The Theocratic Challenge to Constitution Drafting in Post-Conflict States

The emergence of a new legal order - constitutional theocracy, which is now shared in one form or another by dozens of countries in the developing world - provides important insights into the sociopolitical role of constitutionalism in predominantly religious settings. Regimes throughout the new world of constitutional theocracies have been struggling with these foundational quandaries, 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. In this Article, I explore several key aspects of constitutionalism in a theocratic world. I begin by defining the concept of constitutional theocracy and its emergence as a new form of governance over the last few decades. Second, I identify the challenges posed by the theocratic surge to canonical power-sharing, consociational models for mitigating tensions in multi-ethnic polities. In the Article's third Part, I survey five constitutional responses to the problem of religion and state and examine a few innovative legal developments employed by countries in the Islamic world to hedge the challenge of constitutional theocracy. In the fourth Part, I explore the secularizing role of constitutional courts and jurisprudence in predominantly religious polities. Examples are drawn from Egypt, Pakistan, Turkey, Israel, Nigeria, Malaysia, and other polities facing deep social and political tensions along the secular/religious divide.