Blog of the International Journal of Constitutional Law

I·CON 11 Issue 3: Editorial

The Arab Fall?

Spring is meant to be followed by summer, when buds turn into flowers, when promise and hope turn into reality. This kind of summer seems to have skipped Egypt and the Fall is upon us.

The only thing that I find surprising, or perhaps not so surprising, is the hand wringing over the military coup d’état, a definite setback for constitutional democracy. Reflecting on the reactions is as important, I think, as on the events themselves.

There can be no doubt that the world is a better place when it comes to the spread of democracy among states compared, say, to a mere generation ago. And this is a phenomenon that has been justly celebrated. But we are paying a price for a shallowness of discourse which tracks a shallowness of praxis. Elections, even when free and fair, a democracy do not make. An elected autocrat, or autocrats, is not, alas, an oxy moron in today’s world. I am not alluding to that worst dictator of modern times whose ascent to power was ultimately a faithful expression of voter preference. We have seen similar phenomena, a lot more recently, in Iran, in a handful of former Soviet states, in Venezuela, and elsewhere.

In a small lexical gesture, one should perhaps always speak of liberal or pluralist democracy as the proxy for, and yardstick to judge, existing developments and as the norm to aspire to when we talk of democracy. The principal elements of such are majoritarian parliamentarism coupled with constitutional respect for individual and minority human rights. And it is distinguished by a political culture that actually celebrates political diversity and does not regard power as an asset to be owned, spoils to be distributed. Critically, it does not see the privilege of electoral victory as a means to rig the system to thwart any future change.

By this yardstick – of liberal or pluralist democracy – Egypt was not scoring so well under Morsi. And the trajectory was not good either. But this should give no comfort to the cheerleaders of the coup. It really takes time to evolve from crude ‘electionism’ to something that comes close to the ideal, and no Western state was spared that evolutionary process. Remember the hiccups in Spain? And in plenty of the new East European democracies? To expect the democratic score to move from one to 10 overnight involves the same normative hypocrisy which expected developing countries to adopt on their way to industrialization and prosperity the best ecological practices of a rich North and West, which reached their status with massive environmental degradation.

I am no fan of the Muslim brotherhood and I do not know if they would ever in ternalize the strictures of pluralist democracy. But it seems to me that recent events make that even less likely – a very troubling prospect given that they do represent the electoral preference of a majority of Egyptians.

There is a second hypocrisy in the hand wringing. I will not call it Islamophobia. It is an attitude of a different genre: it stems from a belief legitimated by those two admirable constitutional democracies – France and its younger brother the USA – that any attempt to color state identity with a religious tint compromises in and of itself the democratic credentials of such a state. I have seen such in the attitude towards Erdoğan’s Turkey. Make no mistake: Turkey, too, is on a terrible trajectory when it comes to democracy beyond ‘electionism.’ It is not just the rather brutal repression of the protests. It is most importantly the squelching of free speech of the Fourth Estate – the press – with a record number of journalists in jail and a freezing effect on others. It is also the degradation of the rule of law – as evidenced in the troublesome ‘trials’ against suspected military plotters (particularly sad, given Erdoğan’s prior constitutionally laudable containment of a military which did not understand the proper role of the army in politics).

But those troubling aspects are not the core subtext of Turkey talk. It is fear for the secular character of Turkey to which all discussions return. It is an internal Turkish affair whether their state will stick to its contemporary secularism, part of the Modern Turkish state, and I can imagine the anguish that many Turks may feel when they see that constitutional heritage is threatened. If I were a Turk I might well share such anguish. But so many of the reactions in Europe to any Islamizing moves suggested that anything but a laique state was inimical to liberal democracy.

And there were plenty of similar sentiments in the attitude to Morsi. The ‘newish’ Egyptian constitution did not violate, on its face, the kind of safeguards one would expect in a constitutional democracy. But since Morsi clearly wanted to give Egypt a more religious identity, that, in and of itself, made him anathema and unsuitable to many observers.

