This paper examines the two Egyptian revolutionary waves of 25th of January 2011 and 30th of June 2013 against Mubarak and the Muslim Brotherhood respectively. It analyses the role claimed by the Egyptian Army as a leader of these two waves, and the inherent contradiction between the Revolution’s ideals on one hand and the structural and behavioral organization of the Military Establishment on the other. It draws arguments from the 2014 Egyptian Constitution which bestowed upon the Army a privileged status incompatible with the march for democracy instigated by the Arab Spring, and concludes by affirming that change, intrinsically, is an object of refusal by the ruling mentality.
This Article explores how the idea of human dignity has developed in Arab constitutionalism through the decades and reflects on its meaning and implications in the framework of the new constitutional texts, given the concept’s prominence in the post-Arab Spring context.
First, the Article sheds light on how Arab legal culture understands dignity, exploring both its religious and secular roots in the 1926 Lebanese Constitution, which pioneered the use of dignity by using the concept to command respect toward religions. Then, this Article explores the success of the idea of dignity at the drafting of the Universal Declaration of Human Rights, when the Lebanese scholar Charles Malik played a leading role in emphasizing dignity throughout the text and universalizing it to encompass all human beings. Next, the Article presents how the Arab states have used the concept and shows that their constitutions have incorporated and expounded on the idea of human dignity progressively, with the post-Arab Spring constitutional texts reinforcing its use once more. Finally, this Work offers some brief observations about how the use of dignity in Arab constitutionalism parallels the development of the same concept in Western legal culture, which has blended secular thinking with religious thinking.
Notwithstanding its widespread adoption, the meaning and implications of the constitutionalization of dignity in Arab countries remain uncertain; its fate will largely depend on how Arab legal culture will balance human rights with Islamic rules. This is not, however, a specific feature of Arab constitutionalism: uncertainties surround the global discourse on dignity.
Prior to the Arab Spring uprisings of 2011, Arab liberals and international donors interested in promoting democratization encouraged authoritarian states in the MENA region to adopt and strengthen the institution of judicial review. After the Arab Spring, they doubled down on their efforts. If democracy advocates hoped constitutional courts would encourage the region’s halting transitions to democracy, they were to be disappointed. After the initial enthusiasm of the Arab Spring, democratization had by 2014 stalled in the ArabMediterranean. The region’s constitutional courts were doing little to restart it; and indeed, in at least one country some accused courts of hindering a messy but real move towards democracy. Liberals and donor states may have been disappointed, but they should perhaps not have been surprised. The assumption that constitutional review is synergistic with democracy is a relatively new development, dating largely from the second half of the twentieth century. The assumption has not gone unchallenged. Over the past decade, legal scholars and social scientists have voiced skepticism about the assumption that politically insulated constitutional courts are likely to embrace and protect quick transitions from authoritarian government to liberal democracy. Recent behavior by constitutional courts in the Arab Mediterranean provides these skeptics with ammunition. Some have proved ineffective at policing government action in a time of political passion, because they lack of popular legitimacy. Other, more powerful courts seem to have worried that rapid democratization will lead to the replacement of a flawed but predictable authoritarian by a tyrannical and unpredictable majority government. Whatever the reason, constitutional courts in the MENA region have not supported rapid democratization in the wake of the Arab Spring. It remains to be seen whether over the longer term they will come to play a productive role as agents of more gradual democratization.
On December 17 2010, a young Tunisian street vendor protesting an abusive police official set off a wave of democratic uprisings throughout the Arab world. In rising up against their governments, the peoples of the Arab Spring were confronting an age-old problem in political theory: when is it acceptable to rise up against an unjust authority? This question is not only of great importance to the peoples of the Middle East today, but was also of profound interest to the American founders and, through them, has informed the very basis of modern constitutionalism. It is perhaps unsurprising then that many constitutions themselves provide an answer to this question, allowing the people to challenge or overthrow their governments under certain circumstances. But to date, little systematic and empirical analysis has been done on the prevalence of this so-called “right to resist” in national constitutions, or on what motivates constitution-makers to adopt such a right.
This article takes up the task. It presents a unique and original dataset on right to resist provisions in all national constitutions written since 1781, tracing its historical trajectory and demonstrating how it has proliferated in recent decades. The article moreover provides the first-ever empirical exploration of why it is, exactly, that constitution-makers give their people a constitutional mandate to overthrow or contradict their governing authorities – likely those very authorities elsewhere empowered by the same constitution. Drawing on a range of real-world examples as well as regression analysis, we show that right to resist provisions are most likely to be first established following a disruption of the previous constitutional order, either through popular democratic transition or through a violent political break such as coup d’état.
These findings suggest that the constitutional right to resist serves a dual function, depending on its context. On the one hand, the constitutional right to resist can represent a fundamentally democratic and forward-looking tool that constrains future government abuse, empowers national citizenry, and acts as an insurance policy against undemocratic backsliding. On the other hand, the right can serve as a backward-looking justification for coup-makers who seek retroactive legitimacy for whatever political crimes placed them in a position to be making a new constitution in the first place. Which of these two functions prevails may be in large part regionally determined. Latin American constitution-makers primarily adopted the right to resist in the aftermath of coup d’états, while in other parts of the world the right to resist functions as a pre-commitment device against undemocratic backsliding.
Our findings have significant implications for our broader understanding of constitutionalism. At the heart of any constitution, it is thought, lies a wish to bind the future on behalf of the present. Yet our findings suggest that, at least in some cases, constitutional provisions may also serve the function of reinterpreting and justifying the past. At least where the right to resist is concerned, constitutions are as much about yesterday as they are about tomorrow.