Over the past few decades, principles of theocratic governance have gained enormous public support across the world. The Khomeini-led revolution in Iran is perhaps the quintessential manifestation of this broad trend, but newspaper headlines report almost daily on religious fundamentalist insurgency from Iraq and Afghanistan in the Near East to Algeria and Morocco in the Maghreb and to the Philippines and Indonesia in the south-eastern tip of Asia. Religious parties have gained a tremendous popular following in polities as diverse as Bangladesh, India, Nigeria, Lebanon, Egypt, Pakistan, and Malaysia. The sweeping win of the pro-Islamic AK Party in Turkey’s July 2007 general election further illustrates this trend.[1] Hezbollah (the “party of God”) now threatens to overthrow the state’s fragile multiparty coalition in Lebanon. The struggle between the nationalist Fatah movement and the religious Hamas movement has effectively split the Palestinian people. Meanwhile, religion continues to play a key role in European politics, from the predominantly Catholic Ireland and Poland to the largely Orthodox Serbia and Ukraine. It has made a comeback in several of the predominantly Muslim post-communist countries in Central Asia and the Caucasus, as well as in Armenia (the historic center of the Armenian Apostolic Church) and in Georgia (birthplace of the Georgian Orthodox Church). Evangelical Pentecostalism has become prevalent in Latin America, while the Catholic Church remains a politically and ideologically influential force throughout large parts of the continent. A similar trend can be seen in North America, where religious fundamentalism, primarily the Christian Right, has become a significant political force.

 

At the same time, the world has witnessed the rapid spread of constitutionalism and judicial review. Constitutional supremacy—a concept that has long been a major pillar of the American political order—is now shared, in one form or another, by over one hundred countries and several supra-national entities across the globe. Constitutional courts in many of these countries have been responsible for translating these constitutional provisions into practical guidelines to be used in daily public life. The migration of constitutional concepts and structures has become a global phenomenon. At the uneasy intersection of these two sweeping trends—the tremendous increase of popular support for principles of theocratic governance and the global spread of constitutionalism—a new legal order has emerged: constitutional theocracy.

 

What is constitutional theocracy? In a “pure” theocracy (say, Mahdist Sudan in late-19^th century) the supreme religious leader (e.g. Muhammad Ahmad, the Mahdi) is also the apex political leader. In a closely related ecclesiocracy (e.g. the Vatican) an ensconced institutional religious leadership is at the helm; the religious leaders assume a leading role in the state, but do not claim to be instruments of divine revelation. By contrast, formal separation exists in constitutional theocracy between political leadership and religious authority. Power in constitutional theocracies resides in political figures operating within the bounds of a constitution, rather than from within the religious leadership itself. Basic principles such as the separation of powers are constitutionally enshrined. The constitution also typically establishes a constitutional court that is mandated to carry out some form of active judicial review.

 

At the same time, constitutional theocracies defy the Franco-American doctrine of strict structural and substantive separation of religion and state. Akin to models of “establishment” or “state religion,” constitutional theocracies both formally endorse and actively support a single religion or faith denomination. Moreover, that state religion is enshrined as the principal source that informs all legislation and methods of judicial interpretation. Unlike the handful of European countries with a state church, the designated state religion in constitutional theocracies is often viewed as constituting the foundation of the modern state; as such, it is an integral part, or even the metaphorical pillar, of the polity’s national meta-narrative. In this way, religion often determines the polity’s boundaries of collective identity as well as the scope and nature of some or all of the rights and duties assigned to its residents.

 

Constitutional theocracies, however, do more than grant exclusive recognition and support to a given state religion: Laws must conform to principles of religious doctrine and no statute may be enacted that is repugnant to these principles. In most instances, a well-developed nexus of religious bodies, tribunals, and authorities operates in lieu of, or in tandem with, a civil court system. The opinions and jurisprudence of these authorities and tribunals carry notable symbolic weight and play a significant role in public life. Importantly, however, the entirety of this nexus of laws and institutions is subject to judicial review by a constitutional court or tribunal. This tribunal consists of judges who are often well-versed in both general and religious law, and can speak knowledgably on pertinent matters of law to jurists at Yale Law School as well as at the al-Azhar center of Islamic learning in Cairo.

