Law, Political Reconstruction and Constitutional Politics · PDF file · 2014-12-09Law, Political Reconstruction and Constitutional Politics ... The role of consti- ... Political

Law, Political Reconstruction andConstitutional Politics

Saïd Amir ArjomandState University of New York at Stony Brook

abstract: The purpose of this introductory article is to putthe constitutional reconstruction that followed the collapseof Communism in 1989 in historical and macrosociologicalperspective. The ‘new constitutionalism’ is considered thenovel feature of the post-1989 transition to democracy, andis analytically contrasted with the old constitutionalism and the classic idea of rule of law, and with the ideologicalconstitution-making of the intervening era. The role of consti-tutional courts as the typical institution of the new consti-tutionalism is highlighted. The concept of ‘constitutionalpolitics’ is developed to throw light on the process of politicalreconstruction, and the variation in its interface with the lawis considered along a spectrum ranging from the ‘judicial-ization of politics’ to the ‘politicization of the judiciary’.Contemporary constitutional regimes are compared withrespect to their distance from ideological politico-legalregimes, the extent to which the emergency powers of thehead of the state creates a situation of ‘dual legality’, and interms of the contribution of their major institutions to thetransition to democracy.

keywords: constitutionalism ✦ law and politics ✦judicialization of politics ✦ political reconstruction ✦ transition

to democracy

On 12 December 2000, the US Supreme Court declared the vote recountordered by the Florida Supreme Court four days earlier unconstitutional,and decided that Governor George Bush had won the presidentialelection, despite the fact that the majority of the national popular voteand, as became subsequently clear, of the disputed popular vote inFlorida, were cast for his opponent (Bush v. Gore, 531 U.S. 98 [2000]). Across

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the millennium line, in December 2001, the Iranian courts were sendingreformist legislators to jail in a fierce political battle against the Majles(parliament) that continues unabated to this day. In the last days of 2001,the Russian Supreme Court ruled against President Putin’s attempt torestrict a rival media owner in another ongoing and complicated politico-legal battle, while the Supreme Court of Zimbabwe reversed an earlierdecision against land confiscation by the government, though leavingresort to courts open to individual white farmers in cases of expropria-tion. On 1 January 2002, massive demonstrations against irregularities inthe Zambian presidential elections took place in front of the SupremeCourt of Zambia rather than the president’s palace. Two days later, a courtin Bahrain annulled the government’s ban on the freedom of expressionby a publicist accused of inciting sectarian strife. These events, all occur-ring around the turn of the millennium, are clear indications of thecontinuation of the salient involvement of the judiciary in politics fromthe end of the 20th to the beginning of the 21st century.

The conspicuous involvement of courts in politics is one aspect of the‘judicialization of politics’ or ‘global expansion of judicial power’ (Tateand Vallinder, 1995) in the aforementioned cases, and one importantconsequence of political reconstruction – postcolonial reconstruction inZambia, post-Communist reconstruction in Russia, post-revolutionaryIslamic reconstruction in Iran, with Bahrain pursuing its modest con-stitutional reconstruction with the ebbing of the third global wave ofdemocratization (Huntington, 1991) on the shallow waters of thesurrounding Persian Gulf. Furthermore, our examples illustrate not justjudicial involvement in routine politics, but judicial activism in the consti-tutional politics of reconstruction.

The Old and the New Constitutionalism – and theAge of Ideology in Between

With the human rights revolution of the last decade of the 20th century,including the emergence of the right to political participation in sounddemocratic government,1 the development of the international constitu-tionalist tradition entered a new global stage. This stage is marked by themassive adoption of bills of rights, on the one hand, and of constitutionalcourts, on the other (Klug, 2000: 9–10, 56–7). Some of the cases studied inthis special issue show the distinctive features of the new era of judicialpolitics, while others prove the survival of modes of constitution-makingand political reconstruction distinctive of earlier periods, notably the ageof modernization of the nation-states. It is therefore useful to begin witha sketch, in very broad strokes, of five stages in world constitutionalhistory, each with its typical mode of constitution-making:2

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1. The medieval and pre-modern era down to the 18th century, where thedominant pattern of legal development in many traditions consistedof law-finding and jurisprudence while law-making was confined toadministrative law by royal decrees;

2. The modern stage of political reconstruction by rational design in theage of democratic revolutions in the late 18th century, when consti-tution-making itself was introduced as the procedure for the elabora-tion of a rational design for political reconstruction, alongsideparliamentary law-making as an expression of national sovereigntyand the principle of separation of powers;

3. The age of modernization in the second half of the 19th and early 20thcenturies, when (authoritarian) constitutions served as instruments ofstate-building and rationalization of the centralized bureaucraticRechtsstaat, and law-making by parliaments and administrative organsdominated legal development;

4. The era of ideological constitutions as instruments of social trans-formation according to total ideologies and their offspring (1917–89),marked by the subservience of narrowly conceived rule of law andlegality to the dominant ideology of the regime. This constitutional eracomprised the period of decolonization (1947–1970s), in which a signifi-cant number of new states wedded ideological constitution-making todevelopmentalism,3 as the age of ideology spread from the first andthe second worlds to the emerging third world.

5. The era of new constitutionalism since 1989, marked by a mixture ofincreasingly judicialized legislation by parliaments and administrativeorgans and legislative jurisprudence by the constitutional courts andsupranational judiciary organs (Stone Sweet, 2000: 139–52, 200–5). ForStone Sweet, this mixture spells the end of the classical separation ofpowers pertaining to the old constitutionalism. This makes for adistinct mode of constitutional rationalization in the global era.

The organization of authority and division of power within the statetypical of the modernization stage remains an important subject of consti-tutional regulation down to the present, more so in some parts of theworld than in others. The Arab Middle East began experimenting withthis mode of constitution-making under Ottoman suzerainty in the 1860s,and remains for the most part stuck at that stage.4 Turkey (with a consti-tutional amendment in 1928), Egypt (culminating in the Constitution of1971) and Iran (in 1979) proceeded to the fourth mode, ideological consti-tution-making, and seem stalled there, with Egypt taking modest stepsbeyond it in the last decade or so, thanks to a self-recruiting constitutionalcourt, and with Turkey moving toward new constitutionalism in thisyear’s constitutional reforms under pressure from the European Union.

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Iran is deeply stuck in the ideological mode, with a set of unique clericalorgans acting as the guardians of Islam as the basis of its explicitly ideo-logical constitution.

