Wednesday, July 23, 2008

Theocratic Constitutionalism Part III: Towards a Theocratic Constitutonalism

In an earlier work, I explained the role of religion within emerging secular transnational constitutionalism: “Religion divides and does not compromise. It tolerates but cannot accept equality among those of different faiths. . . . Within the hierarchy of norms, the religious was treated as subordinate to universal secular and political norms. (Backer 2008; Backer July 22, 2008; Backer July 20, 2008). This hierarchy makes sense in a system in which customary norms developed among a heterogeneous community of nations. Among all the values identified as foundational to transnational constitutionalism, the primacy of religion or religious values is not among them. But what if the hierarchy of values was inverted? What if the foundational organizing norm of a constitutional system were religion—or specifically a religion—would a constitutionalist system still be possible?

Over a century ago Europeans were skeptical of such an inversion. Jacob Burkhardt suggested an inverse relationship between religion and constitutionalism—focusing on the state of Islam in his time and from his perspective in Central Europe. (Burkhardt 1979 (1868-85)). “And now we must again turn to Islam, with its stranglehold on national feeling and its miserable constitutional and legal system grafted onto religion, beyond which its peoples never advanced.” (Burkhardt 1979 (1868-85), 154). He noted that “The state, as a political picture, is here supremely uninteresting; in the Caliphate practically from the outset, a despotism without responsibility or heaven or earth was taken for granted, and even, by a highly illogical twist, y its renegades.” (Id., at 154-155). Burckhardt was no less hard on Christian theocracy. Referring to the Counter-Reformation Catholic institutions, he noted that the “church, it is true loved no state, yet inclined toward that system which was most willing and able to carry out persecutions for it. It adjusted itself to the modern state as it had once adjusted itself to the feudal system.” (Id., at 162). There was much made of a conflation of theocracy and despotism. (Hegel 1991 (1837), 111-116).

But others have noted the possibilities of an ordering of a legal state grounded in religious legal institutions. Speaking of the colonization of Muslim majority territories, it was noted that “a colonial regime could not threaten to eliminate [Islamic law] or tamper with it without running grave risks.” (Christelow 1985, 6). The issue was the conflation of faith and state, “for Islamic law was an integral part of the Islamic faith, and a threat to it could be seen as a step toward forced conversion.” (Id.). Thus legitimacy could be tied as effectively to fidelity to faith as it might be tied to fidelity to other sources of communal norms in the constitution of a legal order.

More recently, some have criticized the convention of dismissing theocracy as an anachronism. (Swaine 2006, 3-4). He suggests that “an outdated political form with no current relevance to democratic life” (Id., at 3). Peter Fitzpatrick explains that “Uncertain as they may yet be, we seem to be repeatedly coming on a quartet of generative affinities between the deific, the sovereign, the law, and the people.” (Fitzpatrick 2007, 171). Others have begun to see in the religious organization of constitutional states the possibilities of a constitutionalism normatively different from others, and legitimately constitutionalist on its own terms. In a recent work, for example, Ran Hirshl, has begun to explore what he calls “constitutional theocracy.” (Hirschl 2008; Reimer 2006). I have begun to sketch to the constitutionalist contours of states the substantive normative basis of which is grounded in religion. (Backer 2008). These reflect different perspectives from which the identity and complexities of theocratic constitutionalism might be usefully extracted. Hirschl’s recent work is worth a more thorough analysis. He is among the few that suggests a doctrinal element to the incorporation of religion within constitutionalism and for that purpose draws insights from an emerging secular transnational constitutionalism I have described earlier (Backer 2008; Backer July 22, 2008). But for Hirschl constitutional theocracy is defective precisely because it imitates but does not fully embrace the substantive constraints of secular transnational constitutionalism—and therefore it cannot be constitutionalism at all. I will suggest the opposite.

Hirschl seeks to explore “key aspects of constitutionalism in a theocratic world.” Hirschl 2008, 1181). He does not approach the issue of theocratic constitutionalism on its own terms, a perspective I have suggested is not problem free. (Backer 2006, 38-52). (“While grounded in neutral language, these arguments are, in reality, applied expressions of a particular ideology that has assumed universal acceptance outside of China in the period after the end of the Second World War.” (Id., at 50). Instead, he adopts a specific normative position—constitutional theocracy poses a threat to the established transnational constitutionalist order and must be dealt with accordingly. It must either be tamed, so that it becomes nothing more than a more colorful variant of transnational constitutionalism or it must be reworked—they must be secularized. (Hirschle 2008, 1200-1209). Hirschl notes, for example, that “What is more, principles of divine authority and theocratic governance are often at odds with international human rights regimes and principles, perhaps most tellingly in the contexts of religious freedoms, gender equality, or reproductive liberty.” (Id., at 1185).

Identifying “challenges posed by the theocratic surge to canonical power-sharing, consociational models for mitigating tensions in multi-ethnic polities” (Id., 1181, discussion 1181-1188) he offers a definition of what he calls “constitutional theocracy.” (Id., 1188-91). He then proffers “constitutional responses to the problem of "religion and state" and examines a few innovative legal developments employed by countries in the Islamic world to hedge the challenge of constitutional theocracy.” (Id., 1181). For the project of secularization as a counter to the theocratic drive, he offers examples from “Egypt, Pakistan, Turkey, Israel, Nigeria, Malaysia, and other polities facing deep social and political tensions along the secular/religious divide.” (Id.).

