Thursday, July 31, 2008

Merlin's Prophesy: Egypt's Copts

Merlin's Prophesy

The harvest shall flourish in wintry weather
When two virginities meet together:

The King & the Priest must be tied in a tether
Before two virgins can meet together.
William Blake, "Merlin's Prophesy," from Poems from the Rosetti MS, in William Blake, The Works of William Blake: Selected Poetry and Prose 61 (Roslyn, New York: Black's Readers Service Company 1953).

Thus a description both of the impossible and of that aim to which institutional energy is necessarily bent, which the individual ought necessarily to restrain but cannot. Virginity is possible by an internalization of that Word through priest and king, and consciousness of virginity unmakes a meeting together of virgins. Only a rope confining king and priest, like horses, to a confined space, a space appropriate to them, permits a meeting now impossible. Space, choice, confinement, hierarchy, individual, apparatus all deployed to ensure a harvest in summery weather''and death in winter.

This poem came to mind as a read a grand apologia for the treatment of Copts by their cousins, the now Muslim descendants of the first Christians in Egypt. Gamal Nkrumah, Race Against Time, Al'Ahram Weekly, July 17-23, 2008.
A swelling chorus of Coptic Christian activists is vociferously protesting against the conditions of Copts in Egypt; some Coptic activists abroad even claim that they are facing genocide and extermination. Those at home tend to play down the Coptic "crisis" propagated by émigré Copts.

Id. With barely disguised condescension for the remnant of Christianity that has refused to follow their brothers, Kkrumah suggests the implausibility of the sort of tethering that Copts seek.
As far as overseas Copts are concerned, the protests seemed like the answer to two questions at once. First, the Coptic émigré communities have stressed that the lack of democratic reforms has compounded the Copts' political and social problems. . . . Second, they are pressing for radical political reform in Egypt as the panacea for the Coptic community and a solution to their predicament. What is obvious is that there is growing unrest among Copts, both at home and abroad, and that their struggles for greater religious freedoms and political gains are inextricably intertwined with the political reform agenda in the country.
Id. In language reminiscent of another age a century ago, and antother place Europe, among another religious minority, the Jewish people of Europe, Kkrumah notes the risks of misbehaving:
Indeed, many Copts in Egypt believe that their position is being undermined by the protests of the émigré Copts. While not denying that the Copts in Egypt have legitimate concerns and grievances, many Coptic laity believe that their interests would be compromised if the Copts abroad step up their angry demonstrations and protests.
Id. And he has a point. But who is holding the tether?
The Copts, on the whole, like their Muslim compatriots, are yearning for political change. There seems to be two options available at present. The first is aligning more closely to the forces of change in the country. The other is to collaborate more closely with the state, or at least to maintain good working relations with the powers that be. Shielding them from the interests of foreign predators and cushioning them from the toughest decisions encourage them to be even more reliant on their co-religionists overseas.
Id. And, indeed, their virgins have been losing their virginity apace. Or at least they remain as well trained as the so-called court Jews of the 18th century. Consider the circumspection of Boutros Boutros-Ghali trundled out to assure the skeptical in connection with the so called Abu Fana incident: "On 31 May, a dispute erupted between Coptic monks and Bedouin Arab tribesmen, apparently over land surrounding the monastery, and quickly turned into street battles that left one Muslim dead and three Copts injured and led to the kidnapping of three Coptic monks." Reem Leila, Abu Fana in Focus, Al-Ahram Weekly, July 24-30, 2008. Contrast the voices: with Buros Ghali marginalizing the incident as part of a larger global problem requiring global solutions
According to Boutros- Ghali, such incidents "happen constantly all over the world, due to the animosity resulting between different groups in one country." For Boutros-Ghali, a human rights culture needs to be spread in Egypt, as well as elsewhere, and this is what the NCHR is promoting. "Only by globally spreading these values, we can handle our inner problems," he said. (id.).
and the voices of majority Egyptians looking with suspicion in the same direction:
Mohamed Abdel-Aal, a member of the NCHR, refuted claims that sectarian disputes are the cause behind the Abu Fana events. Abdel-Aal also condemned demonstrations staged by Copts abroad requesting US interference, stating that, "domestic issues are to be handled from within the country, not from abroad. Disputing parties must resort to courts in order to solve their problems." Id.
There will be no harvest in wintry weather in Egypt, as it continues to embrace 19th century sensibilities for its indigenous peoples, and post modern transnational supra-communal privilege for its majority. But then to conceive of virginity in this landscape is to concede the tether to King and Priest.

Wednesday, July 30, 2008

On the Convergence of State and Corporation in a Post Stalinist Russia: The Russian State Corporation

My colleague William E. Butler has produced an excellent short examination of what he describes as a "remarkable step taken by the Russian Federation of endowing an individual state corporation with various powers in treaty making, including the right to conclude treaties with foreign states or their departments." William E. Butler, Current Developments: Treaty Capacity and the Russian State Corporation, 102(2) American Journal of International Law 310 (2008). The context is not necessarily a happy one for the ordered world that preceded this sort of activity--where public entities acted like states, and private entities inhabited their own world, and both were disabled from entering into the territory of the other both by notions of seemliness and by the apparently natural and eternal ordering of the law into neat little categories. And indeed, Professor Butler sets the tone early, taking note of a nice (and tone setting) passage from Vaughn Lowe's recent work of comfort for traditionalists, decrying the "tendency at present for international lawyers to write of the growth of [non governmental organizations] and other non-State actors, and of the decline of the nation-State, with the gleeful enthusiasm of a cartoon character sawing off the tree branch on which he is sitting". A.V. Lowe, International Law 290 (Oxford: Oxford University Press, 2007) quoted in Butler, supra, at 310. Mercifully, not all of us are constrained by a need to honor traditional boundaries of international law or burdened with a mission to preserve those boundaries in the face of a shifting reality in which states increasingly seek to participate in markets as private juridical persons and private economic enterprises are increasingly disposed (and permitted) to exercise those powers once reserved to the holders of territorial sovereignty.

Well, what does a more gleefully enthusiastic reading of Professor Butler's excellent dissection of this new juridical animal reveal? Or, perhaps better put, what is this thing that is proving so annoying if only by reason of its deliberate character of legal mongrel? Professor Butler provides an superb analysis of the creature that the Russian state apparatus intends as neither fish nor fowl. Perhaps it will turn out to be more state than participatory market entity.

Professor Bulter looks at the State Atomic Energy Corporation (Rosatom"), established by Russian federal law on December 1, 2007. Id. at 310. It is a unique creature of Russian law with no exact counterpart in imperial or Soviet law, with origins in a Russian law of 1999 making possible the creation of non-commercial state corporations. Id., 310-311. The mongrel nature of the state corporation is succinctly described by Professor Butler (Id., at 311): its functioning is defined as noncommercial (though whether this characterization would survive analysis under American application of its Foreign Sovereign Immunities jurisprudence would remain to be seen, see Larry Catá Backer, Markets in Infants: The Hague Convention on Intercountry Adoptions, National Reform Efforts in Guatemala and Consumerism in the United States, Law at the End of the Day, December 11, 2007). It is a wholly owned entity of the state, but controls a number of economic and non-economic entities, over which it presumably has control as a shareholder. The management of the enterprise is mongrelized as well--"The management organs are a hybrid of the state unitary enterprise under Russian law and the Russian joint stock company--but without a shareholder meeting." Id. While Professor Butler fears that such an organization presents problems of tracing authority for acts, corporate lawyers might finds the system, like many other exotic systems created by the flexible provisions of many corporate regimes with respect to management (especially of wholly owned concerns), hardly daunting. Moreover, to the extent that the organizational structure makes one unsure, the result might well be to raise the costs of transactions --or shift them down to the operating company level, or to the shareholder (the Russian State) when the stakes are great enough and the Russians willing enough. otherwise, business people will take the sorts of risks that they have taken with odd and perhaps disreputable governments for a long period of human history. Still, Professor Butler is right to warn non-Russian corporate specialists to beware of the challenges posed by the formal governance structures of these entities.

But for all that, Rosatom is especially interesting in one respect. Of the seven such state corporations created, apparently only Rosatom is endowed with treaty making capacity. Id., 311. Professor Butler reproduces Article 14 of the federal law on Rosatom which suggests the public nature of this state "corporation." Id. Professor Butler offers a rationale for the mongrelization--a bad effort at multi-tasking by a Russian state appearing efficient but evidencing otherwise.
Atomic energy and nuclear power are among the most sensitive issues on the planet. Rosatom was created to bridge the chasm between classical state concerns about safety, national security, non-proliferation obligations [though in Russia's case that might be more laughable than real] and the like. on the one hand, and perceptive exploitation of commercial opportunities represented by atomic and nuclear capacity, on the other. . . . Seen another way, Rosatom is the tangible result of a massive reorganization ands restructuring of thew atomic energy and nuclear power branch of the Russian economy.
Id., 311-312. And the attempt at reorganization was meant to conform to market expectations of structure and form. "Given the decision to clothe the restructuring in corporate dress, it could hardly fail to give rise to implications for the law of treaties generally, and the Russian Federation's treaty obligations with respect to this subject matter specifically." Id., 312. True enough from the perspective of the international lawyer--but more importantly the effort to clothe regulation and participation under the umbrella of a non commercial corporation also presents interesting problems of corporate law, especially in the legal consequences of the relationship between the ultimate shareholder (the Russian Federation), the management obligations of the state corporation (however defined), and the operations of the commercial and non-commercial subsidiaries. Of course, to the extent that these operating subsidiaries are confined to Russian territory the Russian Federation can create such garbling as suits them. But to the extent the assets of such concerns can be reached by foreign courts, and to the extent that subsidiary entities are established elsewhere (or operate through local entities elsewhere), then the consequences of the peculiarities of Russian corporate organization will not be entirely under the control of the Russians. At a minimum, the opportunities for veil piercing--and reaching the commercial assets of the Russian federation abroad, might provide a tempting enough insurance policy of sorts for foreigners seeking to do business with Rosatom or its subsidiaries.

More importantly, perhaps, Rosatom is one of a species of concerns that appear to be appealing in post-Marxist regimes seeking the benefits of global economic engagement on Western free market terms without actually giving up all of the control once wielded by central planners and now devolved to the creatures of the state apparatus in more subtle ways. For a discussion, see, Larry Catá Backer, Cuban Corporate Governance at the Crossroads: Cuban Marxism, Private Economic Collectives and Free Market Globalism. Transnational Law & Contemporary Problems, Vol. 14, No. 1, 2005.

For all this interesting material, Professor Butler reserves the bulk of his analysis to ten carefully reasoned consequences of the Rosatom law for Russian law and for application of the law of treaties (a heretofore public law concern) when exercised from out of the peculiar creation of this non commercial corporate enterprise with power to control commercial enterprises and more importantly to assert state treaty making powers. Id., 312-315. These consist of:

1. Russian law was changed to provide essentially, that (private) contracts by state corporations like Rosatom would be deemed to be (public) law treaties. This, in effect, makes sense if one considers that treaties, in the 20th century, were the,selves transformed from public contracts between states to some sort of "higher" law binding on states. The regulatory character of treaties is mirrored by the public character of certain contracts to be entered into by enterprises owned by the state (or really by anyone vested lawfully by the state with such power) reflected in the creation of Rosatom. International lawyers, therefore, might be reaping a whirlwind of their own creation--the way the German Imperial Government reaped the rewards of sending Lenin back to Russia.

2. Rosatom is an "empowered organization." Such organizations are granted treaty making power. But the definition of "empowered organization" is "opaque." Id., at 312. Professor Butler is right to suggest the problems of interpretation but then also suggests that other provisions make a broad interpretation of Article 14(2) reasonable. He also notes that for internal purposes, the sort of treaties which Rosatom may conclude are not defined in the 1969 Vienna Convention. That is true enough--though from the perspective of foreign states seeking enforcement of treaty obligations it may not matter much, except, as Professor Bulter points out, to the effect the categorization may affect the place of such treaties within the hierarchy of Russian law. Id., 313.

3. Rosatom is required to consult with constituent entities of the Russian Federation when treaties under consideration touch on matters within their respective competences.

4. Rosatam's treaties bind the Russian Federation, though the extent and nature of that binding are still to be worked out.

5. Under certain circumstances, empowered organizations like Rosatom may make proposals for the conclusion of a treaty by others and with the permission of the Ministry of Foreign Affairs, may speak with foreign counterparts about such treaties. Id. 314.

6. There are some interesting issues of authority to conclude treaties within the governance structure of these state corporations. Professor Butler suggests that the director general s empowered to decide to execute treaties, but not other officers without appropriate grants of power.

7. Proposals to ratify treaties may be submitted jointly with the Ministry of Foreign Affairs, "although the Ministry may act independently in this respect." Id., 314.

8. State corporations with treaty powers may keep the original of executed treaties in their own archives, with copies to the Foreign Ministry.

9. The state corporation is empowered to publish treaties it concludes--permitting effectively such entities to keep a version of an official gazette. "Since Russian courts are zealous in confirming that a treaty has been officially published and has entered into force as a condition of enforcing any of its provisions, the foreign party dealing with Rosatom has a special interest in ensuring that agreements with it are duly published." Id., at 314-315. That is true enough--if such agreements are treaties,. But contracts? An interesting conflation of contract as treaty and treaty as contract in relation to the dealing of such state juridical personalities. Though, again, it might make sense that treaties (public regulatory) actions are conducted with Rosatom and that contracts are concluded with the operating subsidiaries.

10. The last is the most interesting for me. Entities like Rosatom are empowered "to watch over and monitor the performance of treaty obligations by themselves and by the other party or parties, to report any breaches, and to be involved in developing proposals for a response to violations." Id., 315. In the world that Professor Butler describes, where the differences between contract and treaty is fungible to some extent, and the the state entity empowered to act actually operates through a number of other organizations, the possibilities of delegation and diffusion of this monitoring power are vast. And, as I have suggested else, the regulatory effect of the power to monitor can be greater than and more effective than traditional positive legislation. See Larry Catá Backer, Global Panopticism: States, Corporations and the Governance Effects of Monitoring Regimes. Indiana Journal of Global Legal Studies, Vol. 15, 2007.

Professor Butler has done us a great service in highlighting an interesting wrinkle in the use of the corporate form for mixed purposes--private (participation in the market through ownership or control of economic entities) and public (through the regulatory and treaty making powers with which the central entity is vested). He has focused the reader on the issues of internal Russian law such a newfangled mongrelized juridical form presents--as well its implications for the law of treaties--as an internal matter of Russian law (how does it fit into the Russian legal structure) and its potential external effects (what are foreigners to make of all of this). For that reason alone, this commentary was worth a careful read.