There is also considerable chronological and practical overlap betweenthe ideological stage and ‘new’ constitutionalism, and many countriesshare their respective ideal-typical features in varying intermixtures. Theera of social transformation through state-building for the late-comers inthe 20th century was also the age of ideology. The constitutionalisttradition absorbed the notion of ideology as the totalitarian states paidlip-service to the idea of a written constitution, thereby creating a distinctgenre that I have called ideological constitutions (Arjomand, 1992). Themodel of ideological constitutions was widely adopted in the third world,though the ideology of social transformation it was to serve varied fromcase to case (in our sample, from secularism in Turkey to socialism inseveral postcolonial constitutions to Islam in Iran). Furthermore, the paperconstitutions of the age of ideology made a difference to the shape of thesucceeding states in the subsequent era of new constitutionalism. TheSoviet Union split into the Commonwealth of Independent Statesprecisely along the once artificial lines of its paper constitution, while‘Czechoslovakia was arguably destroyed by the fact that the communistconstitution gave the Slovaks unusually strong veto powers’ (Elster et al.,1998: 80). The paper constitutions of Hungary and Poland were gradu-ally and repeatedly modified during the collapse of Communism, muchof the existing law that was good on paper but had never been appliedproperly was retained – indeed made possible a ‘rule of law revolution’– and many of the social rights transmitted from earlier constitutionalmodels by the Communist constitutions could be properly constitution-alized in the new ones.5

Most of the new states that gained independence in the 1960s and 1970sreceived constitutional models transplanted from the former colonialpower. As Julian Go puts it, ‘world society was a world differentiated byempire’.6 The former British colonies adopted the Westminster model, andthe former French colonies the French model of government and style ofconstitution-writing. A number of former colonies adopted the ideologicalmodel, while others combined elements of it with transplanted consti-tutional models. Ideological constitutions thus became the legacy of totali-tarianism to the third world, as it emerged from the era of colonialismand imperialism, and an enduring one that has so far survived the strainsof democratization and human rights.

Although the East European revolutions thought of themselves andhave been characterized as restorative (Preuss, 1995) and self-limiting(Arato, 2000), the historical truth is otherwise. In history, as TheodorMommsen knew well, all restoration is also revolution. Return to old


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forms of limited government and Rechtsstaat after 1989 was an impossi-bility. As Kurczewski (1999: 187–9) notes, the rule of law cannot mean thesame thing before and after the great 1917–89 divide made by Com-munism and Fascism as grand ideologies of total social transformation.The abuse of ‘legality’ by Communism and Fascism necessitated a new,amplified, rights-based conception of the rule of law, which includes justi-ciable human rights substantively, and specifies mechanisms and insti-tutional devices for safeguarding the rule of law – most notably theconstitutional courts, and in some countries, additionally, the office of theOmbudsperson. It has been noted (Bryde, 1999: 28–9) that while theAmerican-style, ‘diffuse’ judicial review appears as a good guarantor ofthe rule of law in the old, narrow sense, the constitutional courts, modeledon Kelsen’s design in the Austrian Constitution of 1920 but with a verysignificant extension, have lent themselves admirably to the guaranteeof the rule of law in the new, amplified sense. The key to the role of the constitutional court as the instrument of the new constitutionalismis the idea of transition to democracy – first in post-Fascist Germany andItaly, then in post-authoritarian southern Europe, and finally in post-Communist Eastern Europe and Russia. The idea, and the institution ofconstitutional courts, became all the more attractive after 1989 as it heldthe promise of joining Europe.

In the American context, ‘the rights revolution’ usually refers to theconjuncture of two phenomena in the 1960s and 1970s: the emergence ofthe ‘regulatory state,’ with roots in the New Deal, and its interaction withthe American Common Law system in which ordinary courts have thepower of judicial review. There was a huge increase in federal govern-ment power, and federal statutes and federal constitutional law emergedafter the New Deal – and with a vengeance after the Second World War– to give nationally standardized rights protection. The result was adecentralized pattern of constitutionalization of social, and an expandingarray of civil, rights guided by the jurisprudence of the Supreme Court(Sunstein, 1990). This pattern is distinct from the rights revolution in theglobal context and in the sense used in this article.7 The rights revolutionin the global context had its roots in the 1948 UN Universal Declarationof Human Rights and the 1950 European Convention of Human Rights,and the international conventions of the 1960s – the InternationalConvention on Civil and Political Rights and the International Conven-tion on Economic, Social and Cultural Rights. The global rights revolution,however, gained momentum only gradually and after acquiring an inter-national institutional embedding in the Commissions set up alongsidethe UN Human Rights Instruments in the 1970s and 1980s.8 Meanwhile,the human rights NGOs grew around the global institutional networkthus created by the UN.


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In a separate development, the constitutional courts of Germany andItaly provided a model for the key judicial overseer of the transition todemocracy, which was adopted in Spain, Portugal and Greece after thefall of authoritarian regimes in the late 1970s. Meanwhile, the EuropeanCourt of Justice, beginning in 1969, was empowering itself with humanrights jurisdiction. Furthermore, the European Court of Justice, insistingthat the EEC Treaty created ‘a community based on the rule of law’ (1986,ECJ 1365) and that it was ‘the constitutional charter of a Communitybased on the rule of law’ (Opinion 1/91) (cited in Finer et al., 1995: viii,4), has emerged as the supreme exponent of constitutional principles. Thecontinuous political reconstruction of the Western European nation-statesinto the European Union since 1958 thus resulted in the ‘constitutional-ization’ of the legal structure of the European Community (Weiler, 1999).The process has culminated in the EU constitutional convention whichbegan drafting a constitution for Europe under the chairmanship of theformer French president, Valéry Giscard d’Estaing in December 2001.

The next wave of post-Soviet multiplication of constitutional courts,with rights jurisdiction built in, more or less coincided with another inde-pendent trend. The World Bank adopted the position that the rule of lawwas an essential prerequisite for economic development (Rowat et al.,1995), and stimulated an extensive program of legal training and insti-tutional designs for improving access to courts, which had a considerableimpact on Latin America. This latter development fostered a new idea ofpolitical reconstruction: the reconstruction of ‘the post-developmentaliststate in the semi-peripheral countries’ in order to meet ‘the regulatoryneeds of the new neo-liberal development model’ (de Sousa Santos, 1999:73–4). Like the two European waves of democratic transition and thegrowth of the European Court of Justice and the European Court ofHuman Rights, this primarily Latin American wave of post-develop-mentalist reconstruction provided a globally spread institutional struc-ture for the enforcement of human rights, albeit with special emphasis onproperty and contract. The confluence of these diverse institutionaldevelopments and the growth of international, UN-centered rightsorganizations and NGOs produced the global rights revolution of the1990s, which was celebrated by the 1993 UN World Conference on HumanRights, with more than 5000 NGOs in attendance (Roan, 1996: 139).

Kelsen had considered his constitutional court as the guardian of theconstitution. The protection of human rights, significantly excluded byKelsen himself, has been added to the functions of the Kelsenian modelin the new constitutionalism, just as the constitutional courts haveassumed the function of guiding the transition to democracy. A note-worthy example is the certification power granted to the South AfricanConstitutional Court in the process of post-apartheid constitution-making.


