At the 2007 Annual Meeting of the Association of American Law Schools, held in Washington, D.C. January 2-6, 2007, the Section on Law and Religion sponsored a program panel—Religion, Religious Pluralism, and the Rule of Law—held on Wednesday, January 3, 2007. It was my good fortune to have been asked to participate on that panel along with an outstanding group of scholars in the field: Mark C. Modak-Truran (Mississippi College of Law), Rebecca R. French (SUNY-Buffalo), Scott C. Idelman (Marquette University Law School), Robin W. Lovin, (SMU, Perkins School of Theology), Elizabeth B. Mensch (SUNY-Buffalo), Michael Novak (American Enterprise Institute Scholar), and Steven Douglas Smith (University of San Diego School of Law).
The program description gave a sense of the breadth of the presentations by the panelists:
I. Introduction.
- My job on this panel is to focus on religion and rule of law. I will attempt that focus from a global rather than a purely national level.
- For my contribution to this panel I am going to focus on the global repercussions of what Betty Mensch reminded us in her earlier presentation is sometimes described as the beginning of institutionalized political communities—the consequences of the murder of Abel by Caine (Gen. 4:1-15). I will look at religion as autonomous and complete legal systems and the community of states as an autonomous and universal moral and ethical system, each competing for dominion over the construction of governments.
- I will focus of the nexus of constitutionalism, globalism and religion in the construction and limitations of constitutions. I will show how constitutionalism has become globalized as it searches for foundational universal principles, and how religion has become central to that search. And specifically I will describe the current great contest for a universal basis of global institutionalization of theology, morals and ethics within global constitutionalism between secular and religious universalism.
II. The Problem
- At the end of the 20thcentury, elite constitutional law mandarins could, with confidence, look out on a world order in which the idea of a single transcendent system of supra-national constitutionalism had emerged as the great norm of all legitimate national constitutionalisms.
A. This supra-national constitutionalism posited limits on national constitution making grounded in an involving set of foundational universal norms derived from the understandings of basic right and wrong developed by consensus among the community of nations.
B. The focus was on secular universal principles of human rights (Consider as representative, Thomas Buergenthal, Modern Constitutions and Human Rights Treaties, 36 COLUM. J. TRANSNAT’L L. 211 (1998)).
C. Could be enforced by a global bar and judiciary loyal to this harmonized set of norms.
- But the reality of the early 21st century is quite different
A. The jurisprudential basis of global constitutionalism is in flux: and authority over norm setting is contested.
B. The foundations of a universal constitutionalism are both contested and in flux.
C. These contestations and fluxuations are a reflection of fundamental and perhaps irreconcilable differences smothered under the drive to institutionalize authoritatively late 20th century universalist secular international law-based constitutionalism.
D. These pit a number of communities against each other. National political communities, like the United States and the People’s Republic of China adhere to traditional normative frameworks rejecting binding supra-national systems limiting national constitutionalism. The international community of nations, through its institutional organs seeks to build a binding legal framework within which national constitutions are subordinated to international normative frameworks. Sub-national communities reject universalism on the basis of declared sub-national exceptionalism claims (going to the uniqueness of their communities) or on the basis of claims that these sub-national communities are part of larger transnational communities including ideological, racial & ethnic and, religious communities with their own Universalist claims.
- Thus, at the beginning of the 21st century, and just at the moment of its seeming triumph as THE global standard of constitution-making, at least within important elite communities with authority to speak on these matters (e.g., PIERRE BOURDIEU, LA NOBLESSE D’ÉTAT, Paris, Minuit, 989), the system of secular, political, international norms-bounded constitutionalism—that great political triumph of the Allied Powers after WWII—is being challenged from a variety of different directions
- I will focus on one of the most important vectors of these challenges of the early 21st century
A. The challenge by transcendent, universalist, autonomous, religious communities and their efforts to displace secular universalist normative frameworks with transcendent religious frameworks no less universal.
B. In a sense, with this challenge Anglo-European society comes full circle: having spent the greater part of the last four centuries unmaking quasi-governmental systems of religious law, the West is now confronted with globalizing political systems grounded in religion as fully formed politico-legal systems.
C. This confrontation and challenge comes not only from outside, but is generated from within as well. Thus the implications for American constitutional law as internally constructed (by its polity and its Supreme Court) may be great as well.
D. I acknowledge but will not discuss other Universalist challenges—for example the economic universalisms of globalization or Marxist-Leninist systems (Larry Catá Backer, Cuban Corporate Governance at the Crossroads: Cuban Marxism, Private Economic Collectives, and Free Market Globalism, 14 (2) JOURNAL OF TRANSNATIONAL LAW & CONTEMPORARY PROBLEMS 337 (2004).)
- I start with a brief description of the constitutionalist framework prior to the Second World War,
A. Characterized by the triumph of the national state as the supreme repository of law making power.
B. Focus on legality (process) not substance, except to the extent it reflects the will of the sovereign
- I then look at the contestation of this framework and the great post-WWII Western project of contextualizing constitution making within limits derived from international law, norms or standards.
A. Shift in focus from process to substance and legality, especially around the limitations of government power against individuals.
B. Shift of authority over substance from the constituting state to the international community of nations.
C. Focus on harmonization of constitutions pursuant to great principles of democracy and human rights; Evolution of this hierarchy of a ‘higher’ higher law of the constitution.
- I then look at the rise of religiously based or theocratic systems to challenge the orthodoxy of the secular post-WWII supra-constitutionalist project.
A. Look at the big bang—the Iranian 1979 constitution and its progeny, the American inspired constitutions of Afghanistan and Iraq.
B. Use legality (process constitutionalism) in the service of and to legitimate alternative universal systems of substantive limits to constitutional choices
- I end with a look to the implications of these seismic movements in global constitutionalism both:
A. At the level of constitutional theory.
B. At the “as-applied” level of the law of the constitution now possible within states, especially states without homogenous populations.
C. Potential implications for American Religion Clauses jurisprudence, with an eye to the possible construction of a secular theocratic constitutionalism, or for a greater privileging of religion within the American political community.
III. Traditional Constitutionalism Before WWII—Constitutionalism in 1900
- states at apex of global legal orders (e.g., WESTEL W. WILLOUGHBY. THE FUNDAMENTAL CONCEPTS OF PUBLIC LAW. New York: Macmillan, 1924. Pages 307-309).
- The foundation of state power was popular will (however manifested). That manifestation could arise from a number of sources:
A. the people
B. their representatives
C. the monarch
D. the dictatorship of the proletariat
- As the unique expression of a unique national will, government and its constitution was NOT constrained by LAW. Two types of limitation on constituted government were suggested, one focusing on the realities of power and the other on the limitations of self interest within moral and cultural cobnstraints:
A. “The external limit to the real power of a sovereign consists in the possibility or certainty that his subjects, or a large number of them, will disobey or resist his laws.” (A.V. DICEY, INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION, 8th edition. London: Macmillan, 1915, (reprinted Indianapolis, IN: Liberty Classics (1982) at page 30).
B. “The internal limit to the exercise of sovereignty arises from the nature of the sovereign power itself. Even a despot exercises his powers in accordance with his character, which is itself moulded by the circumstances under which he lives, including under that head the moral feelings of the time and the society to which he belongs.” (Dicey, supra., at 32).
--As a consequence, the foundational issue of constitutional orders was authenticity of that expression of the national will by whatever means institutionalized.
