Please use this identifier to cite or link to this item: http://hdl.handle.net/20.500.11889/2117
Title: From Constitutions to Constitutionalism: An Opportunity for Arab States, Not a Paradox
Authors: Khalil, Asem
Issue Date: Mar-2010
Publisher: ResearchGate
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
dilemm a
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 
there of,
 of
 applying
 modern
 constitutionalism 
in
contemporary 
Arab 
states
URI: http://hdl.handle.net/20.500.11889/2117
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