Nimer Sultany, Law and Revolution: Legitimacy and Constititutionalism After the Arab Spring (Oxford: Oxford University Press, 2017).
Jadaliyya (J): What made you write this book?
Nimer Sultany (NS): The book seeks to centralize the role of law in the Arab Spring, and to centralize Arab Spring to major legal and constitutional debates. While much has been written about the political and economic aspects of the Arab Spring, the role of law remains understudied and insufficiently theorized. Thus, the book seeks to contribute to the emerging scholarship on the Arab Spring by scrutinizing and highlighting the role of law and constitutions during societal upheavals and revolutions. Taking the role of law seriously means not only understanding it as a platform or a discourse for political and social struggle, but also understanding the ways in which it shapes these struggles and mediates them.
In the pursuit of this goal, the book’s project is guided by the need for an empirical, comparative, and theoretical contextualization of the Arab Spring. Descriptively, it is necessary to place legal and constitutional developments within the socio-political context in which they unfold to understand their meaning, the stakes involved in them, and their consequences. Comparatively, the Arab Spring should be located within a longer trajectory not only in Arab legal and political history, but also in revolutionary history elsewhere. Theoretically, the Arab Spring is a laboratory for examining major concepts in legal, political, and constitutional theory. In other words, the book’s objective is to advance our understanding of the significance of the Arab Spring beyond the specific countries in which it happened. It thus highlights the relevance of Arab Spring experiences to major theoretical debates, not for the sake of merely applying existing theories, but in order to challenge these theories themselves and question their ability to capture the richness of Arab revolutionary experiences.
J: What particular topics, issues, and literatures does the book address?
NS: The book engages with political theory, legal theory, constitutional theory in order to scrutinize the role of law during revolutionary upheavals. In particular, it examines debates on legitimacy across different scholarly disciplines, which requires examining the meaning of the state, its relation to society, and the different legitimating mechanisms it deploys (including legality, constitutions, and revolutions). The book thus examines the relations between revolution and legality, and revolution and constitutions.
These questions cannot be resolved without inquiring what we mean by law and constitutions. Thus, the book is an intervention in debates about how to conceptualize “the law” and what are the assumptions that judges, scholars, and activists make about the law. On one extreme, the law is perceived as an idealized and coherent system that is separate from politics. On another extreme, the law is perceived as a simple reflection of social conditions and political interests. In contrast, the book’s approach is to highlight the incoherence of the legal materials, and the relative autonomy of law from politics. Additionally, formalist-textualist approaches to law and constitutions that pay little attention to the role of the judiciary in making the law and enforcing constitutional norms. In contrast, the book is motivated by the need to foreground judicial agency in developing the law, shaping constitutional meaning, and resolving socio-political conflict. The focus on texts (such as constitutions) errs on formalism by marginalizing concrete legal and constitutional practice.
The book reviews Arab constitutional history in order to question scholarly dismissals of Arab constitutionalism as “constitutions without constitutionalism,” i.e. as instruments that serve to rationalize state power and reflect elite interests. These assessments exaggerate the differences between Arab constitutions and western liberal constitutions. On the one hand, such unilateral assessments miss the fact that constitutions were embedded in social, political, and intellectual processes and that they legitimated but also challenged existing conditions, empowered but also constrained rulers and elites, reflected but also reacted to political and social conditions. On the other hand, they presume an idealized liberal constitutional yardstick (according to which liberal constitutionalism is coherent, stable, and non-ideological) that does not really exist, and attribute to it an effect (to legitimate political regimes) it does not possess.
Furthermore, the book seeks to combine legal theory with the sociology of law, abstract debates with the social location of the jurists who are doing the legal work. On the basis of this approach, the book argues that there is no systematic relation between “law” and “revolution”, given law’s incoherence and revolution’s contradictions. In particular, the relation between legality and revolution does not fit neatly the dichotomy between “rupture” and “continuity”. This conclusion is illustrated through an analysis of different lines of judicial rulings in Egypt and Tunisia, against the backdrop of divisions in the judiciary and failed calls to reform it. These cases include the trials of former rulers and officials with respect to killing demonstrators; the trials of formers officials and ruling families with respect to corruption and restitution of property; and cases concerning political rights of former officials, ruling parties, opposition parties, and informal associations.