A. Concentration then on Fraud: combated by systems policing arbitrariness or the use of arbitrary state power (RESCHTSTAAT). This finds expression in both democratic and totalitarian societies—for the Americans with the rise of process theory (Ely, John Hart Ely. 1980. Democracy And Distrust: A Theory Of Judicial Review.) and with the NAZI regime with the theoretics of Carl Schmitt in 1930s Germany (Schmitt, Carl. 1932. Legality and Legitimacy. Trans. Jeffrey Seitzer. Durham, NC: Duke University Press (2004 from first (1932) and 2nd (1958) German eds.).).
B. Substantive expression of lawfully derived rules was not limited, except as accepted by the popular will and written (or otherwise provided) in the Constitutional framework of any particular state.
IV. Seeking Universalist Constitutionalism After the Second World War
- The focus of the Allied Powers after the end of the war was on the construction of a system of states that would make war less likely or at least more costly.
A. They wished to institutionalize these protections through the U.N. system as well as through a varietry of supra-national multi-state arrangements.
B. Goal to tie all states together in a coercive community of nations. greater concentration on legitimacy of substantive content of constitutions
- Focus on limiting use of even otherwise lawful power. Constitutions became a means for limiting the range of expression of popular will, especially with respect to its spillover effects on individuals (for example slavery or the extermination of minorities) or other states (militarism).
- Additional focus on harmonizing those restraints so that all states within the community of nations would act alike, or adhere to the same set of codes of behavior. Institutionalize the “civilized nations” framework of the 19th century (WESTEL W. WILLOUGHBY. THE FUNDAMENTAL CONCEPTS OF PUBLIC LAW. New York: Macmillan, 1924. Pages 307-309.).) within the bounds of constitutionalism.
- Great initial models were the Germans and Japanese post-war constitutions (Basic Law for the Federal Republic of Germany (Grubndgesetz) (1949), ; The Constitution of Japan (1946)).
A. Product of Allied thinking (need to put aside racial/ethnic overlay, especially with respect to the construction of the Japanese Constitution).
B. Allies were a powerful influence in what was seen as part of a larger global project.
- Two sources of substantive (moral/ethical) nominative limits on constitutionally legitimate state power (e.g., Cf. Andrew Moravcsik, The Origins of Human Rights Regimes: Democratic Delegation in Postwar Europe, 54 INT’L ORG. 217 (2000).):
A. Communal traditions of the state itself (expression of their highest communal asspirational views of themselves: as civilized, advanced, etc.)
B. Moral/ethical behavior rules though generally to apply to all civilized states. (I note post-colonialist argument that the substance of these standards attempt to universalize Western notions of governance and institutional moral/ethical behavior).
C. Expression of these rules through positivist rules of global institutions—the U.N. in particular, as the great source of the communal civilizer of states through international law now limiting constitutions (cf., MARTTI KOSKENNIEMI, THE GENTLE CIVILIZER OF NATIONS: THE RISE AND FALL OF INTERNATIONAL LAW 1870-1960, Cambridge: Cambridge University Press, 2001).
- The Preamble to the Post War Japanese Constitution sets these themes out nicely:
A. Expansion and constitutionalization of sources of these norms
B. Dovetails with expansion of role and legitimacy of international law and governance
C. Focuses on restraining government in its power over individuals and minority or subordinated —that power the monopoly of power over individuals begins to shift from nation-states to the community of nations. Consider Article 1 of the Grundgesetz: “(1) Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority. (2) The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world. (3) The following basic rights shall bind the legislature, the executive, and the judiciary as directly applicable law.”
D. Rules formation mirrors development of customary international law: (i) a sort of common law or organic law of constitutional restraint; (ii) applicable to all states; (iii) all states have a rule/stake in its construction; and (iv) constitutional convergence at least with respect to frameworks/objectives.
E. The source of these limiting rules was located outside the control of any individual state, but within the control of the community of nations.
1. Thus, the limiting framework was external to any individual state constitutional system.
2. It was secular
3. It could be changed but only by the consensus of the community of nations.
F. The system becomes self enforcing within states through communication between states by reference to international normative standards. Reliance on the growth of a transnational judicial elite and the construction of a transnational jurisprudence of constitutional norms. (Anne-Marie Slaughter, A Typology of Transjudicial Communication, 29 U. RICHMOND LAW REVIEW 99 (19894)). It is also aided as more and more of the issues of constitutional states are juridified. Ran Hirschl, The New Constitutionalism and the Judicialization of Pure Politics Worldwide, 75 FORDHAM LAW REVIEW 721(2006).
G. The system represents the great expr5ession of the collective genius of humanity—the great flowering of the humanism that started in the Renaissance in Europe and acquired its current form during the European Enlightenment with its focus on (1) secularism, (2) positivism, and (3) scientism (reason or rationality)
- The system was uneven in its application. Some states rejected the full implications of the system (the United States among them), other states never enjoyed the freedom to set their own norms (especially in the decolonizing world). And the system appeared more aspirational than real until the 1980s.
A. First flowering in so-called third generation constitutions: (i) Argentina; (ii) South Africa.
- Role of Religion in these systems: (i) just another right to protect; (ii) Religion is parochial; (iii) Universal norms are secular AND political.
A. Example of religion in proposed EU Constitution (rejected).
- CAVEATS:
A. Emphasize this as a product of Western States seeking to universalize their ideas of constitutionalism in terms of: (i) arbitrary use of power (process aspects—rule of law), and (ii) substantive limits of power (substantive rule of law: human rights). (See Larry Catá Backer, The Rule of Law, The Chinese Communist Party, and Ideological Campaigns: Sange Daibiao (the “Three Represents”), Socialist Rule of Law, and Modern Chinese Constitutionalism, 16(1) JOURNAL OF TRANSNATIONAL LAW & CONTEMPORARY PROBLEMS (forthcoming 2006).
B. 1945 is an arbitrary cut off or starting date. Roots go back over a century in different countries in different historical, political, cultural and social contexts. Latin America saw efforts to secularize national constitutions in the late 19th and early 20th centuries. Africa saw British efforts, usually misplaced and meant to harmonize in accordance with British notions of universal approaches to governance, the constitutionalization and rationalization of indigenous codes. Even the Westphalian system contains the seeds of constitutional law universalism, though that was not a road taken after the 17th century in Europe for the most part.
C. But the focus is on events after 1945 for several reasons: (1) the period after 1945 saw, for the first time, conscious efforts by a global community to systematize and institutionalize a system of behavior norms limiting constitutional expression of any given polity; (2) this period also witnesses the first attempts to place that systemization/institutionalization within a vertical hierarchy of ‘higher law’ in which the constitutions of states did not come out on top; (3) the norms themselves for the first time acquire a more developed autonomy and independence from the control of any state or groups of states (however that control was usually expressed internally); and (4) this period also witnessed for the first time an attempt to draw a conscious link between state constitutions and independent (international) norms.
V. The Rise of Theocratic Constitutionalism
- Modern origins trace back to very recent history—the Iranian revolution and adoption of the Iranian Constitution of 1979 .
- CAVEATS:
A. 1979 is arbitrary. Roots go back at least as far as the Pan-Arab nationalism of the 19th century and Persian resistance to Westernization prior to WWI.
B. Forms of constitutionalism in traditional form existed in models of varying influence from Egypt to Saudi Arabia to Morocco. The Ottoman model also served.
C. Theocracy comes in a wide variety of flavors. Though I focus on Islam as the most dynamic and successful current form (at least successful in translating its forms into modern discursive forms). But other universalizing faiths might also provide other foundations: Christianity, etc.
D. Again, looking for first systematization and institutionalizations of universal system limiting constitutional powers of state.
- What makes the Iranian Constitution of 1979 special for my purposes is the way it modernizes the language and institutional context of theocratic state governance:
A. adapts overarching transcendental system of norms to modern language of Process Constitutionalism
- like modern constitutions it protects against arbitrary use of state power
A. Constitution gives the power to enact legislation
B. Legislation adopted in accordance with constitutional requirements
- like modern constitutions it also imposes limits on power the people can give the state Substance Constitutionalism.
