have witnessed the 'emancipation' of the Rechtsstaat in Germany. Yet it is strange that an idea which for so long had been central to the German legal tradition should have been made subordinate to the dictates of arbitrary authority.” (Smith 1979, 202).

Legitimate constitutions shared a number of common characteristics. (Nino 1996). These common characteristics were both procedural (against arbitrary use of state power) and substantive (limiting the sorts of policy choices states could make in constituting its government and exercising governance power). This substantive constitutionalism changed the nature and focus of process constitutionalism. In Germany, for example,

The result of raising the Basic Law to a pre-eminent position by making the Rechtsstaat directly enforceable has not been simply to place the constitution above politics but in an important way to make it a determinant of politics. That slant is evident in the view that the Basic Law imposes certain constitutional tasks (Verfassungsaufträge) which require fulfilment, in a somewhat programmatic sense. These 'tasks' are frequently held to be embedded in the clauses setting out individual rights.” (Smith 1979, 55).


These process and substantive norms were, in turn an articulation of a “higher law” of the community of nations, reflecting a global communal consensus evidenced in common practice or international agreements. The notion of a higher law suggested a necessary universalism with roots in both natural and religious law. Within that tradition, for example, was the acceptance of the idea that by ‘higher law’ is meant what is truly just and right. . . . The very capacity to argue over what the law should be depends upon an existence of a scheme of principles and values to which both parties in the argument make appeal.” Patrick1985, 6). Constitutionalism in the 20th century was tied to the construction of a collective—an international society of states (Koskenniemi 2001)—with the object of universalizing standards of behavior and of preserving the power relationships within and among states from threats. As R.I. Barry Jones put it: “The institutionalization of the sovereignty of states, and the use of power balancing mechanisms, formed the basis of what some analysts have dubbed an international society: a ‘society’, albeit, of states (or their ruling groups) devoted to the interests and maintenance of those states (or ruling groups).” (Jones 1995, 50; see also Anghie 2004, 245-72). “The system thus brought into being was thus a product of the character, needs and interests of its constituent parts—the member states—or rather the dominant interests within those states. (Jones 1995, 50). (Jones 1995, 53).

It was meant to substitute for the old imperial system, something more powerful—an empire of norms. (Anghie 2004). It was secular. (Taylor 2007). Late 20th century constitutionalism represented an attempt to systematize, institutionalize and implement as international ‘higher law’ a long held view in Western legal and political circles of the basis for establishing a hierarchy of states by reference to their civilization. “The idea that societies which do not possess certain economic systems and corresponding political institutions should be regarded as outlaws that musty be appropriately disciplined and reformed is a very old one.” (Anghie 2004, 269; citing Vattel 1758). The connection is direct and explicit. “What Vattel describes is something akin to an economic ‘rogue state’, a state that must be exterminated.” (Anghie 2004, 270).

The direct objective of the Americans and their more reluctant European allies was to both impose a deeper and substantive meaning of rule of law constitutionalism on states, and to find a mechanism for developing those substantive principles of domestic constitutionalism that might express trans-national universal principles of right and justice rather than merely those of majorities within a particular state. This, it was thought would provide a meta-norm for limiting the power of states and avoiding arbitrary or immoral conduct—by subjecting those notions to international development and oversight. Under this system all states participate in the construction of universal normative constitutional standards, but none control it entirely (though some have a greater authority in the process—a nod to power), and all are technically subject to its strictures an international law (or as a means of legitimating domestic governance against internal or external threats). “In the end, some internationalization of structural constitutional issues may be both unavoidable and even desirable. The ultimate violation of a constitution is a military coup, and one might think twice about returning to the days when coups were considered purely internal matters.” Schnably 2008, 479).

This new means of international ordering reduces the need for the traditional means of enforcement—military intervention or occupation—by creating a legal system for the coercive policing of the behavior and international constitution of states through ‘constitutionalism’ serves both to preserve the form of state sovereignty and the normative values of dominant state powers. Thus, for example Anghie notes in the context of global conduct: “Now, however, such deviant states are to be identified by all the economic criteria formulated by the IFIs; states that are protectionist, inefficient, and encumbered by bureaucracy and government regulation must be eliminated, as it were, through SAPs that will bring about their transformation into proper international citizens.” (Anghiwe 2004, 270). Battles over transnational constitutionalism thus sometimes focus on power—the power to control or participate in the supra-national contests for the production of universalist constitutionalist norms. Within the context of the meaning of human dignity and applicable human rights, the battlefield includes not only the apparatus of the United Nations, but also the production of norms and common understanding of right and justice from the opinions of the various human rights courts. (Jayawickrama 2002, 3-23; The Globalization of Human Rights 2003). Thus, “in spite of the progress of multilateralism and internationalism before and during the 1990s, the international system remains largely nationally rooted, with state actors in competition.” (Coicaud 2003, 186).