For Hirschl, constitutional theocracy is a challenge, one that requires co-opting and mitigation. That is, the challenges of such constitutionalism are those very characteristics that distinguish it from classical post War Western constitutionalism. Thus, Hirschl is clear in pointing to his baseline for analysis.
“The literature on constitutional design and engineering is voluminous. Its canonical tenor suggests that when constitutionalization is seen as a pragmatic "second order" measure-as opposed to instances of constitutionalization involving a more principled, first order "we the people" outlook-it may help institutionalize attempts to mitigate tensions in ethnically divided polities through the adoption of federalism, secured representation, and other trust-building and power-sharing mechanisms.” (Id., 1181-82).
The point is to subordinate these differences within the matrix of superior normative values represented within transnational constitutionalism. As a consequence, it is hoped that states the populations of which seek to politicize their religion will do so only in a manner that retains the superiority of traditional secular fundamental. Thus, Hirschl notes: “although there are many examples of discussions of the mitigating potential of constitutional power-sharing mechanisms to ease rifts along national, ethnic, or linguistic lines, scholars of comparative constitutional design have given little attention to the increasing divisions along secular/religious lines.” (Id., at 1182).

Yet, because the differences are normative rather than procedural, it is harder to write around or constrain the substantive differences represented by the legal implications of religious supremacy within a political order. Thus, Hirschl explains, “the theocratic challenge is inherently more difficult to overcome through constitution drafting than, say, divisions along ethnic or linguistic lines. This undermines the applicability of traditional power-sharing, "consociational" constitutional models commonly proposed as a way of mitigating tensions in troubled multi-ethnic polities.” (Id., at 1186; citing Horowitz 2008). The challenge is highlighted by an examination of the constitutional failures of Palestine. (Hirschl 2008, at 1186-1188). “Conflict settings where internal strife is high and state capacity is low merely exacerbate these difficulties.” Id.

But the problem of theocratic constitutionalism is of a different order than the more well worn problems of ethnic, linguistic, or national divisions. Hirschl notes four principal differences. The first “more than any other divisions along ascriptive or imagined lines, the secular/religious divide cuts across nations otherwise unified by their members' joint ethnic, religious, linguistic, and historical origins.” (Id., 1182). This might have led Hirschl to the determination that religions are not so much a problem as a different and complete form of substantive constitutionalism. As I noted, in “a universalist theocratic transnational constitutionalist context, the people must also look to their constitutional traditions informed by the precepts of religion, which they might affect but only as members of the religious community and to the extent permitted under the rules of that community.” (Backer 2008, 57). Instead, perhaps it overly diminishes the normative importance of religion as institution (as well as belief and communal system) by suggesting that religion is “closer in nature to less visible categories such as income deciles, social class, or cultural milieu than it is to other kinds of markers such as race, gender, or ethnicity.” (Hirschl 2008, 1182). He offers the example of Egyptians. He explains that “most cosmopolitan and traditionalist Egyptians define themselves as members of the same nation, speak the same language or dialects of it, treasure the Pharaoh dynasty, and share the same ancestral ties. Importantly, however, some Egyptians are close adherents of religious directives, while others follow them more casually.” (Id.; citing U.S. Dep't of State, Annual Report on International Religious Freedom 2001, 421-29). It is not clear that is the only way to perceive religion within even a variegated polity. The example suggests not so much the similarity of religion to class, as the way in which social class might serve as a proxy for an intensity of religious adherence. It does not suggest the character of the normative basis of religion as a constitutional foundation—it merely suggests the demographics of its acceptability within a political community that varies by class and educational level, but in which a single religion can claim a majority of adherents. (Id., 1182-83).

The second difference springs from the first. Because not every member of a religious community believes the same way and with the same intensity, religion cannot serve as a unifying framework consistent with constitutionalist notions. This is particularly acute where the population is well marbled. Thus, he argues, the “territorial boundaries of the secular/religious divide are often blurred. Although residents of certain regions within a given country may be more prone to holding theocratic views than residents of other regions, this divide is not neatly demarcated along territorial lines, as is often the case with ethnic or linguistic boundaries” (Id., 1182-83). For Hirschl, the differences in religious sensibilities even among members of the same faith community marks a crucial challenge to traditional constitutionalism. But it is a challenge with an odd consequence—for Hirschl implies that the where religious intensity might be territorially marked, separation might be a possible solution. This suggests both that religion might well serve as a substantive basis for constitutionalist organization (a point he developed later) and that segregation is a legitimate device traditional constitutionalist ordering. “Territory-based power-sharing mechanisms-or any other kind of joint governance structures that are based on the allocation of powers or goods by a regional key-may not be an efficient means for analyzing, let alone reducing, tensions along secular/religious lines.” (Id., at 1183).