- But Unlike Constitutions adopted under Post-WWII framework
A. The Iranian Constitution embraces the substantive (moral/ethical) restraints of Shi’a Islam. (Act 2, chp 1 of Constitution).
B. And sets up an institutional framework for religious oversight of political activity (Said Saffari, The Legitimation of the Clergy’s Right to Rule in the Iranian Constitution of 1979, 20(1) BRITISH JOURNAL OF MIDDLE EASTERN STUDIES 64-82 (1993)) .
- The standard response of the secularizing international community was to explain the developments in Iran away either (1) as a form of retrograde traditionalism to be overcome by steady progress (the we will talk it to death strategy) or (2) to view this form of religiously based constitutionalism as “sui generis”—explained away by the special circumstances of the 1979 revolution against the Shah.
- but the Iranian experience has been the start of an increasingly important framework for drawing constitutions within Muslim majority states.
A. Nigeria, Indonesia, Pakistan, Somalia, etc.
B. But the greatest evidence of its status as a viable alternative to international humanistic universalism was perhaps bound up in the adoption of theocratic constitutions for American administered Afghanistan and Iraq.
- both the Iraqi and Afghani constitutions are products of direct interventions after a military conflict—like Germany and Japan
- both were nurtured by American influence.
A. American diplomatic elites: especially through the offices of Zalmay Khalilzad, a naturalized U.S. citizen of Pashtun origins, who played a role as the American representative to Afghanistan and to Iraq at the times of the drafting of the constitutions of each. For a somewhat gushy account, see, e.g., Jon Lee Anderson, American Viceroy: Zalmay Khalilzad’s Mission, THE NEW YORKER, DEC. 19, 2005.
B. Also critical were American academics who, following a tradition of American interventionism in constitutional matters stretching in modern times from the fall of the Soviet Empire (but going back critically to the work of the Americans in shaping the German and Japanese constitutions, the legacy of which served as the great battlefield of later generations of American interventionists (some of whom fought to enlarge the secular human rights international universalism of those constitutions and others who rejected it). Notable among them, and serving as a great apologist for the Iraqi constitution of 2005, was Noah Feldman, a law professor at New York University and former constitutional adviser to the Coalition Provisional Authority in Baghdad. (E.g., NOAH FELDMAN, WHAT WE OWE IRAQ: WAR AND THE ETHICS OF NATION BUILDING Princeton University Press, 2004) with his finger in debates over the institutional role of religion in the United States (NOAH FELDMAN, DIVIDED BY GOD: AMERICA’S CHURCH-STATE PROBLEM AND WHAT WE SHOULD DO ABOUT IT, Farrar, Straus and Giroux (June 23, 2005)).
- Afghanistan:
A. adopted in 2004 after convening of the traditional LOYA JIRGA, presided over by the Afghan king, followed by a popular vote
- Iraq
A. adopted in Oct. 15, 2005 after conclusion of unsuccessful 3 way negotiations between the largest ethnic and religious blocs—Sunni, Shi’a, Kurds, though in effect representing a three way deal between Kurds, Shi’I and the Americans. The politics of the process of constitutional development are nicely summarized in Noah Feldman and Roman Martinez, Constitutional Politics and Text in the New Iraq: An Experiment in Islamic Democracy, 75 FORDHAM L. REV. 883, 886-901 (2006).
B. Outcome remains highly contested and legitimacy of constitution in doubt.
- Both speak the language of post WWII constitutionalism in its process and substance aspects.
A. Process Constitutionalism: rule of law a fundamental part of governance (state rule through law).
B. Substance Constitutionalism also embraced: sensitive to human rights constraints. Feldman and Martinez, for example, emphasize the textual commitment of the Iraqi Constitution to the foundational principles of Islam, democracy, human rights and pluralism—read horizontally, against a backdrop of the leaders of a majority of the population with a more hierarchical reading of these principles. (See Feldman and Martinez at 886-887 (political position of major parties), 901-906 (Islam), 907-910 (human rights), 916-918 (judiciary)).
C. both are touted as great experiments in Islamic democracy. “Indeed, it is fair to say that the charter self-consciously aims to integrate Islamic values into the country’s political life while retaining the separation of powers, checks and balances, and human rights guarantees that are the hallmark of secular and democratic constitutions around the world.”
- But there are substantial differences between these exercises in constitutional universalism and the great post 1945 experiment:
A. Whatever the suggestions to the contrary, and whatever the niceties of the parsing of the language of the text (in English), these Constitutions subordinated to overarching legal/moral/ethical system of Islam:
B. Afghan Const. Chp 1 Art. 3: “In Afghanistan no law can be contrary to the beliefs and provisions of the sacred religion of Islam.
C. Iraqi Const. Art. 2:
A. First articulated in G. Bush 2nd inaugural address: “Freedom, by its nature, must be chosen, and defended by citizens, and sustained by the rule of law and the protection of minorities. And when the soul of a nation finally speaks, the institutions that arise may reflect customs and traditions very different from our own. America will not impose our own style of government on the unwilling. Our goal instead is to help others find their own voice, attain their own freedom, and make their own way.” (George Bush, Second Inaugural Address, Washington, D.C:, Jan. 20, 2005).
B. “But something happened between 1945 and the present that began to be revealed after September 11, 2001. The Second Iraq War finally brought the differences between classical internationalism and the Bush administration into sharp relief. In place of the structuralism of the United Nations systems, and the consolidation of political power outside the nation, the Second Inaugural Address reveals President Bush’s revolutionary new project of internationalism – a state centered system founded on individual participation. In place of the post 1945 drive to transfer and consolidate power over political and social communities – that is, nations, ethnic and religious communities -- within a remote and elite international community, the President suggests the consolidation of state centered political communities all operating under the same general set of framework norms – ‘that every man and woman on this earth has rights, and dignity, and matchless value, because they bear the image of the Maker of Heaven and earth.’” Larry Catá Backer, President Bush's Second Inaugural Address: A Revolutionary Manifesto For International Law in Chaotic Times, LAW AT THE END OF THE DAY (Aril 1, 2006).
- Notice how it both mimics the form of the great post-war internationalization of constitutionalism, yet changes the substance
A. Like modern supra-national constitutionalism it locates the source of the limits of political expression outside both the state and the sovereign power of the people.
B. Unlike modern supra-national constitutionalism it locates this source: (1) Beyond human reach; (2) Under the interpretive control of a body of intermediaries that are not necessarily part of the political community; (3) Nor directly accountable to that community.
- Note place of international human rights norms and ideals in this system:
A. human rights a subordinate system of norms subject to application in line with superior framework of religious norms.
B. Human rights is an object of religious norms (that is, it is parochial religion made universal
C. This is the same defect that the post colonialist discourse suggests is at the heart of the UN driven secular universalism of human rights constitutionalism.
- A sense of where this is going is apparent from the position of the Islamic democratic parties represented in the Iraqi constitution making process (Drawn from Feldman and Martinez, supra, at 901-918).
A. Islam is identified as a fundamental source of legislation.
B. Feldman and Martinez characterize this as a victory of sorts for the new face of Universalist religiously based democratic society.
C. But I am more interested in the universalism of the adherents of religious supremacy rather than the American, Arab secularist and Kurdish ethnic protectionist inspired temporary overlay:
- The discussion of Art. 2 of the 2005 Iraq Constitution is particularly helpful
A. Islam is the state religion. While state religions, as such, may not infringe on the rights of minority religious groups, it does from a textual perspective, privilege one religion, and its theology, morals and ethics, over all others. This may make it impossible for any deviation for the majority peoples.
