Ancilla Iuris

Lagen des Rechts
Constellations of Law

Ancilla
Iuris

The Enactment of Constituent Power in the Arab World

Ancilla Iuris 2006
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Most modern states have adopted written and rigid constitutions. The existence of a constitution presupposes a constituent power, distinguished from other constituted powers, created by the constitution itself, and a constituent power presupposes the ability of a society to develop its capacity to act as a collective, in order to gain (or regain) an active role in the organization of the lives of individuals and their social relationships with one another. For Pan-Arabism defenders, the (Arab) nation exists as a cohesive group with its own unique characteristics, deriving from a common language, history and traditions. The ethnic concept of nation initially helped to justify an Arab revolution against other Muslims, but it was unable to distinguish individual Arab peoples or justify territorial Arab states. It was unavoidable then to switch to narrower concept of nation that covers citizens within defined state borders and living under the same laws. Despite the reference to the principle of popular sovereignty in most Arab Constitutions and the increasing attachment to territorially-defined states, there exists wide popular discontent with Arab regimes that continue to legitimize their authority based on Arab or Islamic nationalist discourses. Constitutions may fill the gap of legitimacy crisis in contemporary Arab States. They are a necessary tool for the nation to express its will but also for the individuals and communities within the state to protect themselves from the nation itself and from its expression, the state. Accordingly, there shall be red lines where the people, or their representatives, shall not transgress. Those red lines may be enumerated in a text, with particular legal inviolability that will be difficult (almost impossible) to amend without joining a general consensus, that is not the equivalent to unanimity (difficult to obtain) nor majority (easy to realize).

Asem Khalil, The Enactment of Constituent Power in the Arab World, in: Ancilla Iuris (anci.ch) 2006, 88-106.

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