Tuesday, 6 December 2011

Sharia Law and Liberal Democracy



The results of Egypt’s first round of elections have demonstrated strong results for Muslimists—Salafis and the Muslim Brotherhood—both of which advocate recognizing Sharia Law as the source of legislation.

For many Westerners, this brings to bear a question posed by a Westminster Parliamentary roundtable session: is Sharia Law compatible with Western-style democracy?

I would contend that the question is ill-phrased.  It pits the quintessence of Middle Eastern rule of law against a nebulous catchphrase, and likely intends a predetermined answer: of course not.  Western legal traditions are different and therefore incompatible with Eastern legal traditions.

Yet if we parse the question down into less pre-determined queries, the answers similarly become less pre-determined.

First, is Sharia Law compatible with democracy?  Here, if “democracy” means regular elections, then I would answer in the affirmative.  In my current reading of the Qur’an and Middle Eastern law primers (Chibli Mallat and Noah Feldman are illuminating), there seems to be several aspects of Sharia Law that would be supportive of tendencies—consultation, social justice, the “division” of powers between the law scholars and political leaders, and the notion generally that Sharia Law stands as a “rule” of law that will afford better equity than sheer force. 

Second, is Sharia Law compatible with Western philosophy, or "classical liberalism" (defined as limited government that recognizes political rights such as freedom of association, press, speech, and religion).  Here I would probably say no.  Freedom of association would certainly be recognized, as those amassed in the streets are unlikely to go home unless violently repressed.  Yet Sharia law requires punishment of blasphemy, or criticizing of the government.  If religion, particularly the religion of the state, cannot be criticized, what of freedom of speech, freedom of the press, and freedom of religion?  

This begs the final question: Can a democracy by illiberal? Here, based on history, I am compelled to say yes.  The two western states which maintain reputations as the first modern bastions of democracy, England and the United States, did not have completely liberal societies even as recently as 200 years ago.  One had (and still has) an established church, the other established churches.  Speech and the press were infamously repressed (anyone remember the Alien and Sedition acts?). 

There is yet another instance where “western democracy” or “liberal democracy” was not applied in its classical form, and yet democracy soldiered on and adjusted to changed circumstances (some would say in the current economic crisis that these modifications were failures, yet that elections are still being held must be considered a success).  Enter Eastern Europe, circa 1989.  Instead of replacing their socialist regimes with wholesale Western liberal democracies, these states merged the two in constructing what we now call “social liberalism.” 

It would be difficult to say that these governments are not improvements, and that they are yet improving themselves.  Democracy in any form is better than none, liberal or not.

Saturday, 26 November 2011

Revolution Hijacking in Egypt: An Historical Parallel

Tahrir Square Friday, Nov. 25 during prayers
Lorianne Updike Toler

A dictator is overthrown.  Those close to him step into the power vacuum as a "temporary organ to facilitate the power transfer." Yet days, weeks, and months pass by.  Even close to a year later, the "temporary organ" shows no signs of being temporary.

Sound familiar?

The situation I am describing is not, however, that of Egypt, where tens of thousands of protestors have again gathered in Tahrir Square to demand the military step down from power.  I am referring, instead, to the "stolen" Romanian revolution, where masses protested against socialist dictator Nicolae Ceausescu in the Christmas revolution of 1989.

In that revolution, as soon as Ceausescu and his wife were killed, Ion Iliescu and others in Ceausescuu's own ruling party stepped in and were supported by the people as a temporary expedient.  This "temporary" solution lasted seven years.

As one scholar has explained, "Iliescu was successful in Romania, because the pressure of the disorganized population was too weak against the manoeuvrings of the elite....Socialized in the spirit of mass authoritarianism, the population had no kills or habits either to form parties or to offer organized resistance against those in power. Thus the opposition parties emerged not only tardily, but above all without political resources such as a party press, buildings, organizational patterns and a large membership."  (Attila Agh, Emerging Democracies in East Central Europe and the Balkans (1998), p. 263.)

As I witness the demonstrations in Tahrir Square from a distance, I applaud the Egyptians for demanding that their revolution not be hijacked by the armed forces.

Yet I am worried about the sustainability of such demonstrations.  Clearly, those who are behind the demonstrations know how to organize, but perhaps they can also apply their skills into organizing effective parties and NGOs that can maintain influence and allow participation in deliberations *not* in the out-of-doors and get a good night's sleep.  

Constitutions: Political or Legal Texts?

Andrezej Rapacqynski
This week marks an exciting phase in the Arab Spring: Tunisia's constitutional assembly commenced year long discussions over the basic law for its people.

As they write, these MENA region trend-setters will be faced with a question similar to the one Eastern European constitution drafters in Poland faced in 1990: will the constitution be a political, or legal text?

Such a question should determine its content.

Professor Andrezej Rapacqynski, adviser to the Subcommittee on Institutions of the Polish Parliament's Constitutional Committee from 1989-1991, considered this question in depth:

"If a constitution is to be essentially a legal document, it must primarily include provisions that courts can enforce without upsetting the proper balance of power among the branches of government in a democracy.  It is usual, of course, for a constitution as a legal document to include all kinds of political rights as well as a number of other so-called negative rights, which prevent the state from interfering with an individual's exercise of free speech or religion, or which limit the state's power in criminal proceedings.  Often it is believed, however, that a constitution must be sparing in its guarantee of so-called social and economic rights, such as the right to work or to decent housing, or the right to a clean environment.  It might be difficult for a court to ensure that the government observes rights of this kind without taking on the role of a super-legislature, reallocating resources and reshuffling governmental priorities to a degree that healthy democratic systems ordinarily reserve for the legislature and executive.  The provision of such entitlements usually requires the state to make substantial budgetary outlays, as well as a host of other decisions concerning the relative importance of various social concerns, such as full employment versus inflation, or spending on housing versus spending on education or defense.

"Courts generally do not have the competence to make such decisions: neither their training nor the form of litigation provides them with the information and expertise required to structure governmental affairs at this level.  Nor do courts have the legitimacy--that is, the democratic pedigree--to make their decisions palatable to the public, who must live with the consequences.  Social rights are important; indeed, their achievement may be one of the most basic functions of a constitutional democracy.  But the hard choices necessary to turn rights into realities are often thought to be better left to the political system rather than to a legally binding provision of the constitutional text."