B. Islam is identified as a fundamental source of legislation. This is a compromise provision from the ultimate expression of this position in Constitutional law: Islam is the only source of legislation.
C. The Non contradiction Clauses of Article 2: There are three non contradiction clauses included in separate sub parts to Article 2. Together they provide that no law can be established that contradicts (1) the established principles of Islam, (2) the principles of democracy, or (3) the rights and basic freedoms stipulated in the constitution.
- Feldman and Martinez suggest that the three create an opposition sufficient to protect individual liberties against a more purely theocratic privileging of Islam. Feldman and Martinez supra at 904 (“As a practical matter, these clauses raise the possibility that future interpretations of the Islamic noncontradiction clause would be influenced by the principle of democracy, whatever these may be defined to constitute. In any case, it cannot be maintained that the text of the constitution privilege Islam over basic rights or democratic principles, however uneasily they might sit beside each other under certain circumstances.”).
A. The Islamists within Iraq, however, could make a strong case for the opposite—that the three non contradiction clauses together are supreme, but that, given the focus on Islam, both the democratic and rights non contradiction clauses must be read within the general parameters of Islamic morals, ethics and law.
B. This reading is not unusual in democratic societies; consider the German SouthWest Case.
- So what would the non-American vetted Iraq Constitution look like:
A. Islam is the source of all law;
B. All law that contradicts Islam contradicts the Constitution;
C. Authoritative Islamic law scholars must sit on the highest court, which merges secular and religious law;
D. Individual, religious, democratic and human rights are respected within the context of the Islamic identity of the state;
E. 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.
F. 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.
G. Religion thus serves as the ‘higher law’ that limits the constitutional expression of a polity: (1) exists outside the state; (2) beyond the control of any state or its apparatus, (3) it is eternal; (4) it is autonomous and complete in itself as a moral, ethical, theological and legal system; (5) comes with an institutional apparatus for its implementation and expression as behavior norms.
- This basis of religious constitution is not merely an expression of parochial Islamic world views:
A. Seeds lie in places like the Catholic catechism, CATECHISM OF THE CATHOLIC CHURCH Doubleday 1995 (e.g., ¶¶ 1878-1948 (The Person and Society) and ¶¶ 2419-2442 (The Social Doctrine of the Church; Economic Activity and Social Justice; Justice and Solidarity Among Nations)). Complex subject outside immediate scope of these remarks, but note ¶ 2242 (“The citizen is obliged in conscience not to follow the directives of civil authorities when they are contrary to the demands of the moral order, to the fundamental rights of persons or the teachings of the Gospel”) and ¶ 2244 (suggesting that societies based on normative orders that do not recognize a divine moral order “arrogate to themselves an explicit or implicit totalitarian power over man and his destiny.”)) .
B. Implicit in Evangelical writings
C. Tibetan Buddhism, etc.
VI. Drawing Morals and Consequences—A First Attempt:
-- The rise of this alternative form of infusing constitutions with morals and ethics will have potentially great consequences.
- At the macro level:
A. it suggests that, in the future, at least two sources of normative constitutional foundations will be competing for influence in the construction of constitutions for political communities. It might follow that constitutional convergence becomes more difficult. Indeed, conflict over constitutional ideology may represent, in the 21st century, what conflicts over economic ideology represented for much of the 20th century.
B. As the example from the European Union suggests, that competition can produce attempts to rethink the substantive grounding of new constitutional orders. It might provide a basis for rethinking the substantive basis of old constitutional orders – for example the United States, even without the bother of constitutional amendment.
1. There are leaders within the United States that have already advanced this idea: The United States, like Iraq, should be a religious state with a plural but common grounding (Christianity, like Islam, covers several sects) which must form the basis of its law making (Reynolds, Davis). Tolerance within hierarchy. Action of Missouri Legislature declaring the Christian origins of the state; declarations of the Kentucky legislature with respect to the display of the Decalogue which was the subject of McCreary case. McCreary County v. ACLU, 125 S. Ct. 2722 (2005).
C. The greatest consequence on a macro level may well be the effect of competition on the great state centered project of constructing a universal set of norms for constitution making. The rise of competitor universalizing systems threatens the hegemony of the great secular project of behavior norm construction centered on public international law that had provided the basis for constitutionalism for over a generation. But this competition pits traditional constitutionalism, international secular constitutionalism and the new theological universalist constitutionalism. For a discussion of the competition between the first two within the United States, see Viicki Jackson, Constitutions as 'Living Trees' Comparative Constitutional Law and Interpretive Metaphors, 75 FORDHAM LAW REVIEW 921 (2006).
At the micro level, the embrace of one transcendental system of constitutional values over others can have substantial consequences as well on rule of law constitutionalism in both its aspects.
A. In its substantive aspects constitutional religious transcendentalism can redefine the scope of protection of religious minorities and those who otherwise reject the transcendence of the belief system grounding the constitution.
B. As a source of constitutional normative foundation, this shift can as well affect the substantive right to religious expression within the polity – from a protection of religious rights in general (perhaps U.S. Const. Amend. 1) to protection of religious rites (Afghani Const. Ch. 1, Art. 1; Iraqi Constitution Arts. 39, (though Art. 40 continues to protect individual religious expression). It was not so long ago that Reynolds and Davis were the foundations of the American judiciary’s understanding of the relationship between religion and the apparatus of the state, of which Justicfe Scalia, for example, speaks in his dissent in McCreary County v. ACLU, 125 S. Ct. 2722 (2005). See Larry Catá Backer, On the Cusp of Great Changes: American Religion Clause Jurisprudence in the First Decade of the 21st Century, Law at the End of the Day (Nov. 25, 2006).
B. In its process aspect, the embrace suggests a potential for transfers of governance authority. In essence, the countermajoritarian difficulty well known to modern constitutional law, will acquire a more complicating dimension.
C. On one level, democratic theory must deal with the problem of unelected judges with power to interpret national constitutions.
D. On another level, states must also deal with the effect of transferring norm making power from out of the state either to the internationals community (global human rights system) or to a priesthood or other body of people charged with interpreting Holy Writ or Divine pronouncement (priests, ministers, imams, etc.).
E. Democracy and republicanism might have be to reconceived under a system in which the highest expression of national political will – the constitution – is subject to a transcendent set of norms in the application and implementation of which some but not all of the polity may participate.
The program description gave a sense of the breadth of the presentations by the panelists:
Popular debate about the relationship between law and religion appears to be dominated by two camps - religionists and secularists. Religionists maintain that law ultimately requires a religious foundation which some countries have explicitly embraced in their constitutions and substantive legal norms. In the United States, they urge that government officials recognize this religious foundation by posting the Ten Commandments, displaying crèches, keeping “under God” in the pledge of allegiance, citing scripture in judicial opinions, and allowing prayer and the teaching of intelligent design in public schools. Conversely, secularists embrace the opposite claim that law should have a non-religious foundation. Religion is usually perceived as a threat rather than a source of social solidarity. In France, for example, the doctrine of laïcité requires secular solidarity to take priority over religious freedom by prohibiting children from wearing headscarves or religious symbols in public schools. Although there are positions between these extremes, religionists and secularists dominate the current debate without demonstrating much potential for moving the debate forward. Perhaps their differences rest on more fundamental disagreements regarding their conceptions of religion, religious pluralism, and the nature and rule of law. What are these presuppositions and where do they come from? Are the presuppositions of religionists and secularists reasonable or justifiable? Are there other possible positions based on different understandings of religion, religious pluralism, and the rule of law? How do conceptions of religion, religious pluralism, and law shape our thinking about the proper role of religion in a pluralistic democratic society?A summary outline of my presentation follows:
Panelists will use various theoretical and methodological perspectives to explore these questions. Some panelists will draw on resources within the law (e.g., U.S. Supreme Court jurisprudence, international and foreign law) to address these questions. Others will draw on resources outside the law. For instance, in the United States, aspects of the Christian tradition or resources within U.S. history may explain the current state of affairs or may support a different trajectory. Alternatively, other religious traditions like Buddhism and Islam may lead to different understandings of religion and its relationship to law and human rights. Furthermore, the unique nature of religion may make it problematic to protect religious liberty directly by singling out religious activity for special treatment. Finally, it may be that the nature of law, religion, and religious pluralism needs to be rethought before we can properly consider the relationship between law and religion. (Association of American Law Schools, 2007 Annual Meeting, January 2-6, 2007 Washington, D.C., Program).
