Research Paper Number

6/2010

Asem Khalil

Document Type

Article

Publication Date

2010

Keywords

Arab State; constituent power; Constitutions; democracy; human rights; Modern Constitutionalism; sovereignty

Abstract

The paradox of modern constitutionalism resides in having two imperatives, apparently irreconcilable, i.e. a governmental power generated from the ‘consent of the people’ and, in order to be sustained and effective, that power must be divided, constrained and exercised through distinctive institutional forms. This paradox reflects the dilemma arising from the dialectical interaction between constituent power and constitutional form. I will argue that constitutionalism, as a limited government, does not contradict with Arab and Islamic legal culture. While modern constitutionalism, as a normative order, requires the adherence to the rule of law and the protection of human rights, it is in the name of national, religious, historic or cultural particularities that modern constitutionalism is discredited, as being essentially ‘Western’, not appropriate for Arab-Islamic culture. This paper challenges this rejection and argues for the possibility, and the necessity thereof, of applying modern constitutionalism in contemporary Arab states.

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