Edited by Tom Ginsburg and Rosalind Dixon
Chapter 23: Comparative Constitutional Law and Religion
Ran Hirschl 1 INTRODUCTION The rule of law and the rule of God – two of the most powerful ideas of all time, an ‘odd couple’ of sorts, diametrically opposed in many respects, yet at the same time sharing strikingly similar characteristics, each with its own sacred texts, interpretive practices, and communities of reference – seem destined to collide. Their charged encounters are further accentuated by the intersection of two broad trends: the return of religion to the forefront of world politics and global convergence to constitutionalism. Religion and the belief in God have made a major comeback. From the fundamentalist turn in predominantly Islamic polities to the spread of Catholicism and Pentecostalism in the global south, and from the increase in religiously devout immigrants in Europe to the rise of the Christian right in the United States, it is hard to overstate the significance of the religious revival in late twentieth and early twenty-first century politics. At the same time, the world has witnessed the rapid spread of constitutionalism and judicial review. Constitutional supremacy – a concept that has long been a major pillar of the American political order – is now shared, in one form or another, by over 150 countries and several supra-national entities across the globe. In this chapter, I delineate two key aspects of the tense intersection of constitutional law and religion worldwide: (i) the range of constitutional models – from atheism or strict separation to full enshrinement – for arranging ‘religion and state’ relations; and (ii) the main types of...
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