The “ideal” model of a constitutional theocracy can be summarized 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.

All in all, hundreds of millions of people, perhaps as many as a billion people, now live in polities that either fall squarely within the definition of a constitutional theocracy or that feature many of the substantive characteristics and tensions of such a legal order. In addition, hundreds of millions live in countries with a designated state religion. A further two billion people live in countries such as India, Indonesia, or Turkey where no particular religion is granted formal status, but where religious affiliation is a pillar of collective identity.[2] The de facto, as opposed to de jure, boundaries of religion and state in these countries are blurred at best, and are continually contested in both the political and the judicial sphere.

 

II. Constitutional Theocracy in Context

 

To fully understand the scope, nature, and distinct characteristics of constitutional theocracy, a brief discussion of its place within the range of constitutional responses to the problem of “religion and state” worldwide seems necessary.

 

The separation of church and state was seen by Enlightenment thinkers as a means of confining dangerous and irrational religious passions to the private sphere. In the modern West, the longstanding French policy of laïcité is arguably the clearest manifestation of the desire to restrict clerical and religious influence over the state.[3] But although the strict separation approach is the one most familiar to scholars of constitutional law and politics in the United States, expanding our horizons comparatively reveals several other constitutional-institutional models for delineating the relationship between religion and state; these models are of crucial importance for our analysis of the phenomenon of constitutional theocracy. I briefly discuss each in turn.

 

The first model involves states that have separated religion from state in what may be called separationist reformism. The Mustafa Kemal Atatürk-led secularization of predominantly religious Turkey is perhaps the most well-known example of separationist reformism in the twentieth century. Following the demise of the Ottoman Empire, the Kemalist secular-nationalist elite decided to abandon Islamic culture and laws, in favor of secularism and modernism. Accordingly, the words “the religion of the Turkish State is Islam” were removed from the constitution in 1928. In 1937, the words “republican, popular, atheist, secular, and reformist” were inserted to the constitution to better reflect modern Turkey’s adherence to a strict separation of state and religion. Accordingly, both the 1961 and the 1982 constitutions established an official state policy of laïcism.[4]

 

In Thailand, the immensely popular Theravada Buddhism has had to make way for a civic ideology centering on the Thai monarchy and advanced by a tripartite coalition of the military, state bureaucracy, and business elites, which has dominated Thai politics since the early twentieth century.[5] Similar in its effects was the Soviet regime’s policy that forced Armenia to abandon its formal ties with the Armenian Apostolic Church, which had been recognized as Armenia’s state religion from the fourth century until the early twentieth century. And in Ethiopia, the introduction of strict antireligious laws followed a military junta’s ferocious overthrow of Emperor Haile Selassie, descendant of King Solomon and Queen Sheba, who was a sacred figure for the Rastafarian movement in Jamaica.[6] Selassie was also, and most importantly, negotiator of autocephaly and a longtime patron of the Ethiopian Orthodox Church. In a notably more civilized fashion, Portugal (1976), Spain (1978), and Italy (1984) all adopted new constitutions or constitutional amendments that disestablished Catholicism as their state religion.

 

In contrast to the disaggregation of state and religion, a second pertinent constitutional model is a weak form of religious establishment—for example, establishment through the formal, mainly ceremonial, designation of a certain religion as “state religion.” Several European countries illustrate this model.[7] An evident case in point is the designation of the Evangelical Lutheran Church as a “state church” in Norway, Denmark, Finland, and Iceland—arguably some of Europe’s most liberal and progressive polities. Norway’s head of state, for example, is also the leader of the state church.[8] Article 2 of the Norwegian Constitution guarantees freedom of religion, but also states that Evangelical Lutheranism is the official state religion. Article 12 requires more than half of the members of the Norwegian Council of State to be members of the state church. Similarly, Greece and Cyprus formally designate the Greek Orthodox Church as the state church. In England, the monarch is “Supreme Governor” of the Church of England and “Defender of the Faith.” The Crown has a role in senior ecclesiastical matters and, by the same token, the church is involved in the coronation of a new monarch, and senior bishops are represented in the House of Lords.