(Constitutional Politics in Poland: A Report on the Constitutional Committee of the Polish Parliament (written in 1990), Constitution Making in Eastern Europe, A.E. Dick Howard, ed. (1993), p. 107)

Poland was not destined to receive a new Constitution until 1997, yet Rapacqynski's commentary remains prescient today as it was then: constitution writers should consider the impact of their provisions.  If the document is meant to be merely symbolic and not enforceable by a court empowered with judicial review, drafters have a broader range of language and what are often called "rights" that may be included.  However, if drafters intend for their constitutions to be judicially-enforceable, they must limit provisions and identified rights to those that courts and judges are naturally empowered--and trained--to protect.

Wednesday, 16 November 2011

Constitutional Muscle

"Will it be sufficient to mark, with precision, the boundaries of these departments
in the constitution of the government, and to trust to these parchment barriers against the encroaching
spirit of power?  This is the security which appears to have been principally relied on by the
compilers of most of the American [state] constitutions."
(James Madison, Federalist 48)

 Most countries (and the early American states) struggle to write constitutions that are self-enforcing. 

In describing Charles de Gaulle's 1958 French Constitution, Bell, Boyron, and Whittaker wrote in their chapter on French Constitutional Law, "Only with great difficulty is political change checked and framed by a Constitution," and "one might rightly wonder whether constitutional law is able to induce any change single-handedly."

Thus writing a constitution down is not enough to check and control government.  To account for this limitation, it is often thought necessary, as Madison identified in Federalist 51, to construct constitutional arrangements wherein "ambition must be made to counteract ambition."

Yet while this condition is necessary, it is evidently not sufficient in constructing a constitution which actually governs.  Even if a constitution pits divisions of government against one another and a constitutional courts is erected to enforce the constitution, these constitutions have generally not been followed by those in power. As Alec Stone Sweet of Yale Law School has identified, modern constitutional review systems have been "relatively ineffective, even irrelevant."

Why is this?  Why is it not enough to write a constitution down and arrange the organs of government to counteract and limit each other, and what can those countries who will soon be writing constitutions (Tunisia, Egypt, Libya, South Sudan, Iceland, Romania, Nepal) learn from this?

Perhaps one answer can be found in how the constitutions are constructed.

Stone writes that "[m]ost constitutions are contracts that are typically negotiated by political elites--representatives of competing groups or political parties."

As we can currently see in Romania, where a proposed constitution by the Romanian President is stalled in a Parliament who does not want to limit its size (required by a referendum), this arrangement is not always ideal. 

In addition to being hard to negotiate into being, a constitution constructed exclusively by political elites, without input and involvement from the people, will not be seen as a true social contract, and thus not be binding either now or later on those who did not or even did participate in its construction.

A process which involves the people and those leaders the people identify as universally legitimate and respected (and not necessarily political) will invey to the resultant constitution with a mysticism and general, long-term acceptance and respect. 

Witness the American Constitution, the French Code Civil, Israel's Code of the Covenant found in the Torah, and Shariah Law.  Each are legitimized and observed as law by its people decades, centuries, and even millenia later in part because of the perceived legitimate process by which it was conceived.  All which identify and adhere to these laws refer back to its inception.  Regardless of whether those outside the system agree with the precepts espoused by these laws, it must be uncontroverted that those who subscribe to the law are governed by it effectively.

Constitutional process matters.  Although most would agree that the process by which the Torah and Shariah Law were imparted is not possible for a modern constitution, it is possible to identify processes which will impart to a constitution the same kind of mysticism and respect for these laws and the Code Civil and American Constitution. 

With this kind of beginning, perhaps parchment barriers and setting organs of government against each other would be enough to render effective constitutions, both now and into the future.

Wednesday, 9 November 2011

James Madison's Argument in Favor of Arab Spring Democracy


Lorianne Updike Toler

"That the people and the States should, for a sufficient period of time, elect an uninterrupted succession of men ready to betray both; that the traitors should, throughout this period, uniformly and systematically pursue some fixed plan for the extension of the military establishment; that the governments and the people of the States should silently and patiently behold the gathering storm and continue to supply the materials until it should be prepared to burst on their own heads must appear to everyone more like the incoherent dreams of a delirious jealousy, or the misjudged exaggerations of a counterfeit zeal."

If this sounds like a secularist in Egypt or Libya or Tunisia arguing against those in the West who maintain that Islam and democracy are incompatible, you would be wrong.

Instead, it is James Madison in Federalist 46, arguing that the American people will never chose something actually and imminently dangerous to their own interest and security.  I believe the same could be applied to those in MENA countries.  No matter what religion they espouse, it is impossible that a majority would willingly vote and hold in power those who would do them harm.  

Thursday, 3 November 2011

Muslim Brotherhood Refuses to Build Consensus

They say that 80% of success in life is simply showing up.

The Muslim Brotherhood is learning the truth of this principle, as the party viscerally and dogmatically responds to supra-constitutional principles published yesterday, the product of a meeting they boycotted.

On Tuesday, 1 November 2011, Deputy Prime Minister Ali Al-Selmy convened 500 of the country's political leaders to discuss and produce supra-constitutional principles which would guide the work of a to-be-elected constituent assembly in crafting a new Egyptian constitution.  The Muslim Brotherhood and Al-Jamaa Al-Islamiya, both Muslimist parties, boycotted the meeting on grounds that elected (or selected, as the constituent assembly would be chosen by a newly-elected parliament) officials should operate without constraints.

Ostensibly, Muslimist parties, as some of the oldest parties in Egypt and providers of popular local services, would likely gain a majority in the new parliament.  Their dominance in parliament would mean a majority say in selecting the constituent assembly to draft the constitution and ultimately on the shape of the new constitution itself.  Thus measures to guide or control the constituent assembly (as reported by Al Ahram Onlin here) would presumably place limits on the Muslimists' power over the new constitution.

The Muslimists' resistance to "play with others" may have a long-term impact on the perceived legitimacy of the new constitution.  If it is dominated by one party, it will not be seen as a proper governing tool for the rest; witness the recent history of Hungary.

In the short run, had they shown up to the meeting of 500 with the deputy prime minister on Tuesday, they would have been able to have a voice in rejecting the ongoing role of the military in constitutional deliberations and procedures currently espoused in the document.

