Constitutional Politics in the Middle East: With Special Reference to Turkey, Iraq, Iran and Afghanistan (Onati International Series in Law & Society)

This collection is the first comparative and interdisciplinary study of constitutional politics and constitution-making in the Middle East. The historical background and setting are fully explored in two substantial essays placing the contemporary experience in the contexts, respectively, of the ancient Middle Eastern legal and political tradition, and of the 19th- and 20th-century legal codification and political modernization. These are followed by a general analysis of the treatment of human rights in relation to Islam in Middle Eastern constitutions, as well as a comparative scrutiny of the process of constitution-making in Iran, Afghanistan, and Iraq, with reference to the available constitutional theories. Additional essays are country-by-country case studies of Turkey, Afghanistan, and Iraq, with the case of Iran being covered as a special point of reference. Other contributions examine the making and subsequent transformation of the Turkish Constitution of 1982 against current theories of constitutional and deliberative democracy, as well as the institutional mechanism for protecting the ideological foundations of the Turkish Republic, most notably the Turkish Constitutional Court which offers a surprising parallel to the Iranian Council of Guardians. Constitutional Politics in the Middle East examines this long road to political reconstruction, drawing general analytical lessons from, and showing the consequences of, the origins of the constitutions of Turkey and Iran in revolutions, and of Afghanistan and Iraq in war and foreign invasion. Adding valuable insight into how political systems are constructed and reformed, this important and topical book will be of interest to Middle East scholars, policy specialists, political scientists, and those concerned with constitutional studies. Half title page......Page 2 Title page ......Page 6 Title verso ......Page 7 Acknowledgement......Page 8 Contents......Page 10 List of Contributors......Page 12 Introduction......Page 14 1 Islamic Empires, the Ottoman Empire and the Circle of Justice......Page 24 THE EARLY ISLAMIC ERA......Page 25 THE ABBASID ERA......Page 29 THE TURCO-MONGOL ERA......Page 33 THE ERA OF OTTOMAN REFORM AND CONSTITUTIONALISM......Page 36 THE IMPACT OF SOCIO-POLITICAL AND IDEOLOGICAL MODERNISATION......Page 43 EARLY CONSTITUTIONALISM AS LIMITATION OF GOVERNMENT BY THE LAW......Page 46 TRANSFORMATION OF MIDDLE EASTERN PUBLIC LAW: CODIFICATION IN THE OTTOMAN EMPIRE, EGYPT AND IRAN......Page 58 REVOLUTION, ISLAMIC IDEOLOGICAL CONSTITUTION-MAKING AND CONSTITUTIONAL REVIEW IN IRAN......Page 64 IRAN IN COMPARISON WITH AFGHANISTAN......Page 69 CONCLUSION......Page 74 3 Bargaining and Imposing Constitutions......Page 76 LIBERAL AND LOCAL TRADITIONS......Page 77 THEORY AND PRACTICE IN IRAN, AFGHANISTAN AND IRAQ......Page 80 ATTAINING LEGITIMACY IN AN EVERYDAY POLITICAL WORLD......Page 86 INTRODUCTION......Page 90 AN ERA OF AGGRAVATED TENSIONS BETWEEN HUMAN RIGHTS AND ISLAMIC LAW......Page 91 INDIGENISING CONSTITUTIONAL RIGHTS ACCORDING TO ISLAMIC STANDARDS OR OPENING THEM TO INTERNATIONAL STANDARDS?......Page 95 MIDDLE EASTERN SECULAR SOCIALIST CONSTITUTIONAL MODELS AND HOW THE EROSION OF SECULARISM AFFECTED RIGHTS PROVISIONS......Page 97 SORTING OUT THE ROLES OF HUMAN RIGHTS AND ISLAM IN THE AFGHAN CONSTITUTION AND THE IRAQI TRANSITIONAL LAW AND CONSTITUTION......Page 105 CONCLUSION......Page 109 5 The Guardian of the Regime: the Turkish Constitutional