Finally, the book examines constitutional developments the followed the protests in the Arab world including “reformist” constitution-making and “revolutionary” constitution-making in order to examine the question of rupture and continuity in the context of constitutional practice. In particular, the book addresses the scholarship concerning the constitution-making power of the people during revolutionary times. It challenges both those who celebrate the political agency of the people as unconstrained at the moment of founding, and those who seek to impose constraints on the ability of popular sovereignty to re-establish their polity because of fears of this presumed unfettered power. These debates do not capture Arab Spring experiences because the judiciary imposed constitutional continuity despite the formal abolition of constitutional texts, and because anti-political currents co-existed with the emergence of the political agency of the people.
J: How does this book connect to and/or depart from your previous work?
NS: The book expands my previous work in three primary ways. It builds on and develops my earlier interventions in constitutional theory. As such, it gauges the relevance of abstract theoretical debates to the concrete setting of the Arab Spring. It also expands my work on Arab constitutionalism both thematically and jurisdictionally, by focusing on fundamental issues other than religion and Islamic constitutionalism, and broadening the inquiry beyond Egypt and Tunisia by including discussions of Arab constitutional history, and post-Arab Spring constitutional developments in Libya, Morocco, Algeria, Jordan, Bahrain, and Oman. Finally, it expands my comparative inquiry beyond the focus on the U.S. by considering a wider range of revolutionary and constitution-making experiences.
J: Who do you hope will read this book, and what sort of impact would you like it to have?
NS: The book may be of interest to a variety of scholars, activists, and policymakers who are interested in the Arab Spring, the Middle East, revolutions, or legal and political theory. In addition to shedding a light on the centrality of law to revolutionary processes, I hope the book can encourage a more nuanced discussion of Arab legal and constitutional orders that moves beyond formalistic analysis. The book is also an invitation to reflect about revolutions and what happens in them when judges, activists, and politicians make particular assumptions, advance certain understandings of law and the political community, and reproduce the status quo. It is an invitation to step outside the polarized debates about the Arab Spring, and to avoid binary dichotomies that do not advance our understanding of the messy reality and our role in it. It is thus an invitation to revisit our roles as jurists, activists, politicians, and commentators in these events and our contribution to the faltering of revolutions. In particular, the flight to legalistic and technocratic (but controversial and incoherent) concepts—such as “consensus”, “stability”, and the “rule of law”—does not resolve substantive questions and merely conceals our choices and our agency. This is lamentable because revolutions are supposed to be the moments in which social agents are supposed to be making these choices.
Prior to the Arab Spring, many scholars and activists overestimated the stability and coherence of authoritarian regimes. It will be misguided to repeat this mistake again by shifting the talk from “Arab Spring” to the “Arab winter”. From the book’s perspective, the stability of the extant socio-political order is merely provisional and fragmentary. As Gramsci put it best, it is more fruitful to combine the pessimism of the mind and the optimism of the will. Hopefully, the book can advance such a nuanced reflection.
J: What other projects are you working on now?
NS: I would like to expand the book’s inquiry by focusing on four interrelated themes in within the study of the role of law and its relation to revolution in the aftermath of the Arab Spring. Specifically, I aim to examine juridical questions related to social justice, identity, gender, and minorities. The discussion of the role of law in the Arab Spring is incomplete if it does not attend to these thematic discussions.
Excerpt from the Introduction
At the time of writing, more than six years have passed since the transformative force of the Arab Spring swept through a number of Arab countries. Yet, the aspirations it expressed, the hopes it generated, the creativity it unleashed, the difficulties it unearthed, and the effects it led to are still under way. Many scholars, commentators, and activists have given their views about the events of the Arab Spring in the past few years. But there are difficulties in theorizing about a state of affairs whilst in the midst of it. As Hegel writes, the “owl of Minerva begins its flight only with the onset of dusk.” Things are still in flux, but the passage of several years since the original action offers an opportune moment to reflect on the deeper effects and meanings of what happened during and after these events. The time is ripe and the dust has sufficiently settled to allow a theoretically complex, descriptively thick, and comparatively informed account of the Arab Spring.
