The enactment of constituent power in the Arab World: the Palestinian case (2006)

Constituent power is the authority to frame or to amend a particular text, superior to other laws, called the constitution. What distinguishes framing power from amending power is that the latter changes the constitution in ways provided therein, while the former amends it outside any precedent constitutional framework. Most modern states have adopted written and rigid constitutions. According to Sieyès1 -the first to present a sophisticated theory of constituent power- ‘une constitution suppose avant tout un pouvoir constituant’, as distinguished from other constituted powers created by the constitution itself. Since a constitution is the highest Law in the state, constituent power must invest those entitled to sovereignty. To close the vicious cycle, most constitutions provide that those entitled to sovereignty are the people, and consequently, entitled to constituent power. Constituent power presupposes the ability of a society to develop its capacity to act as a collective, in order to gain (or regain) an active role in the organization of individuals’ lives and their social relationships with each other. Here, several approaches are possible, depending on the concept of nation, and thus on culture. For Arab nationalists, the (Arab) nation exists as a human group with its own characteristics, such as language, history and traditions. Attempts to unite ended in failure, and Arab nationalism began to exist within Arab territorial states. The ethnic concept of nation initially helped to justify a revolution against other Muslims, but it was unable to distinguish individual Arab peoples or justify territorial Arab states. What makes a Jordanian different from a Palestinian, a Lebanese from a Syrian? 

Keywords: #Constituent_power_Palestine; #Constitution_Palestine; #Constitutional_law_History_Palestine; #Constitutional_history_Palestine.

Impressum – legalis

Khalil, Asem. The Enactment of Constituent Power in the Arab World: the Palestinian Case, PIFF, Etudes et Colloques 47, Helbing & Lichtenhahn, 2006, 300 pages.

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