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Title: The Role of the Constitution in the Arab World
Authors: Khalil, Asem
Keywords: Constitution - History - Arab countries;Constitutional law - Arab countries;Legislative power - Arab countries
Issue Date: 2006
Abstract: Most modern states have adopted written and rigid constitutions. A constitution presupposes the existence of a constituent power, as distinguished from other constituted powers, created by the constitution itself.' Since a constitution is the highest law in the state, constituent power invest in those entitled to sovereignty. To close the vicious cycle, most constitutions provide that those entitled to sovereignty are the people, and consequently, 'the entitled' to constituent power. Constituent power presupposes the ability of a society to develop its capacity to act as a collective, in order to gain (or regain) an active role in the organization of the lives of individuals and their social relationships with each other (Preuss 1994, 148). For Arab nationalists, the (Arab) nation exists as a human group with its own characteristics, such as language, history, and traditions. Attempts to unify Arabs in one state ended in failure, and Arab nationalism began to co-exist with and within Arab territorial states. The ethnic concept of nation initially helped to justify a revolution against other Muslims (the Ottomans), but it was unable to distinguish individual Arab peoples or justify territorial Arab states. What makes a Jordanian different from a Palestinian, a Lebanese from a Syrian? Adopting the concept of nation that covers all citizens living under the same laws and within state borders, became unavoidable. The relation between Arab nation and a single Arab people may not be clearly understood by using traditional meanings of those concepts. In fact, these two concepts have to be understood in the light of the wider one of umma, originally used to indicate the Islamic community, or the community of believers. Since there is no unique Islamic or Arab state that contains all belonging to Islamic or Arab umma. Rather, they need to deal with territorially defined states. Besides, in contemporary Arab states, there is a partial return to shari'a and an increasing reference to Islam as justification for the state's authority, from one side, and its rejection from the other, made respectively by state apparatus and by fundamentalist groups.
Description: This paper was presented in : WOCMES II, Amman, 11-16 June 2006
This paper includes most relevant conclusions of a thesis that the author had prepared for a Ph.D. in Public Law at the University of Fribourg, under the direction of Prof. Thomas Fleiner, Director of the Institute of Federalism (Switzerland)
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