Perhaps next time major decisions about the shape of the future Eygptian constitution are made, the Muslim Brotherhood and other Muslimists will show up.  After all, in a sandbox fight between the Eygptian military and the Muslim Brotherhood, my bets are on those with the guns.

Monday, 31 October 2011

Pragmatic v. Ideological Constitutional Processes

The sun rising over Hamburg.   
Lorianne Updike Toler

An illuminating juxtaposition presented itself to me this weekend.

I attended a transatlantic conference on constitutionalism this weekend in Hamburg, Germany where I met a 20-year expert on comparative constitutional law at a top-10 law school in the United States.  He communicated to me that many methods of creating a constitution - by the legislature, by elected constitutional assembly, by non-elected parties getting together to write a draft and then submit to a popular vote - were equally desirable.  Often, he said, it was best to have the legislature create the constitution, as they would need to live with its consequences.

At the same time, I have been reading Gordon Wood's Creation of the American Republic.  There, Wood explains how, in the period between 1776-1787, individual states perfected a theory of constitutional process, most working its way through at least more than one constitution until the people were satisfied with the outcome and their level of involvement.  The evolved theory of constitutional process that resulted and was implemented led to the creation of the two oldest constitutions in the world - the Massachusetts Constitution, and the US Constitution.

The process, involving a separate constitutional convention, authorship by widely-respected individuals, and ratification, were based on the premise that the people did not authorize the legislator to re-create its own rules.  Such a supra-power required a power superior than that which could create normal law.  In addition, the legislators had a conflict of interest as members of the government:

Such a vested interest "may induce them to form the government, with a particular reference to themselves, [allowing them to] monopolize themselves a variety of offices." (Wood, 341)

I believe there is a connection between the legitimacy that such a process confers on the constitution, and its long-term success.  Witness the 200+ years in operation of both the Massachusetts and US Constitutions.  I might not be easy and practical, but insofar as constitutions are concerns, ideology behind the process of creation matter, and matter enormously.  In today's world, popular attitudes will ultimately trump and topple ill-conceived constitutions.

Witness Hungary's recent constitutional overhaul.  The previous constitution required 2/3 majority vote in Parliament to adopt a new constitution.  This year's parliament had the necessary 2/3 majority to do so, and it did.  It was practically and effectively accomplished, by the book.  All fine and good.

Yet in this instance, playing by the prescribed rules may not be enough in the long run.  I have talked to  at least a few students in surrounding states who question the legitimacy of the new constitution.  Not because of its substance, but because the process by which it was created did little to involve its people. The current parliament was not elected with the mandate to change the constitution, nor was constitutional change something that was discussed in the election.  Too, the constitution was not submitted for ratification.  It was essentially adopted by one party who happened to by the very popular flavor in the last election.

These young, ambitious student dissenters may not be able to do anything about their rancor now.  But they will likely form part of tomorrow's government.  What will they do then with a practically-conceived but exclusively-crafted constitution?  How will that effect the politics and economy of Hungary?

It may be less practical in the short run, yet I submit that ideologically-sound constitutional processes will always be better for business and for its people.

Wednesday, 26 October 2011

Democracy Will Out


Lorianne Updike Toler

Now that Libya has declared itself liberated and finally buried Qaddafi, it, along with Egypt and Tunisia, are looking to build new institutions of government based on democratic principles.

Libya presents anew the "previous question" of democratic government: whether a people can sustain self-government.  I have heard, unfortunately more than once over the last months, that the Muslims of the Arab Spring are not ready for democracy.

This has been repeated to me by those of various political strains in different locations around the world - Philadelphia, London, and this weekend at a conference on law and democracy in central europe.

Yet when did the West become so smug?  Have we forgotten that America was once snubbed by the English, now two great champions of "the people," as too uncivilized to sustain self-rule?  Have we forgotten the example in living-memory history wherein post-communist peoples created constitutions and elected themselves free people?

I was inspired this weekend at the law and democracy conference by the example of Georgia (the country).  There, the thirty-something member of the constitutional court of Georgia shared that corruption was rampant.  Public trust in the judiciary and police force was bordering in the teens and twenties.  To curb corruption, the age at which someone could qualify to be a judge was lowered to 30, and the entire police force was fired and replaced. Old judges have been replaced with freshly-scrubbed young ones as the longer training cycle has permitted, and public confidence and trust in the police force has risen to 80%, judges to mid-60%.  Astonishing.  Yet here was a people who were also once said to be "unready" for democracy.

Self rule is never easy, and beginnings are always messy.  Yet I believe that the majority of the people, unless they, too, have become corrupted, will not choose something that will harm them.  There is something inside the soul which wants to be free.  To borrow a phrase from Shakespeare, democracy will out. 

Wednesday, 12 October 2011

Rediscovering James Wilson



Lorianne Updike Toler

I came to the University of Pennsylvania Law School to study its first professor, James Wilson, based on a little re-discovery I made of an early version/draft of the Constitution he authored almost two hundred years ago.

Although I recently co-published all of Wilson's drafts of the Constitution (let me know if you'd like a copy), my research is headed in a bit of a different direction: I'll be collating much of the documentary history of state constitution-creation which gave raise to the formation of the federal constitution and analyzing it from a procedural perspective in a comparative study (a process in which James Wilson plays a central part).

That said, it is fun to find reminders of this remarkable man around the law school - a plaque at the school's main entrance, his portrait in the main hall, and, not pictured (coming soon), his breakaway desk, perhaps at which he wrote his illusive drafts...


Thursday, 6 October 2011

Slowing Down the Arab Spring

In reading Harold J. Berman's celebrated Law and Revolution, I came across this pearl:

"A radical transformation of a legal system is...a paradoxical thing, since one of the fundamental purposes of law is to provide stability and continuity.  Moreover, law--in all societies--derives its authority from something outside itself, and if a legal system undergoes rapid change, then questions are inevitably raised concerning the legitimacy of the sources of its authority.  In law, large-scale sudden change--revolutionary change--is, indeed, 'unnatural.'  When it happens, something must be done to prevent it from happening again.  The new law must be firmly established; it must be protected against the danger of another discontinuity.  Further changes must be confined to incremental changes"  

The challenge for Tunisia, Egypt, and now, Libya, is to stabilize their laws and constitutional foundation such that the rapid change of the Arab Spring slows down and sets a new precedent for stability in the region and individual countries.