Court in Comparative Perspective......Page 112 THE TURKISH CONSTITUTION: DEMOCRATIC DEFICIT......Page 113 THE CONSTITUTIONAL COURT AND THE JUDICIALISATION OF TURKISH POLITICS......Page 115 THE TURKISH CONSTITUTIONAL COURT: INSTITUTIONAL DESIGN......Page 116 DIVISION OF SOVEREIGNTY AND THE STATE STRUCTURE IN IRAN......Page 130 CONCLUSIONS......Page 133 6 Constitution, Legitimacy and Democracy in Turkey......Page 136 TURKEY’S CONSTITUTIONAL PREDICAMENTS......Page 144 RECLAIMING DEMOCRACY......Page 154 CONCLUSION......Page 158 7 Crafting a Constitution for Afghanistan......Page 160 THE PATH TO LEGITIMACY......Page 162 SHOW OF HANDS OR SHOW OF FORCE?......Page 164 THE DEBATE OVER PRESIDENTIALISM......Page 167 THE CONSTITUTIONAL STATUS OF ISLAM......Page 169 ACKNOWLEDGING AFGHAN DIVERSITY......Page 172 A GOOD START?......Page 173 INTRODUCTION......Page 176 THE MAKING OF THE INTERIM CONSTITUTION......Page 177 AN EXCLUSIONARY STATE BARGAIN......Page 182 FAILURE OF THE STATE BARGAIN AND OPTIONS OF CONSTITUTION MAKING......Page 191 COLLAPSE OF CONSENSUAL PROCESS AND SUBMISSION OF A DRAFT......Page 201 INSTEAD OF A CONCLUSION......Page 210 Index......Page 216 Half title page 2 Title page 6 Title verso 7 Acknowledgement 8 Contents 10 List of Contributors 12 Introduction 14 1 Islamic Empires, the Ottoman Empire and the Circle of Justice 24 THE EARLY ISLAMIC ERA 25 THE ABBASID ERA 29 THE TURCO-MONGOL ERA 33 THE ERA OF OTTOMAN REFORM AND CONSTITUTIONALISM 36 THE IMPACT OF SOCIO-POLITICAL AND IDEOLOGICAL MODERNISATION 43 2 Islam and Constitutionalism since the Nineteenth Century: the Significance and Peculiarities of Iran 46 EARLY CONSTITUTIONALISM AS LIMITATION OF GOVERNMENT BY THE LAW 46 TRANSFORMATION OF MIDDLE EASTERN PUBLIC LAW: CODIFICATION IN THE OTTOMAN EMPIRE, EGYPT AND IRAN 58 REVOLUTION, ISLAMIC IDEOLOGICAL CONSTITUTION-MAKING AND CONSTITUTIONAL REVIEW IN IRAN 64 IRAN IN COMPARISON WITH AFGHANISTAN 69 CONCLUSION 74 3 Bargaining and Imposing Constitutions 76 LIBERAL AND LOCAL TRADITIONS 77 THEORY AND PRACTICE IN IRAN, AFGHANISTAN AND IRAQ 80 ATTAINING LEGITIMACY IN AN EVERYDAY POLITICAL WORLD 86 4 The Respective Roles of Human Rights and Islam: an Unresolved Conundrum for Middle Eastern Constitutions 90 INTRODUCTION 90 AN ERA OF AGGRAVATED TENSIONS BETWEEN HUMAN RIGHTS AND ISLAMIC LAW 91 INDIGENISING CONSTITUTIONAL RIGHTS ACCORDING TO ISLAMIC STANDARDS OR OPENING THEM TO INTERNATIONAL STANDARDS? 95 MIDDLE EASTERN SECULAR SOCIALIST CONSTITUTIONAL MODELS AND HOW THE EROSION OF SECULARISM AFFECTED RIGHTS PROVISIONS 97 SORTING OUT THE ROLES OF HUMAN RIGHTS AND ISLAM IN THE AFGHAN CONSTITUTION AND THE IRAQI TRANSITIONAL LAW AND CONSTITUTION 105 CONCLUSION 109 5 The Guardian of the Regime: the Turkish Constitutional Court in Comparative Perspective 112 THE TURKISH CONSTITUTION: DEMOCRATIC DEFICIT 113 THE CONSTITUTIONAL COURT AND THE JUDICIALISATION OF TURKISH POLITICS 115 THE TURKISH CONSTITUTIONAL COURT: INSTITUTIONAL DESIGN 116 DIVISION OF SOVEREIGNTY AND THE STATE STRUCTURE IN IRAN 130 CONCLUSIONS 133 6 Constitution, Legitimacy and Democracy in Turkey 136 TURKEY’S CONSTITUTIONAL PREDICAMENTS 144 RECLAIMING DEMOCRACY 154 CONCLUSION 158 7 Crafting a Constitution for Afghanistan 160 THE PATH TO LEGITIMACY 162 SHOW OF HANDS OR SHOW OF FORCE? 164 THE DEBATE OVER PRESIDENTIALISM 167 THE CONSTITUTIONAL STATUS OF ISLAM 169 ACKNOWLEDGING AFGHAN DIVERSITY 172 A GOOD START? 