He offers Sri Lank as a contrasting example, where religious differences are territorially more marked. (Id., 1183). Yet this might be an odd conclusion for a theoretics based on the subordination of religion as a privileged source of substantive constitutional norms. Indeed, I have suggested that the Sri Lankan constitution (1978) might not be theocratic at all—merely potentially so. (Backer June 1, 2008). Within the cosmology of the Sri Lankan constitution, Buddhism is given a special place: “the Republic of Sri Lanka shall give to Buddhism the foremost place and accordingly it shall be the duty of the State to protect and foster the Buddha Sasana, while assuring to all religions the rights granted by Articles 10 and 14(1)(e).” 1978 Constitution, Ch. 2 Art. 9. I suggested that it was “possible to conceive of the 1978 Constitution as theocratic, though it is a close call. The Constitution, as it has evolved, is at war with itself. The question revolves around the power of Article 9 in the context of other constitutional provisions. If Article 9 assumes a position of superiority in a hierarchy of constitutional values to be advanced, then Sri Lanka can move more confidently toward theocratic constitutionalization grounded in Buddhism. If it does not, then the 1978 is of a different order and the import of Article 9 becomes highly contestable, especially by the Tamil minority.” (Backer June 1, 2008). But the critical factor would be the willingness of the courts and legislature to bend the substantive and procedural protections of the Constitution to the higher law principles of Buddhism, either by implementing authoritative Buddhist legal conclusions themselves or by applying such conclusions derived from the pronouncements of Buddhist divines. On the absence of that, Article 9 appears scary but subordinated to the more secular and internationalist provisions of the 1978 Constitution.

The third basis for distinction of religion as a constitutionalist problem is based on perception. He faults the West for portraying “the spread of religious fundamentalism in the developing world as a near-monolithic, ever-accelerating, and all-encompassing phenomenon.” (Hirschl 2008, 1183; but see Backer 2008). He rejecting the idea that religion, as a basis for constitutional settlement, is a threat to the substantive values of traditional secular transnational constitutionalism. Hirschl cites Talal Asad (1993, 27-29) for support. (Hirschl 2008, 1183). Yet, ironically, Hirschl’s seems to embrace a consequence of Asad’s observation, one that Asad criticizes, that religion has an autonomous essence, “not to be confused with the essence of science, or of politics, or of common sense—[that] invites us to define religion (like any essence) as a transhistorical and transcultural phenomenon.” (Asad 1993, 28). Asad tellingly notes that “It may be a happy accident that this effort of defining religion converges with the liberal demand in our time that it be kept separate from politics, law and science—spaces in which varieties of power and reason articulate our distinctively modern life.” (Id.). To a degree, Hirschl’s perspective is one consonant with “a strategy (for secular liberals) of the confinement and (for liberal Christians) of the defense of religion.” (Id.). Nonetheless, he argues that “the picture in most predominantly religious polities-Islamic, Jewish, Roman Catholic, or Hinduist-is much more complex and nuanced, reflecting deep divisions and strife along secular/religious lines, as well as widely divergent beliefs, interpretations, and degrees of practice within religious communities.” (Hirschl 2208, 1184). As such, there is an implicit presumption that religion presents itself like other social variables, whose internal differences and contradictions can be exploited by a superior and overarching system of values. “In virtually all of these countries, the very nature of the sociopolitical order has been highly contested; civic ideology, an often relatively cosmopolitan lifestyle, and diverse policy preferences are all often striving to establish or maintain their hegemony vis-a-vis embedded symbols of tradition, religiosity, and exceptionalism.” (Id., 1184). Of course, that might suggest as a counter to fractious religion some sort of superior and monolithic alternative—the substantive norm systems of secular transnational constitutionalism. “Theocratic governance is also often at odds with principles of modern economy and may threaten the interests of major economic sectors and stakeholders.” (Id., with a reference in Hirschl’s discussion of Griffin 2003, 1633-35). But the very existence of a normative constitutionalist alternative suggests that the differences might be as horizontal (insurmountable inconsistencies) and they might be vertical (subordination to a greater political universalism).

And that brings Hirschl to the most important distinction between religion and other divisional challenges for a legitimate constitutional order—the “uneasy union of constitutionalism and theocratic governance.” (Id., 1184). Yet where the recognition of this distinction might have led him, as it did me, to the recognition of religion as an alternative form of legitimate constitutionalist expression—legitimate in the way in which constitutionalism is manifested—this distinction leads Hirschl to a determination that religion, to the extent it might provide a basis in substantive constitutionalism, is heretical, and thus illegitimate. Hirschl speaks of constitutional theocracy as something that defies or is unlike the normative constitutional structure of the United States and European states. (Id., 1189). Hirschl also emphasizes the problem aspect of religion, and its challenge to the established constitutionalist order. (Id., 1186). Difference, here, is a challenge that must be dealt with. But the character of the challenge is internal rather than external—because of the apparent assumption that religion cannot legitimately serve as a foundation of constitutionalist political orders.

Hirschl, of course, is right—the fundamentals of religious substantive constitutionalism and the secular transnational constitutionalism of the developed world are incompatible. (Backer 2208, 57). I have suggested that “[w]ithin the constitutional framework, religion is no longer an object with which a political community must deal. Instead, religion serves as the foundation on which political communities are constituted.” (Id., at 61. Yet he views the problem that results as pragmatic and directed to a particular end. He asks: “How can a polity therefore reconcile the principles of accountability, separation of powers, and the notion of "we the people" as the ultimate source of sovereignty when the fundamental notion of divine authority and holy texts make up the supreme governing norm of the state?” (Id., 1185). Hirschl writes: “All of these countries face the sources of friction inherent in a constitutional theocracy-a potentially explosive combination by its very nature, and one that poses new challenges to conventional constitutional ideas about secularism, religious freedom, and the relationship between religion and the state.” (Id.).

