Comparative Analysis and Critique
Edited by Helena Alviar García and Günter Frankenberg
Chapter 13: Arab constitutionalism and the formalism of authoritarian constitutionalism
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 constitutionmaking, the subject of this chapter, illustrates 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’, suprapolitical constitutions) and discounts constitutional experiences that fall outside the North American and European orbits.
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