How does one slow down a revolution (of course, only in those countries for which the Arab Spring has actually produced results - heaven help Syria, Yemen, and others seeking for greater freedoms)?  How does Egypt make sure this constitutional revolution, unlike that of 100+ years ago, sticks?  How do the Egyptians ensure that their revolution happens only once, following the American pattern rather than the French pattern?

Thoughts?

Friday, 9 September 2011

The Tea Party and the Muslim Brotherhood’s Common Bond


Draft letter from Jefferson to the Danbury Baptists


Lorianne Updike Toler

Many in the West have maintained that a Muslim state and democracy are mutually exclusive, highlighting what seems to be a fundamental difference between Eastern and Western philosophies.
Yet the difference may stem from common origins.  The concept of “Separation of Church and State” embedded in Western psyche is taken from a rare 1801 letter written by Thomas Jefferson to Danbury, Connecticut Baptists constituents explaining his interpretation of the First Amendment’s language that “Congress shall make no law respecting an establishment of religion or respecting the free exercise thereof.”

Although Jefferson’s interpretation was quite unique in the Age of “established” state and locality churches and may have been misinterpreted itself, with the Supreme Court’s use of it for the first time in the Mormon Polygamy case Reynolds v. United States and again in a case regarding public busing as recent as 1947, it has imperceptibly become incorporated into the vocabulary and psyche of Americans and the West generally as a normative standard for democracy, in part because it has the imprimatur of a Founder, because it has primal origins.

There is an undeniable and inescapable sense common to all men that what is old, is right.  This may explain, in part, adherence to tradition, the attraction of Ancient Greek and Roman civilization and philosophy, the attraction of Catholicism, and the broad appeal of the American Founders to their political philosophy (including yours truly).

The same is true for those who promote Islam in the Middle East and North Africa region.  Islam and its origins are forwarded as the correct basis for society not only because the period that witnessed its rise and hegemony was a golden period for the Muslim world, but because it is old, it is first. 

Returning to “first principles” is common lingo in the United States.  Instating or re-instating observance of Muslim law and religious precepts is the Islamic world’s own “first principles.”

Tuesday, 23 August 2011

Libya: Learn from Egypt's Constitutional Gridlock

Libyan rebels make a chalk drawing of their tri-colored flag.  Photo AFP. 

Lorianne Updike Toler

Although Libya yet finds itself in a state of chaos, as the end looms for Gaddafi and his supporters, Libya's civil and political rebel leaders should consider a strategy for avoiding an Egypt-styled  constitutional gridlock.

It may seem somewhat presumptuous to begin planning for a new government now even as Gaddafi's sons and he himself are unaccounted for and appear out of rebel control.  Yet if and when Gaddafi falls, as most major western leaders are now recognizing, it will be almost too late to put together a long-term strategy, as the country will require some measure of stability almost immediately.

Consider Egypt's plight: constitutional amendments were quickly voted upon in March, calling for elections of a parliament first, who would then identify a constituent committee to draft a new constitution.  Yet when it became apparent that the new parliament and therefore the constituent committee would be dominated by Muslim Brotherhood forces, other parties cried foul.  Several constitutional proposals have been proffered by various parties and leaders, and the deputy prime minister has now issued a document which takes each of these proposals into account in proposing a new constitutional procedure.  Despite this act of reconciliation and inclusion by the current military regime, the Muslim Brotherhood and it's political affiliates are crying foul, saying the initial, popularly-adopted procedure outlined in March is that which should be followed.  

The root of Egypt's problem was a failure to carefully plan and then institute a constitutional procedure which would be inclusive and build consensus from the beginning.  Elections are the default mechanism for a  democratic government.  Yet as Egypt's recent history has demonstrated, such a default mechanism is not appropriate--nor will it work--for long-term constitutional change.  More inclusive, supermajoritarian procedures should be used for constitutional moments; such inclusiveness will help to legitimate the process, precipitating wide-spread acceptance of a constitution as the supreme and first law of the land upon which a healthy rule of law can be established.

Even though Libya's new beginning is not yet, I would encourage rebel leaders to start planning an inclusive, consensus-building constitutional procedure now.  The more they involve all the various parties and voices throughout the process, the more support a new constitution will have, resulting in greater economic, political, and social stability.

Tuesday, 16 August 2011

Multiple, single-author constitution drafts good for Egypt

Photographed by Fouad Elgarnousy

Deputy PM Ali Selmy has drafted constitutional principles for Egypt, outlining a secular yet tolerant civil state.

His draft comes as the latest of several proposals to be put forward over the summer, and signals a healthy debate among political leaders and civil society organizations.

It also highlights what history has proven works: constitutions (and constitutional drafts) should be written by individuals.

Don't get me wrong - there should be a healthy debate around a Constitution, and proposals should be vetted, discussed, and amended by all players involved in the process. Yet the kind of careful, tight writing a constitution requires cannot--and should not--be written in a crowd.

Again, I turn to American constitutional history.  (I pause here again to make the point that if we measure constitutional success by its long-term acceptance by its own people, American history is a good place to look to derive a normative standard or normative model for constitution creation.  This may allow Arabs to avoid those aspects of American constitutionalism they dislike, while drawing on one of its greatest successes - its perceived legitimacy by Americans.  See this article on Aljazeera for an interesting perspective on how Arabs should not pattern their constitutions after America's.)

Several constitutional plans were proposed at the constitutional convention, each authored or headed by one individual - the Virginia Plan, presumed to be authored by James Madison, the Patterson Plan, the Pinckney Plan, and the Hamilton Plan.  One plan, the Virginia Plan, was discussed and debated at length by the convention.  Yet in the end, in the highly-important Committee of Detail, all plans (except perhaps the extreme Hamilton Plan) were used in drafting the Constitution.

The report of the Committee of Detail, the Constitution's first working draft, and the later, stylistic changes reported by the Committee of Style were heavily influenced if not authored each by one individual: James Wilson and Gouverneur Morris, respectively.  These plans were subsequently debated and changed by the full committee to produce the final Constitution of the United States.