 

A third constitutional response to the tension between secularism and religiosity is the selective accommodation of religion in certain areas of the law. Here, the general law is secular, yet a degree of jurisdictional autonomy is granted to religious minorities, primarily in matters of personal status and education. Countries such as Israel, Kenya, and India grant recognized religious or customary communities the jurisdictional autonomy to pursue their own traditions in several areas of law, most notably family law. For example, each religious community in Israel has autonomous religious courts that hold jurisdiction over its respective members’ marriage and divorce affairs. Kenya has enacted a set of statutes to recognize the diversity of personal laws pertaining to different groups of citizens. India has long been entangled in a bitter debate concerning the scope and status of Muslim and Hindu religious personal laws, versus the individual rights and liberties protected by the Indian Constitution.

 

An increasingly prevalent yet seldom discussed fourth model is essentially a mirror image of these “religious jurisdictional enclaves”—what we might call secular jurisdictional enclaves. Here, most of the law is religious; however, certain areas of the law, such as economic law, are “carved out” and insulated from influence by religious law. Most Islamic countries maintain criminal and economic codes that are based on French civil law, British common law, or other sources of law introduced by, or otherwise borrowed from, European nations, alongside a variable status for fiqh (Islamic law and jurisprudence).[9]

 

An interesting case in point here is Saudi Arabia, arguably the country whose legal system is one of the closest to being fully based on fiqh. Shari’a law is bad for business, however. Whereas Saudi courts apply Shari’a in all matters of civil, criminal, or personal status, Article 232 of a 1965 Royal Decree provides for the establishment of a commission for the settlement of all commercial disputes. Although judges of the ordinary courts are usually appointed by the Ministry of Justice from among graduates of recognized Shari’a law colleges, members of the commission for the settlement of disputes are appointed by the Ministry of Trade. In other words, Saudi Arabia has effectively exempted the entire finance, banking, and corporate capital sectors from application of Shari’arules. Foreign investors have not protested the move.

 

Following the same rationale, Saudi Arabia has recently embarked upon a comprehensive modernization of its judicial system. Among the overhaul’s main tenets is the creation of specialized courts in criminal, commercial, labor, and family issues instead of a general judge-made Shari’a-based interpretation in these matters. Additionally, “[t]he judiciary council that used to act as the highest court and was controlled by some of the most reactionary clerics in the kingdom, has been relegated to administration.” A new ten-member Supreme Court will be filled mostly with royal appointees, not merely with religious clerics, thereby allowing the kingdom to extend its pragmatic, flexible application of Shari’a to various aspects of public life.

Another example is the city of Dubai, which was recently ranked the United Arab Emirates’s number one tourist destination. A suite in the Burj Al Arab, one of the world’s finest hotels, costs up to $11,000 per night. Upon its completion, Burj Dubai is soon to become the tallest free-standing structure in the world. Dubailand, twice as big as Disney World, is the world’s largest amusement park. The United Arab Emirates, of which Dubai is a part, has the fifth highest GDP per capita of any country in the world. As in Saudi Arabia, although the Shari’a is the main source of law, economic law is civil and is therefore not subject to religious injunctions. Fly Emirates, as the commercial slogan goes.

 

In a similar vein, Islam has been the state religion in the Maldives since the twelfth century. Section 10 of the most recent constitution (2008) reads: “The religion of the State of the Maldives is Islam. Islam shall be the one of the basis of all the laws of the Maldives; No law contrary to any tenet of Islam shall be enacted in the Maldives.” Adherence to Islam is required for citizenship; as section 9 of the 2008 constitution states, “a non-Muslim may not become a citizen of the Maldives”. Furthermore, there is no secular legal system; rather, the local version of Shari’a law, as it is interpreted by state authorities and the Majlis, is the law of the land. Yet the Maldives continue to boast some of the world’s finest hotels, catering to jet-set tourists attracted to the Maldives’s world class coral reefs. Over half a million tourists visit the country every year. A special presidential decree exempts the thriving tourist industry, which accounts for over 20 percent of the country’s GDP, from several non-tourist-friendly religious imperatives.

