Juristocracy vs. Theocracy: Constitutional Courts and the Containment of Sacred Law

Juristocracy vs. Theocracy: Constitutional Courts and the Containment of Sacred Law Middle East Law and Governance 1 (2009) 129–165 © Koninklijke Brill NV, Leiden, 2009 DOI 10.1163/187633708X396478 brill.nl/melg Juristocracy vs. Th eocracy: Constitutional Courts and the Containment of Sacred Law Ran Hirschl* University of Toronto, Toronto Abstract One of the fascinating yet seldom explored phenomena in predominantly religious polities in the Middle East and elsewhere is the growing reliance on constitutional courts and their jurispru- dential ingenuity to contain the spread of religiosity or advance a pragmatic version of it. In this article, I explore the scope and nature of this phenomenon. I proceed in several main steps. First, I defi ne what may be termed “constitutional theocracy” with its often confl icting legal commit- ments, political interests, and social realities. Second, I examine the main epistemological, jurid- ical and political reasons why constitutional law and courts are so appealing to secularist, modernist, cosmopolitan, and other non-religious social forces in polities facing deep divisions along secular/religious lines. Th ird, I look at various modes of interpretive ingenuity drawn upon by constitutional courts in Egypt, Pakistan, Israel, and Turkey in order to contain, limit, and mitigate the resurgence of religiosity in their respective polities. All of these countries have experienced http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Middle East Law and Governance Brill

Juristocracy vs. Theocracy: Constitutional Courts and the Containment of Sacred Law

Middle East Law and Governance, Volume 1 (2): 129 – Jan 1, 2009

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Publisher
Brill
Copyright
© 2009 Koninklijke Brill NV, Leiden, The Netherlands
ISSN
1876-3367
eISSN
1876-3375
D.O.I.
10.1163/187633708X396478
Publisher site
See Article on Publisher Site

Abstract

Middle East Law and Governance 1 (2009) 129–165 © Koninklijke Brill NV, Leiden, 2009 DOI 10.1163/187633708X396478 brill.nl/melg Juristocracy vs. Th eocracy: Constitutional Courts and the Containment of Sacred Law Ran Hirschl* University of Toronto, Toronto Abstract One of the fascinating yet seldom explored phenomena in predominantly religious polities in the Middle East and elsewhere is the growing reliance on constitutional courts and their jurispru- dential ingenuity to contain the spread of religiosity or advance a pragmatic version of it. In this article, I explore the scope and nature of this phenomenon. I proceed in several main steps. First, I defi ne what may be termed “constitutional theocracy” with its often confl icting legal commit- ments, political interests, and social realities. Second, I examine the main epistemological, jurid- ical and political reasons why constitutional law and courts are so appealing to secularist, modernist, cosmopolitan, and other non-religious social forces in polities facing deep divisions along secular/religious lines. Th ird, I look at various modes of interpretive ingenuity drawn upon by constitutional courts in Egypt, Pakistan, Israel, and Turkey in order to contain, limit, and mitigate the resurgence of religiosity in their respective polities. All of these countries have experienced

Journal

Middle East Law and GovernanceBrill

Published: Jan 1, 2009

Keywords: TURKEY; EGYPT; CONSTITUTIONAL LAW; ISRAEL; ISLAM; RELIGION; PAKISTAN

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