I. Introduction.
- My job on this panel is to focus on religion and rule of law. I will attempt that focus from a global rather than a purely national level.
- For my contribution to this panel I am going to focus on the global repercussions of what Betty Mensch reminded us in her earlier presentation is sometimes described as the beginning of institutionalized political communities—the consequences of the murder of Abel by Caine (Gen. 4:1-15). I will look at religion as autonomous and complete legal systems and the community of states as an autonomous and universal moral and ethical system, each competing for dominion over the construction of governments.
- I will focus of the nexus of constitutionalism, globalism and religion in the construction and limitations of constitutions. I will show how constitutionalism has become globalized as it searches for foundational universal principles, and how religion has become central to that search. And specifically I will describe the current great contest for a universal basis of global institutionalization of theology, morals and ethics within global constitutionalism between secular and religious universalism.
II. The Problem
- At the end of the 20thcentury, elite constitutional law mandarins could, with confidence, look out on a world order in which the idea of a single transcendent system of supra-national constitutionalism had emerged as the great norm of all legitimate national constitutionalisms.
A. This supra-national constitutionalism posited limits on national constitution making grounded in an involving set of foundational universal norms derived from the understandings of basic right and wrong developed by consensus among the community of nations.
B. The focus was on secular universal principles of human rights (Consider as representative, Thomas Buergenthal, Modern Constitutions and Human Rights Treaties, 36 COLUM. J. TRANSNAT’L L. 211 (1998)).
C. Could be enforced by a global bar and judiciary loyal to this harmonized set of norms.
- But the reality of the early 21st century is quite different
A. The jurisprudential basis of global constitutionalism is in flux: and authority over norm setting is contested.
B. The foundations of a universal constitutionalism are both contested and in flux.
C. These contestations and fluxuations are a reflection of fundamental and perhaps irreconcilable differences smothered under the drive to institutionalize authoritatively late 20th century universalist secular international law-based constitutionalism.
D. These pit a number of communities against each other. National political communities, like the United States and the People’s Republic of China adhere to traditional normative frameworks rejecting binding supra-national systems limiting national constitutionalism. The international community of nations, through its institutional organs seeks to build a binding legal framework within which national constitutions are subordinated to international normative frameworks. Sub-national communities reject universalism on the basis of declared sub-national exceptionalism claims (going to the uniqueness of their communities) or on the basis of claims that these sub-national communities are part of larger transnational communities including ideological, racial & ethnic and, religious communities with their own Universalist claims.
- Thus, at the beginning of the 21st century, and just at the moment of its seeming triumph as THE global standard of constitution-making, at least within important elite communities with authority to speak on these matters (e.g., PIERRE BOURDIEU, LA NOBLESSE D’ÉTAT, Paris, Minuit, 989), the system of secular, political, international norms-bounded constitutionalism—that great political triumph of the Allied Powers after WWII—is being challenged from a variety of different directions
- I will focus on one of the most important vectors of these challenges of the early 21st century
A. The challenge by transcendent, universalist, autonomous, religious communities and their efforts to displace secular universalist normative frameworks with transcendent religious frameworks no less universal.
B. In a sense, with this challenge Anglo-European society comes full circle: having spent the greater part of the last four centuries unmaking quasi-governmental systems of religious law, the West is now confronted with globalizing political systems grounded in religion as fully formed politico-legal systems.
C. This confrontation and challenge comes not only from outside, but is generated from within as well. Thus the implications for American constitutional law as internally constructed (by its polity and its Supreme Court) may be great as well.
D. I acknowledge but will not discuss other Universalist challenges—for example the economic universalisms of globalization or Marxist-Leninist systems (Larry Catá Backer, Cuban Corporate Governance at the Crossroads: Cuban Marxism, Private Economic Collectives, and Free Market Globalism, 14 (2) JOURNAL OF TRANSNATIONAL LAW & CONTEMPORARY PROBLEMS 337 (2004).)
- I start with a brief description of the constitutionalist framework prior to the Second World War,
A. Characterized by the triumph of the national state as the supreme repository of law making power.
B. Focus on legality (process) not substance, except to the extent it reflects the will of the sovereign
- I then look at the contestation of this framework and the great post-WWII Western project of contextualizing constitution making within limits derived from international law, norms or standards.
A. Shift in focus from process to substance and legality, especially around the limitations of government power against individuals.
B. Shift of authority over substance from the constituting state to the international community of nations.
C. Focus on harmonization of constitutions pursuant to great principles of democracy and human rights; Evolution of this hierarchy of a ‘higher’ higher law of the constitution.
- I then look at the rise of religiously based or theocratic systems to challenge the orthodoxy of the secular post-WWII supra-constitutionalist project.
A. Look at the big bang—the Iranian 1979 constitution and its progeny, the American inspired constitutions of Afghanistan and Iraq.
B. Use legality (process constitutionalism) in the service of and to legitimate alternative universal systems of substantive limits to constitutional choices
- I end with a look to the implications of these seismic movements in global constitutionalism both:
A. At the level of constitutional theory.
B. At the “as-applied” level of the law of the constitution now possible within states, especially states without homogenous populations.
C. Potential implications for American Religion Clauses jurisprudence, with an eye to the possible construction of a secular theocratic constitutionalism, or for a greater privileging of religion within the American political community.
III. Traditional Constitutionalism Before WWII—Constitutionalism in 1900
- states at apex of global legal orders (e.g., WESTEL W. WILLOUGHBY. THE FUNDAMENTAL CONCEPTS OF PUBLIC LAW. New York: Macmillan, 1924. Pages 307-309).
- The foundation of state power was popular will (however manifested). That manifestation could arise from a number of sources:
A. the people
B. their representatives
C. the monarch
D. the dictatorship of the proletariat
- As the unique expression of a unique national will, government and its constitution was NOT constrained by LAW. Two types of limitation on constituted government were suggested, one focusing on the realities of power and the other on the limitations of self interest within moral and cultural cobnstraints:
A. “The external limit to the real power of a sovereign consists in the possibility or certainty that his subjects, or a large number of them, will disobey or resist his laws.” (A.V. DICEY, INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION, 8th edition. London: Macmillan, 1915, (reprinted Indianapolis, IN: Liberty Classics (1982) at page 30).
B. “The internal limit to the exercise of sovereignty arises from the nature of the sovereign power itself. Even a despot exercises his powers in accordance with his character, which is itself moulded by the circumstances under which he lives, including under that head the moral feelings of the time and the society to which he belongs.” (Dicey, supra., at 32).
--As a consequence, the foundational issue of constitutional orders was authenticity of that expression of the national will by whatever means institutionalized.