Another example of the secular jurisdictional enclaves model – a close relative of constitutional theocracy – is provided by the legal system of the Comoros, which rests on two tenets: Islamic law and an inherited Napoleonic French legal code. Islam has increasingly dominated the political sphere and the May 2006 elections were won by Ahmed Abdallah Mohamed Sambi, a Sunni Muslim cleric nicknamed the “Ayatollah” for his time spent studying Islam in Iran. The Constitutional Court, the ultimate arbiter of constitutional questions, consists of seven judges who are all well-versed in both the French civil law tradition and the Shafi’i school (one of the four Sunni schools of law), which stresses reasoning by analogy (Comoros Const., art. 31-33). But the French civil code prevails in most areas of commercial life. In fact, Comoros is a signatory to the Treaty on the Harmonization of Business Law in Africa, which binds signatories to apply a civil code framework in areas of business law. What’s more, Art. 3 of the constitution provides that international treaties take precedence over local island law.

 

Finally, an increasingly common approach to governing religion and state relations is a mixed system of religious law and general legal principles. It is this model of religion and state relations that comes the closest to the ideal type of constitutional theocracy. The Islamic Republic of Iran is commonly considered to be a fundamentalist theocracy, with governing principles and practices that bear very little resemblance to prevailing principles of western constitutionalism. In practice, however, its system of government features many elements of modern constitutionalism.[10] The preamble of the 1979 Islamic Republic Constitution enshrines the Shari’aas the supreme law—superior even to the Constitution itself.[11] Articles 2 and 3 declare that authority for sovereignty and legislation has a divine provenance (from the Shari’a) and that the leadership of the clergy is a principle of faith. According to Article 6, the administration of the state is to be conducted by the wider population: the general public participates in the election of the President, the Majlis representatives (members of parliament), and municipality councils. Article 8 further entrenches principles of popular participation in deciding political, economic, and social issues. Most notably, Iran has seen the emergence of the Guardian Council—a de facto constitutional court armed with mandatory constitutional preview powers and composed of six mullahs appointed by velayate faqih—the Supreme Leader—and six jurists proposed by the head of the judicial system of Iran and voted in by the Majlis. The Supreme Leader has the power to dismiss the religious members of the Guardian Council, but not its jurist members (Art. 91).

 

More stunning still is Khomeini’s strategic initiative in 1988 to amend the Iranian Constitution in order to institutionalize the regime’s Discernment Expediency Council (majma-e tashkhis maslahat nezam) to serve as the final arbiter between the Consultative Assembly (Majlis) and the Guardian Council (shoray-e negahban).[12] This new body—as of October 2005 the ultimate judicial body in Iran—aids the government in asserting its pragmatist approach to public policymaking (based on the concept of “national necessity”) over the Guardian Council’s more doctrinal, rigid interpretive approach to pertinent religious directives. In summary, even in the least likely settings, constitutional framers have been attempting to hedge or mitigate the tension between modern day needs and principles of theocratic governance through innovative constitutional design and reconstruction.

 

It is well known that Afghanistan has long been torn between conflicting values of tradition and modernism.[13] From 1994 to 2001, the country was ruled by the radical Islamist Taliban, but the U.S.-led military campaign removed the Taliban from power and installed a more moderate regime representing an array of groups hitherto in opposition: moderate religious leaders and the country’s elites and intellectuals in exile. The new constitution of Afghanistan came into effect in January 2004, and it states that Afghanistan is an Islamic Republic (Afghan Const., ch. I, art. 1); that the “sacred religion of Islam is the religion of the Islamic Republic of Afghanistan” (ch. I, art. 2); and that “[n]o law shall contravene the tenets and provisions of the holy religion of Islam in Afghanistan” (ch. I, art. 3). Moreover, courts are allowed to use Hanafi jurisprudence—one of Sunni Islam’s more liberal interpretive schools—in situations of constitutional lacunae (ch. VII, art. 130). At the same time, the constitution also enshrines the right to private property (ch. II, art. 40); and resurrects a woman’s right to vote, as well as to run for and serve in office (ch. II, art. 22). The 2004 constitution also establishes a Supreme Court (Stera Mahkama) composed of nine judges appointed by the president for a term of ten years (ch. VII, arts. 116-17). All members of the Court “[s]hall have higher education in legal studies or Islamic jurisprudence” (ch. VII, art. 118).