Why is it important that drafts be authored (in part or in full) by a solitary voice?  Continuity of ideas, fluidity of prose, tightness and simplicity--all of the elements that contribute to a good piece of writing.  Especially a constitution.  Constitutions written (instead of being amended) by a committee can be overly wordy and try to do too many things at once.  This is problematic for a legal document which will surely be the basis for many lawsuits.  Too, wordy constitutions will not be read nor understandable to the people it governs, and therefore hard for them and institutionalized watchguards to enforce.

So far, Egypt's many draft constitutional principles have largely avoided the pitfalls of group work-product.  It remains yet to be seen whether, when a constitutional committee is constituted, they will adhere to this sound policy.



     

Thursday, 11 August 2011

London Rioters show Arab Spring Democracy not Enough

Vandalized Domino's Pizza a few blocks from my London flat.

Lorianne Updike Toler

Democracy means rule by the demos, or people. Self government or people-rule is considered a good and has become the normative standard for modern governance.  Yet what happens when some significant segment of the people have no respect for the rule of law.  What then, of self government?

I, along with other Londoners, have witnessed the tragic consequences such lack of respect produces as hundreds of youths have seized upon an excuse to vandal, arson, and loot with impunity their own neighborhoods in the last few days.  Many have compared the London riots to the Arab Spring.  Yet the largely non-violent, pro-democracy protests in the MENA region, as one blogger points out, bear little resemblance to the destructive, opportunistic vandalism of the rioting London youths, and the family who protested the shooting of their son in the taxi have decried any connection with or support for the gangs of youths who have seized upon their misfortune to aggrandize their fun and possessions.  Further, rather than being among a "feral underclass" who have been denied benefits by Cameron's austerity measures, the youths arrested Tuesday night are now reported to have stable jobs and futures ahead of them.

A connection might be found, however, in what we could learn about democracy and the rule of law from the London riots.

It may arguably be said that the United Kingdom has the oldest democracy, or form of self government, in the world.  True, it is shaped as a constitutional monarchy, but its unwritten constitution has evolved such that Parliament and especially the popularly-elected House of Commons and Prime Minister have greater power than the monarch or judiciary combined.

Yet there seems to be a certain generation and class of persons in Britain who clearly have little respect for the rule of law.  Why is this?  Democracy, in that it is seen as more legitimate, is theoretically suppose to breed voluntary compliance with the law, or respect for the rule of law.  What went wrong?

Here history, and particularly American history, has something to say.  One of the few things upon which there was unanimous consent among America's founding brethren was that self-governance (what they styled republicanism, but in general terms is called democracy today) requires morality.

And how is morality bred among the populance?  Again, the unanimous answer of the founding generation (even, eventually, Jefferson) was religion.  They assumed that piety and fear of God and eternal punishment would awake in a people a sense of duty towards one another.  After all, not killing, not stealing, and not lying, hallmarks of Old Testament Mosaic law, provided good starting points for any penal code.

(Clearly, religion isn't the only way to inculcate morals such to allow for self government.  One of the most moral individuals I know is an atheist.  An education which includes the teaching of ethics (and dare I say history?) might instill the kind of respect for the rule of law necessary for self-rule.  Some are calling for a re-emphasis of this kind of education in Britain, and are chastising parents for not inculcating their youth with ethics.)

These, then, are the relevant questions the London riots pose for their neighbors to the south and east - in addition to establishing democracy, how might they also create a culture which preserves the rule of law?  Will their faith and fear in God (or Allah) and an adherence to the Qur'an also help them to abide by each other's laws?  Democracy set up in a transparent and inclusive fashion will certainly help to promote voluntary compliance with the law, but democracy is not enough.     

Tuesday, 9 August 2011

America Can Help Arab Spring by Not Controlling It

Saudi Arabia King Abdullah condemned Syrian government Sunday night. Photograph: Tannen Maury/EPA


Lorianne Updike Toler

Sunday night, the king of Saudi Arabia had harsh words for the Syrian government's brutal suppression of its protesting citizenry.  The Arab and European reception was mixed, as King Abdullah had suppressed a similar insurrection in neighboring Bahrain and gave refuge to the has-been Tunisian dictator  Zine el-Abidine Ben Ali.  His speaking out at this time looked more like a political ploy to strengthen a post-Assad Sunni government.

Leaders and countries who seem to act out of political expediency rather than provide early and sincere support for Arab Spring uprisings are distrusted in the MENA region.  According to The Huffington Post's Michael Hughes, Obama's support of past dictators and "sluggish" support for the region's popular uprisings has placed the U.S. on the "wrong side" of the Arab Spring.

Hughes recommends that the U.S. "should embrace democracy even if it can't configure the outcome, and accept the reality that the Mideast's emerging governments will unlikely be transfigured into Jeffersonian-style secular republics." 

I agree.  But what does such an embrace look like, in real time?  Does embracing entail standing by, or providing tools and resources that the Arabs can take or leave in their self-determination?

I advocate the latter approach.  As outlined in last week's post, "The Case for History," democracy and its history cannot be divorced.  This means that the U.S. and its Western Allies should share with Arabs what they have learned about democracy, including how it has worked for them and historically successful set-up procedures.

As a wise leader once said, share correct principles (in this case, principles of procedure, not outcome-based), and allow the Arabs to govern themselves.  It might take some time--perhaps something like America's 11 years of near-anarchy under the Articles of Confederation--but Arab self-determination is the only path forward to lasting stability in the region.  

Friday, 5 August 2011

The Case for History

Lorianne Updike Toler

The Arab Spring has brought about the opportunity to implement Arab democracies in Egypt and Tunisia.  In setting up their new governments and constitutions, most Muslim Arabs are looking on Western influence and help with disdain.

While I am inspired by their independent zeal and believe that their constitutions will be stronger because of it, in their haste to go it alone, Arabs may be overlooking a piece of the "West" that is as much their inheritance as anyone else's. 

I speak of the political philosophy, democratic republics, and history of the ancient Greek and Roman civilizations.  The Greeks modeled democracies, or direct participation in government by the people; the Romans modeled republican government, or representative participation in government by the people.  These traditions the East preserved, sometimes through translation into Arabic.

