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Sultany, Nimer (2019) 'Arab Constitutionalism and the Formalism of Authoritarian Constitutionalism.' In: Alvar Garcia, Helena and Frankenberg, Gunter, (eds.), Authoritarian Constitutionalism: Comparative Analysis and Critique. Cheltenham, UK: Edward Elgar, pp. 292-316.

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Abstract

This chapter challenges different manifestations of a ‘formalist’ approach to constitutional theory. 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 constitutionmaking, the subject of this chapter, illustrates 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’, suprapolitical constitutions) and discounts constitutional experiences that fall outside the North American and European orbits.

Item Type: Book Chapters
SOAS Departments & Centres: Departments and Subunits > School of Law
Subjects: K Law > K Law (General)
K Law
ISBN: 9781788117852
Copyright Statement: This is the accepted version of the chapter. The final version is available in Authoritarian Constitutionalism: Comparative Analysis and Critique edited by Helena Alviar García and Günter Frankenberg, published in 2019, Edward Elgar Publishing Ltd https://doi.org/10.4337/9781788117852.00018 The material cannot be used for any other purpose without further permission of the publisher, and is for private use only.
DOI (Digital Object Identifier): https://doi.org/10.4337/9781788117852.00018
Date Deposited: 07 Jun 2019 13:51
URI: http://eprints.soas.ac.uk/id/eprint/30474
Related URLs: (Publisher URL)

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