This is the task this book sets for itself. Even more than this, the importance of the Arab Spring arises not merely from its wide-ranging political and legal consequences in the states in which it unfolded. Rather, its significance transcends the region as it provides a laboratory for examining scholarly ideas about revolutions, legitimacy, legality, constitutions, and more. Law in particular has been central to the political upheavals in the Arab world. Thus, although the book takes the Arab Spring as its central case study, it critically evaluates the different roles and trajectories of the law in a revolutionary setting. This book, then, has two complementary aims that go beyond the application of existing theories to concrete settings. On the one hand, it seeks to accord Arab legal and constitutional ideas and experiences a more central position within theoretical and comparative debates about legality and constitutions. On the other hand, it seeks to re-examine the established theoretical toolkit through these Arab experiences.
Of particular note are the contradictory roles that the law played. It was the revolution’s enemy but also its expression; a stabilizing yet contentious force. As the book illustrates, constitutions in particular exemplified both law’s centrality and its contradictions. The institutionalization and entrenchment of the emerging political order in constitutional documents as an instance of higher law proved procedurally and substantively contentious. This contentious setting led to diverging trajectories in different states. Whilst revolutionary changes in some states led to new constitutions expressing the new order, other states reformed existing constitutions that preserved the existing order. These constitutional changes reflect not only different degrees of political and legal rupture from the pre-Arab Spring order, but also a struggle between different visions over the formation of a new socio-political order. And in this struggle—“constitutionalism” did not speak with a single voice.
These issues were also manifested in ordinary law and adjudication. After the overthrow of the autocratic regimes, political disputes in states such as Egypt and Tunisia turned into legal battles. Although the “rule of law” was part of the revolutionary demands, given long-standing authoritarianism, it seemed to clash with attempts to establish a new political-legal order. In particular, the deployment of political rights and criminal law protections hampered attempts to rectify the wrongs these regimes inflicted on their societies and to neutralize the political influence and corruption of former regime officials in the burgeoning regime. Calls for judicial independence hampered efforts to reform the judiciary that sanctioned the former regime’s injustices. Yet, while law and legalism were critical weapons of struggle, picking which side of the fight they fell on is not always clear.
This centrality of law and constitutions, their contradictory roles, and their varying effects within Arab states raise important general questions about the role of law and constitutions in societal upheavals. What is the role of constitutions in legitimating new regimes? What is the effect of revolutions on legal systems? How do constitutions and revolutions converge or clash? What is the effect of constitutional arrangements and why did they diverge in different states?
- THE GENERAL ARGUMENT OF THE BOOK
The Arab Spring creates conceptual crises and not merely political crises. The Arab Spring exposes as unsatisfactory many of the prominent concepts and theories that have been utilized to analyze the role of law and constitutions, especially during societal upheaval and rapid political change. This book focuses on four particular concepts and illustrates how the developments, debates, and tensions during the Arab Spring destabilized the concepts of legitimacy, revolution, legality, and constitutionalism.
Specifically, debates regarding legitimacy, and the contribution of constitutions to this legitimacy, are not helpful when examined against the backdrop of the Arab Spring. They either presuppose a narrow understanding of the state as an institutional ensemble that is separate from society, or they stipulate abstract and controversial criteria. In so doing, they fail to address the multiplicity of legitimation devices; the difficulties in putting them into practice; and the irreducibility of disagreement regarding these standards, especially given the separation between legitimacy and justice. Revolution may erupt because of a perceived legitimacy deficit, but it does not solve the conceptual deficiency of legitimacy. This is because revolution vacillates between an event that inaugurated it and a process that seeks to complete it. This duality makes revolution a contradictory concept that includes its own negation because different protagonists deploy it in contradictory ways. Consequently, the revolution’s attempt to delegitimate the status quo and legitimate the new order re-enacts the incoherence and instability of other legitimation devices. Although it may foreground the gap between legitimacy and justice, it does not succeed in closing it. It is, therefore, misleading to understand the “modern concept of revolution” as “inextricably bound up with the notion that the course of history suddenly begins anew, that an entirely new story, a story never known or told before, is about to unfold.”
This crisis at the heart of legitimacy—and of the notion of revolution as a legitimating concept—is crucial for legality and constitutionalism because each of these concepts is tied to legitimacy. Different conceptions of the law and the constitution rest on and intersect with different understandings of legitimacy. Specifically, dominant conceptualizations of the “law” and the “legal system” (whether “positivist” or “moral”) rest on either procedural or normative legitimacy. They are equally unsatisfactory because they do not capture the changes that a revolutionary rupture can potentially advance. In particular, they paper over the incoherence and contradictions within the legal materials and the underlying principles of the legal order. These incoherencies exist in pre-revolutionary law as much as in post-revolutionary law. Taking these incoherencies and contradictions seriously undermines legalist attempts to understand the law as a coherent and gapless system that is autonomous from social and economic conditions. The availability of competing interpretations of the legal materials undercuts claims that legal outcomes are dictated by the legal materials. It also blurs the abstract distinctions between law and politics, revolution and counter-revolution, rupture and continuity. Consequently, it prevents attempts to systematically conceptualize the relation between law and revolution.
