In this paper, I suggest that we consider constitutionalism as an opportunity for contemporary Arab states. I begin by arguing that modern constitutionalism at its core involves the idea of government limited by a concern to restrict states’ margins of manoeuvrability by imposing limitations on them in the name of rule of law and human rights imperatives. These limitations are articulated and defended, explicitly or implicitly, in the name of some higher normative order that embraces the primacy of individual freedoms and of equality.
But modern constitutionalism, so understood, is deemed to generate a paradox with which contemporary states need to coexist. This paradox is that the constitution is both sourced in particularistic consent and in universal, ‘higher’ normativity. While such paradox is often portrayed as being particularly problematic for Arab or Islamic states given certain historical and cultural particularities, I will argue—against the conventional wisdom of the previous viewpoint—that the problem of particularism is in fact endemic within modern constitutionalism.
Besides the doctrinal disagreement about what constitutionalism is in the first place, scepticism expressed towards modern constitutionalism is the result of framing the issue of resistance of contemporary states as a matter of ‘legitimacy’. I will refute such arguments that justify rejection of modern constitutionalism in the name of religious or cultural particularities, arguing instead that those who use such arguments are simply looking at new realities through old lenses.
Accordingly, the main concern of this paper is not to reconcile modern constitutionalism with Arab and Islamic culture; rather it is to show that the core problem lies elsewhere. The issue at stake is to be able to explain and justify why and how it is possible for state powers to be limited by a superior normative order, notably one in which human rights is an essential part. In fact, whenever human rights normativity is also associated with international law or transnationalised discourses and not merely with the state’s own positive constitutional law, different questions are generated and need to be dealt with than the ones that appear to be central prima facie. In fact, the general outlook may be brightened by the recent internationalisation of constitutional law and its influences.
Khalil, Asem. From constitutions to constitutionalism in Arab states: beyond paradox to opportunity. Transnational Legal Theory. 1(3), 2010, 421-451.