But to view religion as a constitutionalist basis as heretical requires a recognition of the possibility of religious constitutionalism. Hirschl recognizes that “[a]t the uneasy intersection of two present-day trends-the tremendous increase of popular support for principles of theocratic governance and the global spread of constitutionalism-a new legal order has emerged: constitutional theocracy.” (Id., 1188). Looking to the Egyptian constitution, Hirschl acknowledges the similarities between global constitutionalism and constitutional theocracy in the ways in which both embrace process constitutionalism. (Id.). I have suggested something similar, but without an overlay of global constitutionalist values, within Iranian constitutionalism. (Backer 2008, 38-42). That difference is critical, for Hirschl, these constitutional theocracies do not embrace substantive or normative values that can legitimate them within the framework of existing global constitutionalism.
“constitutional theocracies defy the Franco-American doctrine of strict structural and substantive separation of religion and state. Akin to models of "establishment" or "state religion," constitutional theocracies both formally endorse and actively support a single religion or faith denomination. Moreover, that state religion is enshrined as the principal source that informs all legislation and methods of judicial interpretation.” (Hirschl 2008, 1189).

He is right, but misses the point. For me, the rejection of the embrace of transnationalist constitutionalist values suggest a different species of constitutionalism, legitimate within its own terns, but irreconcilable with its competitor. What Hirschl calls constitutional theocracy is not a defective global constitutionalism, but a legitimating constitutionalism in its own right. Yet, it is one whose substantive values are incompatible with that of secular transnational constitutionalism.

Still, Hirschl provides a useful starting point for defining constitutional theocracy. His model of an ideal constitutional theocracy is described as including:
(1) adherence to some or all core elements of modern constitutionalism, including the formal distinction between political authority and religious authority, and the existence of some form of active judicial review; (2) the presence of a single religion or religious denomination that is formally endorsed by the state as the "state religion"; (3) the constitutional enshrining of the religion, its texts, directives, and interpretations as a or the main source of legislation and judicial interpretation of laws-essentially, laws may not infringe upon injunctions of the state-endorsed religion; and (4) a nexus of religious bodies and tribunals that not only carry symbolic weight, but that are also granted official jurisdictional status and operate in lieu of, or in an uneasy tandem with, a civil court system. (Id., 1190).

Yet the skeleton of constitutionalism can serve best only when its theocratic elements are better subsumed within the higher law of global substantive values to which the ideals of religion must be bent as constitutional law.

That is the flaw, and the blindness of internationalist analysis of theocratic constitutionalism—the judgment in the service of their own constitutionalist cause. Nit that such service is to be avoided—it is the best guarantee of the survival of that form of constitutionalism and to be encouraged for that end, at least for its adherents. But it does little to understand the opposing constitutionalist framework. And a failure to appreciate the strength and nature of such systems might be fatal in contests between the two. In that light, I have provided another:
First, the forms of “rule of law” constitutionalism are observed. The government constituted is in some great sense democratic. There is a significant element of separation of powers in the construction of the state apparatus. Second, the substantive elements of modern constitutionalism are also observed. Human rights are enshrined in the constitution and protected. The power to petition the government is preserved. Third, the power of the state and its governance organs are strictly limited. . . . The difference—and a critical one to be sure—is the source of the norms constituting those boundaries of governance and the mechanisms for engaging with those norms. (Backer 2008, 41-42).

In the context of the Iraqi Constitution I explained:
So what would the non-American vetted Iraq Constitution look like? It might look like this: Islam is the source of all law. All law that contradicts Islam contradicts the Constitution. Authoritative Islamic law scholars must sit on the highest court, which merges secular and religious law. Individual, religious, democratic and human rights are respected within the context of the Islamic identity of the state. Group but not individual rights to conscience will be respected—a right to change religion will be permitted only to the extent permitted by the religious community from which the individual seeks to exit (best case) or permitted only in favor of conversion to Islam. (Id., 61).

The effect is acute on the application of core concepts—for example democracy. “This formal adherence and functional rejection of transnational constitutionalism is clearly evident in the reconstitution of democracy as a value of state constitution.” (Id., 57). Democracy is bent to the understandings of the value of that right for the benefit of the faith, rather than as a value superior to those of religion that forms the framework within which the political apparatus is constructed. “Under traditional transnational constitutionalism democracy served as a core value of state formation because it accorded with fundamental notions of fair governance and gave expression to the values of human dignity and equality.” (Id.). The source of its legitimacy lies in the authority of the community of nations to develop and articulate global constitutional norms. (Id.). “But within Iranian theocratic constitutionalism, and its American variant (as written into the Iraqi and Afghani and Iraqi constitutions), democracy serves as a sword, justifying national interventions and peculiarities that can trump other values, including those that are held to be fundamental by the community of nations. Thus the forms are observed by the substance is altered and redirected.” (Id.).