But it also suggests a number of lacunae in the nature of corporate law--and its consequences for the convergence of public and private law--that might bear some further study. Whatever the convolutions of Russian law, and the fecundity of the Russian legal imagination, it appears that the Russian state corporation may be viewed as both public and private from outside Russia. In some ways, the Russian state corporation resembles attempts by European states to control recently privatized national industries. In the recent golden share cases, the European Court of Justice has applied its treaty principles of free movement of capital to determine that such constructs--whether created as legislative or private corporate arrangements--retain their public character. As such, both entity and arrangement will be treated as bound by the treaty obligations of the controlling Member State. The Advocates Generals would go further--and treat all such arrangements as essentially public, unless the Member State could effectively show no discriminatory effect (where it controls both regulation and participates in the economic arrangement) or where the State could meet a fairly strict "reasonable private investor" standard (where the state provides money for the purchase of debt or equity). The analysis is essentially functionalist. See Larry Catá Backer, The Private Law of Public Law: Public Authorities as Shareholders, Golden Shares, Sovereign Wealth Funds, and the Public Law Element in Private Choice of Law. Tulane Law Review, Vol. 82, No. 1, 2008 pp. 1801-1868. On the other hand, like the Russians, the Americans have tended to apply a more formalist analysis to such entities (id.)--except in matters of the application of its sovereign immunities law. See Larry Catá Backer,Permanent Mission of India to the U.N. v. City of New York: The State as Private Actor in a World of Private Actors Law at the End of the Day, June 30, 2007.

Thus, the more interesting question might well be how Europeans and Americans might apply their law to the activities of Russian state corporations and their subsidiaries or controlled entities for activities outside of Russia. In this case one is met with a department of the state apparatus , organized in corporate form, to which have been devolved certain traditional state powers--including a limited right to conclude treaties. The fact that the state chose to organize its power in this way, by reconstituting itself in part as a conglomerate, with a number of subordinate juridical persons, ought not affect the character of the state apparatus itself. As the Europeans might suggest from their golden share cases, the public character of the enterprise is not lost merely because of the organizational choice made by the state. That the state corporation is organized as a non-commercial entity suggests a predominance of its regulatory (public) rather than its market participatory (private) character. That, to the extent it remains interesting, is so as a matter of domestic law. Yet this department of the Russian State appears also to manage state enterprises. Where these are operated directly, then the state organization becomes a contradiction in terms--a non-commercial entity operating commercial enterprises. To that extent, the entity might be considered both subject to the limitations of private law (with respect to its commercial activities) as well as public law (to the extent that such law restrains the power of governmental entities). That might well be the consequence under European legal conceptions. Under American law, the commercial character of the activities of the state corporation would be determined in context and the form of the entity would play little part in the analysis. With respect to its operating subsidiaries, though, the Americans would treat those as commercial, independent and subject to private but not public law constraints. The more interesting questions for the Americans would be the ability to reach state assets should American courts determine that the separate entity status of state corporation and subsidiary ought to be disregarded.

More interesting still would have to be the approach of foreigners to the character of the agreements of the state corporation. It is clear that the Russians mean to muddy the waters by creating ambiguity between treaties and contracts. They are likely eager to reap the strategic advantage of characterizing their agreements as one or the other depending on which serves their interests best. Russian state corporations, then, point to a need to much better refine the notions contract and treaty. The simplest approach would rely on the fetishes of formalism. The better approach might be functionalist. That approach might be better if only because formalist approaches are far too easy to abuse where a public entity is free to act like a private one. Where states and their controlled entities could be limited in the scope of their activities, formalism provides a simple and convenient method of analysis. Where the public and private activities of state agencies converge in single agencies, then formalism tends to mask as easily as it reveals. In such a case, agreements of a commercial and participatory character ought to be treated as contract, and those of a regulatory character ought to be treated as treaty--irrespective of the form.

Ironically, the question--are Russian state corporations corporations a all--is largely irrelevant, except perhaps to those whose life work is to preserve legal field boundaries. And there is a certain benefit to that noble task--as a method of disciplining performance with the academy. But otherwise, the question is beside the point. Russia has chosen to provide juridical personality to a certain sort of organization. To some extent that juridical personality is public in character--for example in its conveyance of a power to conclude treaties. To some extent it is private in character--for example in its control of and maintenance of commercial enterprises. The private and commercial character of its operations may be said to implicate the law of corporations (undertakings) and corporate organization (as well as commercial and other law fields). The public and regulatory character of the enterprise is not. That the Russians seek the protection of public law for their private commercial activities--seek to clothe their contracts as treaties, their state regulatory activities as commerce, etc., may be effective within the territory of the Russian Federation, but will hardly carry over abroad. As the Russians seek refuge in 19th century conceptions of state immunity, they build 21st century juridical entities that construct in corporate form 20th century Soviet bureaucratism for the protection of their assets. For Europeans, this activity would appear to clothe public power in private garb. There is no "corporation" here--just the Russian state. And questions of liability and sovereign immunity would hinge on a different analysis. For the Americans, the nature of the entity depends on the character of its activity--corporation is it participates in the market, state if it regulates. In either case, there is no "corporation" there, there is merely the State: asserting its regulatory authority, on the one hand, and seeking to participate in economic activity, on the other.

Paraguay's New President and Ex-Bishop: Reform, Religion, and Constitution

It was reported today that the Holy See has "concedeu a redução ao estado laical ao presidente eleito do Paraguai, o ex-bispo Fernando Lugo, anunciou nesta quarta-feira (30) em Assunção, o núncio apostólico, Orlando Antonini." Santa Sé concede estado laical ao presidente eleito do Paraguai, O Globo July 30, 2008 (the Papal Nuncio Orlando Antonini announced today in Asunción that the Holy See has agreed to reduce to lay status Paraguay's President elect, the former Bishop Fernando Lugo). Lugo is viewed as a center left politician, whose election was made possible, apparently, as a consequence of a split within the dominant and conservative Colorado party. See Profile Fernando Lugo, BBC News On Line, April 12, 2008.
Born in 1951, Mr Lugo became a priest in 1977, and served as a missionary in Ecuador for five years. In 1992 he was appointed head of the Divine Word order in Paraguay, was ordained a bishop in 1994, and then served for 10 years as the bishop of the poor region of San Pedro. There, his support for landless peasants earned him the reputation of being "the bishop for the poor". He came to national prominence in March 2006 when he helped lead a big opposition rally in the capital, Asuncion. Id.
His most ambitious plans include the usual--land reform ("His most prominent pledge is to renegotiate the terms of the country's two huge hydro-electric projects" Id.) and the extraction of more money from developed states--in this case his principal target is Brazil (which has increasingly assumed 1st world status within the hothouse that his Latin American political relations). "In particular he wants Brazil to pay Paraguay a lot more money for the electricity it buys from their jointly-owned Itaipu dam, the world's biggest hydroelectric plant. He says he will take Brazil to the World Court in The Hague if necessary." IOd.

Having become political--and successfully so, Lugo had a choice. He could become his own man or remain within the magisterium of the Church, and subject to its management, though from a high enough position of authority that he might be able to fudge a bit. But under John Paul II and his successor Benedict XVI, the Church jas become far more willing to assert control over the periphery, and certainly over its Bishops. More importantly, Benedict XVI has spent a career being suspicious of and working against Latin American style progressive political action on the part of its priests. Benedict XVI, as Cardinal Ratizinger, was personally credited with developing the Church's position on Catholic Liberation Theology that effectively drove it underground. See Joseph Cardinal Ratzinger, Congregation For The Doctrine Of The Faith, Instruction On Certain Aspects Of The "Theology Of Liberation" Aug. 6, 1984 ; Larry Catá Backer, Law: Benedict XVI and the Constitution of Political States, Law at the End of the Day (June 30, 2007; See also Edward A. Lynch, The Retreat of Liberation Theology, HOMILETIC & PASTORAL REVIEW 12-21 (Feb. 1994).

But it is clear that Lugo comes from that tradition. "He served for a decade as Bishop of the backward region of San Pedro, where his support for landless peasants earned him the nickname “Bishop of the Poor”." Richard Owen, Pope May Defrock Fernando Lugo, Former Bishop Voted Paraguay President, Times Online, April 23, 2008. Nonetheless, he had been kept in check to some extent precisely because he remained both priest and bishop--and thus bound by ties of obedience to the magisterium and the discipline of its head--the Bishop of Rome. Indeed, "Mr Lugo’s decision to enter politics aroused fears in the Vatican of a return to “liberation theology” in Latin America. However, Pope Benedict is said to have privately made clear to the Paraguayan Bishops Conference that he intended to co-operate with Mr Lugo for the good of Latin America if he was elected." Id. The most effective means of controlling this priest was to retain him in that role.

But that did not work. Lugo was openly rebellious. And he could afford to be. In place of the comfort of the Church (and his position therein) he was willing to substitute political party and political office (assuming he could get it). In response to a Vatican letter suggesting that he refrain form political activity, he " replied “The Pope can either accept my decision or punish me. But I am in politics already.” Today Mr Lugo was reported as saying that he “sincerely apologised to members of the Church” if his “disobedience to Canon Law” in entering politics had caused them pain." Id.

But what to do. The Church at first tried a half way measure--it refused to permit him to resign. The theory was powerful, and powerfully controlling: "Vatican suspended him from his duties “a divinis”, meaning that he could no longer say Mass or carry out other priestly functions such as administering the sacraments." Id. The hope was that this would blow over--once Lugo lost the election he would return to the Church (subject to appropriate admonishment and education in the proper role of priests). But it did not work out that way, and the Vatican had to concede.

The victory presents both the Church and the notion with dilemmas and opportunities. From the perspective of the Church, one is faced with a former priest that appears ready to institutionalize as a political program the substance of liberation theology. ""From today on, my cathedral will be the nation", declared Fernando Lugo last December as he announced he was determined to seek Paraguay's presidency upon leaving behind his life serving the Catholic Church." Gabriela Perdomo, Paraguay's Man of God and Politics,, May 22, 2008. Depending on the way in which Lugo goes about this, there may be conflict with the Church. On the other hand, a political liberation theology not directly toed to the Church, and not directed by priests, may be separated enough to fall within the Church's comfort zone. The Paraguayan church remains split. "For their part, conservative Catholic Church leaders accused Lugo of betraying the church's supposed non-political role in Paraguayan society, although more moderate and progressive churchmen rapidly rallied to his support." Alfred Seymour Hopkins, Former Catholic Bishop Enters the Political Arena,, February 22, 2007.

More interesting still will be whether Lugo attempts, as a formal matter, to bring the institutions of the state more closely in line with the principles of religious rule and authority. "The Paraguayan president described South America as “a Christian continent where poverty is the ulcer that is eating away the great majorities.”" James Suggett, Chávez and Paraguayan President-Elect Fernando Lugo Discuss Economic Relations,, June 20, 2008. Although under art. 24(1) the state has no official religion, Article 24(2) of the Paraguayan constitution provides that "(2) Relations between the State and the Catholic Church are based on independence, cooperation, and autonomy." Constitution of Paraguay, art. 24(2). More interesting still, the religious freedom provisions of the current constitution limits religious freedom protections may be restricted as provided in the "Constitution and the law." Id., art. 24(1). Moreover, the Constitution includes an enigmatic provision: "The role played by the Catholic Church in the historical and cultural formation of the Republic is hereby recognized." Constitution, supra, art. 82. But see id., at art. 88(1) ("No discrimination will be permitted against workers for reasons of race, sex, age, religion, social status, and political or union preference.").

On the other hand, the left-center rhetoric will likely cause some concern among Paraguay's current power structure. There is evidence of the nature of the incoming regime. "The President-elect of Paraguay, Fernando Lugo, made his first diplomatic visit to Venezuela Wednesday and Thursday. Lugo and Venezuelan President Hugo Chávez attended a Catholic mass in the Caracas barrio Curicuao, and discussed future bilateral relations. “I hope the friendship between Venezuela and Paraguay may be a symbol of brotherhood and solidarity within Latin America,” said Lugo, a retired Catholic Bishop, upon arriving in Caracas." James Suggett, Chávez and Paraguayan President-Elect Fernando Lugo Discuss Economic Relations,, June 20, 2008. It would not be surprising to see Paraguay join ALBA in the near future. And certainly it is likely that markets based state economic policies will be changed as Paraguay begins experimenting with more state control oriented economics. No surprise for a man used to control. "The Venezuelan president urged Lugo to “evaluate the possibility” of joining the Bolivarian Alternative for the Americas (ALBA), a fair trade organization initiated by Venezuela and Cuba which now includes Nicaragua, Bolivia, and Dominica." Id. And certainly both Chávez and Cuba's Fidel Castro have long been great friends of liberation theology, especially its potential to serve as the foundation of political economic policy. See Larry Catá Backer, Cuba and Brazil Part I: Castro Lectures Lula da Silva, Law at the End of the Day, January 26, 2008.

Moreover, the framework for attacking the Colorado party and the personal currently within the state apparatus has already been announced. It will be accomplished by resort to that useful trope--corruption and housecleaning (though in this case reality and rgetoric might have a basis in fact). "Lugo has pledged to crack down on corruption and channel Paraguay’s wealth into social programs." “Bishop of Poor” Fernando Lugo Wins Paraguayan Election, Ending 61 Years of Conservative Rule, Democracy Now!, April 22, 2008. The situation might be explosive given the stature of the principal potential targets. " The two men that many Paraguayans want to see investigated are the outgoing President, Nicanor Duarte Frutos, and the Colorado leader in the Senate, Juan Carlos Galaverna." Tom Hennigan, Paraguay Victor Fernando Lugo Faces Huge Challenge, Tines OnLine, April 22, 2008.

Opposition might result in either co-opting or radicalizing the former priest. My guess is the later. Bishops do not like being thwarted, even by the Holy See. They do not take well to disobedience. It is likely that opposition among Paraguay's elite will result in fireworks. Moreover Lugo is a man used to hierarchy and control. It is unlikely that the strictly regimented system on Paraguay will give way to something that would not, in the end, resemble the structures and control of the Church or the Colorado Party, but with Lugo's allies standing in for those of the vanquished rivals. "It’s time to re-found the republic,” Lugo says, repeating well-rehearsed lines. “It’s time that jobs go to the most qualified, the most honest – not to those who know people in the government.”" Patrick J. McDonnell, Ex-Bishop Roiling Stagnant Political Waters in Paraguay, Los Angeles Times, April 20, 2008.

Moreover, the political program will likely embroil Brazil. This is particularly true with respect to the proposed program of land reform.
One of the main pledges of the Alliance is to implement land reform. Paraguay has one of the world’s most unequal distributions of ownership and Mr Lugo has promised plots for all the country’s landless peasants. This is likely to be opposed by the agribusiness sector, one of the few parts of the economy that is legal and dynamic thanks to booming soya beans, beef and cotton exports. To add to the sensitivity of the issue, many of the biggest farmers are Brazilian immigrants.
Tom Hennigan, Paraguay Victor Fernando Lugo Faces Huge Challenge, Tines OnLine, April 22, 2008.

