By Cem Tecimer
Citation: Noah Feldman, Imposed Constitutionalism 37 Conn. L. Rev. 857-889 (2005)
Written in response to his involvement in Iraq’s restructuring [though carefully mentioning that he had no direct involvement in the writing of the Iraqi constitutional draft, but was an adviser in the Transitional Administrative Law (TAL) process, see p. 858] and the phenomenon of imposed constitutionalism, Feldman begins his article by pointing out that he agrees with the fact that “Americans shouldn’t write the constitution for Iraq!” – apparently a comment he once got from an angry protester.
Feldman first distinguishes the phenomenon of “[o]ld-fashioned imposed constitution” from newer trends (p. 858). He argues that the days where the United States would draft the new constitution for Germany and Japan are way in the past. That sort of imposed constitutionalism is certainly gone. However, he acknowledges that even today, constitutions are sometimes drafted “under conditions of de facto or de jure occupation” (p. 858). But, he argues, there is something distinct about this second and more recent form of imposed constitutionalism, which he calls “imposed liberal constitutionalism,” and that is the fact that “it takes place against a backdrop of widespread commitment to democratic self-determination,” meaning it is inclusive of the people for whom the constitution is written (p. 859).
Feldman then identifies three major pressure groups playing crucial roles in imposed constitutionalism’s spread: (1) the human rights left; (2) the neoconservative democracy exporters; and (3) the evangelical right.
The first faction, the human rights left, especially wary of human rights abuses in countries such as Saudi Arabia, viewed Islamic government with a degree of suspicion, and thus advocated for a strong place for international liberal commitments in the constitutions of Muslim majority countries like Iraq. Feldman argues that this ambitious insistence “may have weakened the potential capacity of constitutional government” by subjecting ruling elites to promises they are unlikely to adequately keep (p. 872). Nevertheless, one possibility is that having the rights entrenched in various international treaties incorporated into the constitution will gradually increase their importance, i.e., “a lawyer’s strategy: make them sign, then hold them to it” (p. 873). But this, of course, assumes that courts will be responsive to human rights claims and they may not be so, given the political and non-legal constraints they are surrounded by. Additionally, after occupying forces leave the country, human rights activists, once eager to hold the country to its international commitments, may lack the requisite institutional capacity to actually force the government to abide by its own constitution and the rights embodied therein.
The second faction, the neoconservatives, having in mind mostly the transition of Eastern European countries and the emerging secular middle class there, wished the same for Iraq, and saw Turkey as a desirable model for Iraq with its “aggressively secular constitution” (p. 866). This faction, according to Feldman, was disheartened to see how a majority in Iraq advocated for a place for Islam in the constitutional process and thus aimed to “keep Islam at bay and encourage secular democracy” (p. 867).
Finally, the third faction, the evangelical right, advocated for complete rejection of Islam in Iraq’s Constitution, in Feldman’s view ironically so, given their insistence in American domestic politics on how the U.S. Constitution “is not a secular constitution, notwithstanding the Establishment Clause of the First Amendment” (p. 876).
Turning to how imposed constitutionalism operates in practice, Feldman first looks at local and external pressures on Islam’s role as a state religion in the Iraqi Constitution, noting how the American ambassador’s statement on how the Iraqi Constitution was not going to be Islamic served only to further strengthen the hands of the local elite, who advocated for an ever stronger Islamic constitution. Then, taking a further look at local powers, Feldman makes what he calls his “central and perhaps most controversial suggestion – constitutional practices emerge and ripen into custom when the relevant elites see it as consistent with their interests for these practices to be adopted” (p. 883). Occupying forces, indubitably, play a role in shaping the political and ultimately constitutional landscape of a country. However, Feldman argues, “constitutionalism is to succeed when constitutional norms are adopted by political elites as a matter of self-interest” (p. 885). This realist approach, which would give Islam a substantial place in the country’s constitutional order, notwithstanding the views of many of the above-mentioned factions, might not always result in ultimate political equality. But Feldman notes that stable constitutional regimes tend to go forward in terms of equality, as opposed to the few successful examples where constitutional egalitarianism was strictly imposed on a country.
- Islamic law: how orthodox Wahhabis reject political equality and democracy (p. 860); how inequality might result in adoption of certain aspects of Islamic law (p. 888).
- Islamic constitutional law (esp. within the Iraqi Constitutional context and Iraqi politics): Sistani’s fatwa calling for elections for a democratically elected constituent assembly (pp. 857-858, see fn 2 for an English translation approved by Sistani himself); the broad agreement that “even an Islamic constitution should embrace formal equality for women and minorities” (p. 860) [See also Political Equality in the Islamic State 30 Philosophical Topics 253-272 (2002).]; how the Algerian election in 1991, for example, showed previously more radical Islamist factions the power of democracy and majority rule (p. 864); how neoconservatives imagined a Turkey-like Iraq with an “aggressively secular constitution” (p. 866); how the association of Islam in America was of “Islamic fundamentalism” due to ideas about Iran (p. 867); how the human rights left has been skeptical of Islamic governments mainly because of human rights abuses committed by some Islamic countries, especially by Saudi Arabia and the Taliban regime that once dominated Afghanistan (pp. 869-870); how the human rights left, by acting ambitiously in terms of tying the government’s hands down by many international commitments, may have overlooked the extralegal and political constraints courts in these regimes are surrounded by, as exemplified by the Egyptian Constitutional Court’s cautious jurisprudence (p. 874); how the evangelical right resisted Islam as an official religion in Iraq and Afghanistan’s constitutions, thereby advocating for “the marginalization of official Islam” (p. 875-876); but how in one instance the evangelical right prevailed in their imposed constitutionalism agenda by forcing President Bush to give a call to Ambassador Paul Bremer, urging the inclusion of full right to freedom of religion and conscience as it appears in the International Declaration of Human Rights (p. 877); the elevated role played by jurists in Iranian constitutional law, different from Iraq (p. 878); how at the end of the day, political equality and constitutionalism will evolve to the extent that local elite interests converge with these agendas (p. 887) as exemplified by Iran, as opposed to Saudi Arabia, were women were pivotal in supporting the Islamic revolution, and as a consequence they “remained enfranchised” (p. 886).
- Islamic family law: how Islamic democrats believe that in family law matters, “Islamic law should prevail” (p. 861); how when confronted with deviations from strict equality under Islamic law, these democrats will emphasize the self-determination aspect of democracy, arguing that their citizens have embraced it nevertheless (pp. 861-862).