Regimes Reinventing Themselves Constitutional Development in the Arab World (original) (raw)

Arab constitutionalism and the formalism of authoritarian constitutionalism

forthcoming in: Helena Alvar Garcia and Gunter Frankenberg, "Authoritarian constitutionalism: analysis and critique", 2019

This chapter challenges different manifestations of a “formalist” approach to constitutional theory. The formalist approach deploys several labels and distinctions (constitutions without constitutionalism, authoritarian, ideological, instrumentalist, and temporary) that question the constitutional legitimacy of non-North American and non-Western European constitutions because these are considered as merely political instruments lacking the supremacy and rigidity of higher law. This approach is formalist in two senses: it is overly focused on the text (or constitutional form), and it assumes that abstract categories determine the constitutional content or practice. Ottoman and Arab constitution-making, the subject of this chapter, illustrate that this formalist approach is deficient because it is impervious to constitutional and political practice. As such, and while “ideological” is often used in the “positive sense” to convey a system of ideas, it has negative “ideological” effects because it juxtaposes these constitutions to an idealised version of liberal constitutions (understood as “normative”, supra-political constitutions) and discounts constitutional experiences that fall outside the orbit of North America and Europe. This chapter is organized as follows. The first section presents the general argument by focusing on the notion of “constitutions without constitutionalism”. The second section zeros in on the notion of “authoritarian constitutionalism” and the third and fourth sections scrutinize its accompanying sub-categories “ideological”, “instrumental”, and “temporary” constitutions. It is argued that these categories are neither analytically illuminating nor descriptively informative. Arab constitutions served different purposes, included inconsistencies, and provided a space for political struggle and contestation. Thus, these abstract categories foreclose a nuanced and properly contextualized analysis of post-colonial constitutional orders. The final section, the Conclusion, elaborates on the framing effects of these abstract categories.

The Impact of Western Constitutionalism on Constitutional Development in Muslim States

The Islamic world has spent centuries forming its legal structures from which its various concepts of a constitution and the constitutional process have been derived. Constitutional law, one of the most significant legal concepts, is affected by social and political developments. The constitutional structure of Muslim states, especially those of the Gulf States, differs considerably from those of the non-Gulf states. For example Kuwait, Bahrain, Qatar, and the United Arab Emirates (UAE) all have recognizably modern written constitutions, whereas Saudi Arabia and Oman have no written constitution at all. In these latter states, the rulers are guided principally by the Shari‗ah. This paper analyzes the constitutional development of Muslim states in two main frameworks: the historical backdrops of their constitutional processes (focusing on the structure of their current constitutions) and that of the Ottoman Empire (giving special attention to its successor: the secular Republic of Turkey).

Constitution Drafting After the Arab Spring: A Comparative Overview

29 Indiana Journal of Global Legal Studies 1, 2022

Scholars have written extensively on the content of post-Arab Spring constitutions, highlighting these constitutions' strengths and weaknesses. Less attention has been devoted to the processes that led to the adoption of these new documents. By providing a comprehensive comparative analysis of these constitution-drafting processes, this Article aims at contributing to filling this gap in the literature. Special focus is placed on the constitution-making processes followed in Morocco (constitution of 2011), Syria (constitution of 2012), Tunisia (constitution of 2014), and Egypt (constitutions of 2012 and 2014—the latter being amended in 2019), as well as on the constitutional reform processes that took place in Jordan (2011, followed by the constitutional amendments adopted in 2014 and 2016) and Algeria (2016 and 2020). Reference is also made to the ongoing constituent process in Libya and to the UN-facilitated process aimed at adopting a new constitution for Syria. The Article shows that the vast majority of these processes were characterized by major shortcomings, a fact that had a negative impact on the legitimacy and sense of ownership of the new constitutions and, ultimately, on the transition processes as a whole. The only notable exception appears to be Tunisia, where the 2014 constitution was the outcome of a profoundly democratic process.

Constitutionalism in the Middle East

POLITIKA, 2017

Online encyclopedia POLITIKA, 2017. Summary: The intellectual and political history of the Middle East has been marked by constitutionalism since the nineteenth century. It was the principal movement contributing to the spread of modern political values associated with democracy, but also led to the emergence of new forms of authoritarianism which developed in a political order no longer regulated by the principles of monarchic and divine legitimacy. The Iranian and Ottoman Revolutions (1906 and 1908 respectively) transformed constitutionalism into a reality for most of the Middle East, bequeathing a legacy of major significance to the twentieth century.