More interesting still will be the effects of the victory on Paraguayan constitutionalism. It is clear that the recent wave of leftist political victories has produced an intense interest in reinventing constitutionalism in Latin America. A commentator on the scene noted:
across Latin America you have had this huge leftward shift. I mean, some of them, it’s more progressive, such as Venezuela’s Hugo Chavez, Evo Morales in Bolivia, Rafael Correa in Ecuador, who, you know, are trying to create the new constitutions. They’re really trying to bring power and give power down to the base and flip the whole system upside-down. Now, you have other countries, like Michelle Bachelet in Chile, Tabare Vazquez in Uruguay, who are more kind of liberal democrat, but still on the left.
“Bishop of Poor” Fernando Lugo Wins Paraguayan Election, Ending 61 Years of Conservative Rule, Democracy Now!, April 22,2008 (quoting the journalist Michael Fox). A merger of principles of liberation theology, politically restated in a constitution, might make for an interesting wrinkle on the development of constitutionalist principles, especially with respect to the substantive norms guiding state behavior. It will be particularly interesting to see how or whether principles of theocratic constitutionalism will seep into Paraguayan politics.

Emerging Trends in the Convergence of Public and Private Law

Emerging Trends in the Convergence of Public and Private Law: Sovereign Wealth Funds, the Regulation of Sovereign Golden Shares, and the Regulation of Multinational Corporations

Notes of Address Given at the
Istanbul Chamber of Industry
Istanbul, Turkey
June 24, 2008

Special thanks to my hosts for the event at the Istanbul Chamber of Industry: Mete Meleksoy, its Genel Sekreter, the law firm of Çaga & Çaga (and especially Av. Barbaros Çaga & Av. Erdem Degerli), and the Yeditepe University Faculty of Law and its Dean, Haluk Kabaalioglu. There are tremendously vibrant business and intellectual activities within Turkey that ought to be better known in the United States.

I. Introduction
A. I am here today to speak about 3 topics that are currently of great interest to regulators: (1) sovereign wealth funds; (2) golden share regimes; and (3) the regulation of multinational corporations

B. For some this may be an odd combination of topics to discuss. But as a matter of law and action these have begun to converge in interesting ways. We look here not to the past and barely to the present—the focus is on the future, a regulatory future being constructed today.

C. Let us consider the connection between the three topics by looking at a number of current real world examples:

1. EXAMPLE 1: A state entity, either directly or through a wholly owned corporation purchases shares of the stock of a domestic corporation either through the stock market or in a private transaction without resort to legislation or other regulatory actions. For example: The State of Maryland, or the New York State Teachers’ Retirement Fund purhases a large block of shares of Walmart Inc.

a. As a variant, consider the same situation but the state entity has purchased a controlling interest in the domestic corporation.

b. As another variant consider the same situation when a domestic corporation purchases an equal number of shares in a domestic corporation.

2. EXAMPLE 2: A state entity, either directly or indirectly through a wholly owned corporation, purchases shares of the stock of a foreign corporation either through the stock market or in a private transaction without resort to legislation or other regulatory actions and outside the territory over which it can assert sovereign authority. For example: The Norwegian pension fund purchases shares of Parmalat: or the investment Fund of Singapore purchases shares of U.S. Steel.

a. As a variant, consider the same situation but the state entity has purchased a controlling interest in the domestic corporation.

b. As another variant consider the same situation when a corporation purchases an equal number of shares in a foreign corporation.

3. EXAMPLE 3: A multinational corporation enters into an agreement with a government for the purpose of supplying it with goods that may eventually be used to commit acts that might constitute human rights violations.

a. As a variant, consider the same situation but the multinational corporation has entered into an agreement to run the prison system or the customs and immigration operations of the government.

D. Each of these scenarios present difficult issues regulation involving choice of law, extraterritoriality, and substantive law issues that often cross borders. The legal framework within which these issues are meant to be regulated being developed is both interconnected and binds the principals in each of these scenarios in ways that legislators, policy makers and others are still barely conscious:

1. The first, sovereign wealth funds looks at the changing character of the way in which states may assert themselves beyond their borders—that is project power extraterritorially.

2. The second—golden share regimes—looks at the ways in which the character of the state can change when it acts internally, that is when it seeks to act as a participant within the territories over which it can assert sovereign, that is regulatory, power.

3. The third—the regulation of multinational corporations and similar enterprises—looks at the other side of the equation, considering the ways in which corporations ought to be held liable, as principles, for the observance of conduct rules and obligations once thought directly and solely addressed to states.

4. All three, then, deal with different aspects of the same issue: the changing understanding of the nature of states and of corporations and the changing governance relationships between states and economic actors. The first two topics look to whether states can be considered private actors to which private law, or a variation thereof, can apply. The last whether corporations can be viewed as public actors to which public law or a variation there, can apply.

a. The consequences of these efforts can be tremendous.

b. It suggests a convergence trend in the way we think about governance. It is no longer clear that there is a strict distinction between public law and private law.

c. When corporations can be treated like states with respect to some of the things they do, when states can be treated like corporations with respect to some of their activities, the legal regimes that used to govern each in its own place, will have to change or become irrelevant.

d. I am going to suggest to you today that there is a little bit of both at work today.

5. What follows is a summary of the issues presented and a suggestion of the ways in which they interrelate. My principle objects are twofold: (1) to present the core jurisprudential and policy issues within each of these problem areas, and (2) to show how resolution of the problem in one area has significant effect on resolution of the other two.

6. This necessarily short discussion is built on some recent work of mine in these three areas of regulation. For further reading, please consult the references set forth at the end of this

II. Sovereign Wealth Funds

A. What ought to be the governing law when one state seeks to invest in the economy of another state?

1.This question has become particularly acute since the rise, over the last decade of a number of large funds controlled by states, the purpose of which is to invest in economic entities wherever they may be domesticated. On the surface, this might suggest the best case for the equal treatment of states with private entities. In this case, unlike that in which the state always has the potential to legislate changes to its corporate law, the state stands in the same shoes as a private investor.

2. On the other hand, the state, even as a private investor, has the power to reach deeply into the economic affairs of other states by implementing its legislative program through shareholder activism.

B. One of the great issues of sovereign wealth funds are definitional. There is a good reason for this—the broader the definition the larger the number of types of state investment activity will be covered by regulation grounded in that definition. The opposite is true as well—the more narrow the definition, the smaller the group of wealth fund and other investment vehicles in which states participate will be covered.

1.Depending on the form of regulation proposed—and the level (state, regional or international) at which this regulation will apply—both regulators and funds will have different interests.

2. Usually, wealth funds prefer an absence of regulation, or absent that, equal treatment regulation, that is regulation that treats public and private investment vehicles in a similar way.

3. What tends to get in the way are issues of

A. Sovereign immunity (not available to non-sovereign investment vehicles

B. Disputes over the nature of the activity subject to regulation—if the investment activity has a public character then it might trip trade regulation rules—domestic, regional (E.U.) or international (WTO, BITS, FTA Agreement rules). That moves us to the other two themes: Golden Share rules and the regulation of Multi national corporations.

C. Examples of definitions.

1- Organisation for Economic Co-operation and Development (“OECD”): “Sovereign Wealth Funds (SWFs) are pools of assets owned and managed directly or indirectly by governments to achieve national objectives.”

2. Traditionally, according to the IMF, “set up for a variety of macroeconomic purposes. They are commonly funded by the transfer of foreign exchange assets that are invested long term, overseas.”

3. U.S. Treasury makes a distinction based on nature of investment:

“There is no single, universally accepted definition of a SWF. This appendix will use the term SWF to mean a government investment vehicle which is funded by foreign exchange assets, and which manages those assets separately from the official reserves of the monetary authorities (the Central Bank and reserve-related functions of the Finance Ministry). SWF managers typically have a higher risk tolerance and higher expected return than traditional official reserve managers.

C. Note that there are now about 50 states with sovereign wealth funds of some sort—mostly funded from revenues from the sale of natural resources, but some are funded by unused FOREX (foreign exchange) revenues. (Source Peterson Institute).

1. A number of states are now planning SWF: Bolivia, Brazil. India have begun discussing the possibility.

2. A few funds—Chinese, Singaporean, Dubai and Norwegian, have dominated. Most have been discrete.

D. So, what is the problem: how to deal with these funds—as extraterritorial activity of public sovereigns, that is another form of political (or public law) activity OR as private actions of public actors subject to private law rules like other private juridical persons (like corporations). EXAMPLES:

1. Assume a state greats a fund to invest in equities abroad. It buys stakes in such companies on the market and in full compliance with the securities and company law rules of the home states of incorporation of the purchased entities. The fund managers are charged by the legislature to purchase shares only in corporations that comply with the corporate public policy of the investing state, or to use its power as a shareholder to seek internal corporate changes to achieve that compliance.

2. Assume a Venezuelan sovereign investment fund purchases a large American oil company with worldwide operations. When relations between Venezuela and the United States deteriorates, the Venezuelan shareholder uses it power as a shareholder to seek to shut down the oil company’s operations in the United States and transfer them to Venezuela arguing that this move is in the long term best interests of the company.

E. Regulatory approaches:

1. Equal Treatment. Essentially the approach of the United States.

2. Treat SWF as public entities and regulate (limit) investment domestically: require notification, pre-approval or forbid.

3. Subject SWF to special rules of investment—reasonable investment rules; non-political reasons for investing rules; avoidance of extraterritorial application of domestic law investment rules, etc. Effectively the sovereign would be treated as private with respect to the funds invested and public with respect to the investment decision.

3. Impose disclosure of transparency regimes (either on basis of equal treatment rules—all funds have to comply—or applied especially to SWF).

4. Suggest development of voluntary self-regulatory transparency and disclosure regimes.

G. The different approaches to regulation suggest some of the conceptual difficulties of regulating SWF, all grounded on the question—are they public (and regulatory), are they private (and participatory), or are they something else. The answers are not clear as the problems described above suggest, and touch on issues not only of investment, but of the character of the investor (public or private) and its convergence with the regulation of other foreign entities seeking to exploit potentialities of inbound investment.

1. Even if a SWF acts purely privately, to the extent that it must maximize the interests of its owners, is it not effecting political agendas by other means?

2. If shareholders are encouraged to participate in corporate governance, would a state shareholder engaged in such activity seeking to apply its own public policy extraterritorially?

3. Does sovereign immunity principles give SWF an edge?

4. If the object of investment is wealth maximization, and states and individuals conceive of wealth and its maximization differently, is it fair or logical to restrict SWF wealth maximization to that of a hypothetical reasonable individual? The question becomes more acute when one considers that multinational corporations may have wealth maximizing goals different from such a hypothetical investor as well—with little in the way of different treatment by regulators.

H. The move now is to treat SWFs as private with respect to funds invested and public with respect to investment decisions itself as well as with respect to their conduct as shareholders. States as investors, then, are likely to face a different regulatory environment than individuals or other private parties,

1. In the U.S. SWFs will likely ber treated as other investment funds—but all investment funds may be subject to greater disclosure ands transparency requirements, or they will be pressured into adopting voluntary behavior models. Direct government investment will likely be more problematic.

2. E.U. has suggested SWF regulation based on (1) commitment to an open investment environment; (2) support multilateral approach to regulation; (3) use of existing instruments (E.U. law); (4) respect E.U. Treaty obligations; (5) proportionality and transparency.

I. But it is here that the approaches to the regulation of SWFs runs up against a great legal movement within the E.U. that touches on the character of state participation in economic activity. To understand how the regulation of SWF intersects with domestic development of the rules respecting the character of state participation in markets, it is necessary to look to the E.U. and its development of principles of in its so-called Golden Share cases.

III. Golden Shares and Free Movement of Capital

A. Issue: State activity as private or state activity as regulatory and public.
1. The Americans have long distinguished between the private (participatory) and public (regulatory) actions of the state. American courts have recognized the choice of law implications of this division, treating participatory activity as a subject of private law, and regulatory activity as a matter of public law (to which, for example, the limitations on state power contained in the 14th Amendment of the American federal Constitution apply). For a recent case in which these issues were discussed and refined, see Dept of Revenue of Kentucky v. Davis, No. 06–666, argued November 5, 2007, decided May 19, 2008, slip op. at 7-10.

2. The Europeans appear to be taking the opposite tack. Through a jurisprudence developed from out of their “golden share” cases, the European Court of Justice appears to be embracing the position that state activity is presumptively public in character, at least when directed at domestic entities, and that such activity might contravene either the prohibitions on interference with the free movement of capital (Art, 56 EC Treaty) or with the regulation of state aid under the Competition provisions of the ECT Treaty (Art. 87 EC). (For a preliminary discussion of the cases and the development of a European conception of state activity in the market form a choice of law perspective, see Larry Catá Backer, "The Private Law of Public Law: Public Authorities as Shareholders, Golden Shares, Sovereign Wealth Funds, and the Public Law Element in Private Choice of Law," Tulane Law Review, Vol. 82, 2008) .

B. History: Privatization of state owned industries in the context of the strengthening and deepening of the internal market under the EU Treaties and the significant modification of the prohibitions against restraints on free movement of capital after Masstricht Treaty in 1994.

1. PROBLEM: Germany has invested heavily in an automobile company, in which it retains a 20% stake. It has, both by legislation and a shareholder agreement among the parties when it sold most of its equity stake in the car company, provided, among other things, any decision to move production out of Germany would require a shareholder vote greater than 20%

C. The Cases:

1. Commission v. Portuguese Republic, Case C-367/98, 4 June 2002;

2. Commission v. Kingdom of Belgium, Case C-503/99, 4 June 2002;

3. Commission v. French Republic, C-483/99, 4 June 2002);

4. Commission v. Kingdom of Spain, Case C-463/00, 13 May 2003;

5. Commission v. United Kingdom of Great Britain and Northern Ireland, Case C-98/01, 13 May 2003;

6. Commission v. Netherlands, Case C-282/04;

7. Commission v. Federal Republic of Germany (Volkswagen), Case C-112/2005, dated 23 October 2007;

8. Federconsumatori v. Commune di Milano, Case C-463/04 and C-464/04, 6 Dec. 2007.

D. The nature of the legal issue: can a state ever act as a market participant within its own territory and if it can what ought to be the legal consequences of such action?

E. US position: private law applies. The constitutional limitations of states as sovereigns, and in particular the dormant Commerce Clause, does not apply.

F. European position less clear:

1. What can be extracted from the cases: There is a presumption that state investment activity in domestic economic entities are presumably regulatory in character. As such, there is a presumption of violation of the free movement of Capital rules of the EU treaty. While it is possible to overcome this presumption on the basis of derogations from Art. 56 EC, exceptions tend to be narrowly construed. The analysis does not change whatever the form of investment—statutory, financial public or private. It is all public and subject to the EU Treaty.

2. The Advocate Generals and the Commission have suggested a much broader application of the Golden Share rules. The idea is that all state activity is public, especially when such activity seeks to intervene in purely private activities—principally economic activity. There is or ought to be a presumption that all such activity is regulatory in character—directly or indirectly—and as such falls within the prohibitions of the EU Treaty. It might be possible for a state to show that its investment activity is purely private—but for that to be successfully argued the state would have to prove that it acted like a hypothetical reasonable individual private investor seeking nothing but the maximization of the financial value of his investment. Larry Catá Backer, "The Private Law of Public Law: Public Authorities as Shareholders, Golden Shares, Sovereign Wealth Funds, and the Public Law Element in Private Choice of Law," Tulane Law Review, Vol. 82, 2008) .

