Erecting New Constitutional Cultures: The Problems & Promise of Constitutionalism Post-Arab Spring

36 Pages Posted: 14 Sep 2012 Last revised: 6 Apr 2014

Date Written: April 1, 2012

Abstract

A paramount task of a democratic nation’s constitution is to prescribe effectively the supreme law of the land derived from the consent of the governed. A constitution seeks to fulfill important legal functions, including organizing political power within a state, establishing government institutions, and providing administrable laws. Constitutions and their surrounding constitutional cultures are often also statements of a nation’s commitment to the ideals it values most highly and aspires to attain. A constitution contains two types of elements: functional and aspirational. The functional elements of a constitution establish the institutions that comprise the state and the pragmatic rules of governance -- the “constitution in practice.” Aspirational elements, by contrast, articulate the nation’s commitment to higher principles, such as social justice or democracy. In a well-ordered state, the aspirational aims of a constitution provide the true north for the nation’s compass and determine policies the functional provisions should implement to achieve the legitimacy of the laws and promote a perpetually progressing society. If the functional components of a constitution cannot adequately pursue its aspirational goals, the constitution and government will lose support and lack legitimacy. This disconnect can result in social strife and political unrest. The recent upheaval in the Middle East, known as the Arab Spring, provided three nations thus far with the opportunity to erect new constitutional cultures: Tunisia, Egypt, and Libya. Adequately concretizing revolutionary aspirations in their new national constitutions, while also providing functional elements and institutions to reinforce these aspirations, is vital to the establishment of a secure and legitimate constitutional order. This note explores these ideas of constitutional theory in the universal and applies them to the particular situations in these Arab Spring nations.

Keywords: constitution, constitutionalism, Arab Spring, aspirational, functional, revolution, coup, aspiration, national ideal, Gaddafi, Mubarak, Ben Ali, Tunisia, Libya, Egypt, Middle East

Suggested Citation

Liolos, John, Erecting New Constitutional Cultures: The Problems & Promise of Constitutionalism Post-Arab Spring (April 1, 2012). 36 Boston College International & Comparative Law Review 219 . Available at SSRN: https://ssrn.com/abstract=2146025

John Liolos (Contact Author)

Columbia University ( email )

New York, NY
United States

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