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
Middle East Law and Governance – Brill
Published: Jan 1, 2009
Keywords: TURKEY; EGYPT; CONSTITUTIONAL LAW; ISRAEL; ISLAM; RELIGION; PAKISTAN
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