G. The importance of the EU’s state aid doctrines under Article 87 EC in understanding the applicability and limits of the construction of a jurisprudence on the nature of the state within the EU system:

1. With respect to the application of the discipline of the competition law rules to state investment activity in their domestic enterprises, the European Court of Justice has long held that the purchase by a Member State of equity interests in a company might be characterized as a “state aid” (Art. 87(1) EC) under the competition provisions of the EC Treaty. (e.g., Case 323/82, Intermills SA v. Commission [1984]ECR 3809). In Case T-198/01 Technische Glaswerke Ilmenau GmbH v. Commission [2004] ECR II-2717 the Court explained that

“In order to determine whether the reduction of some of the applicant’s debts to the BvS constitutes State aid, it is appropriate, in the present case, to apply the test of a private creditor in a market economy, which was referred to in the contested decision and which, moreover, was not challenged by the applicant. . . . By granting the price reduction, the BvS did not act as a public investor acting in a manner comparable to that of a private investor pursuing a structural policy – whether general or sectoral – and guided by the longer-term prospects of profitability of the capital invested. That public body had in fact to be compared to a private creditor seeking to obtain payment of sums owed to it by a debtor in financial difficulties”

Id., at ¶¶ 98-99. See Larry Catá Backer, State Subsidies and the Character of the Market Transactions of Sovereigns: The Case of EADS, Law at the End of the Day, May 29, 2008.

H. Connection to sovereign wealth funds regulation in the EU: Fundamental inconsistencies:

1. The European Union is speaking with at least 2 voices when it comes to Golden Shares, State Aids and Sovereign Wealth Funds.

A. On the one hand, the Commission appears to be taking the position that state investment in foreign corporations, at least foreign corporations within the EU ought to be treated like Golden Share or State Aid cases.

1.That was the position in the recent Airbus contest for control. See Larry Catá Backer, The End of Golden Shares in the EU: The EU Commission Takes a Step in its Abolition, It Ought to Harmonize the Rules of Sovereign Investments Instead, Law at the End of the Day, March 9, 2008.

B. On the other hand, Peter Mandelson has suggested that the appropriate approach is to treat SWF as something different from direct state investment, at least under certain conditions (when the investment is effected through separately constituted funds.

1. For them, Mandelson has suggested that the best approach might be a set of private voluntary codes of conduct—paralleling the current approach to the regulation of multinational corporations. See Larry Catá Backer, Sovereign Wealth Funds And Hungry States: Adjusting the Borders of Public and Sovereign Activity Across Borders, Law at the End of the Day, June 6, 2008, available .

IV. Regulation of Multinational Corporations


1. Bhopal: capitalized subsidiary taking advantage of Indian legal structures to protect parent.

2. Large multinational influencing the legislature of a small country to enact laws favorable to it in return for inbound investment (factory work and the like).

3. Large multinational operating in a country with internal conflicts deploys its own security forces.

4. Large multinational corporation dealing with the government of a state that has been accused of human rights violations (Burma: apartheid South Africa; the Taliban regime in Afghanistan, etc.) whose government might or might be subject to UN sanctions or investigations by the ICC.

B. The examples set forth above suggest the nature of the problems posed by autonomous economic actors whose operations cross borders. Like state actors, they have undertaken some important public role. But they remain effective because of their ability to take advantage of the incentives to movements of capital and other forms of economic activity. For more detail, see Larry Catá Backer, From Moral Obligation to International Law: Disclosure Systems, Markets and the Regulation of Multinational Corporations, Law at the End of the Day, January 31, 2008, available .

1. Describing the current direction of norm making for multinational corporations, John Ruggie recently noted, “[t]he state-based system of global governance has struggled for more than a generation to adjust to the expanding reach and growing influence of transnational corporations.” John Gerard Ruggie, Business and Human Rights: The Evolving International Agenda, 101 AMERICAN JOURNAL OF INTERNATIONAL LAW 819 (2007).

2. The potential and perils of large economic enterprises, at once both property in the hands of their owners and autonomously constituted legal actors, looms large in the 21st century. Globalization—a privatizing, market-based system of increasingly freely moving capital—has provided the context in which the potential for these great enterprises has come closer to being realized. And its fundamental premises have also served as the basis for tremendous disaffection.

3. The tone of elite global discourse in this context was driven to some extent by the political and economic “left,” which had never abandoned the Marxist-Leninist premise of the conflation of law, politics and economics. While the “right” was satisfied in elaborating the core ideal—strict separation between public and private, law and markets, and positing the essentially private nature of the firm and the markets through which it operated, the “left” was crafting an increasingly elaborate case for the notion that corporations were infused with a public purpose or had a public effect, and therefore had duties to maximize social as well as private value.

C. Topic 1: Basis of Traditional Regulation

1. Introduction to problem and issues of corporate regulation

2. Sources of regulation: legal personality and territoriality

D. Topic 2: Regulatory Crisis and Multinational Corporations

1. Special characteristics of multinational corporations

2. Regulatory environment of multinational corporations

a. National regulation

b. international regulation

3. Free movement of capital and establishment and the contradictions of territoriality as the basis of regulation

E. Topic 3: The Scope and Character of Regulation: What is to be Regulated

1. Elements of good governance

2. Development rights and corporate responsibility

3. Corporate social responsibility and corporate good governance; voluntary approaches

F. Topic 4: Private Law--Contract and Non-State Systems as a Regulatory Vehicle

1. Private law regulation and the expansion of a “social aspects” of contract

2. Emerging methods of regulation (contract as law)

3. Actors in systems of private regulation

4. Creating markets in product certification

G. Topic 5: Special Regulatory Problem: The State as Multinational

1. Special problems: states as multinational multi-national corporations

2. Nature of legal issues when states act in the market

3. Focus: Corruption and the enforcement of contracts against states.

H. Thus, with the regulation of multinational corporations we move from the simple treatment of economic legal persons chartered by a state and wholly within the power of a single state, to an entity operating through a large number of other separate legal entities, across borders. Now operating outside the control of a single state, it can assert power as against other entities—economic and political—that rival those of political states.

1. These entities are large enough to affect public policy

2. Yet they fall outside the control of any state

3. They resemble states in the extent of their regulatory autonomy.

4. States become factors in the production of wealth

I. Regulation, then, begins to take on the same character of the regulation of states as economic participants

1. It is at this point that the character of public bodies—states—and private bodies—multinational corporations—converge.

2. Thus the approach to the regulation of SWFs and that proposed for multinational corporations, are substantially similar.

a. John Ruggie’s report prepared for the U.N. emphasized an approach based on multilateralism, state regulation and voluntary (self-regulatory) codes of conduct and disclosure. See “Business and Human Rights: Mapping International Standards of Responsibility and Accountability for Corporate Acts” Report of the Special Representative of the Secretary-General (SRSG) on the issue of human rights and transnational corporations and other business enterprises, A/HRC/4/035, February 9 2007, at ¶ 50.

b. This is very similar to the proposal coming from the E.U. for the regulation of SWFs operating as separate investment vehicles.

c. The World Economic Forum suggests a similar approach: Among the most important integrity-maintaining functions for markets is the provision of information. This is understood by even the more conservative elements of the organized transnational business community. The fourth Principle of the World Economic Forum’s Framework for Action on corporate social responsibility is transparency.

“BE TRANSPARENT ABOUT IT: Build confidence by communicating consistently with different stakeholders about the company’s principles, policies and practices in a transparent manner, within the bounds of commercial confidentiality. One of the most consistent demands that companies are facing from different stakeholders, ranging from institutional investors to social and environmental activists, is to be more transparent about their wider economic, social and environmental performance.” (World Economic Forum, Global Corporate Citizenship: The Leadership Challenge for CEOs and Boards, accessed Jan. 26, 2008).

V. Final Thoughts:

A. All of this, ironically enough, seems to add a measure of strength to the arguments of a vanguard of thinkers and policy makers that the distinctions between public and private entities are falling away.

B. That insight should produce a necessary reevaluation of the nature of regulatory deficiencies and ought to reinvigorate the debate about the character of appropriate responses. All of that has been difficult to do when the focus has been on the regulatory dimensions of corporations as state actors. But it is becoming increasingly clear that the solution to the problem of corporations as public actors will have to solved at the same time that regulators confront the regulatory dimensions of states as corporate actors.

C. The two principal approaches to each shows that regulatory policy is far form converging.

Reference List of My Relevant Work:

From my essays in LAW AT THE END OF THE DAY:

Democracy Part XI: Mass Democracy and Shareholder Democracy Converge, June 30, 2008.

Sovereign Wealth Funds And Hungry States: Adjusting the Borders of Public and Sovereign Activity Across Borders, June 6, 2008,

State Subsidies and the Character of the Market Transactions of Sovereigns: The Case of EADS, May 29, 2008,

Brazil Builds a Sovereign Wealth Fund and Norway Flexes Its Muscles: Private Participation in the Market or Regulation by Other Means, May 24, 2008.

Extraterritoriality and Corporate Social Responsibility: Governing Corporations, Governing Developing States, March 27, 2008.

The End of Golden Shares in the EU: The EU Commission Takes a Step in its Abolition, It Ought to Harmonize the Rules of Sovereign Investments Instead, March 9, 2008.

The Private Law of Public Law: Public Authorities as Shareholders, Golden Shares, Sovereign Wealth Funds, and the Public Law Element in Private Choice, February 13, 2008,

From Moral Obligation to International Law: Disclosure Systems, Markets and the Regulation of Multinational Corporations, January 31, 2008,

Values Morality and the Regulation of Transnational Economic Activity, January 19, 2008.

The Regulatory Dimensions of States as Corporate Actors, August 24, 2007.

Soft Rule of Law and Corporate Regulation: The Institutionalization of Corporate Social Responsibility, August 6, 2007.

Permanent Mission of India to the U.N. v. City of New York: The State as Private Actor in a World of Private Actors, June 30, 2007,

Global Panopticism and Corporate Law Making: Surveillance and Governance, April 22, 2007.

Multinational Corporations and China: On Multinational Corporations as an Instrument of Globalization and the Projection of State Power, November 19, 2006,

Published Articles:

Backer, Larry Catá, Multinational Corporations, Transnational Law: The United Nation's Norms on the Responsibilities of Transnational Corporations as Harbinger of Corporate Responsibility in International Law. Columbia Human Rights Law Review, Vol. 37, 2005
Available at SSRN:

Backer, Larry Catá, Economic Globalization and the Rise of Efficient Systems of Global Private Lawmaking: Wal-Mart as Global Legislator. University of Connecticut Law Review, Vol. 39, No. 4, 2007
Available at SSRN:

Backer, Larry Catá, The Private Law of Public Law: Public Authorities as Shareholders, Golden Shares, Sovereign Wealth Funds, and the Public Law Element in Private Choice of Law. Tulane Law Review, Vol. 82, No. 1, 2008
Available at SSRN:

Backer, Larry Catá, Economic Globalization Ascendant: Four Perspectives on the Emerging Ideology of the State in the New Global Order. University of California, Berkeley La Raza Law Journal, Vol. 17, No. 1, 2006
Available at SSRN:

Backer, Larry Catá, Ideologies of Globalization and Sovereign Debt: Cuba and the IMF. Pennsylvania State International Law Review, Vol. 24, 2006
Available at SSRN:

Backer, Larry Catá, The Autonomous Global Enterprise: On the Role of Organizational Law Beyond Asset Partitioning and Legal Personality. Tulsa Law Journal, Vol 41, 2006
Available at SSRN:

Backer, Larry Catá, From Moral Obligation to International Law: Disclosure Systems, Markets and the Regulation of Multinational Corporations. Georgetown Journal of International Law, Vol. 39, 2008
Available at SSRN:

Backer, Larry Catá, Global Panopticism: States, Corporations and the Governance Effects of Monitoring Regimes. Indiana Journal of Global Legal Studies, Vol. 15, 2007
Available at SSRN:

Thursday, July 24, 2008

Theocratic Constitutionalism Part IV: Religious Constitutions, Theocratic Constitutionalism, an Application of Theory to Reality

In other essays I have suggested distinctions between constitution and constitutionalism, and provided a working definition of constitutionalism. (Backer July 22, 2008). I have also suggested a framework for distinguishing between modern secular constitutionalism and an emerging system of constitutionalism I have called theocratic constitutionalism. (Backer 2009; Backer July 23, 2008). For this essay I will attempt to apply the principles of theocratic constitutionalism I have developed to a set of existing constitutions to attempt to illustrate the descriptive and normative potentials of this framework. This analysis is part of a larger work. (Backer 2008).

The fact that religion can claim pride of place within a constitutionalist enterprise does not mean that all constitutions with a reference to religion fall within the emerging traditions of theocratic constitutionalism. Just as one can have constitutions without constitutionalism, one ought to be able to distinguish between constitutions with theocratic elements and constitutions that are legitimately theocratic constitutionalism. Those elements include an embrace of the fundamental ideal that government ought to have limited power. Those limitations are structural and political. Political limitations include popular sovereignty, political participation by citizens and accountability by agents of the state for their conduct. Structural limitations are also grounded in rule of law assumptions. These include process limitations to guard against arbitrary or other conduct that is not grounded in law, and process for the legitimate exercise of state power. It also includes substantive rules for the exercise of state power. These include respect for the rights of individuals and the institution of a moral or ethical basis for state behavior grounded in what is right and just. The source of both process and substantive limits are not found in local practice but in a set of universal values to which the state and its organs are bound—the universal values and legal rules of religion.

This essay presents a preliminary excursion into the constitution of theocratic constitutionalism. It looks to two models at either end of the constitutionalist spectrum. The first of these, that of Iran, presents a model of constitution making that is legitimate within the context of theocratic constitutionalism. Along with Iran, this part examines some issues in constitutional projects that fall imperfectly within the model—for this purpose it looks to Afghanistan’s post-conflict constitution. The second, the constitution of Saudi Arabia, evidences a theocratic constitution without constitutionalism. So understood, that document does not present a legitimate foundation of government under principles of universalist theocratic constitutionalism. It then considers representatives of what might be classed as a group of states torn between models. The object is to consider whether religiously based constitutions can fall into a constitutionalist limbo—neither secular nor theocratic constitutionalists. For that purpose it looks to the constitutional projects of Pakistan and Egypt.

The focus of the analysis is on formal constitutions. I concede the importance of constitutional application. Constitutionalism, at least in its aspect as taxonomy, is concerned with the possibility of sham constitutions and the articulation of constitutionalist values there is no intention to apply. (Backer June 27, 2008) That was the thrust of a recent well publicized report of Human Rights Watch, an elite NGO. (Human Rights Watch January 31, 2008). These issues enrich but are not necessary for the object of this essay as it seeks to sketch out a working understanding of a legitimate formal constitutionalism grounded in values other than those developed through secular pluralist international political activity, even one skewed to the interests of the most powerful American and European states.

A. Theocratic Constitutionalism—The Case of Iran, and Afghanistan.

Iran. Iran presents an example of a well-developed system of theocratic constitutionalism. It is a valuable example that deserves substantial study, if for no other reason than that this system presents the greatest challenge to the values on which its competitor—secular transnational constitutionalism—is based, by adapting its form but not its values. Iran’s theocratic government is not merely the imposition of a religious state without limits, but instead suggests a principled basis of state organization through law the object of which is to secure the benefits of a specific (though perhaps odious to non-believers) set of legitimate (to believers) normative values.

