New book on constitutional theocracies/secularizing influence of constitutional courts

From 2004 article by same author: (one-click download to get pdf of entire paper)

This article is divided into four major sections. In the first three parts, I explore the crucial secularizing role of constitutional jurisprudence in three countries facing a secular/religious divide - Egypt, Israel, and Turkey. These three countries have witnessed a considerable increase in the popular support for, and influence of, theocratic political movements. At the same time, these three countries differ in their formal recognition of, and commitment to, religious values. For example, Article 2 of the Egyptian Constitution, as amended in 1980, states that principles of Muslim jurisprudence (the Shari'a) are the primary source of legislation in Egypt, while Israel defines itself as a Jewish and Democratic state; modern Turkey, conversely, characterizes itself as secular, adhering to the western model of strict separation of state and religion. Accordingly, there are considerable differences in the interpretive approaches and practical solutions adopted by the three countries' respective high courts in dealing with core religion and state questions. Egypt's Supreme Constitutional Court has developed its own moderate interpretation from within of religious rules and norms. The Israeli Supreme Court has tackled the tension between these conflicting values by curtailing the jurisprudential autonomy of religious courts and tribunals, and by subjecting their jurisprudence to general principles of administrative and constitutional law. The Turkish Supreme Court, on the other hand, has opted for the outright exclusion of religious values and policy preferences from legitimate political discourse. Despite these dissimilarities, there are striking parallels in the way constitutional courts in these and other similarly situated countries have positioned themselves as important secularizing forces within their respective societies. I conclude this paper by suggesting that anti-religious judicial activism in constitutional theocracies provides important insights for understanding the political origins of judicial power.