A key difference touches on human rights. And in this respect, legitimating universalist Islamic constitutionalism has been moving forcefully to institutionalize its own construction of these concepts in a way that distinguishes its basis from that developed by the community of nations through the organs of the United Nations. Thus, for example, contrast the United Nation’s Universal Declaration of Human Rights (1948), with the Universal Islamic Declaration of Human Rights (UIDHR). (See, Moosa 2000-2001). Moosa suggestes that “the UIDHR explicitly states that in “terms of our primeval covenant with God, our duties and obligations have priority over our rights.” This statement sharply distinguishes the Islamic rights-scheme from what is generally meant by secular “human rights” where the term rights mean certain fundamental and unconditional entitlements simply on the grounds of being human.” (Id., 196). The more formal Cairo Declaration (1990) emphasized both the similarities and differences between the approaches. (Backer 2008, 43). Thus, it is not that theocratic constitutionalism, or its Islamic variety, fails to embrace human rights as a strict limit on the power of the state, it is that the understanding of the nature and character of those rights spring from foundationally different sources. Those difference can produce significant variation in application.

For Hirschl, the object of the study of constitutional theocracy has an objective—the quest for methodologies of ameliorating its effects in the service of a more traditional system of political subordination of religious normative governance frameworks. To that end he describes “constitutional-institutional models for delineating the relationship between religion and state; these models are of crucial importance for our analysis of the phenomenon of constitutional theocracy.” (Hirschl 2008, 1191). Hirschl thus summaries: “even in the least likely settings, constitutional framers have been able to hedge or mitigate the tension between modern day needs and principles of theocratic governance through innovative constitutional design and reconstruction.” (Id., 1199. It has another objective—the privileging of the “cultural propensities and policy preferences of secular, cosmopolitan, moderate elites in these countries” (Id.). For this purpose constitutional courts are essential (Id., at 1200-1209), if only as a bastion of transnational constitutionalism as an antipode in an other wise formally theocratic (or potentially theocratic) constitutionalist system. (Id., at 1200-1203). He does not hide this objective, explaining, for example, that “constitutional courts may also be viewed as the guardians of secularism, modernism, and universalism against the increasing popularity of theocratic principles.” (Id., 1200).

Like Feldman and Martinez (2006, 916-918), Hirschl puts a great deal of faith in constitutional courts to undo the theocratic elements, even those written into the black letter of constitutions. (Hirschl 2008, 1200-1203). Indeed, Feldman & Martinez suggest, effectively that, because there were a number of potentially incompatible values given the same significance within the black letter of the Constitution, the final hierarchy of constitutional values under the Iraqi constitution will be determined outside of the Constitution itself. Effectively, Feldman & Martinez argue that by imposing on Iraq the same sort of fundamental fissures that ultimately led to the American Civil War, the Iraqis can also sort out their constitutional ordering.
[W]hile the final constitution sets the parameters for the relationship between Islam and democracy in Iraq's political order, the text alone is unlikely to determine the balance once and for all. For a variety of reasons--including the ongoing insurgency, the constitution's own textual ambiguities, and rapidly shifting ethnic and sectarian alliances--the final balance between Islam and democracy in Iraq will depend as much on everyday political practice as on specific constitutional provisions. In this sense, the Iraqi constitutional process continues, even after ratification of the document itself. (Feldman & Martinez 2006, 884-85).

But there is no question of theocratic constitutionalism. Instead, the “Iraqi constitution allows for a wide range of interpretations and political outcomes. Its provisions are frequently indeterminate, containing numerous points of internal tension and ambiguity, especially in its approach to integrating Islamic values with liberal provisions on equality and human rights.” (Id., 919-920).

The difference between Feldman & Martinez, on the one hand, and Hirschl, on the other, is that Hirschl is willing to consider the construction of constitutional orders based on religion. Feldman & Martinez suggest that religion is merely one of a number of substantive values that must be juggled to meet the contextually correct mix for a particular state. “Democracy, Islam, federalism, pluralism, and human rights-- the cardinal values of the final constitution--all achieved prominence” Feldman & Martinez 2006, 884). As a consequence, for Hirschl, constitutional theocracy cannot overcome a sense of illegitimacy. That it is inconsistent with fundamental substantive norms of the international political order substantially undermines its legitimacy; that it is a fully developed system makes it dangerous; that it is dangerous makes it something to be dealt with and overcome. Thus, Hirschl’s framing of the lessons to be drawn are telling:
“First, the theocratic challenge has become a significant factor in world politics as well as constitutional law. . . . Second, the canonical literature concerning constitutionalism as an effective means for mitigating tensions in multi-ethnic or multi-linguistic states does not adequately address the theocratic challenge. . . . Third, the emergence of a new legal order-constitutional theocracy, which is now shared in one form or another by dozens of countries in the developing world-provides important insights into the sociopolitical role of constitutionalism in predominantly religious settings.” (Hirschl 2008, 1210).

While religious sensibilities must be respected, they cannot contradict or overcome the basic normative values of global constitutionalism.

Under the principles of this global transnational secular constitutionalism religion has a subordinate (though respected) role. “Within post War transnational constitutionalist systems religion was meant to be understood as just another right to protect. As against the universalizing framework of transnational constitutionalism, with its focus on human rights, democracy, participation and non-discrimination, religion was viewed as important but parochial.” (Backer 2008, 36). But what clearly emerges is not that theocratic constitutionalism is somehow a bad choice and not legitimate, but that religion has emerged within constitutionalist discourse as an autonomous and important form of constitutionalism, as distinct from its secular and transnational counterpart, as both are from traditional nationalist constitutionalism. The Iranian revolution and constitutional settlement was decisive in its evolution.
“Throughout the Islamic world, the socio-cultural and political impact of the Iranian revolution was profound. The Iranian revolution furnished the struggle of Sunni Islamist movements worldwide with renewed vigour and the tenor of their polemics and campaigns were heightened considerably. Islamist movements the world over redoubled their efforts to fight the twin world-devouring Satans (jahan-khor)--the Eastern and Western blocs--that were crushing the Muslims between them.” (Noor 2002).
It has provided a model that, like the American Constitution after 1776, has come to serve as the measure against which other principled religiously based constitutionalist systems are measured. Whether one considers it threatening and illegitimate, a challenge to the established universalizing normative constitutional order, or even a global threat to inward looking traditional state-based constitutionalism, transnational or universalizing theocratic constitutionalism has emerged in its own right as another discursive framework for thinking about the legitimacy of the political constitutions of states.