That of course is the mother of double standards, seeing that so many states in Europe are anything but secular republics à la France. There are European states that have established churches, where the teaching of Christianity (Catholic, Protestant or Orthodox) is mandated in schools (with appropriate safeguards for those who wish to opt out), and the list goes on. It is not only a hypocritical double standard – it is a counter-productive one. For the European experience, much of it so different from France, could be a useful model in the Arab Spring of how you can retain religion in the public square and not obliterate the religious identity of the state whilst respecting the strictures of pluralist, liberal democracy.

There is, however, one aspect of the hand wringing which strikes me as at least potentially understandable. There does reach a moment in the degradation of democracy where if ‘non-democratic’ means are not adopted, the game might be lost, if not forever, for a very long time. We must all have cases in mind where in retrospect we might have a ‘what if …’ fantasy, the ‘what if’ being an Egyptian-type intervention to remove an elected autocrat about to become a non-elected long-term dictator.

But how to determine that magic moment? There is a parallel in the law of war in the distinction between anticipatory self-defense and preventive war. Anticipatory self-defense is predicated on a danger so clear and present, leaving no moment for deliberation and is, thus, licit. The policy behind the rule is that to let the aggressor exploit the overall prohibition of use of force and thus enjoy the huge military advantage of choice of time and place for attack militates against the very pacific rationale of self-defense only. Preventive war, which George W. Bush peddled in justification of the invasion of Iraq (which may have had different justifications – a serious question not to be discussed here) would allow the use of force simply by the fact that a state had the capacity to attack, is suspect in its pronouncements and might do so at some future date. It persuaded few.

There is, it seems to me, a place for anticipatory self-defense of democracy, but not of preventive war. Events in Egypt look very much like the latter, not the former.

In this Issue

We open this issue with two pieces that examine different aspects of the separation of powers and constitutional theory. In the first article, Virgílio Afonso da Silva addresses the deliberative legitimacy of judicial review, pointing out that this legitimacy can be different for different courts in different jurisdictions. Taking up the deliberative practices of the Brazilian Supreme Court, da Silva shows how varying rules and informal practises affect the deliberative quality of judicial decisions. In the following article,Panu Minkkinen discusses the relationship between Schmittian political constitutional theory and the liberal theory of political constitutionalism. Minkinnen surveys the two theories, and argues for some explanatory virtues of the Schmittian approach.

The issue continues with a symposium on constitutional transitions in the Middle East, opening with an introduction by Sujit Choudhry. Recent events, discussed above might appear as rendering irrelevant the reflections of our authors which were presented and discussed at a symposium last year. They do not. They deal precisely with the kind of issues which are part and parcel of the transition to democracy, rudely interrupted, but, we hope not ended.

The first two papers in this symposium address in different ways the role of Islamic law in a democratic constitutional framework. Mohammad Fadelconsiders how different styles of judicial reasoning and decision-making cope with the hybridity of modern Egyptian law. Distinguishing between the common law-style adjudication of the Supreme Constitutional Court and the continental style of other courts, Fadel argues that the former is more effective in reconciling Islamic and non-Islamic legal elements. Clark Lombardi follows with a discussion of constitutional provisions guaranteeing respect for Sharia law. His article focuses on the mechanisms that enforce these provisions in different constitutional settings, and shows how varying enforcement schemes impact the state’s legitimacy and policy decisions.

The symposium continues with a contribution by Aslı Bâli on judicial independence in times of transitions to democracy. By analyzing leading decisions of the Turkish Constitutional Court, Bâli points out that unelected courts in periods of transition are at risk of capture by old élites and alignment with undemocratic branches of government; she thus advocates for a balance between judicial independence and accountability.Turkuler Isiksel continues with an incisive critique of Turkish constitutionalism, pointing to the practical significance of authoritarian constitutional arrangements. Finally, Ozan Varol discusses the “Turkish model” of civil-military relations, introducing complexity into the characterization and analysis of this model.

Our focus on the Middle East continues with an I.CON: Debate! on strategic reasoning in the Israeli Supreme Court. In a landmark case, the Court set a principle while delaying a concrete ruling until the legislature could flesh out particular legal arrangements that satisfy this new principle. In the exchange, Haim Sandberg and Barak Medina suggest different analyses and opposite evaluative accounts of the Court’s course of action.



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