In the wake of the 2011 revolution that toppled the Mubarak regime, an intense site of legal and political contestation was Art. 2 of the Egyptian Constitution and the statement that the principles of the Islamic shari’a are the “main source” of legislation. What is the history of this provision and its normative implications for Egyptian constitutional democracy? In examining recent jurisprudence of the Egyptian Constitutional Court, this paper interrogates a central paradox that on the one hand the shari’a has taken on distinctly secular liberal characteristics and sensibilities under Egyptian law, while on the other the Constitution gives it such extensive, anxiety-inducing, public power. How can both positions be possible in the same constitutional order? The paper argues that Art. 2 should be read neither as an attempt to secularize Islamic law nor subvert secular authority, but rather as a reflection of Egypt’s embeddedness within the problem-space of modern secular power.
This paper analyzes how the continued drift toward religiosity in Indian politics poses a challenge to secular democracy in India. The article traces the rise of the Bharatiya Janata Party and how the Supreme Court and Election Commission have acquiesced to ongoing erosion of secularism. Since its victory in 2014, the BJP continues to deploy religious rhetoric in elections, and has enacted policies targeting religious minority groups leading to a surge in violence and oppression. It then analyzes how religious nationalism is being deployed in the 2019 elections, the likely strategy of opposition parties, and assesses both political and legal strategies for restoring secularism in India's democracy.
The relationship between religion and the state in Israel has always been fraught with difficulties. While Israel perceives itself, and is perceived by many, as a liberal democracy, the thick, albeit partial, establishment of orthodox Jewish religion in the state, together with the state's partly religious raison d'etre and self-understanding, defy this perception. Moreover, the coupling of religious ideology with nationalistic fervor following the 1967 occupation of the territories has enabled religious nationalism to become a major driving force behind the democratic crisis that Israel has been experiencing in recent years. Religious forces are taking advantage of the inherent weaknesses of Israel's semi liberal constitutionalism and of the current democratic crisis to buttress the power of religious nationalism and of religion in general and to dismantle liberal rights protections and the rule of law.
The need for relative or even strict autonomy between state and religion has often been contended to be a necessary condition for democratic government. This position however is tenuous in religious societies where religion is not only an important identity marker but one that animates political and social action. The constitutional system in many such societies therefore tends to be mixed, rather than secular. This means that the constitution accommodates both secular and theocratic aspects of government. Under such conditions of mixed constitutionalism, democratic space is likely to be dominated by strong contestations between secularists and theocrats. While this may be seen as creating a crisis in constitutional democracy, some may argue to the contrary that this is itself a manifestation of a vibrant democracy. This paper examines these positions and proposes that mixed constitutions require a framework of mutuality in order to preserve accommodative constitutional democracy.