Legal scholar Ran Hirschl, a professor of political science and law, has published a new intriguing book, Constitutional Theocracy (Cambridge: Harvard University Press, 2010). The claims of the book, regardless of the complex legal analysis, is a simple one — to contain the global religious fervour engulfing many parts of the world, which is increasingly taking on a political and legal capacity, the state must empower constitutional courts to sanction religious mandates in order to neutralise the more radical religious claims being made on the state. In other words, paradoxical as this may seem, the best response to religious radicalism is for the state to take on the responsibility of religious interpretation to effectively sideline the radicals. In a remarkably counter-intuitive move combining heavy scholarship and lucid description, Hirschl argues that the best “secular” response is to empower constitutional theocracy. In Egypt this can be seen in the slogan of the Muslim Brotherhood that has inspired many other groups such as the Jamaat-e-Islami in Pakistan, “The Quran is our constitution.” But anyone familiar with the nature of constitutional construction in the Westphalian modern nation-state knows that this slogan is uncomfortable. Hirschl’s rationale is that if religious arbitration is handed over to the judiciary who are secularly trained, they will effectively be able to synthesise religious norms and liberal rights. It allows the modern democratic nation-state to enjoy a sense of religious legitimacy whilst not compromising on its liberal nature. There are however problems — in Iran there is recognition that Qom (religious authority) and Tehran (political authority) are distinct but yet the state is fundamentalist in its outlook even though it is a constitutional theocracy. It sounds attractive. One could argue that in the form of A R Cornelius, Pakistan had a dissident jurist and scholar who recommended such a strategy. A R Cornelius was one of the most brilliant judges Pakistan has ever had and recommended a “soft liberalised” lawyer-led Islamisation that would counter the demands of the Islamist parties whilst garnering religious legitimacy for a new liberal legal culture. The ordeal and struggle of A R Cornelius is detailed brilliantly by the legal scholar Clark B Lombardi in his paper, ‘Can Islamising a Legal System Ever Help Promote Liberal Democracy?: A View from Pakistan’ (University of St Thomas Law Journal, Vol. 7, No. 3, 2010. Available at SSRN: http://ssrn.com/abstract=1829483). In that paper the familiar orthodox representations of the perceived hostile relationship between religious law and liberal politics is overcome by analysing the works of not only A R Cornelius but other progressive Arab judges who recognised the threat of religious radicalism and tried to contain it by working from within the religious tradition to grant liberal principles some sort of indigenous authenticity. The cultural politics of grounding liberalism is a topic that is virtually ignored in Pakistan even though this is the main area of contention for any future emergence of a liberal force in the country. In connection with containing religious radicalism, Hirschl describes in detail the subtlety of theocratic constitutionalism. Hirschl writes elsewhere that, “The ‘ideal’ model of a constitutional theocracy can be summarised by outlining four main elements: (1) adherence to some or all core elements of modern constitutionalism, including the formal distinction between political authority and religious authority, and the existence of some form of active judicial review; (2) the presence of a single religion or religious denomination that is formally endorsed by the state as the ‘state religion’; (3) the constitutional enshrining of the religion, its texts, directives, and interpretations as a or the main source of legislation and judicial interpretation of laws — essentially, laws may not infringe upon injunctions of the state-endorsed religion; and (4) a nexus of religious bodies and tribunals that not only carry symbolic weight, but that are also granted official jurisdictional status and operate in lieu of, or in an uneasy tandem with, a civil court system.” But frustratingly, the Iranian hybrid system is perfectly constitutional, where there is a basic level of distinction in the nature of executive and legislative powers. But going beyond Hirschl’s work we should consider the idea of ‘Islam’ as a source of constraint; legislation should not alarm us too much. The Objectives Resolution is more of a symbolic and cultural gesture to the place of religion in the public consciousness rather than a real consideration for law-making. The idea of Islam as a source of legislation is a superficial observation. There are much deeper questions to consider. But Hirschl is naive to consider that the judiciary will act as some sort of agent for secularism. In Pakistan the chief justice has complained about granting parliament more power because he fears it would “secularise” the state. In Iran, the judiciary and the Guardian Council were fierce obstacles to the liberalisation attempts of Mohammad Khâtamî, the former reformist president of Iran (1997-2005). Granted to Hirschl that in the context of Pakistan the judicial elite was secular, which is why Zia created a parallel judiciary that was more compliant in the form of the shariah courts. Furthermore, the legal actions of Zia thoroughly contradict the political logic of Hirschl’s theocratic constitutionalism. Zia wanted his interpretation of the ‘shariah’ to have a deep pervasive hold on Pakistani society; he did not want to contain the shariah so to speak. But there is another trend to notice. There is a clash and conflict between state law and religious law. Historically, many modern Muslim nation-states in areas of Family Law have deferred legal arbitration to traditional religious norms and authorities, but in the case of commercial law and areas of finance, traditional religious legislation has been thoroughly ignored. Therefore, another feature of theocratic constitutionalism is the sidelining of traditional authorities of religious legal arbitration. The state, whether in Iran or Pakistan, has embarked on a selective ‘Islamisation’ programme that cherry-picks certain areas. It is clear that the clergy in the Islamic world are not independent figures above politics — in many countries they are firmly under the control of the state. There is a selective attempt at incorporating religion to placate the faithful and to veer towards the secular to attract investment and commerce. Critics of Islamisation and theocracy in Pakistan have to become sharper in their critique and recognise the other centres of legal/political power in the country. It is absolutely clear that Islamic law as traditionally interpreted by jurists and clerical authorities who were independent of the state is all but gone. Today, we can describe Pakistan as a distorted state. The religious clergy are firmly subordinated under the control of the state in Pakistan, which is not democratic but rather praetorian (militarily defined and controlled). Hirschl’s analysis is refreshingly precise and razor-sharp. His work is multi-layered and hence a single article cannot do justice to his work; however, it should be said there is a brilliant empirical analysis of the different models of secularism from Turkey, India, Indonesia, and Europe to America.
The writer is a freelance columnist. He can be reached at [email protected]