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The constitutional court was required to certify the consistency of the draftproduced by the Constitutional Assembly with the constitutional prin-ciples set forth in the Interim Constitution of 1993, and issued two robustconstitutional judgments in the course of its approval of the 1996 Consti-tution (Klug, 2000: 154–9). With this extension of its jurisdiction over therights, and even more with the assumption of the authority to interpretconstitutional principles in the transition to democracy, it is now moreaccurate to speak of the constitutional courts as the guardians of ‘theinvisible constitution’ (Sólyom),9 or ‘the guarantors of the basic consen-sus on which democracy is founded’ (Sajó, 1999: 242).

The post-ideological reconstruction of legality by the constitutionalcourts in the period of transition to democracy requires a ‘transitional’politicization of public law and an instrumental use of law. This inevitableinstrumentalization of law for the purpose of political reconstructioncreates some tension with the rule of law in the old and narrow sense ofprevention of abuse and arbitrary exercise of power through institutionaldevices (Teitel, 2000: 189; Krygier, 2001: 4, 22; Tamanaha, 2001: 238). Thetension, however, is minimal compared to that created by constitutionallaw as an instrument of social transformation in the previous era of ideo-logical constitutions.

If the amplified notion of the rule of law is a reaction to the experienceof totalitarian ideologies, the constitutional courts can be said to be theinstitutional response to the same experience. Ideological constitutionsoften syncretically included an impressive bill of rights, but took backwith one hand what they pretended to give with the other by subordi-nating them to higher ideological principles (Arjomand, 1992). The consti-tutionalization of human rights in the 1990s put an end to this possibility.Article 70/A of the Hungarian Constitution declares that the Republic‘shall ensure human and civil rights’, in that order, ‘for everyone withinits territory’. The emergence of constitutional courts as guardians of thenew constitutional orders is largely due to their being instruments ofunconditional enforcement of individual rights. As such, they have acritical role in the reconstruction of legality in the amplified sense implicitin the new constitutionalism (Teitel, 2000: 23–6).

In ideological constitutions, revolution (or ‘principles thereof’), thepeople (or ‘aspirations thereof’), or Islam (or the ‘principles of the Sharià)assume the place of the higher law (Arjomand, 1992). Kelsen had, in effect,elevated the principle of logical consistency and hierarchical groundingof ordinary laws on a ‘basic norm’ in the allegedly gapless order of legalpositivism to the position of the higher law. This paved the way for theenthronement of constitutional interpretation by the German and Italianconstitutional courts. Constitutional interpretation thus takes the positionanalogous to that of the higher law – an idea from the natural law tradition


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that hovers over the common and civil law systems alike. In the processof deideologization of the Communist constitutions, the legal-positivistvalue of consistency was coupled with that of human rights to constitutethe transcendental basis of the new rule of law, or the higher law of thenew constitutionalism.

As the president of the Constitutional Court of the Republic of Hungarylater explained, ‘all references to ideologies or intellectual trends wereremoved from the text’ of the constitution, and were replaced, throughthe decisions of the constitutional courts, by ‘a clear hierarchy of funda-mental rights’. Furthermore, as politics and ideology had to be overcomesimultaneously in the new normative order, and ‘the establishment of theformal rule of law over politics was the greatest order of the day, this prin-ciple was practically equated with the principle of legal certainty’(Sólyom, 2000: 5–6). From 1992 onward, the rule of law became a sufficientcriterion of (un)constitutionality on the basis of two underlying principleswhich served as its technical pillars: ‘legal certainty and the coherence ofthe Constitution’. The constitutional courts considered the maintenanceof ‘the principle of coherence of the Constitution’ its vocation, thusclaiming authorship of Hungary’s ‘invisible constitution’ (Sólyom, 2000:41). Here, Sólyom invests the formal positivistic value-idea of coherencewith substantive content to mean the normative coherence of a consti-tutional order and balance among its institutional components found inthe international constitutionalist tradition.

The characterization of the new constitutionalism in terms of ‘the higherlaw constitutionalism model’, where ‘a layer of substantive constraints onthe use of public authority is added’ to those of the old constitutionalism(Stone Sweet, 2000: 21), is thus very apt. The correspondingly extendeddefinition of the amplified, post-ideological rule of law deserves citationin full:

In polities where constitutional courts have been established, a new top rungon the normative hierarchy has been established, the constitution. The missionof constitutional courts is to defend the superior status of the higher law, byensuring that all lower order norms, including statutes, conform to it. Thus theRechtsstaat is today the constitutional Rechtsstaat, and the état de droit has beenconstitutionalized. (Stone Sweet, 2000: 28–9)

In short, the revival of the rule of law in the context of, indeed in a newmarriage with, the rights revolution has radically altered its meaning. Thenew meaning may be emerging gradually but it nevertheless signals anew axial shift in legal order and political organization. The transcendentidea of the law itself becomes an axiological necessity, just the idea of ahigher law is a necessity for the common law tradition, ideology had beenthe guiding principle of ideological constitutions, and, more tellingly,


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logical coherence and consistency had forced itself as the supreme valueupon the doggedly agnostic legal positivists only to be transformed intothe normative idea of the coherence of the constitutional order under newconstitutionalism.

Every transcendent idea is in need of interpretation and thus generatesor reinforces the institutional authority of those empowered to interpret.That is why the current creed of the rule of law strengthens the authorityof judges and jurists. Just as priests institutionalize the values of religionand scientists those of science, so the possessors of legal knowledge andexpertise are needed to institutionalize the transcendent idea of the ruleof law.

Constitution-Making and Reconstruction of thePolitical Community

There are significant differences in the pattern of interface between legaldevelopments and attempts at political reconstruction in different partsof the world. The new states in our sample (or we should say, the old newstates among the first set of postcolonial states created in the late 1940sand early 1950s – that is, the same period as the postwar reconstructionof Germany, Italy and Japan) raise the issue of the constitutional construc-tion of national identity and the role of religion in the new nation-state.It is interesting to note that the number of constitutions with religiousprovisions increases sharply in the 1990s.10 The need for the constitutionalreaffirmation of particularistic religious identity has evidently notsubsided in the era of globalization.

Although Israel was not unaffected by the developmentalist ideology,the debate over socialism versus capitalism, typical of the bipolar worldof ideological constitutions of the fourth era, gave way to the tensionbetween Jewishness and democracy, with the first term containing twoelements: the Jewish religion and its role in the Jewish state, which pittedthe orthodox against the secular Jews, and the Jewish ethnic identity asthe sole or central basis for nation-building after the 1948 war, whichpitted the Jews against Arab citizens.11 The first problem is analogous tothe constitutional handling of Islam in the Islamic Republics of Pakistanand Iran (Arjomand, 1993); the second, to the constitutional handling ofethnic identity and citizenship in postcolonial political reconstruction ofmultiethnic societies.