That political agenda can be simply stated: Islam provides a comprehensive sociopolitical system valid for all time and place. Thus, God is the sole legislator. Government is mandated in order to implement God's plan in this world. Individual believers are not permitted simply to suffer unjust rule in silence. They must actively work to realize God's plan in this world. The only acceptable form of this Islamic government is that directed by the most religiously learned. This is the guardianship of the faqih (velayat-e faqih). (Brown 2000, 172).
The work also has an excellent discussion of the development of what would become Khomeini’s politico-religious philosophy, including its xenophobia and anti-Jewish paranoia. (See id., at 161-174). This is meant to be a rule of law ordering. “‘Since Islamic government,’ Khomeini asserted, ‘is a government of law, those acquainted with the law, or more precisely, with religion—i.e., the fuqaha—must supervise its functioning. It is they who supervise all executive and administrative affairs of the country, together with all planning.’” (Id., at 172). This ordering is well represented in the Constitution of the Islamic Republic.

The government constituted pursuant to the Iranian Constitution is in some great sense democratic. This is set out in Articles 6-8 of the Iranian Constitution of 1979, though subject to the limitations of Article 5. (Iranian Constitution 1979). There is a significant element of separation of powers in the construction of the state apparatus. (See id., at arts. 56-63, though, again, in accordance with the limitations of Islam generally as exercised through the religious leader pursuant to Art. 5 and Arts., 90-99). Second, the substantive elements of modern constitutionalism are also observed. (See arts., 19-55). Human rights are enshrined in the constitution and protected. (see arts., 19-42). The power to petition the government is preserved. (See arts. 26-27 (though they are ambiguous in the extent of the protections offered)). The Iranian Constitution creates a system of government grounded in rules and separation of powers. The legislative power is vested in representatives of the people. (see id., art. 57 (powers of government are vested in the legislature, judiciary and executive) and art. 58 (legislative functions to be exercised through the Islamic Consultative Assembly). The actions of this body are constrained within a system of institutionalized and nominally democratically based legislation adopted in accordance with constitutional requirements. The legislative power is then elaborated. (Id., arts. 62-99). Like modern constitutions it also imposes limits on power that can be exercised by the state. The substantive limitations on state power are elaborated at Chapter III of the Constitution, arts. 19-31. These mimic the standard description of basic rights in Post-War constitutions. But, rather than grounded in transnational constitutionalist principles, these rights are grounded “in conformity with Islamic criteria.” (Id., at art. 20 (equal protection of the laws); 21 (rights of women); 24 (press freedom except when “detrimental to the fundamental principles of Islam”); 27 (public gatherings, same as art. 24); 28 (right to choose occupation, “if not contrary to Islam and the public interest”)).

But constitutionally granted authority may only be exercised within the limits of the legal framework of Islam. Islam is constituted not only normatively foundational but also as a foundational system of legal organization. Thus, Article 12 provides that “The official religion of Iran is Islam and the Twelver Ja'fari school [in usual al-Din and fiqh], and this principle will remain eternally immutable.”). The legalist nature of Islam within Iranian constitutionalism is further refined in Art. 12: “Other Islamic schools, including the Hanafi, Shafi'i, Maliki, Hanbali, and Zaydi, are to be accorded full respect, and their followers are free to act in accordance with their own jurisprudence in performing their religious rites.” (Id.). The authority of these legal schools are legitimized through the constitution as well. “These schools enjoy official status in matters pertaining to religious education, affairs of personal status (marriage, divorce, inheritance, and wills) and related litigation in courts of law. In regions of the country where Muslims following any one of these schools of fiqh constitute the majority, local regulations, within the bounds of the jurisdiction of local councils, are to be in accordance with the respective school of fiqh, without infringing upon the rights of the followers of other schools.” (See also arts. 1 (sovereignty of Qur’onic justice); 2 (belief in “Divine revelation and its fundamental role in setting forth the law”); and 4 (need to base all laws and regulations on Islam)). The critical provision is art. 5 that vests ultimate authority on a religious leader.

This is not a supplement, but a substitute for the constitutionalist values represented by the international system and the values generated by the community of states. Thus, for example, “[d]uring a meeting of the United Nations Human Rights Committee in 1982 investigating reports of state-sponsored murder and torture, the leader of the Iranian delegation was questioned about Iran's view on the United Nations Universal Declaration of Human Rights. Sayed Hadi Khosrow- Shahi, the leader of the delegation, replied that Iran believed in the "supremacy of Islamic laws, which are universal" and when a law, such as the Universal Declaration of Human Rights, comes in conflict with Islamic laws, Iran would "choose the divine laws."” (Reimer 2006, 360).

This constitution is not imposed from above but represents an act of will of the people—a recognition, freely embraced—of the appropriate form of political organization. Thus, the Iranian Constitution, art. 1, provides that the “form of government of Iran is that of an Islamic Republic, endorsed by the people of Iran on the basis of their longstanding belief in the sovereignty of truth and Koranic justice, in the referendum of 29 and 30 March 1979, through the affirmative vote of a majority of 98.2% of eligible voters, held after the victorious Islamic Revolution led by Imam Khumayni.” The privileging of Islam in the political context is absolute. “This principle applies absolutely and generally to all articles of the Constitution as well as to all other laws and regulations, and the fuqaha’ of the Guardian Council are judges in this matter.” (Iranian Constitution 1979, art. 4). For that purpose, the constitutional systems creates an institutional framework for religious oversight of political activity (Saffari 1993), at the apex of which stands the Guardian Council (Iranian Constitution 1979, art. 91), “with a view to safeguard the Islamic ordinances and the Constitution, [and] in order to examine the compatibility of the legislation passed by the Islamic Consultative Assembly with Islam.” (Id., art. 91). Indeed, the representative legislature “does not hold any legal status if there is no Guardian Council in existence.” (Id., art. 93).

There is no popular right to interrogate and alter the formulation of the basic substantive norms on which political governance is founded—unless one is part of the instructional structure of the religion. Shi’a Islam, it seems, has its own magisterium—but one that serves both a political and religious function. For all others there is obedience. Republican principles are still consonant with this system—it is just that the interrogation of basic norms sourced in Islam are now outside the bounds of political discourse, and with respect to those, the citizen must yield to the authoritative spokesperson for the superior religious system. “[T]he Islamic government is based on an ideology different from that of a democratic republic. What . . . is indeed appropriate for a democratic republic . . . fails to meet the requirements of Islam.” (Saffari 1993, 73; see generally Backer 1998). Thus for example, in the section of the Constitution elaborating the rights of national sovereignty, the Constitution starts with the declaration that “absolute sovereignty over the world and man belongs to God. . . . . The people are to exercise this divine right in the manner specified in the following articles.” (Iranian Constitution 1979, art. 56). But of course, the people, at least within Islam, do have a significant and complex role in the elaboration and application of that system both as applied to the constitution of the state and in its role as legal code governing every aspect of life. The concept and operation of the ‘ummah is well known within Islam. While its actual invocation and effect are highly contested, and fluid, it does provide at least in theory a vehicle through which the people can, as a whole, directly intervene in the elaboration and application of the unalterable divine command. In reality, of course, the ‘ummah system is tempered by an ancient and complex system of elaboration by scholars and others, the size and power of whose following, may also be invested with a certain legitimacy and authority. (Stewart 2007, 279-308).

The Iranian theocratic Constitution resembles modern constitutions, and adheres to the current pattern of modern constitutionalism in its form and objectives—to formulate a system of governance based on legitimating principles and authoritative values. It adheres to thick “rule of law” constitutionalism. The power of the state and its governance organs are strictly limited. In this sense the Iranian constitution follows emerging models of transnational constitutionalism. 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. (see generally Backer 2008a).

Afghanistan. The Afghani Constitution also provides an example of a constitutional settlement that looks to principles of theocratic constitutionalism for its legitimacy. (Afghanistan Constitution 2004, Preamble). Its preamble suggests a certain internationalism in the values underlying the constitutional project. (Id.). The Preamble appears to place Afghanistan strongly within the transnational constitutionalist camp. It speaks to a grounding in global values constitutionalism, for example:
“Observing the United Nations Charter and respecting the Universal Declaration of Human Rights, For consolidating national unity, safeguarding independence, national sovereignty, and territorial integrity of the country, For establishing a government based on people's will and democracy, For creation of a civil society free of oppression, atrocity, discrimination, and violence and based on the rule of law, social justice, protection of human rights, and dignity, and ensuring the fundamental rights and freedoms of the people, For strengthening of political, social, economic, and defensive institutions of the country, For ensuring a prosperous life, and sound environment for all those residing in this land.”

(Id.). Yet, the lens through which such substantive protections are seen are not those of global constitutionalism but the eternal universalism of a religious foundation. The constitution is instituted “In the name of God, the Merciful, the Compassionate.” (Afghanistan Constitution 2004, Preamble). The sources of substabtive grounding of constitutional principles could not be clearer: “We the people of Afghanistan: With firm faith in God Almighty and relying on His lawful mercy, and Believing in the Sacred religion of Islam.” (Id.).

Thus, “The religion of the state of the Islamic Republic of Afghanistan is the sacred religion of Islam.” (Afghani Const. Chp 1 Art. 2). The Afghani Constitution builds strong protections against derogation from its core substantive provisions, but these focus on “The provisions of adherence to the fundamentals of the sacred religion of Islam and the regime of the Islamic Republic cannot be amended.” (Afghani Const. Chp 10 Art. 1). Islam does not so much reject a fundamental rights value system as incorporate it within the normative framework of Islam. “In Afghanistan no law can be contrary to the beliefs and provisions of the sacred religion of Islam.” (Afghani Const. Chp. 1, Art. 3). Despite suggestions to the contrary , there is an intention to invert the hierarchy of values of transnational constitutionalism (Backer 2009)—religion is not interpreted as an object of fundamental rights instead fundamental rights are interpreted as an object of Islam. It is not clear that the references are begign, a position held by some academics and commentators who suggest that while “references to Islam are customary and appropriate, attention should be devoted to clauses that give some specificity to Islam's official status. Islam must be enshrined in a way that it is expressed through normal democratic mechanisms, rather than supplanting them.” (Abou 2003, 2).

For those from different religious traditions there is conformity to an Islamic world view within which a certain measure of toleration is possible. This, of course, parallels the limits to toleration within conventional transnational constitutional systems of beliefs and practices which might be deemed threatening to the politico-legal order. In the American context, the toleration of obscenity and indecent speech a useful analogy. (Miller v. California 1973; Ashcroft v. ACLU 2002). “Followers of other religions are free to exercise their faith and perform their religious rites within the limits of the provisions of law.” (Afghani Const., Chp. 1, Art. 3). But threats to the religious basis of the legal order—including efforts to pry Muslims from their faith, are less tolerated. (Backer March 28, 2006). Indeed, The constitution imposes on the state a positive obligation to further the inculcation of Islam, Islamic religion and values, on the population through education. Thus, the constitution provides that “The state shall devise and implement a unified educational curriculum based on the provisions of the sacred religion of Islam, national culture, and in accordance with academic principles, and develops the curriculum of religious subjects on the basis of the Islamic sects existing in Afghanistan.” (Afghani Const., Chp. 2 art. 23). Islamic values also shape the state’s responsibility to the family under the Afghani Constitution. (Afghani Constitution chp. 2 art 32 (“The state adopts necessary measures to ensure . . . upbringing of children and the elimination of traditions contrary to the principles of sacred religion of Islam.”)).

The symbolic aspects of Afghani constitutionalism reinforces its theocratic and constitutionalist focus—the lawful institution of religion as the basic framework for political organization. All symbols of legitimacy are grounded not in popular sovereignty but in the suzerainty of Islam. This includes a number of secular objects reifying the state as an entity apart from its people. One is the flag. (Chapter 1, Art. 19 of the Afghani Constitution provides that “The national insignia of the state of Afghanistan is composed of Mehrab and pulpit in white color.” In addition, “In the upper-middle part of the insignia the sacred phrase of “There is no God but Allah and Mohammad is his prophet, and Allah is Great” is placed, along with a rising sun.” (Id.)). Another is the national anthem. The Afghani Constitution provides that the “National Anthem of Afghanistan shall be in Pashtu and mention “Allahu Akbar” and the names of the ethnic groups of Afghanistan.” (Afghani Const., Chapter 1, art. 20). And yet another is the presidential oath of office. (Afghani Constitution, Chpt. 3 art 4). The oath declares: “In the name Allah, the Merciful, the Compassionate In the name God Almighty, in the presence of you representatives of the nation of Afghanistan, I swear to obey and safeguard the provisions of the sacred religion of Islam. . . . ” (Id.). Scholars have noted the way that theocratic constitutionalism privileges members of a plural polity through the imposition of religious tests of a variety of sorts—including the use of oaths. The “constitutions of a number of predominantly Muslim countries may restrict to Muslim citizens the right to serve in government positions, particularly to hold executive power. This is achieved by requiring a specific Islamic oath or by stipulating that only Muslims can hold a given position.” (Stahnke & Blitt 2005, 974). The constitutional traditions of several Western states continue a similar practice—especially in Latin America. (See, e.g., Argentine Constitution Part I,. Ch. 1, Sec. 2 (The Federal Government supports the Roman Catholic Apostolic religion)).

But legitimacy through Islam also shapes the extent to which internal political action is treated as legitimate. Thus, for example, the right to form political parties is guaranteed (Afghani Constitution, Chp. 2, art 14), as long as the “program and charter of the party are not contrary to the principles of sacred religion of Islam.” (Id.). The preservation and legitimating function of these regulations of political life become clearer when these provisions are considered against the prohibition of factionalism within Islam in the form of political parties. Thus, while a religious political party might be formed, as long as it is Islamic, no such party can be formed under the Afghani Constitution if it is based on an “Islamic School of thought.” (Id.). The Constitution further declares: “Formation and functioning of a party based on ethnicity, language, Islamic school of thought (mazhab-i fiqhi) and region is not permissible” Id.).

The Afghani constitution also incorporates theocratic elements within its constitutionalist structure of the judiciary. The criteria for the selection of judges is meant to emphasize the Islamic character of the legal basis of the state. See Afghani Constitution Chp. 7 art. 3 specifies the qualifications of Afghani Supreme Court justices as requiring “a higher education in law or in Islamic jurisprudence” (Id.). Such judges “swear in the name of God Almighty to support justice and righteousness in accord with the provisions of the sacred religion of Islam and the provisions of this Constitution and other laws of Afghanistan.” (Id., at Chp. 7 art 4). The Constitution enforces a rule of law regime on the judiciary, requiring judicial review to be in “compliance with the Constitution of laws, legislative decrees, international treaties, and international conventions, and interpret them, in accordance with the law” (Afghani Constitution chp. 7 art. 6), but in critical respects that review function is grounded in principles of Islamic law, which must be applied directly under certain circumstances even the context of constitutional review. “When there is no provision in the Constitution or other laws regarding ruling on an issue, the courts’ decisions shall be within the limits of this Constitution in accord with the Hanafi jurisprudence.” Afghani Constitution Chp. 7 art. 15. Special provision is made for the application of Shi’a law under certain circumstances. (Id., at Chpt. 7, art. 16).

