Libya Tribune

Reviewed by Sara S. Razai

Few scholarly studies, if any, have critically analysed the relationship between law and revolutions during periods of political and societal upheaval in a systematic and rigorous way.

Nimer Sultany’s book, titled Law and Revolution: and Constitutionalism After the Arab Spring is a much welcome intervention in that regard.

Sultany embarks on this difficult task using the Arab Spring as his central case study. He argues that in addition to political crises, the wave of popular uprisings that swept across the Arab world since 2010 unveil conceptual crises of law and legality.

Rather than shying away from these complexities and contradictions, Sultany places them front and centre, and offers compelling arguments as to why they must form part of any examination of law in a revolutionary setting. Two complementary aims form part of Sultany’s book.

The first is to accord recent experiences in the Arab region a more central position within theoretical and comparative debates about legality and constitutions.

The second aim is to re-examine the various theoretical toolkits currently used when analysing revolutions.

For Sultany, four concepts are in need of critical re-examination:

(1) legitimacy,

(2) revolution,

(3) legality and

(4) constitutionalism.

In light of the Arab Spring, these concepts are unsatisfactory and fail to capture the different roles and trajectories of law in a revolutionary setting.

Sultan seeks to address these shortcomings by unpacking these concepts in relation to three main themes:

(a) legitimacy,

(b) revolution and legality, and

(c) revolution and constitution.

As the author points out, political and social upheavals in many Arab states are nothing new. Historical experiences of occupation and colonialism followed by varying forms of independence movements have made a lasting impact on the political and legal orders of a number of Arab states.

Recent events and processes of political and social turmoil can only be understood fully in this wider historical context.

To advance this position, Sultany dissects the various forms of “legitimation crises” of Arab states from a historical point of view.

He demonstrates the shortcomings of competing theories of legitimacy in two constitutional experiences prior to the Arab Spring.

The first is the pre-independence era dating back to European colonial rule and the preceding years of the late Ottoman empire.

The second period covers Arab post-colonial constitutional history. During this history leading up to the revolutions of the Arab Spring, most Arab states exhibited similar constitutional arrangements that were normatively weak, suffered from democratic exclusion, and had incomplete or conditional sovereignty.

As a result: “Arab constitutions failed to provide the Arab political legal order with the legitimation worthiness”(p.96).

Drawing on these experiences, Sultany argues that the concept of revolution cannot be separated from a discourse and debate surrounding ideas of legitimation.

While revolutionary movements may seek to respond to deficits in legitimacy of the established order, they in turn create their own deficits because they are not separate or exist in a vacuum from the very arrangements they have responded to in the first place.

The two competing theories of “continuity” and “rupture” do not provide a satisfactory account of the role of law in the context of revolutions that would help us better understand this inextricable relationship between law and revolution.

Law by its very nature can sometimes be incoherent and the tumult created by a revolutionary process merely exacerbates this tendency towards incoherence.

To showcase the illogical and contradictory characteristics of the law, Sultany uses the example of the Egyptian and Tunisian judiciaries.

Although the judges and courts of both countries conveyed a form of institutional continuity, they were nonetheless part and parcel of the political and social conflicts in which they were supposed to resolve.

By using an array of primary material, Sultany demonstrates how judicial positions remained susceptible to political pressures and how these impacted their response to the revolutionary demands.

Examples include the trials of former regime officials and the judicial dissolution of political parties and informal associations.

The relationship of law and revolution takes on additional significance in relation to constitution-making as the latter is often seen as a litmus test for revolutionary success.

Drawing on two types of constitution-making activities (“revolutionary constitution-making” and “reformist constitution-making”), Sultany pinpoints several instances of glaring deficits in legitimacy similar to those found in the pre-Arab Spring constitutional experiences.

Sultany’s critique of law in revolution, as he tells us, does not aim to “instil despair”, but to lead to a more realistic understanding of the role of law in and constitutions in revolutionary processes.

While he does paint a somewhat bleak overview of the constitutional experiences in several Arab states, his valuable analysis offers a timely and convincing cautionary tale for those who seek to understand the recent Arab revolutions by simply resorting to simplistic binary conceptions of law and revolution.

His intervention is as much about the theorization of legal categories in contemporary scholarly traditions as it is about how they unfolded in the Arab world.

As such, the book offers a fresh look at the role of law during revolutions, free from the constraints of incoherent and irrelevant theoretical concepts.

It is a well-timed and excellent contribution to the subject areas of constitutional theory and Arab legal studies.

It will serve as a springboard for further systematic and comparative research in the field for years to come.

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Nimer Sultany is a Palestinian and a doctoral candidate at Harvard Law School. He is the editor of Citizens Without Citizenship, Israel and the Palestinian Minority 2003, and Israel and the Palestinian Minority 2004

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Sara S. Razai – Phd Student specialising in Middle-Eastern Judicial Studies at UCL Laws.

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