 

Following more than two years of conservative jurisprudence in religious matters by the newly established Afghan Supreme Court, President Hamid Karzai opted for a shake-up of the Court’s composition. In 2006, Karzai appointed several new, more moderate members to the court. In addition, the reappointment of the Chief Justice Faisal Ahmad Shinwari – a conservative Islamic cleric with questionbale educational credentials – did not pass parliamentary vote. Karzai then chose his legal counsel, Abdul Salam Azimi – a former university professor who was educated in the United States – to succeed Shinwari. The new, distinctly more moderate Court was sworn in August 2006.

 

Two softer, albeit equally fascinating, exemplars of constitutional theocracy are Pakistan and Egypt. Pakistan has a long-standing tradition of constitutionalism, and British influenced tradition of legal education and practice. It has been one of the West’s best allies in the fight against radical Islamism in the Middle East and Central Asia. Pakistan is also a military superpower and one of the few members of the world’s “nuclear club.” At the same time, daily newspaper headlines report on religious insurgency in Pakistan. The “Red Mosque” incident (May 2007) is merely one example. The province of Baluchistan has become one of the main frontiers of the “war on terror.” Pakistan’s most northwesterly frontier province has been governed by the religious-fundamentalist Muttahida Majilis-I-Amal party since 2003. These conflicting trends reflect a complex, if not completely blurred, collective identity, torn between modernity and tradition, universalism and religiosity. This has been rapidly translated into both the institutional and jurisprudential level of Pakistan’s constitutional landscape.

 

In 1973, Pakistani legislators departed from that country’s rich British common-law tradition by enabling the Pakistani judiciary to use Islam as an authoritative source in constitutional interpretation. In 1979, president Zia-ul-Haq established the Shari’at Benches at the provincial High Courts (a Federal Shari’at Court) as well as the Shari’at Appellate Bench at the Supreme Court; each of these would be responsible for ensuring the appropriate implementation of Shari’alaw. In 1985, president Zia went on to introduce the Ninth Amendment to the Constitution, article 227(1), which stipulates that “All existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Qur’an and Sunna, in this Part referred to as the Injunctions of Islam, and no law shall be enacted which is repugnant to such Injunctions.” In theory, this means that legislation must be in full compliance with principles of the Shari’a.

 

At the same time, the Supreme Court of Pakistan, while falling short of advancing a truly progressive human rights agenda by Western standards, has nonetheless emerged as a bastion of relative cosmopolitanism in an otherwise increasingly religious Pakistan. In response to the possible conclusiveness of 227(1), the Court developed its “harmonization doctrine,” according to which no specific provision of the Constitution, and that includes section 227(1), stands above any or all other provisions. The Constitution as a whole must be interpreted in a harmonious fashion so that specific provisions are read as an integral part of the entire Constitution, not as standing above it. At the same time, the Supreme Court of Pakistan retained its overarching jurisdictional authority, including its de facto appellate capacity over the Shari’at Appellate Bench at the Supreme Court. This has proved itself time and again to be a safety valve for secular interests.[14] In November 2004, the Supreme Court went on to curtail the Federal Shari’at Court’s competence to overturn any legislation judged to be inconsistent with the tenets of Islam. The Supreme Court held that any Shari’a-related jurisprudence that has significant constitutional law aspects to it must take a cohesive view of Pakistan’s constitutional law, as well as the supremacy of federal legislation over provincial legislation.[15] Combined with the general ambiguity and potential for contradiction in a country functioning with both Islamic and Western legal practices, a Constitution which seems to protect against the type of punishments established by say, the Hudood Ordinances(adopted in 1979 to introduce harsh penalties for the types of offences described in the Qur’an)but also establishes Pakistan as an Islamic state means that Pakistan has effectively been living the limbo of constitutional theocracy for over three decades now.