Transnational theocratic constitutionalism is not an illegitimate form of transnational secular (or global) constitutionalism. It is, instead, a competing system—and within the market for constitutional form, it is seeking to displace the post 1945 universalist constitutionalist system, based on the normative system presided over by the community of nations, with one in which the constitutions of states reflect the will of God as one or another faith communities understand that will and its earthly constitution, for example, through ulema or magisterium. The similarities are worth highlighting: The Ulema is sometimes understood as the educated class of Muslim legal scholars as recognized within a particular territory. (Saeed 2003). “Two types of ulema exist: the official ulema and the non-official (independent) ulema. The official ulema are usually part of the state bureaucracy and are generally dependent on the state. The non-official ulema are usually outside the state bureaucracy.” (Id., 14)). Notions of ulema have been critical in the construction of political parties in some copubntries, for example, Malaysia. (Noor 2003). In contrast, among Catholics, “"The task of giving an authentic interpretation of the Word of God, whether in its written form or in the form of Tradition, has been entrusted to the living teaching office of the Church alone. Its authority in this matter is exercised in the name of Jesus Christ." This means that the task of interpretation has been entrusted to the bishops in communion with the successor of Peter, the Bishop of Rome.” Together, these officials constitute the Magisterium of the Church. (Catechism of the Catholic Church). Both communities reproduce or parallel notions of democratic inclusion, but based on distinct normative starting points. Those starting points, legitimate within their structural framework, would necessarily appear defective to others. But they reflect the essence of legitimacy and authority among believers—just as the exclusion of women from the electorate appeared so to many states before the 20th century.

The problem, then, isn’t one of correction, as even sympathetic critics of a religious element in constitutionalism might suggest, but one of displacement. This was, for example, well understood in the context of the Chechan wars against Russia. “After the war, radical Islamic groups began using religion as a basis for political reforms in the republic. They promoted the idea that the “desecrated and aggressive constitutionalism” of Russia and the West should be replaced by a constitutional theocracy, often quoting Dudayev's phrase, ‘The power of Shari'a law should be absolute and unlimited.’” (Tishkov % Gorbachev 2004, 203). In the place of a set of related notions of constitutionalism, there has arisen another constitutionalist system, incompatible with and competing against that system for the allegiance of the community of nations.

As a consequence, much in Western constitutionalist discourse about theocratic constitutionalism—the Islamization of law—actually seeks to undo or subordinate that Islamization in the service of contemporary systems. In a sense, that appears to be a consequence of constitution making projects, like those attempted by American elites involved in the construction of the Iraqi constitutional experiment in ambiguity. (Feldman & Martinez 2006, 885-90, 918-19). The object is to privilege global secular values—generated as meta-law by the community of nations and central to the substantive element of transnational constitutionalism—over or through substantive constitutional values generated by Islam (or Buddhism, Christianity, Hinduism, etc.).

This takes a variety of forms. Thus, for example, scholars tend to ask if theocratic constitutionalism can be used to vindicate secular constitutionalist values. (Cohen 2008, 266-273). Another form focuses on the project of judicial reconstruction of Islamist constitutional provisions in the service of global secular norms. Hirschl 2004). Another focuses on remaking the competing substantive framework—in the case of Islam by substituting a “soft Islam” for homegrown varieties. “Many have attempted to outline the features of a soft Islam in recent years, resulting in several typologies of liberal, modest, modern, and Euro-Islam that are contrasted with militant, virulent, and fundamentalist Islam.” (Etzioni 2003, 65). Etzioni suggests that “Such an Islam seeks to educate and encourage good conduct rather than coerce it, is open to reinterpretation on all matters but its core, welcomes participation by the members of the community rather than dictates from the mullahs, and spreads spiritually rather than by the sword. . . . The most effective way to develop such a conception is to embody it in new institutions for the whole world to see. Moreover, as we remain knee-deep in rebuilding Iraq, concrete questions--not just matters of theory--must be faced.” (Id., But see Backer, July 16, 2007; Backer July 16, 2007). For a discussion, see, Larry Catá Backer,; Larry Catá Backer,).