Islam thus serves as the meta-constitutional principles through which the constitution is interpreted and applied. But this Islamification is also highly contextualized within the history and culture of the peoples of Afghanistan. (Jones-Pauly & Nojumi 2004; Ahmed 2007). Ahmed suggests the difficulty of elaborating at the sub-constitutional level the human rights protections described in the Afghani Constitution in light of the opposition of traditionalist Islamic law grounded elites. (Ahmed 2007, 299 ).

In Afghanistan, then, there is the possibility of building an Islamic state that is also legitimately constitutionalist. That building serves both to expose the despotically (and illegitimately) theocratic dispositions of the Taliban but also suggests some of the winners and losers within this constitutionalist matrix. Clearly, a system that is grounded in one religion will tend to treat others as both potential rivals and competitors. Though it may tolerate them, it will not treat them as equal members of the polity. All value systems are subordinated to the meta-norm, including those of religion, which must be assimilated in order to survive. As Justice Scalia noted in relation to the subordination inherent in nationalist constitutionalist systems, like that of the United States:
“Just as a society that believes in the negative protection accorded to the press by the First Amendment is likely to enact laws that affirmatively foster the dissemination of the printed word, so also a society that believes in the negative protection accorded to religious belief can be expected to be solicitous of that value in its legislation as well. . . . It may fairly be said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in . . . .”
(Employment Division v. Smith 1990, 890). But the result is neither theocracy nor despotism, but a constitutionalist project with its own internal logic, true to itself and grounded in theories of right and justice permitting accountability and limiting discretion.

B. Theocratic Constitution without Theocratic Constitutionalism—the Case of Saudi Arabia.

Saudi Arabia presents an example of a theocracy without theocratic constitutionalism. One starts with a statement of self conception in which these fundamental positions are drawn:
“The reform mission, upon which the saudi state was founded, represents the main core of the government. This mission is based on the realization of islamic rules, implementation of islamic law (shari'a), and enjoining good and forbidding evil, as well as to reform the islamic creed and purify it from heterodoxies. Therefore, it adopts its doctrine from the true islamic principles that were prevailing at the very beginning of islam.” (Kingdom of Saudi Arabia).
The Constitution of Saudi Arabia is the Qur’an. That basic cornerstone of state constitution is set out in a subordinate document—the Saudi Basic System of Governance (the “Basic Law”). In the anguage usewd on the Basic Law, the Saudi “constitution is the holy qur'an and the prophet's (peace be upon him) sunnah (traditions).” (Saudi Arabia Basic System of Governance (1992), Art. 1). The Basic Law explicitly represents a subordinate articulation of the practices of government and its relation to both individuals and institutions. It is promulgated in the style of the old imperial constitutions of the German Reich (Constitution of the German Empire 1871) and Japan (Japanese Imperial Constitution 1893), by right of the monarch on behalf of his people in the service of the greater system with respect to which he has been vested with governance power. Thus, the preamble of the Saudi Basic Law provides:
By the help of allah We, fahd bin abdul aziz, the king of the kingdom of saudi arabia, consistent with the public interest, and in view with the development of the state in different fields, in addition to our enthusiasm to achieve our prospected objectives, we ordered the following: First: issue the basic system of governance according to the context herein below. (Saudi Basic Law, Preamble).
The Saudi state is constituted as “sovereign arab islamic state” (Saudi Basic Law, supra, Art. 1) for the preservation of which its citizens are required to conform their behavior or be punished. Saudi Basic Law, supra, art. 12 (“Fostering national unity is a must, and the state shall forbid all that may lead to disunity, sedition and division.”). Its symbols of state and its holidays are institutionalizations or expressions of the supremacy of its faith community. Thus, for example, the national holidays are essentially religious holidays, Saudi Basic Law, supra, art. 2 (“eid al-fitr (a religious feast celebrated on the 1st of shawal, the 10th month of the islamic calendar), and eid al-ad-ha (a religious feast celebrated on the 10th of dhul-hijjah, the 12th month of the islamic calendar), and its calendar is the hijra (lunar)” (Id.). Its flag is a proclamation of faith. (Saudi Basic Law, supra, art. 3). That section declares: “An article written in the middle of the flag translated as "there is no god but allah, muhammad is allah's messenger" with a drawn sword underneath.” (Id.). They also express its national character as sovereign and Arab. (Saudi Basic Law, supra, art. 4). In the language of the Basic Law: “The state's emblem consists of two intersecting swords with a date palm in the upper space between them. Both the national anthem and the badges of honor shall be determined by the law.” (Id.).

The government is constituted as a monarchy for which the male children of the founder are eligible for kingship. (Saudi Basic Law, supra, art. 5). The elaboration of the state apparatus is elaborated in a number of provisions. (Saudi Basic Law, supra, arts. 44-71). The King is assisted by the Majlis Al-Shoura consultative assembly) (Saudi Basic Law, supra, art. 68), though its powers are limited and its existence subject to the royal will. (Id.). Thus, the “King shall have the right to dissolve the Majlis Al-Shoura and re-form it.” (Id.). In addition, the King is free to constitute such other persons and bodies as he like. (Saudi basic Law, supra, art. 69). That section states: “The King may call the Council of Ministers and Majlis Al-Shoura to hold a joint meeting to which he may invite whomsoever he wishes for a discussion of whatsoever issues he may like to raise.” (Id.). The object is conformity to the consultative (Shoura) system which was said to exist before the formation of the Kingdom. (Kingdom of Saudi Arabia, Ministry of Foreign Affairs, Saudi Government, The Basic System of Governance). In that context, the Basic Law requires that the “"Majlis" of the King and the "Majlis" of the Crown Prince shall be open to all citizens and to anyone who may have a complaint or a grievance.” (Saudi Basic Law, supra, art. 43).

However, there is a separation between government and power, with the implication that the king must serve under law—that is the rules of the Qur’anic constitution. (Saudi Basic Law, supra, art. 5(b) (“The most eligible among them shall be recognized as king, to rule in accordance with the holy qur'an and the prophet's sunnah.”). The obligation extend to the state apparatus and the citizenry. (Saudi Basic Law, supra. Art. 33 (“The State shall build and equip the armed forces to defend the Islamic faith, the Two Holy Mosques, the society and the homeland.”) and art. 34 (“Defending the Islamic faith, the society and the homeland shall be the duty of each and every citizen. Rules of military service shall be spelled out by the law.”). Indeed, the Basic Law explicitly states that “[t]he authority of the regime is derived from the holy Qur’an and the prophet's sunnah which rule over this and all other state laws” (Saudi Basic Law, supra, art. 7) and that “Citizens shall pledge allegiance to the king on the basis of the holy qur'an and the prophet's sunnah.” (Saudi Basic Law, supra, art. 6).

While the monarch may legislate in accordance with the system implemented through the Basic Law, Qu’ran and Shari’a occupy a superior place within the hierarchy of law (Saudi Basic Law, supra, arts. 7 and 8). Thus, the Basic Law recognizes the power of the monarchical apparatus to issue law. (Saudi Basic Law, supra, art. 3 (national holidays), 4 (the national flag), art. 15 (exploitation of natural resources), art. 20 (taxation), art. 35 (Saudi nationality), art. 38 (criminal law), art. 52 (appointment of judges), art 59 (regulation of civil service), art. 74 (sale of state property)). However, such law making remains subordinate to both Qu’ran and Shari’ah. (Saudi Basic Law, supra, art. 8). Article 8 states: “The system of governance in the kingdom of saudi arabia is based on justice, consultation "shoura" and equality according to the islamic shari'ah (the law of islam).” (Id.). Moreover, Shari’a is directly applicable both to the constitution of government and to the obligation of individuals. “The saudi society shall cling to the god's shari'ah.” (Saudi Basic Law, supra, art. 11).

All relationships between the state and individuals are subordinated to the substantive and formal rules of religion. “The state shall protect human rights in accordance with islamic shari'ah.” (Saudi Basic Law, supra, art. 26). It is in that context that the foundational human rights protections offered through the Basic Law can be understood. (Saudi Basic Law, supra, art. 36). These include: “No individual shall be detained, imprisoned or have his actions restricted except under the provisions of the law.” (Id.); art. 37 (“Houses are inviolable. They shall not be entered without the permission of their owners, nor shall they be searched except in cases specified by the law.” (Id.); art. 38 (“No crime shall be established as such and no punishment shall be imposed except under a judicial or law provision”); and art 40 (“All forms of correspondence, whether conveyed by telegraph, post or any other means of communication shall be considered sacrosanct. They may not be confiscated, delayed or read, and telephones may not be tapped except as laid down in the law.”).

Indeed, the Basic Law confirms the role of Saudi society as grounded in the obligation to live according to and to propagate Islam. Thus the Basic Law imposes on the Saudi family the obligation to conform to Islam, cultivate nationalist feeling, and to obey state authorities. (Saudi Basic Law, Supra, art. 9). The obligation is explicit: “members shall be raised and adhere to the islamic creed which calls for obedience to god, his messenger and those of the nation who are charged with authority; for the respect and enforcement of law and order; and for love of the motherland and taking pride in its glorious history” (Id.). The state is charged with ensuring that Saudi families develop their ties to Islam and Arab ethnic identity. (Saudi Basic Law, supra, art. 10 (“The state shall put great attention to strengthen the bonds which hold the family together and to preserve its arab and islamic values” (Id.). All social tools are employed to this end, not the least of which is education: “The goal of education is to instill the islamic creed.” Saudi Basic Law, supra, art. 13. In addition, such educated citizens have an obligation of utility “to impart them with knowledge and skills so that they become useful members in building their society, who love their homeland and be proud of its history.” (Id.). That educational goal is shared by the Saudi media. (Saudi Basic Law, Supra, art. 39 (“They shall play their part in educating the masses and boosting national unity.”)).

The foundational roles of Islam, ethnicity and state are emphasized in the short section describing the rights and duties of the state. (Saudi Basic Law, supra, arts. 23-43). The state has an overriding obligation for the care and maintenance of the foundational religion on which its authority is based. (Saudi Basic Law, supra, art. 23 (“shall protect the islamic creed and shall apply islamic shari'ah. The state shall enjoin good and forbid evil, and shall undertake the duties of the call to islam.” (Id.); and art 24 (protection and maintenance of holy sites and shrines). The obligation extends beyond its borders—suggesting the inferior position of state to ethnos and religious community. (Saudi Basic Law, supra, art. 25 (“The state shall be keen to realize the aspirations of the arab and muslim nations with regard to solidarity and unity while enhancing its relations with friendly states.” (Id.). It extends to science and culture—bent to the religious will. (Saudi Basic Law, supra, art. 29 (“It shall encourage scientific research, shall preserve Arab and Islamic heritage and shall contribute to Arab, Islamic and human civilization.”)). There is a curious resonance here with developments in Catholic thinking about faith and reason. (John Paul II, 1998). It also suggests a resonance with recent efforts to clarify the relationship between education and Catholic beliefs within religious institutions of higher education.
“Since the objective of a Catholic University is to assure in an institutional manner a Christian presence in the university world confronting the great problems of society and culture(16), every Catholic University, as Catholic, must have the following essential characteristics: 1. a Christian inspiration not only of individuals but of the university community as such; 2. a continuing reflection in the light of the Catholic faith upon the growing treasury of human knowledge, to which it seeks to contribute by its own research; 3. fidelity to the Christian message as it comes to us through the Church; 4. an institutional commitment to the service of the people of God and of the human family in their pilgrimage to the transcendent goal which gives meaning to life"(17)”). (John Paul II 1990, at ¶13; Backer July 30, 2007).
There is thus religion aplenty in the constitution of the Saudi Arabian state, but very little by way of constitutionalism. It is clear that the organization of the Saudi state and its religious foundation is inconsistent, in significant respect, from consensus notions of nationalist or transnational constitutionalism. This has been the recent position of the American government certainly. (U.S. Department of State, Bureau of Democracy, Human Rights, and Labor 2004). But it is also clear that the Saudi organizational form does not conform to incipient notions of theocratic constitutionalism.

C. Neither Here Nor There—Pakistan and Egypt.

Is it possible to have it both ways—to develop principles of theocratic constitutionalism while retaining an adherence to the normative structure of transnational constitutionalism, and especially those parts of transnational constitutionalism focused on human rights developed through and under the authority of non-religious bodies? We have seen how Afghanistan does not present a true picture of a form of constitutionalism straddling the religious and the secular for the basis of its legal and interpretive authority. Is it possible top blend a foundational basis for constitutional substance within the structures of a religion and still preserve the privilege of the normative values of the community of nations understood as constitutionalism; might Iraq, Pakistan, Egypt or Nigeria provide a better model? I think the answer is no, such a constitutional stance, like that of the ante-bellum United States presents a state in a dynamic stage of its development. In the United States a choice was made and equilibrium was reached through war. It is not clear how the dynamic state of constitutionalism—poised between the transnational and the theocratic—will resolve itself in these states.

Pakistan. Pakistan is a state that has yet to find itself—at least form a constitutionalist perspective. As recent scholarship has suggested, reflected a common understanding, Pakistan stands between constitutionalist rule structures each of which has been naturalized within powerful national elites, which use and discard them to suit their objects of political supremacy. By the 1980s it had become clear that “in the judiciary system, three traditions compete: the British legal tradition, the autocratic military tradition, and the Islamic legal tradition. And the government, as in Bangladesh, betrays its concern over legitimacy by promising constitutionalism and the restoration of some form of parliamentarism.” (Scalapino 1986, 15). He notes that “In recent times, the Pakistan military led by Zia ul-Haq have sought legitimacy through a measure of Islamization, but this goal too is challenged, principally by the Westernized middle class.” (Id.).

Pakistan’s constitution has increasingly moved from a secularist internationalist orientation to one grounded in religion, a move that has pitted the executive against the judiciary. These understanding was well put recently:
What used to be the preamble to previous constitutions is now an operative part of the current Constitution as Article 2-A, and very much defines its ethos as a non-secular one. Yet, recent Pakistani judgments have put a halt to the discussion regarding whether Article 2-A can trump other constitutional provisions--thus acting as a sort of grundnorm--and have declared instead that it stands on an equal footing with other provisions of the Constitution, no more and no less. Indeed, these judgments have firmly precluded and strongly warned against an interpretation of Article 2-A which would raise it to the point of being a litmus test for gauging, evaluating, and potentially justifying the judiciary to strike down any other constitutional provisions.
(Siddique & Hayat 2008, 368). They noted that “[w]hile acknowledging that various such provisions may be inconsistent with Article 2-A, the courts clearly warned that such an interpretive approach would undermine the entire Constitution.” (Id.). This reflects a general trend withn the movement toward Islamification in the region. (Azfar 199178-79).