Religious constitutional provisions, though often merely declaratory,entrench a set of extra-legal values. These provisions may lie dormant fora long time, but can also have a tremendous impact on constitutionalpolitics because they make possible potentially powerful alignment ofsocial forces behind religion as the higher law against legality, and thus


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create a different kind of duality that results in a constitutional crisiswhich can wreck the legal order. Iran, as we shall see, provides an extremecase of this danger. There, ‘legality’ is championed by an elected presi-dent, who endeavors to use his plebiscitary authority to restore the ruleof law, while the Supreme Clerical Leader claims divine legitimacy as theprotector of Islam and trumps the rule of law at will.

Although the definition of the political community was a primaryfunction of the first written constitutions of the age of democratic revo-lutions, which made them the basis of nation-building in the United States(‘We the people’) and France (‘la Nation’), its members were conceivedgenerically as individual citizens12 (Howard, 1992: 113, 120). This functionceded its primacy to the definition of the state structure in the era of state-building and bureaucratic Rechtsstaat. It was in this latter form, and asinstruments of rationalization of the structure of authority, that the consti-tutions were imported by the state-builders of the Ottoman Empire,imperial Japan and Iran – who incidentally found their encumbrance withthe democratic definition of the political community a great nuisance.

The primacy of the definition of political community re-emerges witha vengeance in our fourth stage, this time exacting a constitutional defi-nition of ethnic and religious identity. It is no longer the generic we thepeople, whose ethnic and religious identity is implicit and thereforelegally irrelevant, but we the people of this specific country which has toovercome backwardness in the imperialist race, or this colony that has tobe liberated. Ethno-national and religious dimensions of collectiveidentity become explicit, indeed reified, and impregnated with legalimplications. It is primarily we the Iranians, Egyptians or Nigerians, wethe Jews in Israel and we the Muslims in Pakistan.

The post-totalitarian transition to democracy involves an altogetherdifferent set of problems with the definition of political community thandid the postcolonial transition into nation-states. Law is used both instru-mentally and expressively (through other rituals of passage) to delegit-imize the old regime and justify the new political order. Analytically, herewe have a parallel to the constitutional construction of national andreligious identity as a means of demarcation of new regimes in theprevious stage of constitutional development. Parliamentary legislationto redefine the boundaries of political community in post-CommunistEastern Europe through purges and ‘lustration’ laws has usually drawnthe constitutional courts into the politics of reconstruction (with differentresults – in the Czech Republic, the constitutional court approved thepurges and in Hungary, the constitutional court rejected them). However,in sharp contrast to the construction of national and religious identity, therhetoric of the rule of law has played a central role in the constitutionalredefinition of post-Communist political community (Teitel, 2000).


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In contrast to the presumed moral worth of nativism against thecolonial rulers, the task in the era of new constitutionalism is the moraldefinition of democratic political community. In the context of the humanrights revolution, the main focus of the moral redefinition of the newdemocracies in contrast to the totalitarian regimes they replace is thelatter’s violations of human rights.13 (In South Africa, the postcolonialmoral redefinition coincides with facing, in truth and reconciliation, thehuman rights violations of the apartheid regime.) There can, however, beother significant foci for the contrastive redefinition of the reconstructedpolitical order. Most notable of these is the role of women in the newpolitical order. The transition from Franco’s authoritarian rule to consti-tutional monarchy in the late 1970s was also a transition from a patriar-chal regime to one based on gender equality. The Spanish Constitution of1978 was explicit in basing the legal definition of the new democraticpolitical community on gender equality. The transition from patriarchalauthoritarianism to gender-egalitarian democracy in Spain raises themoral problem of which gender in the transitional generation should bearits cost, which is the subject of Ruth Rubio-Marín’s article (this issue).

Political reconstruction of societies formerly torn by civil strife, dividedinto racial castes, or into the powerless and the apparatchiks (‘us and them’)and thus scarred by severe past human rights violations also requires thegeneration or regeneration of social solidarity on the basis of ‘restorativejustice’. The moral reconstruction of these societies must therefore gobeyond constitutional and political settlement, as Abraham Lincoln andNelson Mandela knew well. In such cases, as Braithwaite (2002: 207–8)puts it, ‘Rituals are needed to heal the damaged souls of the people. . . .Forgiveness cannot be forced’; it can, however, be facilitated by provid-ing ‘citizens with rituals that expose us personally to the sorrows andsufferings of the other’. Hence, the world-historical significance of thehearings of the Truth and Reconciliation Committee in South Africa andof similar bodies in Central Eastern Europe, and the persuasiveness ofSkąpska’s attempt in her article to approach the issue from a compara-tive religious perspective.

As Ruth Gavison points out in her article (this issue), the relationshipbetween political reconstruction and constitution-making is far fromsimple. Radical political change may occur in the context of constitutionalcontinuity or major changes in constitutional law may occur without anypolitical upheaval. Different institutions can become engines of consti-tutional politics; and the distinction between routine and constitutionalpolitics is frequently blurred. In Eastern Europe I find the contrastbetween the constitutional developments in Hungary and Poland mostinteresting. Both countries are marked by the typical Eastern Europeanconstitutional continuity and absence of legal rupture in the process of


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transition to democracy (Preuss, 1995: 94; Teitel, 2000: 205–6). In Hungary,we have had, to quote László Sólyom’s famous words, a ‘rule of law revol-ution’.14 In Poland, we see the same tinkering with Communist laws.15

The difference between the two cases concerns the major agency of consti-tutional change: the constitutional court in Hungary as compared to theparliament in Poland. The Polish Constitutional Tribunal, modeled afterthe French Conseil Constitutionnel, was a weaker institution than theGerman-inspired Hungarian Constitutional Court, and the separate officeof the Ombudsman was set up to deal with the human rights questions.We explore the consequences of this difference in the next section. At thispoint, it may be more useful to summarize the important differencesamong the eight major cases of contemporary political reconstructionstudied in this issue of International Sociology into four pairs of countries.In the first three, judiciary organs facilitate political change, while in thelast, they provide a mechanism of resistance to change in the results ofearlier political reconstruction (see Table 1).

