From Constitutions to Constitutionalism: An Opportunity for Arab States, Not a Paradox

43 Pages Posted: 30 Mar 2010

Date Written: March 29, 2010

Abstract

The paradox of modern constitutionalism resides in having two imperatives, apparently irreconcilable, i.e. a governmental power generated from the ‘consent of the people’ and, in order to be sustained and effective, that power must be divided, constrained and exercised through distinctive institutional forms. This paradox reflects the dilemma arising from the dialectical interaction between constituent power and constitutional form.

I will argue that constitutionalism, as a limited government, does not contradict with Arab and Islamic legal culture. While modern constitutionalism, as a normative order, requires the adherence to the rule of law and the protection of human rights, it is in the name of national, religious, historic or cultural particularities that modern constitutionalism is discredited, as being essentially ‘Western’, not appropriate for Arab-Islamic culture.

This paper challenges this rejection and argues for the possibility, and the necessity thereof, of applying modern constitutionalism in contemporary Arab states.

Keywords: Modern Constitutionalism, Arab State, Constitutions, Constituent Power, Sovereignty, Democracy, Human Rights

JEL Classification: K00, K10, K19, K30, K33, K39, K40, K49

Suggested Citation

Khalil, Asem, From Constitutions to Constitutionalism: An Opportunity for Arab States, Not a Paradox (March 29, 2010). CLPE Research Paper No. 06/2010. Available at SSRN: https://ssrn.com/abstract=1579884 or http://dx.doi.org/10.2139/ssrn.1579884

Asem Khalil (Contact Author)

Birzeit University ( email )

Birzeit, PA
Palestine

HOME PAGE: http://birzeit.academia.edu/AsemKhalil

Register to save articles to
your library

Register

Paper statistics

Downloads
149
rank
185,228
Abstract Views
762
PlumX Metrics