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Book Review: Lorianne Updike Toler on “Constitution Writing, Religion, and Democracy” (Asli Ü. Bâli and Hanna Lerner eds.)

[Editor’s Note: In this installment of I•CONnect’s Book Review Series, Lorianne Updike Toler reviews Constitution Writing, Religion, and Democracy (Asli Ü. Bâli and Hanna Lerner, eds., Cambridge University Press, 2017).]

Lorianne Updike Toler, Visiting Fellow, Information Society Project, Yale Law School

Constitution Writing, Religion and Democracy edited by Asli Ü. Bâli and Hanna Lerner (Cambridge University Press, 2017) is an incredibly ambitious work that provides unique and needed insight into the influences and impact of religion on constitution writing and interpretive processes. In doing so, it fills holes in the scholarly literature in both the constitution-writing and law and religion spaces.

Not only does it address a core conflict as among drafters, but the volume also addresses a core conflict as between the international community interested in liberal, democratic nation-building and Muslim majority states committed to their own “meta-constitutional” text as found in the Qur’an and Sharia Law. Drawing on ten discrete case studies and three comparative studies, Constitution Writing, Religion and Democracy commits all but three chapters by contributing authors (including one by Hannah Lerner on Israel) to cases wherein Islam played a role in intra or inter-religious constitutional conflicts including the following: Israel, India, Indonesia, Lebanon, Morocco, Pakistan, Senegal, Sri Lanka, Tunisia, and Turkey. With the exception of India, which is addressed in a comparison study of Sri Lanka and Pakistan, the volume thus focuses the reader away from traditional cases prevalent in English literature towards those that are not.

For all its virtues, however, there are several challenges invariably related to the nature and enormity of the editors’ chosen task. The main issue—one quite common among edited volumes—was an overarching inconsistency across essays. For instance, each author dealt differently with the order and method of addressing country-specific, fact-heavy constitution writing history and the impact and role of religious conflict. Some authors wrote descriptive essays exclusively devoted to expounding history, while a minority wrote normative essays. Too, as mentioned earlier, ten essays focus on a single state’s constitution-writing process, while three discuss regional or comparative issues (Chapters 9, 12 and 13). Although all focused on religious conflict as it bore on constitutionalism, the essays varied greatly in how this meta-topic was addressed. Some essays focus much more on the pre-history of religious conflict (Israel & Lebanon), while others focus more on post-constitutional interpretation and settlement (Indonesia, Norway, Pakistan, Senegal). In part, this divergence stems from a basic split in the cases: some address the process of enacting a formal, written text (Morocco, Tunisia, and West Germany), while others discuss the “material” or lived constitution, defined by Hans Kelsen as the system of formal and informal rules regulating the political order, including conventions, customs, and judicial interpretations (Indonesia, Japan, Norway, Pakistan). Cases also treated the nature of religious conflict differently. While all states include religious minorities, most focus more narrowly on intra-religious conflict (Muslim majority states and Norway), while a minority focus on inter-religious conflict (India, Lebanon, Senegal, Sri Lanka, and West Germany). The issues addressed within these two broad categories also varied: religious education, secularism, pluralism, the role of sharia, religious tolerance, and recognition versus establishment of religion.

In all, the essays contained in Constitution Writing, Religion and Democracy present compelling individual portraits of the intersection between constitutionalism and religion, yet each contributions’ unique fluency, structure, composition, sub-topics, and focus resists synthesis of the entirety into a composite landscape. It is difficult, for example, to compare the disputes over religious education in post-war Germany to the surprisingly religious liberalism of the royally cloistered Moroccan drafting process. So too for the unique Senegalese interpretation of laïcité as compared to the Pakistani parliament’s recognized authority to define and settle positive Islamic law.  In all, the essays contained in Constitution Writing, Religion and Democracy are not unlike apples and oranges that bear a meta-relationship as seed-containing fruit yet defy most other comparisons due to their marked differences.

Based on the compiled empirical evidence presented by the case studies, the main thrust of Bali and Lerner’s thesis is that incremental constitutional change may be optimal for deeply divided religious societies. Such incremental change is permitted by ambiguous constitutional texts that effectively “transfer contentious questions to the arena of ordinary politics” (Indonesia, Tunisia, and Morocco), deferral (Israel and India), include competing constitutional phrasing (Senegal, Lebanon, Morocco, Egypt), and make certain texts nonbinding and nonjusticiable (Pakistan, India, Tunisia). Yet this conclusion is not born out by the evidence. Incrementalism has most decidedly failed in Israel, where, despite the best of intentions and the frustration of many if not most politicians, the “deferred” constitution has yet to materialize, and in Lebanon, where “temporary” confessionalism did nothing to prevent more than a decade of civil war and bloodshed. Incrementalism also failed to prevent the 1958 Pakistani coup lead by Mohammad Ayub Khan, the 2013 military coup in Egypt, or prevent the deprivation of citizenship and franchise rights of Tamil ethnic and religious minorities in Sri Lanka. In Egypt (2014), Morocco, and Tunisia, it is too soon to tell. In fact, the places where incrementalism seems to have worked as a constitutional strategy for religious division in Senegal, Indonesia, India and Germany (Japan falling outside of the paradigm completely), all partake of the Western tradition either directly or through colonialism. Thus the success of incrementalism there may in fact be attributable to factors extrinsic to the study. In sum, it may be too early to say that incrementalism is the best approach in dealing with deep religious division.

Finally, the editors’ selection of under-studied cases is compelling for many reasons, but despite its novelty, may still not go far enough. The volume has great potential to inform and sensitize Western actors and powers to the particular challenges and perspectives of Muslim majority states. Yet the inclusion of the non-Muslim majority cases (Norway, Germany and Japan) contributed to the heterogeneity of the cases, felt out of sync with the focus on understudied cases (Germany and Japan having been extensively analyzed), and diluted the otherwise powerful comparative purchase of the volume.

In all, even if its overall conclusions may be problematic in some respects, Constitution Writing, Religion and Democracy presents a major contribution for its diversity of individual case studies from a range of understudied contexts. It will be particularly useful in enhancing Western sensitivities to the unique issues and meta-constitutionalism of Muslim majority states in constitutional transition.

Suggested citation: Lorianne Updike Toler, Book Review: Lorianne Updike Toler on “Constitution Writing, Religion, and Democracy” (Asli Ü. Bâli and Hanna Lerner eds.), Int’l J. Const. L. Blog, April 16, 2020, at: http://www.iconnectblog.com/2020/03/book-review-lorianne-updike-toler-on-constitution-writing-religion-and-democracy-asli-u-bali-and-hanna-lerner-eds/

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Published on April 16, 2020
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