A. Concentration then on Fraud: combated by systems policing arbitrariness or the use of arbitrary state power (RESCHTSTAAT). This finds expression in both democratic and totalitarian societies—for the Americans with the rise of process theory (Ely, John Hart Ely. 1980. Democracy And Distrust: A Theory Of Judicial Review.) and with the NAZI regime with the theoretics of Carl Schmitt in 1930s Germany (Schmitt, Carl. 1932. Legality and Legitimacy. Trans. Jeffrey Seitzer. Durham, NC: Duke University Press (2004 from first (1932) and 2nd (1958) German eds.).).
B. Substantive expression of lawfully derived rules was not limited, except as accepted by the popular will and written (or otherwise provided) in the Constitutional framework of any particular state.
IV. Seeking Universalist Constitutionalism After the Second World War
- The focus of the Allied Powers after the end of the war was on the construction of a system of states that would make war less likely or at least more costly.
A. They wished to institutionalize these protections through the U.N. system as well as through a varietry of supra-national multi-state arrangements.
B. Goal to tie all states together in a coercive community of nations. greater concentration on legitimacy of substantive content of constitutions
- Focus on limiting use of even otherwise lawful power. Constitutions became a means for limiting the range of expression of popular will, especially with respect to its spillover effects on individuals (for example slavery or the extermination of minorities) or other states (militarism).
- Additional focus on harmonizing those restraints so that all states within the community of nations would act alike, or adhere to the same set of codes of behavior. Institutionalize the “civilized nations” framework of the 19th century (WESTEL W. WILLOUGHBY. THE FUNDAMENTAL CONCEPTS OF PUBLIC LAW. New York: Macmillan, 1924. Pages 307-309.).) within the bounds of constitutionalism.
- Great initial models were the Germans and Japanese post-war constitutions (Basic Law for the Federal Republic of Germany (Grubndgesetz) (1949), ; The Constitution of Japan (1946)).
A. Product of Allied thinking (need to put aside racial/ethnic overlay, especially with respect to the construction of the Japanese Constitution).
B. Allies were a powerful influence in what was seen as part of a larger global project.
- Two sources of substantive (moral/ethical) nominative limits on constitutionally legitimate state power (e.g., Cf. Andrew Moravcsik, The Origins of Human Rights Regimes: Democratic Delegation in Postwar Europe, 54 INT’L ORG. 217 (2000).):
A. Communal traditions of the state itself (expression of their highest communal asspirational views of themselves: as civilized, advanced, etc.)
B. Moral/ethical behavior rules though generally to apply to all civilized states. (I note post-colonialist argument that the substance of these standards attempt to universalize Western notions of governance and institutional moral/ethical behavior).
C. Expression of these rules through positivist rules of global institutions—the U.N. in particular, as the great source of the communal civilizer of states through international law now limiting constitutions (cf., MARTTI KOSKENNIEMI, THE GENTLE CIVILIZER OF NATIONS: THE RISE AND FALL OF INTERNATIONAL LAW 1870-1960, Cambridge: Cambridge University Press, 2001).
- The Preamble to the Post War Japanese Constitution sets these themes out nicely:
“We, the Japanese people, desire peace for all time and are deeply conscious of the high ideals controlling human relationship, and we have determined to preserve our security and existence, trusting in the justice and faith of the peace-loving peoples of the world. We desire to occupy an honored place in an international society striving for the preservation of peace, and the banishment of tyranny and slavery, oppression and intolerance for all time from the earth. We recognize that all peoples of the world have the right to live in peace, free from fear and want.- It will be those second and third sources that then assume a life of their own to transform constitutionalism world wide.
We believe that no nation is responsible to itself alone, but that laws of political morality are universal; and that obedience to such laws is incumbent upon all nations who would sustain their own sovereignty and justify their sovereign relationship with other nations.” Constitution of Japan, Preamble.
A. Expansion and constitutionalization of sources of these norms
B. Dovetails with expansion of role and legitimacy of international law and governance
C. Focuses on restraining government in its power over individuals and minority or subordinated —that power the monopoly of power over individuals begins to shift from nation-states to the community of nations. Consider Article 1 of the Grundgesetz: “(1) Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority. (2) The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world. (3) The following basic rights shall bind the legislature, the executive, and the judiciary as directly applicable law.”
D. Rules formation mirrors development of customary international law: (i) a sort of common law or organic law of constitutional restraint; (ii) applicable to all states; (iii) all states have a rule/stake in its construction; and (iv) constitutional convergence at least with respect to frameworks/objectives.
E. The source of these limiting rules was located outside the control of any individual state, but within the control of the community of nations.
1. Thus, the limiting framework was external to any individual state constitutional system.
2. It was secular
3. It could be changed but only by the consensus of the community of nations.
F. The system becomes self enforcing within states through communication between states by reference to international normative standards. Reliance on the growth of a transnational judicial elite and the construction of a transnational jurisprudence of constitutional norms. (Anne-Marie Slaughter, A Typology of Transjudicial Communication, 29 U. RICHMOND LAW REVIEW 99 (19894)). It is also aided as more and more of the issues of constitutional states are juridified. Ran Hirschl, The New Constitutionalism and the Judicialization of Pure Politics Worldwide, 75 FORDHAM LAW REVIEW 721(2006).
G. The system represents the great expr5ession of the collective genius of humanity—the great flowering of the humanism that started in the Renaissance in Europe and acquired its current form during the European Enlightenment with its focus on (1) secularism, (2) positivism, and (3) scientism (reason or rationality)
- The system was uneven in its application. Some states rejected the full implications of the system (the United States among them), other states never enjoyed the freedom to set their own norms (especially in the decolonizing world). And the system appeared more aspirational than real until the 1980s.
A. First flowering in so-called third generation constitutions: (i) Argentina; (ii) South Africa.
- Role of Religion in these systems: (i) just another right to protect; (ii) Religion is parochial; (iii) Universal norms are secular AND political.
A. Example of religion in proposed EU Constitution (rejected).
- CAVEATS:
A. Emphasize this as a product of Western States seeking to universalize their ideas of constitutionalism in terms of: (i) arbitrary use of power (process aspects—rule of law), and (ii) substantive limits of power (substantive rule of law: human rights). (See Larry Catá Backer, The Rule of Law, The Chinese Communist Party, and Ideological Campaigns: Sange Daibiao (the “Three Represents”), Socialist Rule of Law, and Modern Chinese Constitutionalism, 16(1) JOURNAL OF TRANSNATIONAL LAW & CONTEMPORARY PROBLEMS (forthcoming 2006).
B. 1945 is an arbitrary cut off or starting date. Roots go back over a century in different countries in different historical, political, cultural and social contexts. Latin America saw efforts to secularize national constitutions in the late 19th and early 20th centuries. Africa saw British efforts, usually misplaced and meant to harmonize in accordance with British notions of universal approaches to governance, the constitutionalization and rationalization of indigenous codes. Even the Westphalian system contains the seeds of constitutional law universalism, though that was not a road taken after the 17th century in Europe for the most part.
C. But the focus is on events after 1945 for several reasons: (1) the period after 1945 saw, for the first time, conscious efforts by a global community to systematize and institutionalize a system of behavior norms limiting constitutional expression of any given polity; (2) this period also witnesses the first attempts to place that systemization/institutionalization within a vertical hierarchy of ‘higher law’ in which the constitutions of states did not come out on top; (3) the norms themselves for the first time acquire a more developed autonomy and independence from the control of any state or groups of states (however that control was usually expressed internally); and (4) this period also witnessed for the first time an attempt to draw a conscious link between state constitutions and independent (international) norms.
V. The Rise of Theocratic Constitutionalism
- Modern origins trace back to very recent history—the Iranian revolution and adoption of the Iranian Constitution of 1979 .
- CAVEATS:
A. 1979 is arbitrary. Roots go back at least as far as the Pan-Arab nationalism of the 19th century and Persian resistance to Westernization prior to WWI.