Nationalization of Global Trends and LegalTransplantion

Although transnational trends, global governance and integration throughthe law cannot be dealt with directly, the articles in this issue on Turkey


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Table 1 Comparisons in Terms of Relative Independence of Major Institutions ofConstitutional Regimes since 1989

Country Presidency Parliament Constitutional Court Other

Hungary � � ��

South Africa � ��

Poland � �� (Ombudsman)

Israel � ��

Russia �� (Federalism)

Egypt ��

Turkey � � � ��(The Military)

Iran � � � ��(The Supreme Jurist;

Council of Guardians)

�� = Very important � = Important � = Unimportant


and Poland mention the insinuation of the European and internationalhuman rights into national legal systems – a process akin to what Weiler(1999: 28, 33, 98, 100) calls ‘nationalization’ and ‘infra-nationalization’ inthe European Union. More generally, as the idea of constitutional reviewis closely linked to the defense of human rights in new constitutionalism,the constitutional courts have acted as a channel for nationalization ofhuman rights – mainly in Western and Eastern Europe and South Africa,but also in Egypt. Legal transplantation obviously plays a major role inthe transmission of the constitutionalist tradition. Julian Go elaborates onthe transmission of two distinct constitutional models to the former Britishand French colonies, while Sólyom offers us valuable insights into thetransmission of German neo-constitutionalist jurisprudence to CentralEastern Europe. But we also find examples of legal transplants of a lessobvious – and for that reason, analytically more interesting – kind: trans-planation across different eras in constitutional history. Preuss (1995:68–72) delves into the Weimar constitutional debates in search of the rootsof the post-Soviet ‘constitutional reflexivity’. The survival and revival ofstrong presidency in Russia and Egypt and the inclusion of Iran in oursample offer us a good reason for doing the same, and for demonstratingthat ‘transplanting frequently, perhaps always, involves legal transform-ation’ (Watson, 1993: 116).

As we discuss later, authoritarian constitutionalism of the era of state-building survives – indeed to the extent that justifies making it into an idealtype. Several new constitutions have been promulgated by the rulers in theArab Middle East, and the Egyptian president has made continuous useof emergency decrees.16 The Russian Constitution was designed by Presi-dent Yeltsin, and some sweeping measures to reorganize the Russian statehave been taken by Putin’s presidential decrees.17 Although the consti-tutional discussions of strong presidency arose in the context of the Weimarconstitutional crisis in 1930s, they can help us characterize the legal situ-ation in Russia as well as in other contemporary authoritarian regimes such as Egypt that have been variously described as ‘neo-patrimonial’(Eisenstadt, 1973) and ‘neo-Sultanistic’ (Chehabi and Linz, 1998).

In his study of the Weimar constitutional crisis, Rossiter used the term‘constitutional dictatorship’ to describe ‘the delegation of legislativepower through the device known as “the enabling act” ’ (see Rossiter,1963: 9–10). The Weimar debate between Carl Schmitt, on the one side,and Otto Kirschheimer and Franz Neumann, on the other, had focusedon ‘the plebiscitary personage of the federal president,’ making him acompetitor in law-making of a parliament he has the right to dissolve.This debate highlighted the distinction between ‘legality’ and ‘legiti-macy’ – with the latter serving as the ‘justification of direct plebiscitarylaw-making’ (see Kirschheimer, 1996b: 86). The legal transfer of special


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power used for issuing emergency decrees results in ‘dual legality’(Kirschheimer, 1996a: 47; Fraenkel, 1941). In Neumann’s (1996) concep-tion, this duality arises from the tension between the rational conceptionof law and its political conception (as sovereignty). It results in thesubsistence of a rational-legal order whose assertion can, however, betrumped by political law. Political law can take the form of the decree ofa plebiscitary ‘constitutional dictator’ or a charismatic leader or anauthoritarian military dictator.

The use of emergency decrees discussed in the Weimar literature resultsin the fusion of legislative and executive power. Analytically, this contrastswith the fusion of legislative and judiciary functions in constitutionalcourts, which also first surfaced in the Weimar constitutional debates. Iam suggesting that the first divergence from the norm of separation ofpowers throws considerable light on dual legality currently evident inregimes such as Egypt’s. In the post-Communist reconstruction of Russia,we find a combination of both types of divergence from the norm of separ-ation of powers, with legislation by presidential emergency decrees, onthe one hand, and constitutional jurisprudence of the high courts, on theother.18

The tension between presidentialism and court-centered constitution-alism is also classically discussed in the Weimar constitutional debates.In 1928 and 1929, Kelsen offered a theoretical justification for consti-tutional courts by elevating the principle of constitutional legality aboveparliamentary legislation and arguing that its technical interpretation andthe determination of the constitutionality of legislative and administra-tive acts was a non-political function, and therefore required a body ofexperts in constitutional law (Kelsen, 1928; Dyzenhaus, 1997: 150–2). In1931, Carl Schmitt argued that, in view of the inconsistencies of theWeimar Constitution and the evidently political nature of judicial reviewby the constitutional court, it was the duty of the president, by virtue ofhis direct election by the people (his plebiscitary legitimacy) and his inde-pendence from factional party politics, to act as the ‘guardian (Hüter) ofthe constitution’. Kelsen responded by reaffirming that the politicallyneutral constitutional court, and not the elected president (whose powerswere defined by the constitution and who was therefore an interestedparty in the determination of constitutionality), was the organ entitled tothe authoritative interpretation of the constitution. The constitutionalcourt was therefore the true ‘guardian of the constitution’ (Dyzenhaus,1997: 76–7, 108–23).

Weimar constitutional ideas were transplanted into constitution-making in the second half of the 20th century. General de Gaulle’s legaladvisors were evidently familiar with the debate, and sided largely withSchmitt, declaring the president the guardian of the constitution and


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responsible for its implementation in Article 5 of the 1958 Constitution ofthe Fifth French Republic.19 However, a non-judicial Conseil Constitution-nel was also set up with the power of reviewing parliamentary legislationbefore it would go into effect. The French Constitution of 1958 was in turnlargely transplanted into the draft constitution of the Islamic Republic ofIran prepared by the provisional government of Mehdi Bazargan in thespring of 1979. A unique feature of the old Iranian Constitution of 1906–7,designed to accommodate the Shiìte norms of authority (Arjomand,2000), however, was assimilated to the French design of the ConseilConstitutionnel. The 1979 draft constitution proposed a mixed panel ofsecular and clerical jurists to review the bills for constitutionality andconformity with Islam. It was called the Council of Guardians of theConstitution. The draft constitution was thoroughly Islamicized by aclerically dominated Assembly of Experts and changed almost beyondrecognition. The split function of guardianship of the constitution, trans-planted from the 1958 French Constitution, however, survived this Islam-icizing onslaught. In the Constitution of 1979, the council is simply calledthe Council of Guardians, with its guardianship of Islamic standards asthe higher law boosted and made the exclusive prerogative of its clericaljurists. However, it retains the incidental function of supervising theelection included in the French model.

The paths of subsequent development of this transplanted institutionin France and Iran diverged widely. The Gaullist institution of the ConseilConstitutionnel took a life of its own soon after de Gaulle stepped downas the president. In 1971, it constitutionalized human rights in France bydeclaring the preamble to the previous constitution of 1946 as well as the1789 Declaration of the Rights of Man and the Citizen part of the FrenchConstitution. The Conseil Constitutionnel has since become judicialized andactive in constitutional review alongside other European constitutionalcourts (Sajó, 1999: 236–7). The Iranian Council of Guardians, by contrast,has used its power of constitutional interpretation to justify its peculiaruse as an instrument of political control, arguing that the supervision ofelection was entirely discretionary (estesvabi) and entitled it to rejection ofcandidates for presidency, the Majles and other elected bodies. It has usedthis power notoriously, and, as we see presently, is largely responsible forthe current constitutional crisis in Iran.

