Debating the Imperative Mood in Uṣūl al-Fiqh

Farahat, Omar

doi:10.1163/18778372-04601005

Cited by 14 publications

(2 citation statements)

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“…A constituent assembly did not enact Egypt's 1971 Constitution, and the process of popular ratification was of questionable legitimacy as it was not preceded by an ample popular and free discussion, and was clouded by suspicions of voting engineering. 93 Likewise, the distinction between temporary and permanent is suspect. On the one hand, the prolongation of the "transitional" period undermines the distinction.…”

Section: Collapsing the Distinctionmentioning

confidence: 99%

“…The constitution encroached upon freedom of speech, granted expansive powers to the president, limited the parliament's ability to make authorities accountable, and undermined the separation of powers. 96 Moreover, a permanent constitution may include no fewer gaps and ambiguities than a temporary constitution. The 1971 Constitution contained substantial ambiguities and left many issues related to identity, rights protection, and institutional design for elaboration (or derogation) through ordinary legislation.…”

Section: Collapsing the Distinctionmentioning

confidence: 99%

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Arab constitutionalism and the formalism of authoritarian constitutionalism

Sultany¹

2019

Authoritarian Constitutionalism

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This chapter challenges different manifestations of a "formalist" approach to constitutional theory. 1 The formalist approach deploys several labels and distinctions (constitutions without constitutionalism, authoritarian, ideological, instrumentalist, and temporary) that question the constitutional legitimacy of non-North American and non-Western European constitutions because these are considered as merely political instruments lacking the supremacy and rigidity of higher law. This approach is formalist in two senses: it is overly focused on the text (or constitutional form), and it assumes that abstract categories determine the constitutional content or practice. Ottoman and Arab constitution-making, the subject of this chapter, illustrate that this formalist approach is deficient because it is impervious to constitutional and political practice. As such, and while "ideological" is often used in the "positive sense" to convey a system of ideas, it has negative "ideological" effects because it juxtaposes these constitutions to an idealised version of liberal constitutions (understood as "normative", supra-political constitutions) and discounts constitutional experiences that fall outside the orbit of North America and Europe.This chapter is organized as follows. The first section presents the general argument by focusing on the notion of "constitutions without constitutionalism". The second section zeros in on the notion of "authoritarian constitutionalism" and the third and fourth sections scrutinize its accompanying subcategories "ideological", "instrumental", and "temporary" constitutions. It is argued that these categories are neither analytically illuminating nor descriptively informative. Arab constitutions served different purposes, 1 This chapter is an abridged and revised version of chapters 2 and 3 in Sultany, Nimer (2017) Law and Revolution: Legitimacy and Constitutionalism After the Arab Spring, Oxford: Oxford University Press.included inconsistencies, and provided a space for political struggle and contestation. Thus, these abstract categories foreclose a nuanced and properly contextualized analysis of post-colonial constitutional orders.The final section, the Conclusion, elaborates on the framing effects of these abstract categories.

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Section: Collapsing the Distinctionmentioning

confidence: 99%

Section: Collapsing the Distinctionmentioning

confidence: 99%