173 8 From Interim to ‘Permanent’ Constitution in Iraq 176 INTRODUCTION 176 THE MAKING OF THE INTERIM CONSTITUTION 177 AN EXCLUSIONARY STATE BARGAIN 182 AN EXCLUSIONARY STATE BARGAIN 182 FAILURE OF THE STATE BARGAIN AND OPTIONS OF CONSTITUTION MAKING 191 COLLAPSE OF CONSENSUAL PROCESS AND SUBMISSION OF A DRAFT 201 INSTEAD OF A CONCLUSION 210 Index 216 9781841137742 This book is the first comparative and interdisciplinary study of constitutional politics and constitution-making in the Middle East. The historical background and setting are fully explored in two substantial essays by Linda Darling and Saïd Amir Arjomand, placing the contemporary experience in the contexts, respectively, of the ancient Middle Eastern legal and political tradition and of the nineteenth and twentieth century legal codification and political modernization. These are followed by Ann Mayer's general analysis of the treatment of human rights in relation to Islam in Middle Eastern constitutions, and Nathan Brown's comparative scrutiny of the process of constitution-making in Iran, Afghanistan and Iraq with reference to the available constitutional theories which are shown to throw little or no light on it. The remaining essays are country by country case studies of Turkey, Afghanistan and Iraq, the case of Iran having been covered by Arjomand as the special point of reference. Mehmet Fevzi Bilgin examines the making and subsequent transformation of the Turkish Constitution of 1982 against current theories of constitutional and deliberative democracy, while Hootan Shambayati examines the institutional mechanism for protecting the ideological foundations of the Turkish Republic, most notably the Turkish Constitutional Court which offers a surprising parallel to the Iranian Council of Guardians. Arjomand's introduction brings together the bumpy experience of the Middle East along the long road to political reconstruction through constitution-making and constitutional reform, drawing some general analytical lessons from it and showing the consequences of the origins of the constitutions of Turkey and Iran in revolutions, and of Afghanistan and Iraq in war and foreign invasion. "This book is the first comparative and interdisciplinary study of constitutional politics and constitution-making in the Middle East. The historical background and setting are fully explored in two substantial essays by Linda Darling and Said Amir Arjomand, placing the contemporary experience in the contexts, respectively, of the ancient Middle Eastern legal and political tradition and of nineteenth and twentieth century legal codification and political modernisation. These are followed by Ann Mayer's general analysis of the treatment of human rights in relation to Islam in Middle Eastern constitutions, and Nathan Brown's comparative scrutiny of the process of constitution-making in Iran, Afghanistan and Iraq with reference to the available constitutional theories which are shown to throw little or no light on it. The remaining essays are country by country case studies of Turkey, Afghanistan and Iraq, the case of Iran having been covered by Arjomand as the special point of reference."--Jacket. Islamic empires, the Ottoman Empire and the circle of justice Islam and constitutionalism since the nineteenth century : the significance and peculiarities of Iran Bargaining and imposing constitutions : private and public interests in the Iranian, Afghani, and Iraqi constitutional experiments The respective roles of human rights and Islam : an unresolved conundrum for Middle Eastern constitutions The guardian of the regime : the Turkish Constitutional Court in comparative perspective Constitution, legitimacy, and democracy in Turkey Crafting a constitution for Afghanistan From interim to 'permanent' constitution in Iraq.