Authoritarian Constitutionalism
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Authoritarian Constitutionalism

Comparative Analysis and Critique

Edited by Helena Alviar García and Günter Frankenberg

The contributions to this book analyse and submit to critique authoritarian constitutionalism as an important phenomenon in its own right, not merely as a deviant of liberal constitutionalism. Accordingly, the fourteen studies cover a variety of authoritarian regimes from Hungary to Apartheid South Africa, from China to Venezuela; from Syria to Argentina, and discuss the renaissance of authoritarian agendas and movements, such as populism, Trumpism, nationalism and xenophobia. From different theoretical perspectives the authors elucidate how authoritarian power is constituted, exercised and transferred in the different configurations of popular participation, economic imperatives, and imaginary community.
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Chapter 13: Arab constitutionalism and the formalism of authoritarian constitutionalism

Nimer Sultany

Abstract

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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