Erecting New Constitutional Cultures: The Problems and Promise of Constitutionalism Post-Arab Spring

Article excerpt

Abstract: Constitutions contain two types of elements: functional and aspirational. The functional elements establish the institutions that comprise the state and the pragmatic rules of governance-the "constitution in practice." Aspirational elements articulate the nation's commitment to the higher principles and ideals it seeks to attain. In a well-ordered state, a constitution's aspirational elements provide the true north for the nation's compass, and the functional elements adequately pursue those ends. If the functional components of a constitution cannot or do not adequately pursue the nation's stated aspirations, the constitution, the government, and the rule of law are in jeopardy. The recent upheaval in the Middle East, known as the Arab Spring, provided three nations (thus far) with the opportunity to erect new constitutional cultures: Tunisia, Egypt, and Libya. For these countries, adequately concretizing revolutionary aspirations in their new national constitutions, while also providing functional elements and institutions to reinforce these aspirations, is vital to establish secure and legitimate constitutional orders. This Note explores these ideas of constitutional theory universally and applies them to the particular situations in these Arab Spring nations.

Introduction

A paramount task of a democratic nation's constitution is to effec- tively prescribe the supreme law of the land derived from the consent of the governed.1 A constitution seeks to fulfill important legal func- tions, including organizing political power within a state, establishing government institutions, and providing administrable laws.2 A constitu- tion, and its surrounding culture of constitutionalism, is often also a statement of a nation's commitment to the ideals it values most highly and aspires to attain.3 A constitution contains two types of elements: functional and aspirational.4 The functional elements of a constitution establish the institutions that comprise the state and the pragmatic rules of governance-the "constitution in practice."5 Aspirational ele- ments, by contrast, articulate the nation's commitment to higher prin- ciples, such as social justice or democracy.6 In short, aspirations mani- fest the national ideals at the time they are realized.7 In a well-ordered state, the aspirational aims of a constitution provide the true north for the nation's compass and determine policies the functional provisions should implement to achieve the legitimacy of the laws and promote a perpetually progressing society.8 If the functional components of a con- stitution cannot adequately pursue its aspirational goals, the constitu- tion and government will lose support and lack legitimacy.9 Such a dis- connect could result in social strife and political unrest.10

The recent upheaval in the Middle East and North Africa, popu- larly known as the Arab Spring, has resulted in three nations toppling their old regimes thus far.11 In Tunisia, Egypt, and Libya, the overthrow of the former governments provided the opportunity not only to draft a new constitution, but also to cement the revolution by framing consti- tutional principles in a way to mobilize broad support.12 These upris- ings were organic movements comprised of frustrated citizens demon- strating against their tyrannical governments for freedom, greater representation, and economic opportunity.13 Often, frustrations arose when the functional provisions in the former constitutions did not ef- fectively implement some express aspirational commitments, contribut- ing to social unrest and constitutional hypocrisy.14 Now that the people of these nations have successfully overthrown their governments, the question remains whether they can create constitutions that successfully incorporate the people's aspirations to capitalize on their revolutionary moment.15 Entrenching some central revolutionary aspirations in the new constitution is necessary to preserve the progress made before the galvanizing effects of revolutionary fervor recede to the constitutional inertia of ordinary times. …