Others see the move toward institutionalized Islam as a means of staving off something worse. “By imposing Islamic laws from above, Zia may have saved Pakistan from a fundamentalist revolution from below like the one that took place early in his tenure in neighboring Iran.” (Azfar 1991, 78). The internal orientation of the effort, and its misunderstanding abroad was made clear. “Internally Zia's most lasting contribution could be resolving the issue of the role of Islam in the state. Nonetheless, the question is not dead; several of the parties supporting Prime Minister Nawaz Sharif wish to enact legislation incorporating the key elements of Zia's Shariat Ordinance.” (Id.).

But is it a theocratic constitutionalist project? This question requires a look at the document itself. Pakistan is currently constituted as an Islamic Republic, in which Islam is the state religion. (Constitution of Pakistan of 1973 as amended, Part I. art. 2, (hereafter Pakistan Constitution). The term, “Muslim” is also defined for purposes of the constitution. See Pakistan Constitution, supra, art. 260(3) (“(a) "Muslim" means a person who believes in the unity and oneness of Almighty Allah, in the absolute and unqualified finality of the Prophethood of Muhammad (peace be upon him), the last of the prophets, and does not believe in, or recognize as a prophet or religious reformer, any person who claimed or claims to be a prophet, in any sense of the word or of any description whatsoever, after Muhammad (peace be upon him)”). Ironically, the definition of non-Muslim is notable for its selective omission of Jews. See id., at art. 260(3)(b).Lastly, though there is no explicit prohibition of non-Muslims attaining high office, the Constitutionally prescribed oaths of office do not contemplate non-Muslim office holders. (Third Schedule, Oaths of Office).

Within that context, the former Preamble to the Constitution, modified in one critical respect, and inserted in an appendix, is made a part of the Constitution. (Pakistan Constitution, supra, art. 2A & Appendix). That modification to the provision that imposed an obligation to make “adequate provision shall be made for the minorities to profess and practice their religions and develop their cultures,” (Pakistan Constitution art. 2A & Appendix) eliminated the word “freely” from before the word “profess” so that the obligation is no longer to make provision to ensure that minorities could freely profess, that obligation is now reduced to mere profession.

Among the provisions of this former preamble are a number that touch on the religious constitution of the state, as well as its adherence to fundamental rights obligations not necessarily tied to religion. These include the following: the full observation of “he principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam;” the obligation to enable Muslims “to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and the Sunnah;” the protection of “fundamental rights including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality;” safeguarding the “legitimate interests of minorities and backward and depressed classes;” and securing the independence of the judiciary. (Id.). The Constitution also lists a number of principles of policy made applicable to all state organs. (Pakistan Constitution, supra, Chp. 2, arts. 29-40).

While most guarantee fundamental process ands substance rights, they do so without reference to religion. (See, e.g. Pakistan Constitution, supra, art. 33 (elimination of prejudice); art. 34 (empowerment of women); 35 (protection of family); 36 (protection of “legitimate rights” of minorities); 37 (promotion of social justice); 38 (promotion of social and economic well being)). Islam, to the extent it is incorporated, is limited in its application to Muslims. Pakistan Constitution (supra, art. 31), which provides “1) Steps shall be taken to enable the Muslims of Pakistan, individually and collectively, to order their lives in accordance with the fundamental principles and basic concepts of Islam and to provide facilities whereby they may be enabled to understand the meaning of life according to the Holy Quran and Sunnah. (2) The state shall endeavor, as respects the Muslims of Pakistan: (a) to make the teaching of the Holy Quran and Islamiat compulsory, to encourage and facilitate the learning of arabic language and to secure correct and exact printing and publishing of the Holy Quran; (b) to promote unity and the observance of the Islamic moral standards; and (c) to secure the proper organisation of zakat, [ushr,] auqaf and mosques.”

The state, thus, appears empowered to legislate specifically for Muslins, but in a way that cannot infringe on the rights of minorities. This is made clear within the blackletter of the Constitution itself through, for example, the creation of a Federal Sharia Court, whose membership is limited to Muslims. See Pakistan Constitution, supra, art. 203C(2). It appears susceptible to other constraints as well, for example both those of Art. 2A and of the Principles themselves. In addition the solidarity clause supports both secular and political aims. Pakistan Constitution (supra, art. 40), which provides: “The State shall endeavour to preserve and strengthen fraternal relations among Muslim countries based on Islamic unity, support the common interests of the peoples of Asia, Africa and Latin America, promote international peace and security, foster goodwill and friendly relations among all nations and encourage the settlement of international disputes by peaceful means.”

But this balance appears to be upset by the Islamicizing provisions of Part IX, the Islamic Provisions. (Pakistan Constitution, supra, arts. 227-231). The basic provision is set fort at art. 227(1): “All existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Quran and Sunnah, in this Part referred to as the Injunctions of Islam, and no law shall be enacted which is repugnant to such Injunctions.” An Islamic Council is established to implement this provisions of art. 227 as well as to advise Parliament with respect to Islamization. See arts. 228-230 in accordance with rules to be established by the Council and approved by the President. Art. 231. A carve out is provided for non-Muslims citizens. (Art. 227(3)). The relationship of minority faith communities to Islam is thus based on a toleration of practice within an overall pattern of subordination and conformity to the religio-political normative system of Islam—an assimilation of other faiths into the weltanschauung of Islam and their reconstruction of “soft Christianity” etc. Compare to the treatment of minority faiths in Iran, Afghanistan and Iraq, supra, notes, -- and contrast to the treatment of the same in Saudi theocracy, supra notes --. In a sense, these systems formalize the project of cooptation of a threatening system being attempted in an informal way by conventional constitutionalism. (Backer July 16, 2007).

In other respects, though, the government, as constituted, presents the usual picture of conventional separation of powers, with a president (Pakistan Constitution, supra, arts. 41-49), a legislature (Pakistan Constitution, supra, arts. 50-89. Membership in Parliament is limited to Muslims in good standing (art. 62 (d) & (e), though this provision is suspended for non-Muslims, who need only demonstrate a “good moral reputation.”), and a judiciary (Pakistan Constitution, supra, Part VII, Chps. 1-4). The superior courts have jurisdiction to hear claims of violations of the rights of individuals. (Pakistan Constitution, supra, arts. 184(3) (“the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II is involved have the power to make an order of the nature mentioned in the said Article”), and 199(c) (“Subject to the Constitution, the right to move a High Court for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II shall not be abridged.”)).

But, again, the vectors of constitutionalism turn in on themselves. In addition to the secular courts, the Constitution directs the creation of a Federal Shariat Court. (Pakistan Constitution, supra, Part VII, Chp. 3A). The jurisdiction of the Federal Shariat Court appears to upend the secular focus of the judicial structure of the state. The Constitution vests the Shariat Court with a broad jurisdiction. “The Court may, [either of its own motion or] on the petition of a citizen of Pakistan or the Federal Government or a Provincial Government, examine and decide the question whether or not any law or provision of law is repugnant to the injunctions of Islam, as laid down in the Holy Quran and Sunnah of the Holy Prophet, hereinafter referred to as the Injunctions of Islam.” (Id., at art. 203D(1)). Where the Shariat Court determines that a law or provision is repugnant to Islam, “such law or provision shall, to the extent to which it is held to be so repugnant, cease to have effect on the day on which the decision of the Court takes effect.” (Pakistan Constitution, supra, art. 203D(3)(b)). In addition, “(a) the President in the case of a law with respect to a matter in the Federal Legislative List or the Concurrent Legislative List, or the Governor in the case of a law with respect to a matter not enumerated in either of those Lists, shall take steps to amend the law so as to bring such law or provision into conformity with the Injunctions of Islam.” (Id., at art. 203D(3)(a)). Decisions of the Federal Shariat Court are binding on all courts save the Federal Supreme Court. (Pakistan Constitution, supra, art. 203GG). With respect to such cases, the appellate jurisdiction of the Supreme Court is limited, and its constitution is reordered—stripping all non-Muslims from any participation rights in those decisions. (Pakistan Constitution, supra, art. 203F). Literally construed, these provisions could effectively strip the Federal Supreme Court of its jurisdiction and create a hierarchy of constitutional values in which Islam trumps all, in a way preserved by a guardianship of Muslim members of the polity. But there is sufficient ambiguity to make this issue subject to interpretation. Recall that Arts. 184(3) and 199(c) confer broad jurisdiction on the secular courts to hear complaints of violation of fundamental rights. How one reads the hierarchy of rights (Part I versus Part IX) and hierarchy of jurisdiction (Shariat system versus secular system) is not clear.

Taken together, the provisions of the Pakistan Constitution suggest an integrated legitimate theocratic constitutionalist system. The constitution limits the power of the state. Arbitrary actions by individuals holding state power governmental are avoided. Rule of law provisions apply both to the protection of the rights of individuals and the exercise of power by the state. There is a scrupulous attention to separation of powers and the suggestion of popular participation (though the deficiencies of Pakistani democracy are well known). But the protection of substantive rights—the normative limits on constitutional power appear founded on Islam. Both the courts and the legislature are made subject to the structures of Islam and the institution of the state are bent to the institution of an Islamist state. Of course, the consequences, in terms of human rights and the rights of non-Muslim citizens of Pakistan will be different under this regime than under one grounded in the conventional normative structure of secular transnational constitutionalism. But for all that, for the full members of the polity (Pakistani Muslims), a deep rule of law regime has been established.
But in the case of Pakistan, one may well have a case of sham or partial theocratic constitutionalism. Fully evolved on paper, its reality is clouded by the great struggles among those who have not acceded to the power or principle of the constriction of the state on these theocratic grounds. As applied, Pakistan suggests a polity at war with itself over the meaning and application of its Constitutional settlement. Much like the foundation of the federal republic became a critical source of contention among the elites of the anti-bellum United States, Pakistani elites are currently struggling for control of the character of Pakistani constitutionalism as grounded in secular or religious principles. The institutional center of that struggle are the courts. (Redding 2004, 764-65; Karkera 2006). In a notorious case involving the rape of a woman, “Fearing a continued struggle between the competing jurisdictions of the High Court and the Shariat Court, the Supreme Court of Pakistan took over the case, ordering all files in the case to be sent to the Supreme Court” (Kerkara 2006, 169). For the moment, the Pakistani secular courts have been able to narrowly interpret the jurisdiction of the Shariat courts, asserted their power as final arbiter of constitutional interpretation, and narrowed the meaning of un-Islamic. (Redding 2004, 773-804). Thus, for example, the Pakistani Supreme Court remanded a decision of the Shariat Court outlawing interest (riba) in all forms on the grounds that “in order for the Federal Shariat Court to conduct ‘thorough and elaborate research . . . of financial systems . . . prevalent in the contemporary Muslim countries.’” (Ibrahim 2008, 695; citing and quoting in part United Bank Ltd. V. M/S Farooq Bros. 2002)).

Egypt. Egypt presents a variation on the Pakistani situation. As contemporary Western scholars have noted the difficulties of Egyptian governance:
The Egyptian experience has witnessed radical, violent revolutionary Islamic activism and the institutionalization of Islam socially and politically; diverse state policies toward Islam in the struggle of government and ruling elites to maintain their legitimacy and their world, with its lifestyle, power, and privileges; the growing polarization (as in many Muslim societies) between Islamists and secularists and government officials; advocacy of, and then reneging on, the government's official commitment to democratization, justified by the charge that "fundamentalists" are out to "hijack" democracy; and, finally, the widening of a confrontation between state security forces and Muslim extremists to include moderate as well as violent revolutionaries. (Esposito & Voll 1996, 173).

Egypt represents that peculiar case of the state that may not decide between the secular and the religious forms of transnational constitutionalism. It is a compromise state, a state that seeks a reconciliation of the irreconcilable. That makes for a certain volatility. It is a state at war with itself, as far as its understanding of its fundamental character. Some see as the ability of one segment of the state apparatus (the courts) to brake the move toward a particular view of the black letter of its constitution. This, for example Ran Horschl looks at the efforts of the Egyptian Supreme Court to recast Egyptian constitutionalism through the construction of a constitutionalist jurisprudence. (Hirschl 2004, 1822). Others might see this inter-institutional fighting as evidence of future civil strife—much like that which boiled over in the United States in 1861. One can argue that, like the Egyptian Supreme Court today, the American Supreme Court in the early Republic also took a principled interpretive stance, but one that was hardly reflective of a political consensus on the nature of the federation and the power of the general government of the union. It took a civil war and substantial constitutional revision for such a position to ultimately be vindicated. (Backer 2001, esp. Part II).

The Egyptian Supreme Court’s assertion of authority to declare the meaning of Shari’a, and its willingness to mold that interpretive authority flexibly appears to permit a blending of secularist and religious universalism by providing a point from which convergence of substantive results is possible, even if the process to get to this result is different. Thus, for example, Ran Hirschl noted that in its role as arbitrar of Shari’a compliance, the Egyptian Supreme Constitutional Court, like its Pakistani counterpart, “has departed from the ancient traditions of the fiqh (Islamic jurisprudence or the cumulative knowledge and science of studying the Shari'a) schools and has developed a new framework for interpreting the Shari'a. Specifically, the Court has developed a flexible, modernist approach to interpreting the Shari'a that distinguishes between ‘unalterable and universally binding principles, and malleable application of those principles.’” (Hirschl 2004, 1826). However, Hirschl notes, “the Court established its own interpretation of ijtihad irrespective of the contradictory opinions in Islamic jurisprudence, the fiqh, and its traditional methods. The SCC thereby positioned itself as a de facto interpreter of religious norms.” Id., 1827). But it may not make for a model of either theocratic constitutionalism or its secular nationalist or transnationalist counterparts. This is a state that fails in both respects.

D. Constitutions With Theocratic Elements—Constitutionalism or Illegitimate Privileging.

Is it possible to enshrine religion within a constitutional framework and not further theocratic constitutionalist aims? The project of categorizing constitutions is harder than it might appear at first blush. This project poses difficult questions of interpretation, especially with respect to constitutions that seem poised between the two systems. For purposes of this paper I look to the example of Malaysia.

Malaysia provides an example of a conflation of religion and ethnicity similar to that of Saudi Arabia, but implemented within a vastly different context for a different purpose. Where the Saudi’s meant to constitutionalize the Muslim and Arab character of the state, the Malays sought to construct that singular character in a context in which native Malays feared being reduced to minority status in the lands that would become Malaysia. The state of constitutionalism in Malaysia is influenced by a number of factors. The rejection by the largest racial group, the Malays, of the Malayan Union was the result of a feeling of insecurity arising from the proposed creation of a common citizenship. . . . The fear was that Malay power would be diluted by a swelling in the number of citizens of other races, particularly the Chinese and Indians.” (Lee 2004, 233).

The ascendancy of the Malays was expressed in the c construction of the state: “Malay replaced English as the language of administration and education (except at the primary level where Chinese and Tamil continued to be used). Malay culture was given increased prominence in official ceremonies and television programs, and Islam became more fully identified with the state.” (Crouch 1996, 239). Malaysia represents a community that has conflated religion with ethnicity in the construction of what its proponents suggest is a legitimate basis of ethno-religious chauvinism. AT least one commentator has suggested “a difference between constitutional and unconstitutional forms of ethno-racial essentialism.” (Lim 2004, 117). He suggests that “It is not difficult to understand, after all, where the Framers of the Malaysian Constitution were coming from. There is an abundance of empirical and historical evidence of the importance of just such group-membership criteria, or "gateway principles" in respect of membership of the Malay race.” (Id., at 123).

