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Theocratic Constitutionalism: an Introduction to a New Global Legal Ordering

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Theocratic Constitutionalism: an Introduction to a New Global Legal Ordering Indiana Journal of Global Legal Studies Volume 16 Issue 1 Article 5 Winter 2006 Theocratic Constitutionalism: An Introduction to a New Global Legal Ordering Larry Catá Backer Coalition for Peace and Ethics Follow this and additional works at: https://www.repository.law.indiana.edu/ijgls Part of the Constitutional Law Commons, International Law Commons, and the Law and Politics Commons Recommended Citation Backer, Larry Catá (2006) "Theocratic Constitutionalism: An Introduction to a New Global Legal Ordering," Indiana Journal of Global Legal Studies: Vol. 16 : Iss. 1 , Article 5. Available at: https://www.repository.law.indiana.edu/ijgls/vol16/iss1/5 This Symposium is brought to you for free and open access by the Law School Journals at Digital Repository @ Maurer Law. It has been accepted for inclusion in Indiana Journal of Global Legal Studies by an authorized editor of Digital Repository @ Maurer Law. For more information, please contact [email protected]. Theocratic Constitutionalism: An Introduction to a New Global Legal Ordering LARRY CATA BACKER* ABSTRACT The twentieth century has seen afundamentalshift in the ways in which constitu- tions are understood. By the middle of the twentieth century, a new sort of constitu- tionalism emerged, rejecting the idea of the legitimacy of every form of political selfconstitution. The centralassumptions ofthis new constitutionalism were grounded in the belief that not all constitutionswere legitimate,and that legitimate constitutions shared a number of universal common characteristics.These common characteristics were both procedural (againstarbitrary use of state power) and substantive (limiting the sorts ofpolicy choices states could make in constituting its government and exercis- ing governancepower). These proceduraland substantive norms were, in turn, an ar- ticulation ofa "higherlaw" ofthe community ofnations, reflectinga global communal consensus evidenced in common practice or internationalagreements. The authority and legitimacy ofthis global secular transnationalconstitutionalism has not gone un- challenged. On the one hand,state power traditionalistsreject the notion of extra-na- tional normative constraints on constitution making. On the other hand, there has been an intensification ofchallenges from universalistsof different schools,from natu- ral law theorists to pluralist constitutionalists.Among the most potent of these groups have been religious transnationalconstitutionalists who have argued that one or an- other of the current crop of universalist religions ought to serve as the foundation of normative discipliningof constitution making. But do these movements representcon- stitutionalism?If they do, then what are their characteristics? This article examines these questionsfrom the context of the most developedform of * Director, Coalition for Peace and Ethics, Washington, D.C.; Professor of Law, Pennsylvania State University. Email: [email protected]. My thanks to Miguel Schor and Adeno Addis, who have inspired and enriched my approach to this material. Special thanks to my research assistant, Augusto Molina, for excellent work on this project. Indiana Journal of Global Legal Studies Vol. 16 #1 (Winter 2009) @Indiana University Maurer School of Law - Bloomington INDIANA JOURNAL OF GLOBAL LEGAL STUDIES 16:1 theocratic transnationalconstitutionalism-that of Islam. The object will be to examine the great variation of Islamic and Islamic-influencedconstitutions to see if these represent the emergence of a constitutionalism with characteristicsthat can be clearly articulated, if it is possible within this system to distinguish between legitimate and illegitimatecon- stitutions,and if there are characteristicsof this constitutionalism that clearly distinguish it from secular transnationalconstitutionalism. Part I critically reviews the main cur- rents of twenty-first century notions of constitutionalism and focuses on theocracy as a principleof governance. Part II suggests the possibility offusing the legitimating struc- tures of modern constitutionalism with the substantiveframework of theocracy to pro- duceapossiblesetofcharacteristics that wouldmarka legitimateIslamic constitutionalism, distinguishing Islamicconstitutions from Islamic constitutionalism.Part III then applies this understandingof theocraticconstitutionalism to the constitutional"families" of reli- gious constitutions in which Islamic law has become part ofthe structuralarchitecture of the constitution itself,suggesting points of convergence and divergence with the values and norms ofsecular transnationalconstitutionalism. INTRODUCTION The twentieth century saw a fundamental shift in the ways in which constitu- tions are understood.' The century saw a movement away from a consensus, how- ever tenuous, that constitutions were necessarily expressions of the internal social, political, and economic choices of a unique, territorially-bounded, political commu- nity.2 Constitutionalism, then, was internally directed and focused on legality- Rechtsstaat notions.3 The critical questions of constitutionalism were the authenticity 1. Demonstration of this shift was an object of my earlier article, Larry CatA Backer, God(s) Over Constitutions: Internationaland Religious TransnationalConstitutionalism in the 21st Century, 27 Miss. C. L. REV. 11 (2008). 