These Eastern-preserved ideas were captured and discussed as part of a broad European Enlightenment, particularly by Montesquieu in his The Spirit of the Laws in 1750.  In particular, Montesquieu, a Frenchman, became famous for his praise of the English constitution (or form of government) in Spirit of the Laws

Montesquieu had great impact on Sir William Blackstone, who discussed Spirit of the Laws throughout his Commentaries on the Laws of England, published in 1765-9.  Blackstone's Commentaries, though not very well received in England, became the primary legal text and actual law (in that it summarized the inherited Common Law of England) in the fledgling United States where there was no constitutional or statutory law.  Too, both treatises were studied by those who participated in the constitutional convention, and particularly Montesquieu was discussed and referenced in the convention's debates.  James Wilson, who wrote more than one draft of the Constitution, relied upon or used Blackstone's Commentaries as a foil for his own writing and pulling together of various documents in compiling text for the Constitution, explained in his Lectures on Law.

A more direct connection between ancient models of government and the frame for the U.S. Constitution may be found in James Madison's studies of historical republics and confederacies in the months leading up to the convention.

The forms of government incorporated in the U.S. Constitution, and those found in its parent government in Great Britain, have been modeled the world over, where three branches of government, separation of powers, and independent judiciaries are all considered important aspects of democracy.

In fact, these same forms and concepts are being discussed by Arabs in Egypt and Tunisia, Morocco and Bahrain.  You cannot divorce democracy or republicanism from its history, and setting up the best democracies and democratic republics should always include canvassing successful contemporary and historical models in other countries.  The same is true for in-process Arab democracies as anywhere else. 

After all, the beginnings of democracy could be claimed as much by the Middle East as by the West.  

Thursday, 4 August 2011

What History Says about Creating a Muslim Democracy in Egypt

Salafis entering Tahrir Square July 29.  Ghetty Images.
Lorianne Updike Toler

After returning from a vacation in Italy, I was saddened to learn of the violence in Hama and in Tahrir Square over the last few days.  I was also surprised to learn of the Salafis' entry into the July 29 protests shouting, "Islamic. Islamic. Not Western or Eastern. No liberal or secular."   (See more pictures of the protest and clash between secularists and conservatives here.)


Other intensive reports such as this in Foreign Policy indicate that Salafis are beginning to say that not only is Islam compatible with democracy, but required by it:

Sixty-two percent of Egyptians believe "laws should strictly follow the teachings of the Quran," according to an April 2011 Pew Research Center poll. "Majorities usually run countries. So why should the minority [secularists] rule everything," poses Abdel Moneim Al-Shahat, a prominent Salafi scholar and the spokesperson for the Salafi movement in Alexandria.

Is a well-functioning, long-term democracy created through democracy, or mere majority rule?  History tells us otherwise.

Anti-western prejudice aside (as this entire blog, explained here, challenges the reader to do), consider for a moment the history of the longest-standing democracy based upon a written constitution.  Yes, I am again referencing American constitutional history (my specialty, after all).  

Each state but for Rhode Island sent delegates to the Constitutional Convention, wherein the delegations--composed of two or more delegates--had one vote.  This alone required supermajoritarianism, as measures were adopted based on the concurrence of a majority of people from a majority of the states.  Too, ratification measures later set into the constitution required 9 of 13 states to ratify before the constitution went into operation (again requiring a majority of a majority), and then only for those ratifying states.  Eventually, all 13 (plus an eventual 37 more) voluntarily ratified themselves into the union.  

The U.S. Constitution and the long-standing democracy it established did not become supreme law until a supermajority voluntarily agreed to abide by its principles.  How would such a procedure play out in Egypt?  What would the Egyptian constitution look like with respect to Islam? 

Regardless of its content, I guarantee that such a constitution would successfully govern Egypt for hundreds of years.

Wednesday, 27 July 2011

Lessons on Islam and Democracy from History - Part 2


Lorianne Updike Toler

This morning, a friendly gentleman seated nearby me in a London cafe asked me why, if there was separation between church and state in America, so much of religion infused all aspects of government.

His question highlighted the point I wanted to make here: strong and vibrant religious sentiment and adherence is best facilitated by making it free.  Free to express, and free from state support.

But first let me discuss why this Franco-Angle gentleman saw so much religion in North America, and particularly in governmental emblems and practices.

As I laid out in the first of this blog couplet, the primary reason a national established religion was proscribed in the First Amendment was because religion was locally controlled (and often established, or publically funded) at the state level.  States were not keen to relinquish this control.

Yet a small and persecuted minority in the country thought that establishing religion bespoke its decline.  General assessment bills, an equal-opportunity religious tax, were adopted by a majority of the states once independence from England--and the Anglican Church--was declared in 1776.  Although they would presumably benefit financially from the arrangement, Baptists disdained the tax, deigning they were "not adopted to promote true Piety, but destroy it."  (Petition of 'Several Baptist Associations" August 13, 1785, Library of Congress.) Put otherwise, as James H. Hutson wrote, "the only way [the Baptists saw] to invigorate religion was to let it makes its own way."

Although it is unlikely this philosophy made its way to the halls of Congress and contributed to the reasons why the First Amendment was adopted in its present form, the Baptists of 1785 proved prophetic.

When one looks at America beyond its secular coastlines (yes, that includes looking beyond impractical cultural aberrations common to international misperceptions such as Bay Watch), one will find churches.  Americans by and large are a believing people, with upwards of 83% claiming to belong to a religion,  40% claiming to attend services weekly, and a majority saying religion plays a "very important" role in their lives.  One will also find religious symbology on coins, in plaques, buildings (including the National Cathedral and chapels in public buildings and military complexes), and ubiquitously carved into granite in Washington, DC.  Religious speech will also find its way into public discourse, particularly into presidential speeches.  Office holders are not required to but will often opt to place their left hand on a Bible when taking their oath of office.  Bibles are also frequent for oaths taken in court.  Chaplains and prayers starting the days' work will commence national and state halls of government.

For the Western world, this is unique.  Compare this phenomenon to my current adopted country, the United Kingdom.  Here, according to the 2001 census, only 38% of Britons claimed belief in God.  Church attendance follows.  These numbers are on parallel with fellow Western countries.  And yet, in Britain there is no First Amendment nor proscription on state-established religions. My taxes go towards my local Anglican parish although I belong to another faith.  State sponsorship of religion seemed, over time, to correlate with decreased religious sentiment.