In the global wave of constitutionalism at the close of the 1980s, theFrench model of Conseil Constitutionnel was adopted in Poland, and in theformer French North African colonies, being introduced to Tunisia by apresidential decree in 1987, followed by an ordinary law in 1990, and inthe Algerian Constitution of 1989, the Mauritanian Constitution of 1991and the Moroccan Constitution of 1992 (Bendourou, 1997).


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Political Reconstruction and ConstitutionalPolitics

Constitutional politics is generally conceived in opposition to routinepolitics and policy-making. We need, however, to be more precise in ourdefinition. Our focus on political reconstruction requires a broad socio-logical definition of constitutional politics in preference to Stone Sweet’smore strictly legalistic one. Stone Sweet (2000: 21–2) defines constitutionalpolitics narrowly as the regulation of decision-making by public officialsand other individuals through ‘the rule making of constitutional judges’.It seems preferable to call this ‘judicial [ization of] politics’, while givingconstitutional politics a broader macrosociological meaning as the politicsof reconstruction – be it in the form of construction of new politicalcommunities, modernization or transition to democracy – where socio-political forces and institutional interests are aligned behind competingand heterogeneous principles of order (Arjomand, 1992). According to thisbroader, more inclusive sociological conception, constitutional politicswould comprise fascist, socialist and Islamic reconstruction as well asliberal and social-democratic reconstruction and the constitutionaljurisprudence/judicial politics of the new constitutionalism. The lattertype of judicial politics would be included in constitutional politics as it‘generate[s] the ongoing construction, or development, of the normativebasis of the state itself’ (Stone Sweet, 2000: 29).

Our macrosociological definition should enable us to put theseinstances of constitutional politics in a broader comparative perspective.One important comparison is between new constitutionalism and ideo-logical constitutions. In the studies on Turkey and Iran in this issue, wesee what might be called negative or defensive constitutional politics,where the constitutional courts and other organs of constitutional reviewas well as ordinary and special courts (National Security Courts in Turkeyand the Special Court for Clergy in Iran) engage in political activism indefense of the official ideology of the regime. The constitutions of Turkeyand Iran, as was pointed out, belong to the ideological type from thefourth stage of our historical sketch. What we find in these instances arethe repressive use of judicial power through the courts to protect theconstitutionally entrenched ideology of the regime. Dicle Kogacioglu’sarticle shows how, in dissolving the Islamic and Kurdish political parties,the Turkish Constitutional Court has explicitly acted as the protector ofthe Kemalist ideological principles of secularism and nationalism. InKeyvan Tabari’s article, we see the clerically dominated Council ofGuardians has acted as the guardians of the Islamic ideological prin-ciples of the Constitution of the Islamic Republic of Iran, and as the inter-preter of Islam as the higher law.20 This repressive use of the organs of


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constitutional review has adverse consequences for the rationality of legalsystems.

Constitutional politics, when successful, typically result in compro-mises, in written constitutions and in constitutional legislation andjurisprudence, that can be explained by the relative strength of social andinstitutional forces and interests behind the constellations of value-ideas,on the one hand, and by the procedural rules and the dynamics of consti-tutional debates on heterogeneous principles of order, on the other(Arjomand, 1992). The procedure has been analyzed by Elster, whopresents ‘the constitution-making process as shaped by two forces:arguing and bargaining’ (Elster et al., 1998: 77). In this process, thepressure to disguise self-interest as public interest under public scrutinytends to favor the first force, group interests and institutional self-interest,the second. Constitutions and constitutional measures promulgated bymonarchs and presidents in our sample are thus biased by the institutionalinterests of monarchy and presidency, while Iran’s theocratic constitution,made by a predominantly clerical assembly under orders from a charis-matic religious leader, is biased by the interests of the clerical estate.Pushing the same procedural logic, Elster (1995) maintains that a rupturebetween routine and constitutional politics is beneficial to the process ofconstitutional change. Constituent assemblies are a better mechanism forconstitution-making than ordinary parliaments. In the era of new consti-tutionalism, we can add the contribution of the new constitutional courtsas a process transcending routine politics. Sometimes, constitutionalexperts can transplant a blue-print independently of routine politics.

While Hungary has emerged as something of a paradigmatic case of newconstitutionalism, the constitutional development in Poland is marked bya striking absence of any rupture between routine politics and constitution-making (Skąpska, 1999). Poland missed the ‘constitutional moment’ in1989, while Hungary had the advantage of accepting a constitution inthat moment of rupture with Communism, which transplanted some ofKelsen’s constitutional theory, including the role of the constitutionalcourt.21 If we compare the articles by Sólyom and Kurczewski, it is hardnot to be impressed by the directionality and rationalizing consequencesof the former and the haphazardness and lack of direction of the latter:

The faltering of institutional reform in Poland suggests that rules which workwell for governing may nevertheless impede constitution-making. (Osiatynski,1994: 32, cited in Skąpska, 1999: 166)

I would argue that the case of Israel, which is marked by the same lossof ‘constitutional moment’ and the same merging of routine and consti-tutional politics as is Poland, and where the constituent assembly trans-formed itself into the Knesset, points in the same direction.


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The influence of the constitution in channeling constitutional politics isobvious. By directing political action into various legal and politicalchannels, it sets boundaries for the arena of political contention. The caseof Iran clearly shows the constitution itself to be the crucial determinantof the form and arena of constitutional politics, with the alignment ofsocial and political forces behind its contradictory theocratic and demo-cratic principles. The supreme jurist or Leader, and the appointed clericaloffice-holders, including the head of the judiciary, backed by the revol-utionary guards, stand behind the former principle, the elected presidentand parliamentarians, backed by the majority of the people, behind thelatter.

Judicialization of Politics and Politicization of theJudiciary

This brings us to the process of constitutional politics and the extent towhich it takes place in an institutional frame. Constitutional politics maytake fully institutional forms. Jacob (1996) presents a comparative spectrumof the scope of judicial politics and the extent of involvement of judges(of ordinary and constitutional courts) in constitutional politics. TheUnited States stands at one end of the spectrum and Japan at the other,with Germany and France in the middle. Three of the articles in thisspecial issue highlight similarities as well as differences between twoimportant constitutional courts as agents of constitutional politics, inHungary and Russia. Both courts wield considerable pedagogical auth-ority and have played an important role in the rationalization of the legalorder, the first overtly through the constitutional review of legislation, thesecond (especially after its reconstitution in 1995) through its massivecorrespondence and the issuance and publication of ‘definitions’. Thus,both Hungary and Russia offer instances of the positive use of judicialreview in the process of political reconstruction or transition to democ-racy. There is, however, a sharp contrast with regard to the involvementof military force as well as the alignment of political forces and constel-lation of institutional interests in Hungarian and Russian constitutionalpolitics. The Russian Constitutional Court is in a much weaker positionvis-a-vis the president, has competitors in judicial review – both theSupreme Court and the Supreme Arbitrazh Court – and developed onlylater the mutually accommodative relationship with the parliament thatprevailed in Hungary in the 1990s. Even in Hungary, however, consti-tutional politics is the politics of compromise. The constitutional courtand the parliament have different objectives and institutional interests,which usually result in compromises formulated in the final version ofthe revised laws.22