B. Forms of constitutionalism in traditional form existed in models of varying influence from Egypt to Saudi Arabia to Morocco. The Ottoman model also served.
C. Theocracy comes in a wide variety of flavors. Though I focus on Islam as the most dynamic and successful current form (at least successful in translating its forms into modern discursive forms). But other universalizing faiths might also provide other foundations: Christianity, etc.
D. Again, looking for first systematization and institutionalizations of universal system limiting constitutional powers of state.
- What makes the Iranian Constitution of 1979 special for my purposes is the way it modernizes the language and institutional context of theocratic state governance:
A. adapts overarching transcendental system of norms to modern language of Process Constitutionalism
- like modern constitutions it protects against arbitrary use of state power
A. Constitution gives the power to enact legislation
B. Legislation adopted in accordance with constitutional requirements
- like modern constitutions it also imposes limits on power the people can give the state Substance Constitutionalism.
- But Unlike Constitutions adopted under Post-WWII framework
A. The Iranian Constitution embraces the substantive (moral/ethical) restraints of Shi’a Islam. (Act 2, chp 1 of Constitution).
B. And sets up an institutional framework for religious oversight of political activity (Said Saffari, The Legitimation of the Clergy’s Right to Rule in the Iranian Constitution of 1979, 20(1) BRITISH JOURNAL OF MIDDLE EASTERN STUDIES 64-82 (1993)) .
- The standard response of the secularizing international community was to explain the developments in Iran away either (1) as a form of retrograde traditionalism to be overcome by steady progress (the we will talk it to death strategy) or (2) to view this form of religiously based constitutionalism as “sui generis”—explained away by the special circumstances of the 1979 revolution against the Shah.
- but the Iranian experience has been the start of an increasingly important framework for drawing constitutions within Muslim majority states.
A. Nigeria, Indonesia, Pakistan, Somalia, etc.
B. But the greatest evidence of its status as a viable alternative to international humanistic universalism was perhaps bound up in the adoption of theocratic constitutions for American administered Afghanistan and Iraq.
- both the Iraqi and Afghani constitutions are products of direct interventions after a military conflict—like Germany and Japan
- both were nurtured by American influence.
A. American diplomatic elites: especially through the offices of Zalmay Khalilzad, a naturalized U.S. citizen of Pashtun origins, who played a role as the American representative to Afghanistan and to Iraq at the times of the drafting of the constitutions of each. For a somewhat gushy account, see, e.g., Jon Lee Anderson, American Viceroy: Zalmay Khalilzad’s Mission, THE NEW YORKER, DEC. 19, 2005.
B. Also critical were American academics who, following a tradition of American interventionism in constitutional matters stretching in modern times from the fall of the Soviet Empire (but going back critically to the work of the Americans in shaping the German and Japanese constitutions, the legacy of which served as the great battlefield of later generations of American interventionists (some of whom fought to enlarge the secular human rights international universalism of those constitutions and others who rejected it). Notable among them, and serving as a great apologist for the Iraqi constitution of 2005, was Noah Feldman, a law professor at New York University and former constitutional adviser to the Coalition Provisional Authority in Baghdad. (E.g., NOAH FELDMAN, WHAT WE OWE IRAQ: WAR AND THE ETHICS OF NATION BUILDING Princeton University Press, 2004) with his finger in debates over the institutional role of religion in the United States (NOAH FELDMAN, DIVIDED BY GOD: AMERICA’S CHURCH-STATE PROBLEM AND WHAT WE SHOULD DO ABOUT IT, Farrar, Straus and Giroux (June 23, 2005)).
- Afghanistan:
A. adopted in 2004 after convening of the traditional LOYA JIRGA, presided over by the Afghan king, followed by a popular vote
- Iraq
A. adopted in Oct. 15, 2005 after conclusion of unsuccessful 3 way negotiations between the largest ethnic and religious blocs—Sunni, Shi’a, Kurds, though in effect representing a three way deal between Kurds, Shi’I and the Americans. The politics of the process of constitutional development are nicely summarized in Noah Feldman and Roman Martinez, Constitutional Politics and Text in the New Iraq: An Experiment in Islamic Democracy, 75 FORDHAM L. REV. 883, 886-901 (2006).
B. Outcome remains highly contested and legitimacy of constitution in doubt.
- Both speak the language of post WWII constitutionalism in its process and substance aspects.
A. Process Constitutionalism: rule of law a fundamental part of governance (state rule through law).
B. Substance Constitutionalism also embraced: sensitive to human rights constraints. Feldman and Martinez, for example, emphasize the textual commitment of the Iraqi Constitution to the foundational principles of Islam, democracy, human rights and pluralism—read horizontally, against a backdrop of the leaders of a majority of the population with a more hierarchical reading of these principles. (See Feldman and Martinez at 886-887 (political position of major parties), 901-906 (Islam), 907-910 (human rights), 916-918 (judiciary)).
C. both are touted as great experiments in Islamic democracy. “Indeed, it is fair to say that the charter self-consciously aims to integrate Islamic values into the country’s political life while retaining the separation of powers, checks and balances, and human rights guarantees that are the hallmark of secular and democratic constitutions around the world.”
- But there are substantial differences between these exercises in constitutional universalism and the great post 1945 experiment:
A. Whatever the suggestions to the contrary, and whatever the niceties of the parsing of the language of the text (in English), these Constitutions subordinated to overarching legal/moral/ethical system of Islam:
B. Afghan Const. Chp 1 Art. 3: “In Afghanistan no law can be contrary to the beliefs and provisions of the sacred religion of Islam.
C. Iraqi Const. Art. 2:
First: Islam is the official religion of the State and it is a fundamental source of legislation:- This sort of basis of supra-constitutionalism has become a cornerstone of American policy as well, at least of the current Administration
A. No law that contradicts the established provisions of Islam may be established.
B. No law that contradicts the principles of democracy may be established.
C. No law that contradicts the rights and basic freedoms stipulated in this constitution may be established.
Second: This Constitution guarantees the Islamic identity of the majority of the Iraqi people and guarantees the full religious rights of all individuals to freedom of religious belief and practice such as Christians, Yazedis, and Mandi Sabeans. (Constitution of Iraq 2005).
A. First articulated in G. Bush 2nd inaugural address: “Freedom, by its nature, must be chosen, and defended by citizens, and sustained by the rule of law and the protection of minorities. And when the soul of a nation finally speaks, the institutions that arise may reflect customs and traditions very different from our own. America will not impose our own style of government on the unwilling. Our goal instead is to help others find their own voice, attain their own freedom, and make their own way.” (George Bush, Second Inaugural Address, Washington, D.C:, Jan. 20, 2005).
B. “But something happened between 1945 and the present that began to be revealed after September 11, 2001. The Second Iraq War finally brought the differences between classical internationalism and the Bush administration into sharp relief. In place of the structuralism of the United Nations systems, and the consolidation of political power outside the nation, the Second Inaugural Address reveals President Bush’s revolutionary new project of internationalism – a state centered system founded on individual participation. In place of the post 1945 drive to transfer and consolidate power over political and social communities – that is, nations, ethnic and religious communities -- within a remote and elite international community, the President suggests the consolidation of state centered political communities all operating under the same general set of framework norms – ‘that every man and woman on this earth has rights, and dignity, and matchless value, because they bear the image of the Maker of Heaven and earth.’” Larry Catá Backer, President Bush's Second Inaugural Address: A Revolutionary Manifesto For International Law in Chaotic Times, LAW AT THE END OF THE DAY (Aril 1, 2006).
- Notice how it both mimics the form of the great post-war internationalization of constitutionalism, yet changes the substance
A. Like modern supra-national constitutionalism it locates the source of the limits of political expression outside both the state and the sovereign power of the people.