The authority and legitimacy of this global secular transnational constitutionalism has not gone unchallenged. At its core, these contests are over the nature and context of authority. The subtleties of this context have been well described by Jacques Derrida: “The justice of law, justice as law is not justice. Laws are not just as laws. One obeys them not because they are just but because they have authority.” (Derrida 1990, 939). On the one hand, state power traditionalists reject the notion of extra-national normative constraints on constitution making. Thus, for example a leading exponent states, “the business of the constitution is to express the polity's most basic legal and political commitments.” (Rubinfeld 2003). On the other, a number of groups have accepted the legitimacy of transnational constitutionalism as a disciplining force but have rejected the notion that such restraints can be the product of a secular global political consensus. Derrida reminds us, quoting Pascal with a nod to Montaigne, of that ancient strain of fundamental understanding of law, justice and the constitution of political society: “simple reason tells us that nothing is just in itself; everything crumbles with time. Custom is the sole basis for equity, for the simple reason that it was received; it is the mystical foundation of its authority. Whoever traces it to its source annihilates it.” (Derrida 1990, 939). But he then reminds us of the moral of that insight—that “the origin of authority, the foundation or ground, the position of law can’t by definition rest on anything but themselves.” (Id., at 943).

Among the most potent of these groups have been religious transnational constitutionalists who have argued that one or another of the current crop of universalist religions ought to serve as the foundation of normative disciplining of constitution making. For example, consider an example form Chechnya. “As for the more radical islamist project, its supporters considered that the sole possible Chechen democracy was a constitutional theocracy, the only reasonable alternative to western and Russian 'politically and ideologically prostituted' constitutionalism. This model envisaged the suppression of democratic institutions, for instance, the substitution of a secret ballot by an open nominal referendum.” Kudriavtsev 2004, 369).

Religion finds its way into the constitutional framework of states in a variety of ways. States engage with religion, as a formal matter, in a variety of ways. Some states conflate legal and religious systems altogether. Some states sponsor or establish a religion. Others, still, incorporate religious law as the law of the state, much like the American states incorporated the English Common Law, in one of a number of ways. But do these movements represent a contextual variant of conventional constitutionalism? Or theocracy? (Swaine 2006, 2-4). Looking back to Josephus and the defense of the constitution of the Jewish state of Israel at the time of its destruction by the Romans, Swaine explains “Theocracy ‘[places] all sovereignty and authority in the hands of God.’” Id., at 2 (quoting Josephus, Against Apion, 100 A.D.)) Swaine defines theocracy as “a mode of governance prioritizing a religious conception of the good that is strict and comprehensive in its range of teaching.” (Id., at 7). But Swaine considers theocracy from within dominant liberal polities. Does it represent a different and autonomous basis for the constitution of states grounded in principle? Is there now arising a theocratic constitutionalism in opposition to and competing with conventional constitutionalism for a place as one set, or the supreme set, of organizing principles for states? If such a constitutionalism exists, what are its characteristics?

An examination of these questions is long overdue. This represents the start of one attempt. The context will be the most developed form of theocratic transnational constitutionalism—that of Islamic transnational constitutionalism. But note that Islamic theocracy is not the only manifestation of this drive toward a new constitutionalism. Hindu and Buddhist universalists have also been active. (Parikh 2005; de Silva Wijeyeratne 2007; Backer 2008a; Backer 2007) This is not to say that others have not sought similar roles for different faith communities. The object will be to examine the great variation of Islamic and Islamic influenced constitutions to determine whether one can argue that these constitutions represent the emergence of a constitutionalism with characteristics that can be clearly articulated, that it is possible within this system to distinguish between legitimate and illegitimate constitutions, and that there are characteristics of this constitutionalism that clearly distinguish it from secular transnational constitutionalism.

