The constituent and para-constituent phases that the Arab countries are going through at the moment seem to offer various points for reflection

Last update: 2022-04-22 09:24:42

for the very theory of constitutionalism. 
In order to deal with these points in a reasonably synthetic and fruitful way it is indispensable above all to clear the ground of a double ambiguity which can be incurred. In this sense it will be useful to recall the experience of Oasis and the methodological profile it introduces to it.

The theoretical alternatives with which the phenomena of reform and revolution are judged can be collocated between two extremities: on the one hand, they can be compared with a relatively precise standard of protection of fundamental rights and institutional measures, which it is hoped are in global expansion. On the other hand, a mere cataloguing of the reforms and changes is made, in order to simply identify the features of continuity and discontinuity, according to questions of a formal and systematic order. The first model is evaluative and the second avaluative. The first assumes – with more or less explicitly argued reasons – some models and tendencies as at least comparatively better than others; the other one is limited to identifying differences and analogies. The first can justify cultural and juridical colonialism; the second, relativism and positivism (juridical and, in perspective, together political and moral).

The considerations made by Oasis seem to suggest another approach, which is not aimed at being limited to positivism, but neither at carrying out an operation marked by a monopolistic and recently Occidentalist conception of law. Here reference can be made to the well-known reflection on the role of the inevitable cultural interpretation. What has been said with reference to the religious sphere can in fact reasonably be applied also to the juridical phenomenon. In other words, to expect that the Arab peoples repeat, as far as objectives and instruments are concerned, the road of the West seems simply to belittle the historical, popular, traditional and religious dimension and in final analysis the cultural dimension of the law, the Western one just as much as the Arab one.

The idea of cultural interpretation seems to explain more adequately how the juridical and constitutional models, as far as they enjoy widespread adhesion, necessarily interact rather than apply themselves uniformly to different contexts. If interpreted in these terms, the differences do not necessarily represent Arab deviations from Western good practice, but even different forms of comprehension of the same models and principles. Vice versa, a same solution is not simply a replica of what is customary elsewhere, but can be said to express an unprecedented convergence of factors. Basically, the way in which a model is acknowledged or refused is a sign of the modalities with which culture and law interact.

This premise offers two important points for reflection.
First of all, the convergence between the new Arab constitutions and the consolidated models does not guarantee that the Arab juridical culture has tuned into Western styles and arguments but rather it shows that the field of forces operating in these countries has produced results that can be compared to the Western ones. An Occidentalising constitutionalism might basically be the product but not the origin of the phenomena that we can see. A Western observer, whether favourable or critical of this evolution of Arab constitutionalism, should perhaps bear this in mind when reflecting on these events.

Secondly, the current constituent phase of many countries can give the West something to think about in order to understand what part of contemporary constitutionalism reflects Western sensitivity and what part is detached from it, or can be adapted to different contexts without losing the features that make it recognisable.

Coming more exactly to the understanding of the phenomena that are repeated in a more widespread way in the Arab context, a number of facts deserve to be compared. Among the many elements, the return to the principle of legality, the reduction of cases in which constitutional guarantees can be suspended, the reproposal of eminent figures in the political and institutional sphere undoubtedly emerge as the common denominators of the various constituent phases.

Nonetheless it is worth focussing on an element that has certainly attracted attention, that is, the religious one. The question with respect to which the greatest doubts seem to be directed concerning the success of the democratic Arab revolutions regards the freedom from religion – or the autonomy of politics from religious law – and the freedom of religion – or the emancipation of the religious phenomenon from the interested protection of the state. 
An interpretation of the problem can be proposed that goes to the root of these two issues, using the approach of cultural interpretation.

It is useful to take up a point that arose from the reflection of Benedict XVI to the Bundestag, when he pointed out how in Christian history revealed law has never been promoted as a source of state law. This consideration deserves particular attention. For this purpose I would highlight a particular profile of the papal statement. I am not referring to the reference to reason and nature as the instruments to reach the truth, which the commentators rightly pointed out, but to a profile that was perhaps given less attention in the discourse. In other words, to exclude that revealed law has a role in positive law does not mean simply to make room for natural law, but also for dialogue and social and political dialectic.

In the constituent phase religious freedom and the boundary between the religious and political contexts are normally sealed. The Pope’s statement permits us to add another fact to this aspect. Benedict in fact seems to suggest that politics and law are the subject of an unexpended reflection on the part of society – that the survival of a society is entrusted to the ceaseless discussion on its present and future, which the political and social forces maintain daily. In other words, the constitutional texts live in the cultural interpretation that society offers, above all by means of its practices and the reflection on those very practices. Therefore, the true subject of the Arab constitutionalism are the populations to which the texts are entrusted.

Benedict’s observation allows us to face the constituent moment in a wider perspective that the one, even though fundamental, with which many commentators tend to grasp it. To expect that the constitution guarantees the one off pluralism, simply by putting it in writing seems to be excessive. It appears to be more reasonable to expect that a constitution gives space to social practice to exchange reasons, even with normative questions on rational bases: that it creates contexts for debate and guarantees the conditions for these. This option, that Christianity – says Benedict – has embraced, seems the true key element to make constitutions work.

The political and constitutional history of the Western countries was not in fact concluded with the writing of the constitutions but began with them. Subversion, terrorism, the attempts to overthrow the constitutional systems, the class war – just to give a few examples – have been defeated by the social and political practices of the different countries and not by their constitutions. Many countries of Eastern Europe have decent constitutions and in some cases even good ones – but when it comes to democracy in several cases their performance is poor in practice.

Lastly, it appears that the Western events confirm that a) the social progress of the country derives from its practices even before its texts; b) that this places at the centre of social life not the text but the testimony, personal and collective, that individuals and groups offer each other reciprocally; c) that, vice versa, there is no political choice that safeguards a population from the responsibility of giving a cultural interpretation of the same choice. These are just some of the facts that the new Arab constitutionalism seems to offer the West.

(In the photo on the top: Tunis, openign session of the Constituent Assembly. ©Tab59 - Flickr)