Is there cause and affect here?  Does state sponsorship of religion lessen religious zeal?  I believe that it does.  Providing for its freedom allows more organic urges to take root and prosper.  As the Baptists desired, religion, at least in North America, flourished when made free.  Where it was required, in Europe, it has declined into something resembling a historical relic.

I maintain, as with the first of this blog couplet, that established religions and democracy are not mutually exclusive.  Yet if the Arab world wants to ensure that its people will be the best Muslims, history has demonstrated that religion will take greater hold when disentangled from government.

Thursday, 14 July 2011

Lessons on Islam and Democracy from History - Part 1



Lorianne Updike Toler

In the Q&A of a speech I gave last week, it was assumed by one questioner that the Arab world, because overwhelmingly Muslim, was not ready for democracy.

I balked at this, knowing that many countries have both established religions and democratic republics, including Norway and the United Kingdom.  Indeed, it could be argued that the only reason the United States did not establish a national religion is because so many of the states already had (or had some form of state-sponsored religion).

In late-eighteenth century America, it was assumed that republican (or democratic) self-government required virtue, and the development of virtue required religion.  (See "Religion and the State Governments" chapter in a book on religion and the founding by the Library of Congress' chief of manuscripts.)

Consider this from a Massachusetts newspaper from March 9, 1780: "a very respectable part of this Commonwealth look upon it as a duty which God requires of Legislators, that they make suitable provision for the support of public worship and teachers of religion.  And not only so, but they esteem it as one of their most sacred and invaluable rights."

State responses in providing for religion varied.  Some had state or locally-established (state-funded) religions.  When the Anglican Church was disestablished with independence in 1776, most state legislatures instituted "general assessment" taxes, wherein citizens could choose to which church their monies would go. "Nothingarians" were allowed to direct monies instead to education.  Virginia, based on the work of James Madison and Thomas Jefferson, narrowly defeated such an equal opportunity religious tax.

Much more will be said in part II about why state or locally-sponsored religion did not last long and about how democracy and religious tolerance necessarily coincide, but history here carries the point:  established religions and democracy are not mutually exclusive; indeed, many of America's founding generation would argue that state-fostered religion was necessary to a properly-functioning democracy.

Tuesday, 12 July 2011

Taking Job Applications for Arab Spring's Framers

James Madison's General Remarks on the Convention
The vacuum of leadership in Egypt may stall the full fruition of the 25 January revolution.  Protestors took to the streets again last Friday in Cairo and Alexandria to demand several things, including that a constitution be written first, before parliamentary elections, and higher wages.  Many are still there, and reports of conditions are grave.

To the people, those in power seem little different to those who participated in Mubarak's regime, and questions arise as to who is left with enough experience to lead change.

Super-constitutional principles drafted with input from leaders in 11 parties are being issued soon, but will the people and those who lead them in the 25 January uprising accept these principles and those who drafted them as legitimate and consistent with the spirit of 25 January?

Who will be accepted as legitimate framers of Egypt's new constitution?

If the Arab world can learn from history, perhaps they will countenance learning about why the American Framers were--and still are--accepted as legitimate by the American people.  Why were these individuals so successful?

In my research this morning, I came across the above document written by James Madison near the end of his life, circa 1830-6.  In it, he discusses a few characteristics of those who participated in the American constitutional convention in 1787.

Here is most of what he says about his fellow framing brethren in "Gen[era]l remarks on the Convention" (available digitally at CCCXLIII):
  1. [they were] members of the most select kind & possessing particularly the confidence of the Constituents
  2. also generally of mature age & much political experience
  3. Disinterested men & candor demonstrated by mutual concessions & frequent changes of opinion
  4. Few who did not change in the progress of discussions the opinions on important points which they carried into the Convention
  5. Few who at the close of the Convention, were not ready to admit this change as the enlightening effect of the discussions
  6. And how few, whose opinions at the close of the Convention, have not undergone changes on some points, under the more enlightening influence of experience
Sounds like a job posting for new regime leadership in Arab countries, no?  Wanted: leaders trusted by the people with 10+ years of political experience, ability to admit mistakes and learn from others, and agility in debate and compromise.  


Who fits this description in Egypt, Tunisia, Libya, Syria, Yemen, and Bahrain?  I can think of a few.

Friday, 8 July 2011

Constitutional Success



Lorianne Updike Toler

How does one measure the success of a constitution?


It is one thing for a constitution to be popularly accepted upon its inception, even by a majority of the people.  But a good constitution stands the test of time, thereby creating long-term economic, cultural, and political stability.


In speaking on the topic this last week at the Landsdowne Club, I argued this point: constitutions should be judged by its active acceptance by the people over time.  In short, by its longevity.

By this measure of success, the British, American, and Norwegian constitutions are by far the most successful.  Yet if one is looking to write a constitution, the American is the best, most successful example, as the Brit's constitution is not written, and the Norwegian was patterned after ours.

Take two recent articles and the furor they have produced: Time Magazine's cover editorial by x-Constitution Center head Richard Stengel, One Document, Under Siege, wherein he discusses modern-day constitutional issues, and E.J. Dionne's July 4th editorial, What Our Declaration Really Said, wherein Dionne excoriates the Tea Party for misrepresenting the Constitution.  The latter has attracted no fewer than 3,000 comments and both have spawned endless email forwards and blog posts like this.  Regardless of the merit or non-merits of the arguments made (not to mention the hopefully innocent inaccurate and cursory legal and historical arguments throughout), these editorials and the responses they  elicited speak to a fundamental attachment to the American Constitution by parties and individuals of all political stripes.

Several elements of the American Constitution are admittedly antiquated, including the prohibition against "corruptions of blood" (sounds gruesome, but simply means that criminal punishments cannot injure multiple generations).  Yet not only is the basic structure of government laid out by its strictures still in operation, it is integral to the identity of many, many Americans.

If constitutional success is measured by the length of the people's embrace, the U.S. Constitution can be measured a smashing success.

What do *you* think?

Wednesday, 6 July 2011

The Moroccan Case for Independent Constitutional Authorship

Lorianne Updike Toler

In gradeschool, I often was required to hand my homework or test over to the individual across, behind, or in front of me.  Even though this system sometimes provided for embarrassment in unprepared students, it ensured fairness in making edits and corrections.