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As broadly defined here, however, constitutional politics need not beconfined to courts, and need not even be institutionalized. The factors thathave prevented the proclaimed plans for writing a constitution in Israelpertain to constitutional politics in the strict sense, yet their arena is theparliament, electoral campaigns and the public sphere.23 The consti-tutional politics of Iran under President Khatami are very minimally insti-tutionalized, and are largely taking place in the public sphere and in thestreet. More generally, constitutional politics are the politics of institution-making, which may result in failure. In that case, they will remain unin-stitutionalized. Here we need to think of the judicialization of politics andthe politicization of the judiciary as opposites in terms of the degree ofinstitutionalization. The possibility and extent of judicialization of politicsdepend on the successful institutionalization of judiciary power, gener-ally, and the consolidation of judicial review of legislation and adminis-tration in particular. Conversely, the politicization of the judiciary results,in part, from a low degree of institutional development and autonomy ofthe judiciary within the polity. Such politicization is a serious problem inregimes with ideological constitutions, which undermine the rule of lawand consequently judicial authority and autonomy.

Latin American legal reforms presume the logic of this schema, as doesthe violent action of their opponents. There, the project of ‘judicializationof politics or . . . expansion of judicial power is intimately related to theconstruction of a new state form’ (de Sousa Santos, 1999: 82). The aim isthe dispersal of social conflict through judicialization of politics. Thisjudicialization is successfully blocked by the opponents of democratiz-ation in the violent constitutional politics of Colombia, where some 300judges have been assassinated since 1978 (de Sousa Santos, 1999: 75).

Recent developments in Iran present an extreme case of negative politi-cization in which the arena of constitutional politics shifts away from theparliament as the main legislative organ to the press and informalchannels of protest and even into the streets, while the functions ofpolitical control are increasingly assumed by the judiciary and the mainorgan for constitutional review. The revolutionary courts, instituted byKhomeini to liquidate the enemies of the revolution and thus serve asinstruments of transition from monarchy to Islamic theocratic govern-ment, have never been disbanded and continue to be used as instrumentsof repression. More ominous still is the degeneration of the organ ofconstitutional review – the Council of Guardians,24 and the ordinarycourts into instruments of political control for the repression of dissentand opposition to the ideology of the regime.

The increasingly repressive use of courts is the opposite of the rule oflaw – not only in the amplified, new sense, but also in the old sense ofthe Rechtsstaat, as it involves frequent violation of due process and other


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legal formalities. The requirement by law that the European constitutionalcourts justify their decisions in writing has turned them into engines oflegal rationalization and institutional development (Stone Sweet, 2000:144–5). By contrast, the Iranian Council of Guardians is not required togive written judgments and very rarely gives legal reasons for its vetoes.Its review of constitutionality of laws is consequently entirely negative.The absence of any written constitutional jurisprudence and the lack ofany constructive judicial input by the Council of Guardians in the effortsat the Islamicization of the judiciary have contributed to the failure toinstitutionalize a unified and distinctly Islamic judiciary structure.25 Thishas in turn had a destabilizing and anti-institutional impact on Iran’sconstitutional politics, shifting it away from the constitutional organ ofthe regime and into the public sphere, where the press is debating consti-tutional issues, and to the streets. The rule of law itself has become themajor issue of unstructured constitutional politics, being advocated by anincreasingly ineffective president unable to utilize his massive popularand electoral support, and the reformist majority of a paralyzed Majles.The paradoxical reaction of the clerically dominated judiciary and organsof constitutional review to the advocacy of the rule of law by PresidentKhatami has been to step up the repressive use of the courts to close downthe reformist press and to imprison the reformist journalists and membersof parliament. In contrast to the judicialization of politics in Western andEastern Europe, the current Iranian constitutional crisis represents theextreme politicization of the judiciary (Arjomand, 2000, 2001).

Democracy, the Rule of Law and the Structure ofPolitical Order

As noted in the editor’s introduction, the concept of democracy seemslimiting and tendentious in our comparative, macropolitical perspective.This is not to say that democracy cannot be defined analytically. Buthowever rigorously defined, democracy seems inadequate as a short-hand description of the complex contemporary politico-legal regimes.Beer (1992) argues convincingly that the constitutionalization of rightsalters the character of majoritarian democracy fundamentally, and, in fact,defines the new ‘human rights constitutionalism’ in contrast to it:

‘Human rights constitutionalism’ combines the features of majoritarian democ-racy and constitutionalist restraint on power. . . . Human rights constitutional-ism insists upon a broader conception of rights and government responsibilitythan democracy, with its focus on majority rule and political liberties. (Beer,1992: 18)

If Beer could say this with reference to Asia around 1990, it applies all the


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more so to the new global constitutionalism in the new century. The lattercan perhaps be conceived a little more fully as comprising three elements:(1) majoritarian democracy and organization of the state authority; (2)human rights; and (3) constitutional courts and/or other national andtransnational organs for judicial review of administration and legislation.

Some analysts have expressed concern that the additional features ofthe new constitutionalism are not just more than but against democracy.Such concerns are provoked by the triumphalist glorification of the newconstitutionalism. During our conference, the daily El País (14 June 2002)carried a statement by the president of the Spanish Constitutional Court,Manuel Jimenez de Parga, that parliaments were outmoded 19th-centuryinstitutions while the constitutional courts could lead the judiciary reformnecessary for bringing the politico-legal order up to date with therequirements of the 21st. Waldron (1999: 162) is clearly on the defensivein arguing for ‘legislation by a popular assembly as a respectable sourceof law’ in order to counter ‘the indignity of legislation’, as is Ruth Gavisonin expressing her concerns about the judicial activism of the IsraeliSupreme Court in her article herein. It seems futile, however, to refuse tocome to terms with the new constitutionalism as a global trend byopposing it to the hackneyed clichés of republicanism and majoritariandemocracy, which are now in danger of appearing so simplistic and insti-tutionally undifferentiated as to blur into mob rule. Any serious critiqueof the new constitutionalism has to acknowledge the complexity of theheterogeneous and potentially conflicting elements it comprises.

One of these components is judicial activism, or more generally, judicialempowerment, to use Scheppele’s terms, which has received a lot of atten-tion in the literature. Judicial power needs to be evaluated not just inrelation to other branches of government, but also in relation to thecitizens on whose behalf it is exercised. What needs emphasis is thatempowerment is not a zero-sum game, and judicial review also results inthe political empowerment of the citizens.