B. Unlike modern supra-national constitutionalism it locates this source: (1) Beyond human reach; (2) Under the interpretive control of a body of intermediaries that are not necessarily part of the political community; (3) Nor directly accountable to that community.
- Note place of international human rights norms and ideals in this system:
A. human rights a subordinate system of norms subject to application in line with superior framework of religious norms.
B. Human rights is an object of religious norms (that is, it is parochial religion made universal
C. This is the same defect that the post colonialist discourse suggests is at the heart of the UN driven secular universalism of human rights constitutionalism.
- A sense of where this is going is apparent from the position of the Islamic democratic parties represented in the Iraqi constitution making process (Drawn from Feldman and Martinez, supra, at 901-918).
A. Islam is identified as a fundamental source of legislation.
B. Feldman and Martinez characterize this as a victory of sorts for the new face of Universalist religiously based democratic society.
C. But I am more interested in the universalism of the adherents of religious supremacy rather than the American, Arab secularist and Kurdish ethnic protectionist inspired temporary overlay:
- The discussion of Art. 2 of the 2005 Iraq Constitution is particularly helpful
A. Islam is the state religion. While state religions, as such, may not infringe on the rights of minority religious groups, it does from a textual perspective, privilege one religion, and its theology, morals and ethics, over all others. This may make it impossible for any deviation for the majority peoples.
B. Islam is identified as a fundamental source of legislation. This is a compromise provision from the ultimate expression of this position in Constitutional law: Islam is the only source of legislation.
C. The Non contradiction Clauses of Article 2: There are three non contradiction clauses included in separate sub parts to Article 2. Together they provide that no law can be established that contradicts (1) the established principles of Islam, (2) the principles of democracy, or (3) the rights and basic freedoms stipulated in the constitution.
- Feldman and Martinez suggest that the three create an opposition sufficient to protect individual liberties against a more purely theocratic privileging of Islam. Feldman and Martinez supra at 904 (“As a practical matter, these clauses raise the possibility that future interpretations of the Islamic noncontradiction clause would be influenced by the principle of democracy, whatever these may be defined to constitute. In any case, it cannot be maintained that the text of the constitution privilege Islam over basic rights or democratic principles, however uneasily they might sit beside each other under certain circumstances.”).
A. The Islamists within Iraq, however, could make a strong case for the opposite—that the three non contradiction clauses together are supreme, but that, given the focus on Islam, both the democratic and rights non contradiction clauses must be read within the general parameters of Islamic morals, ethics and law.
B. This reading is not unusual in democratic societies; consider the German SouthWest Case.
- So what would the non-American vetted Iraq Constitution look like:
A. Islam is the source of all law;
B. All law that contradicts Islam contradicts the Constitution;
C. Authoritative Islamic law scholars must sit on the highest court, which merges secular and religious law;
D. Individual, religious, democratic and human rights are respected within the context of the Islamic identity of the state;
E. 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.
F. 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.
G. Religion thus serves as the ‘higher law’ that limits the constitutional expression of a polity: (1) exists outside the state; (2) beyond the control of any state or its apparatus, (3) it is eternal; (4) it is autonomous and complete in itself as a moral, ethical, theological and legal system; (5) comes with an institutional apparatus for its implementation and expression as behavior norms.
- This basis of religious constitution is not merely an expression of parochial Islamic world views:
A. Seeds lie in places like the Catholic catechism, CATECHISM OF THE CATHOLIC CHURCH Doubleday 1995 (e.g., ¶¶ 1878-1948 (The Person and Society) and ¶¶ 2419-2442 (The Social Doctrine of the Church; Economic Activity and Social Justice; Justice and Solidarity Among Nations)). Complex subject outside immediate scope of these remarks, but note ¶ 2242 (“The citizen is obliged in conscience not to follow the directives of civil authorities when they are contrary to the demands of the moral order, to the fundamental rights of persons or the teachings of the Gospel”) and ¶ 2244 (suggesting that societies based on normative orders that do not recognize a divine moral order “arrogate to themselves an explicit or implicit totalitarian power over man and his destiny.”)) .
B. Implicit in Evangelical writings
C. Tibetan Buddhism, etc.
VI. Drawing Morals and Consequences—A First Attempt:
-- The rise of this alternative form of infusing constitutions with morals and ethics will have potentially great consequences.
- At the macro level:
A. it suggests that, in the future, at least two sources of normative constitutional foundations will be competing for influence in the construction of constitutions for political communities. It might follow that constitutional convergence becomes more difficult. Indeed, conflict over constitutional ideology may represent, in the 21st century, what conflicts over economic ideology represented for much of the 20th century.
B. As the example from the European Union suggests, that competition can produce attempts to rethink the substantive grounding of new constitutional orders. It might provide a basis for rethinking the substantive basis of old constitutional orders – for example the United States, even without the bother of constitutional amendment.
1. There are leaders within the United States that have already advanced this idea: The United States, like Iraq, should be a religious state with a plural but common grounding (Christianity, like Islam, covers several sects) which must form the basis of its law making (Reynolds, Davis). Tolerance within hierarchy. Action of Missouri Legislature declaring the Christian origins of the state; declarations of the Kentucky legislature with respect to the display of the Decalogue which was the subject of McCreary case. McCreary County v. ACLU, 125 S. Ct. 2722 (2005).
C. The greatest consequence on a macro level may well be the effect of competition on the great state centered project of constructing a universal set of norms for constitution making. The rise of competitor universalizing systems threatens the hegemony of the great secular project of behavior norm construction centered on public international law that had provided the basis for constitutionalism for over a generation. But this competition pits traditional constitutionalism, international secular constitutionalism and the new theological universalist constitutionalism. For a discussion of the competition between the first two within the United States, see Viicki Jackson, Constitutions as 'Living Trees' Comparative Constitutional Law and Interpretive Metaphors, 75 FORDHAM LAW REVIEW 921 (2006).
At the micro level, the embrace of one transcendental system of constitutional values over others can have substantial consequences as well on rule of law constitutionalism in both its aspects.
A. In its substantive aspects constitutional religious transcendentalism can redefine the scope of protection of religious minorities and those who otherwise reject the transcendence of the belief system grounding the constitution.
B. As a source of constitutional normative foundation, this shift can as well affect the substantive right to religious expression within the polity – from a protection of religious rights in general (perhaps U.S. Const. Amend. 1) to protection of religious rites (Afghani Const. Ch. 1, Art. 1; Iraqi Constitution Arts. 39, (though Art. 40 continues to protect individual religious expression). It was not so long ago that Reynolds and Davis were the foundations of the American judiciary’s understanding of the relationship between religion and the apparatus of the state, of which Justicfe Scalia, for example, speaks in his dissent in McCreary County v. ACLU, 125 S. Ct. 2722 (2005). See Larry Catá Backer, On the Cusp of Great Changes: American Religion Clause Jurisprudence in the First Decade of the 21st Century, Law at the End of the Day (Nov. 25, 2006).
B. In its process aspect, the embrace suggests a potential for transfers of governance authority. In essence, the countermajoritarian difficulty well known to modern constitutional law, will acquire a more complicating dimension.
C. On one level, democratic theory must deal with the problem of unelected judges with power to interpret national constitutions.
D. On another level, states must also deal with the effect of transferring norm making power from out of the state either to the internationals community (global human rights system) or to a priesthood or other body of people charged with interpreting Holy Writ or Divine pronouncement (priests, ministers, imams, etc.).
E. Democracy and republicanism might have be to reconceived under a system in which the highest expression of national political will – the constitution – is subject to a transcendent set of norms in the application and implementation of which some but not all of the polity may participate.
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