Yet another focuses on invoking international communal standards to indict and de-legitimate the substantive foundations of theocratic constitutionalism. “Even before the events of September 11, 2001 and the subsequent declaration of a "war on terrorism," articles on the relationship of "Islam" to notions such as liberalism, democracy and pluralism were ubiquitous in the scholarly academy, to say nothing of the popular press. Much of this work, however, is either apologetic or polemical.” (Fadel 2008, 5-6); citing Peters 1999). He noted that “[d]uring recent decades a host of publications have seen the light with titles like: 'Islam and X' or 'X in Islam,' where X is typically a concept with positive connotations, such as democracy, peace, social justice, or women's rights" (Peters 1999, 5; Fadel 2008, n. 1). But in doing so, these arguments recognize the incompatibility of such systems with contemporary transnational constitutionalist systems. “It follows that by promoting soft Islam we get two for the price of one: We promote a religion that is compatible with liberal democracy as well as one that can serve as an effective antidote to the fundamentalists.” But they do not examine that contrary constitutionalism on its own terms. There are exceptions, of course. But even these come from a framework in which the examined system is both alien and in need of softening or control. That makes it harder to understand what is actually developing within constitutional theocracy. And for those who seek to meet the “challenge” of this rising system, for ways to meet that challenge within territories in which both systems seek to serve as the legitimate (and sole) basis of constitutional ordering. Thus, for example, recent scholarship

If this is the case, then what might be the critical features of transnational theocratic constitutionalism? These are easy enough to extract from the development of the Iranian and the American inspired Iraqi and Afghani constitutions: theocratic constitutionalism is a world view positing the construction of states subject to law but grounded in the values of a particular religious tradition. In a sense, theocratic constitutionalism represents the legalization of the anthropological perception that “the importance of religion lies in its capacity to serve, for an individual or for a group, as a source of general, yet distinctive, conceptions of the world, the self, the relations between them, on the one hand—its model of aspect—and of rooted, no less distinctive “mental” dispositions—its model for aspect—on the other.” (Geertz 1973, 123; see id., at 93-94 for explanation of cultural models “of” and “for” aspects). That tradition is both universalizing and supra-national. “Despite the great dynamism and diversity among contemporary Muslims in terms of political views, there are core concepts that are central to the political positions of virtually all Muslims.” (Esposito & Voll 1996, 23). Like conventional constitutionalism, “[what varies is the definition of the concepts -- not recognition of the concepts themselves. Abu al-Ala al-Mawdudi, a significant Sunni Muslim thinker who lived in British India and then independent Pakistan, and who established the major South Asian Islamic revivalist organization, the Jamaat-i-Islami, stated that the "political system of Islam has been based in three principles, viz: Tawheed (Unity of God), Risalat (Prophethood) and Khilafat (Caliphate).” (Id., citing to Maudidi 1967, 40). Conformity to the substantive norms of theocratic constitutionalism requires conformity to those religious norms with respect to which the members of each state may participate but which no state controls.

But though it privileges the universal as framework, it also leaves room for context and difference. For some that means a compatibility between Islam and secular global human rights regimes. (An-Naim 1990, 15). (As Carl Brown has recently noted:
The scholarly debate describing contemporary Muslim states and societies and predicting future developments has produced a spectrum of options. At one end are those insisting that Islam is the major factor explaining the situation of today's Muslims. Islam has so thoroughly molded them that they must be analyzed by different criteria. Islam is sui generis. At the other end of the spectrum are found those maintaining that basic political, economic, and social factors—such as are found in all societies— account for the problems and the prospects of today's Muslim world. If the reality of daily life in these Muslim countries were more sanguine and secure, the Islamists would have scarcely a following. (Brown 2000).

A similar analysis has been applied to the issue of Palestinian women, gender rights and Islam within the peculiar context of Gaza. (Merry 2003, 944-945).

Still, as with secular constitutionalism, its ideals can sometimes be used to mask illegitimate objectives. In the context of Islam that problematizes what is sometimes written about as the “arabization” of political discourse, especially in conjunction with the Islamization of politics. Arabization is ethnocentric, racist and assimilationist in ways that are not necessary to Islamization. (Ong 1995, 177 (Arabization of Malaysian family roles); Stillman 1991 (on Arabization and the effects on religious minorities)). Thus, for example, “The governments of Mauritania and Senegal, as early as 1989, began a process of "Arabization," whereby the Mauritanian government would deport black citizens to Senegal.” (Fery 2006, 509; citing to Human Rights Watch 1990). Arabization has been suggested in the context of ethnic cleansing in Iraq, “In the north, the "Arabization" of oil-producing areas meant eviction of Kurdish farmers, who were replaced with Arab tribesmen.” (Kelly 2005, 989). Arabization, along with Islamization, has been suggested in the context of Sudanese violence as well, though there is likely also a racial element there as well. (Saunders & Mantilla 2002; citing U.S. State Department 2000).

And in any case, it masks the more important question—are human rights and other secular global values to be interpreted through the lens of a or is religion to be interpreted in a way consistent with the global norms. The question, then, is which of these two normative systems will have to move in order to remain compatible—which of these two systems will serve as the standard against which the results under the other are measured. Theocratic constitutionalism provided an answer incompatibly different form that provided by transnational secular constitutionalist—even (especially) those sympathetic with providing a “role” for religion in governance.