 

Egypt provides another version of constitutional theocracy. Judicial review was established in Egypt in 1979. Whereas family law has been governed by principles of the Shari’a, the criminal penal code is largely non-religious, as are numerous economic, property and investment rules. At the same time, according to Article 2 of the Egyptian Constitution as amended in 1980, principles of Islamic jurisprudence (the Shari’a) are the primary source of legislation in Egypt. Alongside this amendment, Islamism has enjoyed an astounding growth in Egypt over the last three decades. Under the guidance of the Muslim Brotherhood, Egyptian Islamism has consistently opposed the modernist-nationalist agenda advocated by the government, the historically powerful National Democratic Party, the “pro-statist” military, and, above all, Egypt’s high-income elites. The familiar challenges of constitutional theocracy emerged.

 

As its counterpart in Pakistan, the Egyptian Supreme Constitutional Court has emerged as an important forum for dealing with the core question of the status of Shari’a rules—arguably the most controversial and fundamental collective identity issue troubling the Egyptian polity. For over twenty years now, the Court has increasingly been called upon to determine the constitutionality of legislative and administrative acts on the basis of their adherence to the principles of the Shari’a. The question before the Court in all of these cases has been which principles of the Shari’a possess determinative and absolute authority.

 

To address this question in a moderate way, the Court developed an innovative interpretative matrix of religious directives—the first of its kind by a non-religious tribunal.[16] It departed from the ancient traditions of the fiqh (Islamic jurisprudence or the cumulative knowledge/science of studying the Shari’a) schools, and has instead 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 applications of those principles.”[17] In developing this somewhat elastic interpretive device, the Court relied on the fact that the classical Islamic jurists and the different schools of jurisprudence vary in their interpretations and applications of the texts. This wide scope offers the chance to implement Shari’a in different social environments and to allow jurists, including constitutional court judges who wish to invoke religious law, to choose which school they want to follow in a given instance.

 

According to the Supreme Constitutional Court, legislation that contravenes a strict, unalterable principle recognized as such by all interpretive schools is declared unconstitutional and void, while at the same time, ijtihad (contemplation or external interpretation) is permitted in cases of textual lacunae, or where the pertinent rules are vague or open-ended. Furthermore, the government has been given broad legislative discretion in policy areas where the Shari’a is found to provide unclear or multiple answers, provided that the legislative outcome does not contravene the general spirit of the Shari’a. This interpretive approach has marked a true shift in the paradigm for legitimizing government policies based upon a moderate, fairly liberal interpretation (ijtihad) of the Shari’a. In several landmark judgments concerning the scope of Shari’a in Egypt’s public life, the Court engaged in an autonomous substantive interpretation of both the Qur’an and evidence available on Sunna.

 

III. Conclusion

 

The theocratic challenge has become a significant factor in world politics as well as constitutional law. It stretches well beyond current media hot spots like Iran, Iraq, and Afghanistan, to encompass dozens of countries and constitutional systems. Any serious attempt to explore the intersection of constitutionalism and religion in the early 21^st century must include serious contemplation of the scope and nature of a different and increasingly common legal regime – constitutional theocracy. Regimes throughout the new world of constitutional theocracies have been struggling with questions of a profoundly foundational nature, forced to navigate between cosmopolitanism and parochialism, modern and traditional meta-narratives, constitutional principles and religious injunctions, contemporary governance and ancient texts, judicial and pious interpretation. More often than not, the clash between these conflicting visions results in fierce struggles over the nature of the body politic and its organizing principles. Reflecting sociopolitical order under constant duress, constitutional theocracies are thus a living laboratory for studying constitutional design, law, and politics.