Constituent Power, Constitutional Legitimacy and Islam: The Case of the 2014 Tunisian Constitution

By Andrew F. March
Submitted to Session P5076 (Constitutions in the Contemporary Middle East: (How) do they still matter?, 2018 Annual Meeting
Pol Science
19th-21st Centuries;
The present panel asks: "What, if anything, do recent constitutions mean in the broader sociopolitical context of the MENA? What does the experience of constitutional promulgation, and broader public attention to legal norms and institutions, suggest more broadly that might be relevant to the understanding of the MENA, and/or the fields of comparative constitutionalism and comparative politics?"

One traditional question for Middle East constitution making has pertained to (a) the role of Islam and shar??a in the constitution and (b) the legitimacy of promulgated constitutions in the eyes of Islamist political actors or others concerned with the Islamic foundation of the political order. Under authoritarian regimes, Muslim intellectuals of a variety of ideological and sociological-educational backgrounds have developed elaborate theories of the constitutional order of an Islamic state. The Tunisian intellectual and party leader, R?shid al-Ghann?sh?, was particularly prolific in the years leading up to the 2011 revolution in elaborating theories of democratic legitimacy and constituent authority from an Islamic perspective. But by any metric, the 2014 Tunisian constitution contains very little of what pre-2011 Islamist theories regarded as the foundation of constitutional legitimacy.

Nonetheless, Ghann?sh? and other Islamist intellectuals have defended fiercely the constitution that they helped write and sustain. They have also done so in novel religious terms, raising the idea of an ideological transformation from "political Islam" to "Muslim democracy." This essay has three primary goals: (1) to give an account of the ideological contours of the ideal of "Muslim Democracy" in contrast with the ideal Islamist constitutional theory developed in the decades prior to the 2011 revolution, (2) to ask what kind of moral commitment or consensus undergirds the commitment to the 2014 constitutional order in Tunisia, and (3) to provide a series of theoretical answers to the question "was the ideal form of an Islamic democracy impossible, and why?" The research for this paper is based both on the analysis of published books and essays, and also a weeklong series of philosophical dialogues conducted between the author and R?shid al-Ghann?sh? in December 2017 and January 2018.