Arab Constitutionalism and the Formalism of Authoritarian Constitutionalism
Helena Alvar Garcia and Gunter Frankenberg, "Authoritarian constitutionalism: analysis and critique" (Forthcoming)
25 Pages Posted: 14 Apr 2019
Date Written: March 1, 2019
This chapter challenges different manifestations of a “formalist” approach to constitutional theory. The formalist approach deploys several labels and distinctions (constitutions without constitutionalism, authoritarian, ideological, instrumentalist, and temporary) that question the constitutional legitimacy of non-North American and non-Western European constitutions because these are considered as merely political instruments lacking the supremacy and rigidity of higher law. This approach is formalist in two senses: it is overly focused on the text (or constitutional form), and it assumes that abstract categories determine the constitutional content or practice. Ottoman and Arab constitution-making, the subject of this chapter, illustrate that this formalist approach is deficient because it is impervious to constitutional and political practice. As such, and while “ideological” is often used in the “positive sense” to convey a system of ideas, it has negative “ideological” effects because it juxtaposes these constitutions to an idealised version of liberal constitutions (understood as “normative”, supra-political constitutions) and discounts constitutional experiences that fall outside the orbit of North America and Europe.
This chapter is organized as follows. The first section presents the general argument by focusing on the notion of “constitutions without constitutionalism”. The second section zeros in on the notion of “authoritarian constitutionalism” and the third and fourth sections scrutinize its accompanying sub-categories “ideological”, “instrumental”, and “temporary” constitutions. It is argued that these categories are neither analytically illuminating nor descriptively informative. Arab constitutions served different purposes, included inconsistencies, and provided a space for political struggle and contestation. Thus, these abstract categories foreclose a nuanced and properly contextualized analysis of post-colonial constitutional orders. The final section, the Conclusion, elaborates on the framing effects of these abstract categories.
Keywords: comparative constitutionalism, constitutional theory, Arab constitutions, authoritarian constitutions, ideological constitutions, formalism
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