As least since the Code of Hammurabi, access to the justice of the rulerhas been recognized in human societies as an important form of empower-ment. With the institutional differentiation of the judiciary functions, thisempowerment under the rule of law, in Dicey’s classic formulation, takesthe form of access to ordinary courts. Somewhat more recently, in 1945,Kelsen pointed out that the civil right of access to courts allows forpossible participation in the creation of legal norms and is therefore alsoa political right (see Kelsen, 1961: 87–90). With the advent of the consti-tutional courts and the citizens’ access to them through actio popularis, touse Kelsen’s (1928: 245) term, a new layer of empowerment is addedthrough the rule of law under new constitutionalism, and one that can beconsidered democratic participation in legal reconstruction.


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Latin American legal reformers rightly consider the satisfaction of‘suppressed judicial demands . . . a form of political enfranchising ofpolitically excluded population’ (de Sousa Santos, 1999: 78). The develop-ment of actio popularis in the form of ‘constitutional complaint’ (Verfas-sungsbeschwerde in German, amparo in Spanish) has established, theoreticallyspeaking, a potent form of enfranchisement that gives the ordinarycitizens a channel for participation in constitutional reconstruction. If wethink of the impact of the rule of law upon the political order as theopening of access to ordinary and constitutional justice, we cannot escapethe conclusion that it results in a significant redistribution of power in thepolitical structure. It empowers both judges and the citizenry against thegovernment and the political class.

Furthermore, the impact of the rule of law on the power structureextends beyond individuals, and is particularly important for theempowerment of civil society. Civic organizations, social movements andNGOs are more resourceful than individuals and in a stronger positionto take advantage of judicial access for the creation, to use Kelsen’s terms,of individual and constitutional legal norms. This empowerment by therule of law is central to Hegel’s idea of civil society.

The Hungarian and Russian citizens in the post-Communist era haveaccess not only to ordinary courts, but also to constitutional courts. AsSólyom and Scheppele show, the right of access to constitutional courtsis very popular, and numerous individuals in both countries have usedthis newly acquired right. Some have set in motion the generation ofconstitutional legal norms or have secured review of administrative acts.This right is potentially more valuable than a single vote in parliamentary,local and presidential elections. This the citizens of the Islamic Republicof Iran, who have had their votes counted in four successive national elec-tions since 1997 and find themselves no nearer to the rule of law, knowfull well.

Notes1. Klug (2000: 9–10) calls this ‘the strong principle of equality’. The implicit

contrast is with the state-centered notion of legality, where equality under thebureaucratic rule of law goes hand in hand with what Max Weber calledpassive democratization.

2. A decisive factor in the adoption of one constitutional model of political recon-struction in preference to another is the timing of constitution-making and theprevalent global legal culture(s) (Arjomand, 1992). Had the South Africanconstitution-making taken place in the bipolar world of the 1960s and 1970s,instead of the newly globalized constitutional culture of the 1990s, the AfricanNational Congress would most probably have opted for an ideological consti-tution to go with a third-worldist war of national liberation (Klug, 2000: 68).


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The decisiveness of the timing or historical period of reconstruction has animportant implication. The advantages and drawbacks of being a late-comerin the international processes of economic development and politicalmodernization have often been debated. As the timing of political reconstruc-tion is critical for the choice of constitutional model, one may speak of theadvantages of South Africa and Eastern Europe as the late-comer beneficiariesof the new cycle of constitutionalism as compared to Iran, whose Islamic revol-ution a decade earlier marked the end of the cycle of 20th-century revolutionsand their ideological constitutions.

3. Including some countries that had acquired independence earlier, such asEgypt in our sample.

4. See the article by Nathan Brown (this issue).5. Social rights were not invented by the ideological constitution-makers. The

Weimar Constitution of 1919, for example, included a set of social rights, andthe Basic Law of 1949 describes Germany as a social Rechtsstaat. Hungarymade social rights universal by taking them from the International Conven-tion on Social, Economic and Cultural Rights in 1989. Nor were the formerCommunists responsible for their constitutionalization in the post-Communistera. According to Professor Kim Scheppele, Catholic natural lawyers werebehind the move to put social rights in the Polish Constitution of 1997. I amalso most grateful to Professor Scheppele for her extensive comments on myarticle, some of which are separately acknowledged in this and other footnotes.

6. See Julian Go’s article (this issue).7. In fact, it can be argued that this early development immunized the American

legal system against the effects of the later global rights revolution.8. The most important of these are the charter-based Commissions on Human

Rights, Status of Women, Prevention of Discrimination and Protection ofMinorities, and the treaty-based Committees on Human Rights, on the Elimi-nation of All Forms of Racial Discrimination, on Economic, Social and CulturalRights, Against Torture, on the Rights of the Child and on the Elimination ofDiscrimination Against Women.

9. See the article by László Sólyom (this issue).10. See Go (this issue).11. See the article by Ruth Gavison (this issue).12. In the American case, this citizenship had a dual aspect. The individual was

a citizen of the United States, as defined in the constitution, and the citizen ofone of the federal states, as defined by the Articles of Confederation.

13. See the article by Grazyna Skąpska (this issue).14. See Sólyom (this issue); see also Őrkény, A. and Scheppele (1999).15. See the article by Jacek Kurczewski (this issue).16. See Brown (this issue).17. See Fogelklou (this issue).18. See Fogelklou (this issue).19. The term ‘guardian’ (negahban) was used in the Persian rendition of this

phrase, as it is in the English translation in Finer et al. (1995: 214). It does not,however, occur in the French original: ‘Le Président da la République veilleau respect de la Constitution.’


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20. See Kogacioglu and Tabari (this issue).21. According to Professor Kim Scheppele, Kálmán Kulcsár, the main drafter of

the 1989 Constitution, had studied with Kelsen at Berkeley in the early 1960s.22. See Scheppele (this issue).23. See Gavison (this issue).24. Indeed, the massive disqualification of candidates for elective office is not a

judicial act, and no legal rationale or judgment is offered for it. The Councilsimply acts as the gatekeeper of all elective offices, and has thus become miredin the dirty politics of repression and disenfranchisement in the elections.

25. The Special Court for Clergy acts as an arm of the Supreme Clerical Leaderand is separate from the judiciary. The president’s constitutional commissionconsiders it unconstitutional. The failure of the measures to Islamicize thejudiciary has been admitted more than once by the current chief of judiciarypower, who has been undoing some of them – notably the so-called ‘generalcourt’ for dispensing Kadi justice where the judge was also the prosecutor.

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Biographical Note: Saïd Amir Arjomand has been Professor of Sociology at theState University of New York at Stony Brook since 1988. He is the Editor ofInternational Sociology and the President of the Association for the Study ofPersianate Societies.

Address: Department of Sociology, State University of New York at Stony Brook,New York 11794-4356, USA. [email: [email protected]]


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