In Posts after this Introduction, I will attempt a more complete critical examination of the main currents of constitutionalism. Its object is to focus on an extraction of an understanding of the concept of constitutionalism. This Section serves to highlight the problem identified almost a generation ago by Richard Delgado. On the one hand, by focusing on the work of academic and other “leaders” one lends legitimacy to a system in which is both narcissistic and subordinating—it feeds into the class structure of even egalitarian and meritocratic societies. On the other hand, the leaders of the field tend to legitimate discourse by their very engagement. (Delgado 1984). The Section is written to acknowledge the power of elite discourse but with some sensitivity to those usually left out of the discourse by their ‘betters.’ (Bourdieu 1984). The focus is on the production of meaning within the field. For that purpose academic discourse, though fictive, serves an essential role in the production of an authenticity of meaning and a legitimacy in a specific meaning of and belief in the structure of law—like that of the art dealer in relation to the work she sells. Bourdieu explains the relationship well:

The art trader is not just an agent who gives the work commercial value by bringing it into the market; he is not just the representative, the impresario, who ‘defends the author he loves.’ He is the person who can proclaim the value of the author he defends (cf. the fiction of the catalogue or blurb) and above all ‘invests his prestige’ in the author’s cause, acting as a ‘symbolic banker’ who offers as security all the symbolic capital he has accumulated. (Bourdieu 1993, 77).
For this reason alone, investment in the production of academic thinking is valuable in the construction of belief in constitutionalism and its meaning.

The current constitutionalist discourse tends to evidence the dynamic character of the concept. Conceptions of conventional constitutionalism are said to be grounded either in domestic law and the unique will of a territorially defined demos, or in a system of universal norms grounded in an elaboration of the mores of the community of nations. The object here is to produce a working description of constitutionalism in general and transnational constitutionalism in particular. That definition looks to the characteristics of constitutionalism as a system of taxonomy and legitimation grounded in a set or normative assumptions about the meaning and purpose of states that produce an ideology of substantive and process limitations state power.

I then try to situate a possible theocratic variant of constitutionalism within conventional constitutionalist debates, looking primarily at its Islamic variant. It rejects the idea of religion as an ordering principle of state as somehow flawed or heretical constitutionalism. It posits that, at least within some polities, religion might be emerging as the basis for ordering of a state no less principled and complete than its conventional counterpart. In this respect I suggest the possibilities of the rise of alternative framework for state organization along principled lines that contrasts with the suggestion of the difficulty of that project expressed by others. (An Naim 2000, 37). But the difference does not so much make the rising system flawed as incompatible with conventional constitutionalism. It suggests competition among legitimating constitutionalist systems for acceptance as the basic ordering principle of states, much as free market and Marxist worldviews vied for supremacy through the 1980s. The article attempts to extract from this examination a possible set of characteristics of legitimate Islamic constitutionalism, distinguishing Islamic constitutions from Islamic constitutionalism.

Thus framed within a theoretical construct, I will apply this understanding of theocratic constitutionalism to the constitutional “families” of religious constitutions in which Islamic law has become part of the structural architecture of the constitution itself. The focus, again, is principally on Islam and Muslim majority states. However, there will be a nod to states comprised of majorities of other religious communities. For my purpose here, the article adopts a formalist and institutionalist approach to religion. There may well be significant differences between constitutions in theory and in practice. Constitutions can be a sham. (Lien 1994, 63-64 (on Tsarist constitutions)). This has certainly been the case even where the constitution is neither a sham or nominal constitution. (Brown 1999). Still, a study of the formal exposition of constitutional arrangements can serve us well in distinguishing between constitution and constitutionalism, and among the varieties of constitutionalism developed.

The object is to interrogate the connection between fully developed and institutionalized communities—political and religious. For that purpose, religion will refer to those faith communities collectively constituted through an institutional framework. (Backer 1998, 237-42). “Consequently, I do not believe that one can divorce Religion from the context in which it has existed in the world. Religion is not merely a series of conduct codes and precepts. Religion is not merely a moral philosophy, nor a naked spirituality. It is a world view.” (Id., at 249). This worldview has its own law and institutions for its perpetuation. As such I will suggest the ways in which constitutionalist discourse can provide a means for distinguishing between principled theocratic constitutionalism—however alien to the constitutionalist framework of secularist states—from unprincipled (and perhaps less legitimate) forms of constitutions which provide a formal role for religion within its ordering framework.

The implications are significant for advocates of this or that form of constitutionalism as a privileged framework for legitimating state organization, or where illegitimate, for organizing internal or external resistance to the government constituted thereunder. Constitutionalism is a commodity—an important one, serving as an operating system for the organization of life within its operational scope. Like other commodities, it has gone global. As a proxy for a network of organizing relationships it provides service and value to its consumers that vary with its characteristics. We are quickly moving into an age where constitutionalism must be marketed to consumers, who increasingly have a power of choice among alternatives. (Cover 1983, 35-40). It will no longer be sufficient to suggest that a competitor system ought to be avoided because it is a flawed version of the competitor. Each system will now compete on the basis of what it offers individuals organized communities. And dialogue will center on convergence, separation, translation and subversion of competing systems as each vies for dominance in the world market. To some extent, this will represent a return to a medievalism in which accommodation may be required because no system is strong enough to overwhelm the others. (Backer 2008b).

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