In an interesting twist, at least one of its defenders suggests that ethno religious chauvinism can be supported as a principled rejection of conventional constitutionalist notions of equal treatment because, in plural societies, even conventional constitutionalists differ on the effectiveness of a color blind” approach to constitutionalism. (Id., at 126-133). The effect is that recognized difference can be legitimately hard wired and ethno religious federation serve as a legitimate basis for a constitutionalist settlement. The Malaysian Constitution of 1957 provides that “Except as expressly authorized by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent or place of birth in any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment.” (Id., art. 8). Commentators have noted that “Today, the suggestion that the Constitution should be colour-blind would also (unfortunately) amount to sedition under Malaysian law insofar as that should question the Malay language provision in Article 152 (below), or the special position of the Malays under Article 153, or the position of the Rulers under Article 181.” (Lim 2004, 128). But others see things differently. (“Thus the most important function of constitutional law, apart from the function of making general provision for governance, is to ensure that the potentially fragile social fabric is kept intact. There is therefore already a tension between the principle of constitutionalism as such and a perceived need to maintain a religiously tolerant but politically authoritarian executive and a strong state.” (Harding 2002, at 164).

As constituted, Malaysia incorporates Islamic elements within a structure that is also constitutionalist, in the sense of limiting and organizing power along principled grounds and subject to an ideology that protects against arbitrary or despotic assertions of power. The federation is organized along parliamentary democratic lines, with separation of powers, strict procedures for lawful enactment of legislation, separation of powers, and the social rights principles of conventional constitutionalism. Also in line with conventional constitutionalist principles, the constitution serves as the supreme law of the land. See Malaysian Constitution, supra, art. 4. (Kamali 2000, chapter 3).

But does it constitute theocratic constitutionalism in practice? Article 3 of the Malaysian Constitution declares Islam the official religion of the Federation. (Malaysian Constitution, supra, art. 3(1) (“Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation.”)). Islam has a privileged position within the polity. (Ibrahim 1978). The state is required under Article 11(4) to protect Islam from competition from other faiths. (Malaysian Constitution, supra, art. 11(4) (“State law and in respect of the Federal Territories of Kuala Lumpur and Labuan, federal law may control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam.”)). That positive obligation is not solely based on the protection of religion per se, but in the case of Malaysia serves to protect what is viewed as an essential characteristic of Malay ethnicity—its religion. (Malaysian Constitution Article 160(2) creates a legal definition of Malay ethnicity as grounded in language, religion, culture and place of birth. See Malaysian Constitution, art. 160(2) (a Malay is “a person who professes the religion of Islam, habitually speaks the Malay language, conforms to Malay custom.”)).

Still, the religious practices of other faith communities are protected, at least to the extent that are practiced in peace and harmony. (Malaysian Constitution, supra, art. 3 (“but other religions may be practised in peace and harmony in any part of the Federation”); art. 11 (“Every person has the right to profess and practise his religion”); and art. 153(1) (obligation to preserve “the legitimate interests of other communities in accordance with the provisions of this Article.”)). In addition, Article 12 prohibits discrimination on religious grounds in the administration of public education and scholarships (Malaysian Constitution, supra, art. 12(1); permits religious instruction and the maintenance of an autonomous institutional life in any protected faith (id., at art. 12(2)). Thus an element of toleration within a system of privilege (of Islam) and subordination (of all others) made necessary by the construction of state organization on the basis of a dominant race religious construct—the Malay.

Interestingly, at least one commentator has noted that even this expression of toleration might be un-Islamic. He notes that a “leading Muslim lawyer told the author that the word 'but' in Art 3 is insulting to Islam and should read 'and therefore'.” (Harding 2002, 158 & n. 9). Yet, Islam’s privilege is constrained by the constitution itself. (Malaysian Constitution, supra, art. 3(4) (“Nothing in this Article derogates from any other provision of this Constitution.”). And a system of conventionally described fundamental rights is specified. (Malaysian Constitution, supra, Part II, arts. 5-13 (Fundamental Rights)). Moreover, the courts have resisted a constitutional interpretation that would use Art 3 as the engine through which Islamist constitutionalism could be imported. Harding related that “There is also no provision for the syariah to be a source, or the basic source, of legislation. The matter was in fact tested in the 1988 case of Che Omar v Public Prosecutor, in which it was argued that the enactment of a mandatory death penalty was contrary to Islam and therefore unconstitutional. The Supreme Court (now Federal Court) rejected this argument, holding that Article 3 was not a clog or fetter on the legislative power.” (Harding 2002, 166-167; citing Omar v. Pub. Pros. 1988). “Thus primacy is given by the Constitution to religious rights even where the security of the state itself is at risk.” (Harding 2002, 168). Citing to Minister for Home Affairs v. Jamaluddin bin Othman (1989) Harding also noted that “This primacy has in effect been endorsed by the Supreme Court in Jamaluddin Othman, a habeas corpus case in which freedom of religion under Article 11 was held to override even the power of preventive detention under the Internal Security Act. The detainee, a Malay/Muslim who had converted to Christianity, was granted habeas corpus to secure his release from detention, which had been effected on the grounds that his alleged attempts to convert Muslims was a threat to national security.” (Id., at 168-169). Moreover, critical actors within Malay political culture have stressed the ambiguities of the Malay religious constitutional settlement. (Ibrahim 1996; but contrast Mutalib 1993).

That ambiguity is emphasized by the nature of federalist devolution within Malaysia. (Harding 1996). The judicial power reflects this bifurcation. A federal court system is created (Malaysian Constitution, supra, arts. 121-131a), consisting of a set of High Courts (id., art. 121(1)), and a Supreme Court at its head (id., 122), along with syariah (shari’a) courts, which are creatures of state law. (Id., at 122(1A) and Sch. 9, List II; Syraiah). The jurisdiction of the federal courts is limited, and “shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts.” (Maylay Constitution, supra, art. 121(1)(B)).

But the Supreme Court’s jurisdiction is broadly stated. The Supreme Court’s jurisdiction extends to “ (a) any question whether a law made by Parliament or by the Legislature of a State is invalid on the ground that it makes provision with respect to a matter with respect to a matter with respect to which Parliament or, as the case may be, the Legislature of the State has no power to make laws; and (b) disputes on any other question between States or between the Federation and any State.” (Id., art. 128(1)). The federal judicial establishment, thus sits atop a governance system in which states have some authority to implement religious governmental systems and religious courts can serve to amplify this project. “The Federal Constitution of Malaysia is the supreme law of the nation that distributes the power of governance in accordance with the practice of Parliamentary Democracy. The Constitution may be amended by a two-third majority in Parliament.” (Malaysian Government Portal, Government).

Article 74 of the Constitution divides power between the federal and states levels. The enumeration is contained in a Federal and a State List. Such a division of authority is subject to conditions and restrictions otherwise set forth in the federal constitution itself (Id., art. 74(3)) and to a general rule of interpretation. (id., art. 74(4) (“Where general as well as specific expressions are used in describing any of the matters enumerated in the Lists set out in the Ninth Schedule the generality of the former shall not be taken to be limited by the latter.2)). The Federal list exempts federal legislation of “Islamic personal law relating to
marriage, divorce, guardianship, maintenance, adoption, legitimacy, family law, gifts or succession, testate and intestate;” (Id., Sch. 9, List I, (4(e)) and registration of adoptions under Islamic law or Malay custom. (Id. 12(a). But it includes power to legislate over the machinery of government (subject to exempted powers devolved to the states) including the “Ascertainment of Islamic law and other personal laws for purposes of federal law” (Id., at 4(k)), and “Government and administration of the Federal Territories of Kuala Lumpur and Labuan including Islamic law therein to the same extent as provided in item 1 in the State List.” (Id., at 6(e)). State legislative power includes a limited authority to impose Islamic law and legal structure (Malaysian Constitution, supra, Sch 9, list II, item 1). That provision permits state adoption of “Islamic law and personal and family law of persons professing the religion of Islam, including the Islamic law relating to succession, testate and intestate, betrothal, marriage, divorce, dower, maintenance, adoption, legitimacy guardianship, gifts, partitions and non-charitable trusts.” (Id.). It also permits such regulation with respect to “Wakafs and the definition and regulation of charitable and religious endowments, institutions, trusts, charities and charitable institutions operating wholly within the State.” Id. Most interesting, it permits state Islamism with respect to the “creation and punishment of offences.” But this power is limited to “persons professing the religion of Islam against precepts of that religion,” (Id.), and is further narrowed to cover only those offenses “in regard to matters included in the Federal List.” (Id.).

Malaysia thus offers a hybrid system, or perhaps better put, a system in which two forms of constitutionalism is meant to co-exist. Co-existence, however does not suggest convergence so much as compromise and separation within a system in which one of the two forms of approaches to constitutionalism—the conventional transnational variety—is privileged within the political system, but not entirely. Thus, one commentator described Islamization in terns of domesticating and harnassing Islam for purely state power purposes during the Mahatir period. “The attempt to gain control of the flow of Islam in politics first led to an intricate policy of managing Islamist groups, and then to the Islamization initiative. The government devised a multipronged approach to containing and managing Islamism and curbing its extremism. It sought to co-opt moderate Islamist forces, marginalize and silence the extremists, and generally regulate all Islamic activity” (Nasr 2001, 113).

The tensions that result seem to parallel the ethno religious tensions of the multi cultural, multi ethnic and multi religious divisions within the state. (Backer March 2008). The consequence will likely be continued dynamism as all groups compete for greater dominance and the evolution of the constitutional order to more firmly place one or another constitutionalist system becomes clearly dominant or the nation fractures. (Jomo & Cheek 1988; Mutalib 1993).


Constitutionalism remains a messy business. In a sense, we live in a time of constitutionalist anarchy. This anarchy might well mirror the anarchy in international relations as any number of states—and the values they represent—vie for authority and a place within the hierarchy of nations. The object of this article has been to suggest that the project of building constitutionalism—a particular world view and ideology for distinguishing between legitimate and illegitimate expressions of popular will in the form of domestic constitutions—has given rise to transnational as well as nationalist versions of this project. Both seek to legitimate by positing “good” constitutional arrangements as those that prohibit arbitrary expressions of power and which limit that power in accordance with a system of norms that reflect the “good” or right and justice. (Backer 2009a).

The “good” or right and justice, can itself, if left solely to the will of majorities, produce tyranny. Thus, a great object of constitutionalism has been the embrace of normative systems against which the actions of a sovereign will can be measured, and limited. Transnational constitutionalism suggests that the articulation of those substantive limits on expressions of domestic power and governance are best when they are removed from the discretion of any single polity and situated within the community of nations—no one state can control it, but all states can contribute to its expression, and every state can incorporate its directives in a context specific way. In its nationalist version substantive norms can be found within articulated communal values or universal principles of right ad justice found within natural law or in notions of civilized behavior or by reference to universal non political principles—for example economic determinism of the failed Marxist universalist project.

It has also suggested that, there is no consensus on any set of global basis for determining a norm structure limiting domestic constitution making and binding all states. However incompatible it might seem to dominant values in other parts of the world and among other significant segments of the global community, there has arisen a new expression of principled constitutionalism—constructed on the foundation of institutionalized religion. This principled constitutionalism inverts the conventional form of constitutionalist organization, which privileges the values and norms of the community of nations (contextualized within a polity), by privileging the universal and eternal values derived from religion as a basis for interpreting and elaborating systems of governance and law. Yet, at the same time, it provides a basis for constructing states that avoid both arbitrary expressions of power and the use of power unlawfully, constraining its deployment and expression by means of principles and institutional frameworks beyond the power of individuals to subvert. What makes these systems so threatening to those constructing secular transnational or nationalist constitutionalism s both its similarities to the forms of legitimating constitutionalism (and thus its potential authenticity) but also its potential for reaching conclusions about the nature of the good and the right and just incompatibly different from that nurtured under other systems. Theocratic constitutionalism includes and excludes, privileges and subordinates individuals in ways that can be very different from the ordering of power hierarchies in the West. It rests on and inclusiveness and a notion of difference significantly different from that developed among the community of nations after 1945 and expressed in a variety of international law instruments. It would undo or redo the emerging system of supra national human rights institutions in its own image. But within its own contextual universe, it can provide as sound a basis for ordered and rule of law government as that offered by transnational constitutionalism.

There is now a market for constitutionalism. Each of these constitutionalism’s are authentic and serve to legitimate the organization of states within frameworks that promote rule of law and the institutionalization of process and values. Each posits a distinction between a principled and an unprincipled organization of government, its operation, functioning, organization, objectives, limits, and relationship with critical stakeholders. The legitimation aspect provides a powerful impetus to adherence to the form of constitutionalism and gives rise to the need to police against imposters—either as sham democracies under secular constitutionalism or as constitutional theocracy under theocratic constitutionalism. (Siddique & Hayat 2008, 316-322).

Within that market at least three major products are offered, each with a large number of variations. These three—nationalist constitutionalism, transnational constitutionalism and theocratic constitutionalism—have produced a rich literature. Each claims to be the only legitimate basis for conceptualizing the legitimate constitution of states. All impose a hierarchy of values in which the universal provides a framework within which some variation is possible, but only to the extent that it is compatible with a consensus reading of the framework norms. Each reflects a series of values and assumptions that make accommodation with other worldviews difficult, at a fundamental level.

This is the way Eric Heinze, for example largely understood the reaction of the Chairman of the Nigerian Islamic Human Rights Council to the Nigerian fornication case. (Heinze 2008). Reacting to the view that “Shadjareh claimed that "Hudood punishments under the banner of shariah in a secular state are unacceptable and cannot be the starting point for the implementation of shariah." He narrowed that view, however, in stating, "A woman who is not married at the time of accusation of fornication does not deserve capital punishment." The IHRC further states the view of the "majority" of schools of thought, according to which the appropriate punishment would have been "a certain number of lashings."” (Id., at 23). Heinze stated: “That view, which the IHRC at no point challenges, cannot be called a compromise position or a reconciliation of Islam with international human rights law. It is a categorical rejection of core human rights: namely, against cruel, inhuman, or degrading treatment (if not torture), as well as, arguably, privacy or freedom of conscience or religion.” (Id., at 23).

For all that, compatibility, as applied, might be possible. (Fadel 2008). That compatibility might well be necessary in a world in which the sources of constitutionalist legitimacy will remain highly contested. But it also suggests that in the absence of equilibrium through the singular domination of a particular constitutionalist world view, legitimating constitutionalism—as doctrine and political project—will remain in a highly dynamic state. For those championing on or another version, and seeking to convince the polities of particular states to join one or another camp, it behooves the players to better understand competing systems to meet them on their own terms, and to better structure arguments suggesting principled reasons for abandoning one in favor of another. Alternatively, as is increasingly evident today, each group will seek, by appearing to seek convergence, to move the other system closer to its own. That was the gist of what turned out to be fairly controversial statements in 2008 by the Archbishop of Canterbury. (Backer February 4, 2008). In any case, religion will be in the thick of it, from all sides of engagement.

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