2 See WESTEL W. WILLOUGHBY, THE FUNDAMENTAL CONCEPTS OF PUBLIC LAW 30 (1924). Wil- loughby, like his contemporaries, rejected a natural law or universalist approach to constitutional settlement and instead embraced the notion that "the State may be conceived of as itself the sole source of legality, thefons et origo of all those laws which condition its own actions and determine the legal relations of those subject to its authority." Id. 3. As originally understood, it focused on the lawfulness of action-that is that a governmental action be taken strictly in accordance with law-but did not limit the range of lawful assertions of government power. "The Rechtsstaat could provide redress against administrative action but stopped short of providing a general sanction against governments. As a result, the Prussian government was strictly non-responsible in both a political and legal sense." GORDON SMITH, DEMOCRACY IN WESTERN GERMANY 9 (1979). See id. at 186-88 for a discussion on traditional Rechtsstaat. For a discussion about its modern incarnation, see Nobushige Ukai, The Individual and the Rule of Law Under the New JapaneseConstitution, 31 IND. L.J. 733, 735-737 (1956). See also THOMAS M. FRANCK, FAIRNESS IN THEOCRATIC CONSTITUTIONALISM of the polity, the formal legality of the power of the state apparatus to act, and the conformity of the actions of the state (legislature, executive, and courts) to the re- quirements of law (protection against arbitrary action) The results could be per- verse, but as long as they conformed to the law, they might be considered legal.5 Those choices, however odious, were legitimate to the extent there was power to enforce them. The loci of authority, sovereignty, elections, citizenship, and formalist conformity to process (due process without substantive values) were the key vari- ables.6 Verticality of authority was not a necessary prerequisite. The U.S. Constitu- tion expressly insisted on its supremacy in writing and provided a difficult procedure for modification.7 This was not necessarily obvious to others; in later constitutions, the relationship between the law of the constitution and that of other acts was am- biguous, with a power in the legislature, for example, to amend either without much difficulty. Other states might express their agreement or disagreement with the in- ternal constitutive choices of other states, and the local population might seek to change the choices or rebel, but the legitimacy of the constitution itself was a func- tion principally of the legality of its content and the integrity of the system employed to enact and enforce it. Where the choices were sufficiently offensive to powerful foreign states in ways that conflicted with the interests of those more powerful states, offending states might be reduced to either secondary or colonial status.8 This con- INTERNATIONAL LAW AND INSTITUTIONS 41 (1995) ("In most national communities, a law draws sup- port from its having been made in accordance with the process established by the constitution, which is the ultimate rule of recognition."). 4. See CARL SCHMITT, LEGALITY AND LEGITIMACY 18 (Jeffrey Seitzer ed. &trans., 2004). For the softer American conventional version, see CONSTITUTIONALIsM: THE PHILOSOPHICAL DIMENSION 4 (Alan S. Rosenbaum ed., 1988). 5. For a discussion of the perversities of these systems in extreme cases-that of Nazi Germany and Vichy France, see Vivian Grosswald Curran, Fear of Formalism: Indicationsfrom the Fascist Period in France and Germany of Judicial Methodology's Impact on Substantive Law, 35 CORNELL INT'L L.J. 101 (2002). 6. A lively theoretics of constitutions was produced at the end of the nineteenth century to reflect these concerns. See, e.g., ALBERT V. DICEY, INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTI- TUTION 3-35 (9th ed. 1952). But authoritarian constitutionalism also had its proponents. For an ex- ample from an early twentieth century analysis of the Japanese Imperial Constitution, see HIROBUMI ITO, COMMENTARIES ON THE CONSTITUTION OF THE EMPIRE OF JAPAN (Miyoji Ito trans., 2d ed. 1906). 7. See, e.g., EDWARD S. CORWIN, THE "HIGHER LAW" BACKGROUND OF AMERICAN CONSTITU- TIONAL LAW (Cornell University Press
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