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Khalil on Constitutionalism for Arab States

By Lawrence Solum

Asem Khalil (Birzeit University) has posted From Constitutions to Constitutionalism: An Opportunity for Arab States, Not a Paradox on SSRN. Here is the abstract:

Most contemporary states have adopted written and rigid constitutions. A constitution presumes the existence of a constituent power, distinct from the constituted powers, which are created by the constitution itself. If one admits that the constituent power refers to a pre-existing collective, i.e. a ?We? that are able, as a collective who is aware of being so, to will and to express that will in a comprehensive and distinctive way, then one cannot deny the simple conclusion which implies that a constituent power entails a representative claiming to talk in the name of that ?We.? This is the paradox of constitutionalism, to which some scholars refer.

The two imperatives of modern constitutionalism are, indeed, that of governmental power, on one hand, which is generated by the ?consent of the people,? and, on the other hand, in order to be sustained and effective, such power must be divided, constrained and exercised through distinctive institutional forms. This paradox reflects the dilemma that arises from the dialectical interaction between constituent power and constitutional form, between democracy, as the rule of the people, and the rule of law. The only way out seems to be the adoption of a specific concept of democracy that is nothing else but a political organization, that, appealing to the rule of law, postpones the acts of attribution by establishing the minimal conditions under which such acts may be viewed, ever provisionally, as acts of the people.

This suggestion has the advantage of resolving the paradox in constitutionalism: the rule of law is presented as a camouflage, in which the appearance of attribution to the people is presented as an alternative to the real attribution. In a sense, however, it seems that the camouflage is a necessary, almost inevitable, fiction; largely because it is impossible to know what the people want ? admitting at the first place that the people can ever have one unique will ? but most importantly, because even those who pretend to know what the people want and pretend to have the authority to express that will, are ? if they want to be coherent with what they pretend ? always subject and subordinate to the continuously changing will of the people; in other words, it is by their same presupposition (expressing the people?s will) that they may be discredited or even resisted by other competing authorities. Such situation leads inevitably to what can be described as a continuous and perpetual revolution, ergo to the complete opposite of what political organization is, at first place.

The rejection of constitutionalism in Arab states, which means the rejection of both democracy and the Rule of the law, in the name of that ?people,? with its cultural and religious particularity (in which case Arab or Muslim state is presented as special, unique, to be distinguished from other kinds of state, such as Western states for example) is nothing else but a contradiction. The simple fact that a people are defined by a political organization at the first place means that the time of complete revolution is over, and the fiction of minimal attribution had started. In such a context, the use of the ?people? to reject limitation on government is only an excuse of the existing regimes to resist transition to democracy and the rule of law.

Full post as published by Legal Theory Blog on March 30, 2010 (boomark / email).