In order to highlight law’s incoherence, the book will particularly foreground the role of the judiciary in resolving gaps, ambiguities, and contradictions in the law. In this role, judges mediate ruptures and continuities in the relation between legality and revolution, and constitution and revolution. Judges are not neutral because they are part of the very social and political struggles they are supposed to regulate. The rule of law they are asked to uphold is divided between rival visions of the social order. Despite the revolutionary upheavals, the judges in Egypt and Tunisia generally maintained institutional continuity that hampered judicial reform, legal continuity that thwarted holding former regime officials accountable, and constitutional continuity that obstructed political re-constitution. These judicial interventions were generally based on impoverished conceptions of the law and the political community that ignored the availability of alternative conceptions within legal interpretation. Consequently, they denied judicial agency under the cover of legalism at the moment in which judges became the ultimate deciders in many crucial political disputes within politically fragmented emerging orders.
In light of the preceding comments, this book does not seek to proffer a definition of revolutions as a set of normative claims. It rather scrutinizes the ways in which revolutions (as socio-political and historical phenomena) are thought about, and what happens in them when activists, judges, and scholars inaccurately depict legal and political choices as conforming to a binary dichotomy between rupture and continuity. They thus ignore the coexistence of rupture and continuity and the abstraction of these terms when different parties deploy them to achieve different ends. Specifically, legitimacy (whether “revolutionary legitimacy” or “constitutional legitimacy”) becomes the medium through which the opposition between rupture and continuity is represented and mediated.
These activists, scholars, and judges are thus complicit and partly responsible for the faltering and the misunderstanding of revolutions. This is because the revolution they speak of, and its concomitant effects on the legal and constitutional order, are often distorted. It should be lamented, therefore, that the revolutionary moment is not capitalized upon, and that necessary changes in the legal and constitutional order do not occur. The occurrence of this moment—in which there is a sudden uprising of, and a surge in, popular energy—is misunderstood as a radical break from the past. Proponents and opponents of the revolution share this view; they primarily disagree on its desirability. However, this view expresses an “ideology of legitimacy” that underpins a misleading opposition between past and present. Prior to the revolution, legitimacy discourse exaggerated the stability and coherence of Arab legal-political orders. After the Arab Spring, it provided a false representation of the reality of states during revolutionary upheavals and obscured the fact that the status quo reasserted itself.
In making these arguments, the book’s method is not driven by rigid formalism or neat a priori categories. Rather, it is an attempt to understand the actual dynamics of political, legal, and constitutional developments. In this sense it is a dialectical approach that highlights contradictions and processes. It does not presume a teleological progressive understanding of these dialectical processes because they face setbacks and are open to subversion. While this method challenges many scholarly distinctions, the point is not simply to collapse distinctions, nor to object to making analytical distinctions. Rather, it is to challenge the simplifying assumptions that underpin some of these distinctions and the bad normative effects that follow from their deployment.
This book, therefore, is an “ideology critique”. It identifies the concepts, arguments, and debates that inform an ideology of legitimacy. This ideology is effective and consequential because it is embedded in political and legal practices. It represents social and political struggles, mediates participants’ experiences of contradiction, and justifies or critiques a variety of arrangements and outcomes (such as judicial rulings). Ideology critique, thus, illustrates the problematic assumptions on which this ideology relies, its over-simplifications, and its inconsistencies. It also highlights the detrimental effects that follow from these rational failings, especially with respect to the role of law and concerning the potential for socio-political transformation and human emancipation. It seeks to unchain human thought from existing categories and thinking patterns that distort participants’ understanding of the events to which they bear witness and contribute. Persistence in the same way of thinking (that ignores the deeper elements at play, obscures the existence of contradictions, and underestimates law’s manipulability), and complicity in the same institutional practices (that reproduce power relations or that maintain the status quo), will invariably replicate the same problems and lead to similar disappointments.