When an institution's work or powers needs to be checked, who is best-suited to correct it?  The institution themselves, or another?

In Morocco, King Mohammed VI anticipated a revolution by proposing a new constitution, voted on by the people on Friday, July 1.  Yesterday it was announced that 98% of the Moroccan people voted in favor of the constitution, which will result in the establishment of a Parliament with legislative authority.

Yet Twitter was a flurry on Friday with reports of underhandedness at the polls and over-reporting.  For instance, Rmidicitizen tweeted, "testimony: some voters are given only the paper saying YES, the one saying NO given only to those who seem educated."

Another pollwatcher, houdac, said "2h to go-48% participation at 16h local time."  Still another tweet from arabist indicated that by 3:00 p.m. Moroccan time, only 24% of the popular neighborhood of Rabat, Yaacoub al-Mansour, had voted.

In response to the announcement of overwhelming support for the new constitution, the streets in Morocco were full of protestors yesterday--both against the constitution, and against the agitators.  Watch this video depicting the two sides:



Many are claiming the King of Morocco has sent a compelling message to Arab sovereigns in how to respond to Arab Spring uprisings while keeping one's crown.  Yet perhaps the protests highlight the kinds of problems that children--and kings--encounter when correcting their own work.

Tuesday, 5 July 2011

"Normal" Constitutional Procedure for Egypt

Saad Al Katatni

Lorianne Updike Toler

In the face of a planned massive constitution-first protest in Cairo this Friday, July 8, there are reports that the Supreme Council of the Armed Forces may postpone Egypt's planned elections in September 1-3 months.

The Muslim Brotherhood will likely gain a majority of the seats in parliament which would thereafter chose the majority of the members of the constitutional council.  According to Gamal Essam El-din, these Islamists "insist that parliamentary elections are held ahead of drafting a constitution," apparently referring to some normative procedure for drafting constitutions.  Indeed, the Wall Street Journal reports Saad Al Katatni, the general secretary of the Muslim Brotherhood's Freedom and Justice party as saying, "if the constitution is first that would create a lot of problems for us."

Predictably, those who are primarily responsible for the toppling of Mubarak in February and who back creating a constitution before elections claim such a procedure is more in alignment with normative standards.

"It is only normal to draft a constitution first," The Eygptian Gazette reports judicial expert Mohamed Nour Farahat as saying.

So what is truly "normal" for constitutional procedure?  This begs the question of whether norms have been adopted or recognized by any international body.  To date, none has.  Rather, history here is the best guide in establishing normative procedure for constitution-making.

The procedure adopted in the country that set the normative standard of having a written constitution saw a constitution adopted first before general elections.  This is a tough comparison, however, because the U.S. constitutional convention met concurrent to rather than at the request of the national legislature. Localities--states--elected both the congressional delegations and called forth the convention and selected the delegates to that convention.  

If this experience can be paralleled, perhaps the powers which can call forth a parliament--the people--can also call forth a constitutional convention.  If some type of selection procedure can be identified to systematically select and send representatives to a national constitutional convention, according to normative standards established by history, such a constituted body would have power to draft a constitution, so long as it was thereafter ratified by a supermajority of the people.

Wednesday, 29 June 2011

Lessons from History: Who Should Write Egypt's Constitution?

Ahmed al-Tayyeb, photographed by Mohamed Al Garnousy
Lorianne Updike Toler


Monday's release of a new constitution proposal by top Muslim University Al-Azhar's grand sheikh, Ahmed al-Tayyeb, in addition to last week's proposal by democracy-agitator Mohamed Albaradei call to question who should write Egypt's new constitution, and how.


Regardless of whether a constitution is written before or after elections, there is little clarity on who should draft the country's new founding document.  


As Issandr El Amrani opines in Almasryalyoum: 



Whether the constitution or elections come first, the process by which they are conducted must be irreproachable. In the (unlikely) case a constitution is worked out first, those in favor of this scenario have still not explained who would write it and how they would be selected - appointment or election - and how they would reconcile this with the amendments passed in March.  
Even the current constitutional declaration (which assumes elections will take place first) leaves some doubt as to whether the constituent assembly, which is supposed to be appointed by parliament, will consist of elected officials, other persons, or both. Another unanswered question is whether the completion of its mandate - i.e. the promulgation of a new constitution, presumably by another referendum - will entail the dissolution of parliament and/or the presidency and new general elections.


Who should write a constitution, and how should they be selected?  History provides some insight here.
From the moment the Revolutionary War ended with the Treaty of Paris in 1783, and possibly as early as its drafting in 1776-77, the need for a federal convention to revise the Articles of Confederation was discussed--at least by a minority--in Congress.  Yet congressional impotence and complacency once peace was achieved at the national level led the issue to be taken up by the states in 1785. Virginia, based on John Tyler's bill, was the first to propose a federal convention to address economic issues in the wake of a national depression.  Five states selected commissioners to convene in Annapolis September 11-14, 1786.  Instead of proposing broad reforms because so few states were represented, the 12 commissioners, in the pen of Alexander Hamilton, recommended the convening of a federal convention to amend the Articles in May of 1787.  


Each state considered this proposal independently, and all but Rhode Island selected delegates to attend the Federal  Convention the summer of 1787.  The states selected their delegations through votes by the state legislatures.  One state sent two delegates (New Hampshire), others three (New York and Connecticut), four (Georgia, Massachusetts, South Carolina) and five (Delaware, Maryland, New Jersey, North Carolina), and still others seven (Virginia) and eight (Pennsylvania).  Each delegation, similar to the system under the Articles of Confederation, had one vote, determined by the vote of the majority of the states' delegates present.  Equally divided votes for state delegations would cancel their vote out.


The lesson history provides here is that those chosen to write constitutions should be selected by various constituencies.  Constituencies identified to select delegates may be determined by either geography as in the U.S.'s case, or where stratified, horizontal governmental structures are missing, perhaps from vertical political structures, such as political parties.  The important aspect here is that all identified groups who wish to send delegates may do so, selecting them in the manner they wish, and that all have an equal voice in the strictures of the new plan.  In this way, the new constitution will be shaped by the voice of consensus through representation rather than through a mere majority.