Erecting New Constitutional Cultures: The Problems and Promise of Constitutionalism Post-Arab Spring

Abstract

Constitutions contain two types of elements: functional and aspirational. The functional elements establish the institutions that comprise the state and the pragmatic rules of governance—the “constitution in practice.” Aspirational elements articulate the nation’s commitment to the higher principles and ideals it seeks to attain. In a well-ordered state, a constitution’s aspirational elements provide the true north for the nation’s compass, and the functional elements adequately pursue those ends. If the functional components of a constitution cannot or do not adequately pursue the nation’s stated aspirations, the constitution, the government, and the rule of law are in jeopardy. The recent upheaval in the Middle East, known as the Arab Spring, provided three nations (thus far) with the opportunity to erect new constitutional cultures: Tunisia, Egypt, and Libya. For these countries, adequately concretizing revolutionary aspirations in their new national constitutions, while also providing functional elements and institutions to reinforce these aspirations, is vital to establish secure and legitimate constitutional orders. This Note explores these ideas of constitutional theory universally and applies them to the particular situations in these Arab Spring nations.