That worldview has an ordering element. It judges constitutions as legitimate and illegitimate in accordance with their compliance with the basic precepts and normative framework that is embraced as legitimate. It sees itself as the greatest source of normative legitimacy and alternative perspectives as flawed. Like other forms of constitutionalism, theocratic constitutionalism’s taxonomy thus reinforces an underlying normative structure. The normative element of theocratic constitutionalism carries with it a certain authentic or legitimating meta-ideology. That meta ideology is easy to find, though its implementation and contours are as difficult to discern as those of secular transnational constitutionalism. Religion provides that ideology that serves as the grounding for understanding and applying notions of right and justice—of actions that may be taken and those which must be forbidden and of the role of the state in furthering the obligations of community and individuals. There is much similarity at its core between universalist secular and theocratic constitutionalism, at least in its institutional distribution of constitutive power above the state. I am reminded here of the old understandings of this similarities not between secular and theocratic constitutionalism, but between the incompatible universalist visions presented by Christianity and Marxism. Perhaps Fulton Sheen put it best years ago: “So much is communism a secularization or dedivinization of Christianity that it can be presented as an ersatz for Christian doctrine.” (Sheen 1948, 84). The same can be said for the theocratic element in theocratic constitutionalism.

Lastly, theocratic constitutionalism has an implementation element derived from its ideologically constrained organizational basis. Rule of law is strong within theocratic constitutionalism—avoidance of arbitrary action by the state or its servants, action in conformity with law, and most importantly, limits on law making. The state is not despotic—it must conform to law and its servants may not exceed the authority vested in it by the constitution as bounded in turn by the substantive framework within which the constitution is cast. The focus has been on process and substantive provisions. Here is where the theocracy part of constitutionalism comes into prominence—for those limits are not ultimately in the control of the apparatus of state but in those elites authentically vested with authority over the basic texts and rule interpretation of the religion privileged through the constitution. Just as global norms, and the entities that fashion then, are critical for the interpretation of secular transnational constitutions, so the meaning of the law derived from the holy texts of the dominant religion serving as the measure of order for a particular theocratic constitutional system and the institutions with authority to interpret them, are critical for theocratic constitutional systems. Thus theocratic constitutional systems might be just as concerned as their secular transnational counterparts about the role and place of judicial control of constitutional interpretation within their systems. For transnational constitutions, the judge looks to and is bound by the Constitution itself, subject to the overarching norms of the global community. For judges in a theocratic constitutionalist systems, judges are similarly bound by the constitution, but subject to an interpretation of its terms through the higher authority of the religious system from which it is derived and which its serves through its adherence to rule of law principles. But for theocratic constitutions, the judges themselves would be measured against a performance

Accountability of state officials is guaranteed through the constitution; accountability of those who hold the power to interpret and apply the basic principles of theocratic constitutions is left to the religious organization. That organization is supra national in scope—faith communities and their institutional structures have gone global. Its members belong to global communities of the faithful constituted as autonomous. Though state based institutions may flourish, the obligation to avoid too great a deviation from the basic rules of the global religious body keeps all of the arbiters of rules and conduct in check. There is thus both an element of contextualization—the ability of local religious elites to naturalize the universal principles of normative religion within their territories—and universalism, as the adherence to the framework structures of the substantive system. Protection of the rights and dignity of individuals are preserved—but within the framework of the understandings of those terms within religious law. Thus, for example, the concept of democracy might itself be given its “truer” meaning within the Islamic normative framework like this:
“The theocracy built up by Islam is not ruled by any particular religious class but by the whole community of Muslims including the rank and file. The entire Muslim population runs the state in accordance with the Book of God and the practice of His Prophet. If I were permitted to coin a new term, I would describe this system of government as 'theo-democracy', that is to say a divine democratic government, because under it the Muslims have been given a limited popular sovereignty under the suzerainty of God.” (Maududi 1967, 40, quoted in Esposito & Voll 1996, 23).

Membership in the polity is tied not to citizenship so much as to membership in the constitutionalized religious community. For the others, citizenship comes without a power to participate in the construction of meta-rules that define the power relationships and behavior norms of the state.

Theocratic constitutionalism is not mere theocracy. The priests are not in charge directly--the lawyers and politicians are. The role of the divines are meant to be clear and limited within a constitutional framework. The state operates outside the religious establishment, but subject to it in matters of conformity to its precepts and rules. That, perhaps, is what distinguishes Iran and Afghanistan from Taliban Afghanistan and Saudi Arabia. It is to those distinctions in practice, that the next essay turns.

And thus the most critical feature of theocratic constitutionalism--both its resemblance to modern constitutionalism that arose in the West after 1945--its internationalism, its adherence to the ideals of participatory and limited government against which citizens are protected against arbitrary use of state power for personal purposes rather than for the public good under law. But the meaning and application of these concepts are grounded in foundational frameworks that are incompatible. Thus, though the answer that one gets from application of the substantive law norms of either system may be comparable--and similar--the basis from which the answers are derived, their limitations and scope of application, will be different.

These are systems grounded in lawfulness and in higher law, but each seeks superiority over the core values of the other. Secular transnational constitutionalist systems, even at their most accomodationist form as Feldman & Martinez (2006) and Hirschl (2008) evidence, insist on the superiority of its norm system within which religion may operate and its participation domesticated. "The United States and other democratic nations share a common aspiration for a liberal international order, built on democratic principles and held together, however imperfectly, by laws and conventions among nations." (Kagan 2008, 39). For theocratic constitutionalism it is the grand values of transnational constitutionalism--democracy, human rights, gender and religious equality, labor rights and the like--that must be domesticated within a system in which the principles and rules of the governing religion, expressed as its theology and behavior standards, are the supreme law of the land.

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Declarations, Statutes, Treaties, Conventions, and Constitutions

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