Constitutional Theocracy by Ran Hirschl

By Ran Hirschl

On the intersection of 2 sweeping worldwide trends—the upward push of renowned help for ideas of theocratic governance and the unfold of constitutionalism and judicial review—a new criminal order has emerged: constitutional theocracy. It enshrines faith and its interlocutors as “a” or “the” resource of laws, and even as adheres to center beliefs and practices of contemporary constitutionalism. a distinct hybrid of it sounds as if conflicting worldviews, values, and pursuits, constitutional theocracies hence provide a terrific setting—a “living laboratory” because it were—for learning constitutional legislations as a kind of politics by way of different capacity. during this e-book, Ran Hirschl undertakes a rigorous comparative research of religion-and-state jurisprudence from dozens of nations around the globe to discover the evolving position of constitutional legislation and courts in a non-secularist global. Counterintuitively, Hirschl argues that the constitutional enshrinement of faith is a rational, prudent technique that permits competitors of theocratic governance to speak the spiritual speak with out jogging such a lot of what they regard as theocracy’s unappealing, high priced stroll. a number of the jurisdictional, enforcement, and cooptation merits that gave spiritual criminal regimes an facet within the pre-modern period, are actually supporting the fashionable kingdom and its legislation in its attempt to comprise faith. The “constitutional” in a constitutional theocracy therefore fulfills a similar proscribing functionality it includes out in a constitutional democracy: it brings theocratic governance less than cost and assigns to constitutional legislations and courts the duty of a bulwark opposed to the specter of radical faith.

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At least at the declaratory level, such regimes hold an atheist position that associates religion in both the public and the private spheres with backwardness, colonialism, and false consciousness. The Communist-atheist vision thus advocates, at least at a principled level, a concentrated effort by the state to eliminate religion. The establishment of the People’s Republic of China in 1949, for example, was accompanied by a campaign to eradicate religion from Chinese life and culture. China’s attitude toward religion was relaxed considerably in the late 1970s with the 1978 constitution’s formal guarantee of freedom of religion.

Although judges of the ordinary courts are usually appointed by the Ministry of Justice from graduates of recognized Shari’a law colleges, members of the commission for the settlement of commercial 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’a rules. A modern, business-friendly foreigninvestment law was adopted in 2000, and taxes on foreign firms were drastically slashed in 2003.

The supreme leader has the power to dismiss the religious members of the Guardian Council, but not its jurist members (Article 91). , Ayatollah Khomeini’s 1989 introduction of the Regime’s Discernment Expediency Council [Majma-e Tashkhis Maslahat Nezam] to serve as the final arbiter between the generally more progressive Consultative Assembly and the distinctly more conservative Guardian Council), and carried-over legacies of the 1906 Imperial Constitution, primarily with respect to the popular source of sovereignty, an elected parliament, and some separation-of-powers principles, Iran’s constitutional order is a living exemplar of a strong form of constitutional theocracy.

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