An important part of different MENA governments’ responses to the Arab uprisings of 2011, and similar mobilization in Iran and Turkey, was constitutional change. Whether to centralize power (Turkey), establish a new more democratic polity (Tunisia), or increase some civil rights to stave off pressure for broad political reform (Morocco), constitutions were a region-wide frame and focus for broader sociopolitical contestation in recent years. While MENA constitutions receive some general (e.g., Nathan Brown’s work) and recent (e.g., the two edited volumes of Rainer Grote and Tilmann J. Röder from 2012 and 2016) attention, transnational elements of constitutional promulgation remain under-theorized in general and in the MENA. Yet, constitutional drafters often look to foreign constitutional models, ideas, and texts for inspiration; many are explicit about their foreign borrowing. When implemented domestically, the meaning of such borrowed elements often seems to change. Scholars have theorized the transnational movement of ideas and norms, but the political processes through which the meaning of foreign constitutional provisions is refashioned lack broad study. Drawing on an examination of borrowed constitutional elements pertaining to religion-state relations in the MENA, and particularly recent constitutional changes in Morocco and Turkey, this paper builds on research in comparative constitutional law, socio-legal studies, and the politics of ideas to offer a more empirically-grounded account of MENA leaders’ deliberate efforts to refashion the meaning of borrowed provisions. Our main argument is that foreign constitutional elements are often embraced by politically embedded actors who, at the same time, treat those elements as “empty signifiers” in ways that allow their meaning to be politically transformed. Tracing the motivations that lead actors to engage foreign constitutional elements (even if they have no intention of transplanting their prior meaning), we highlight a need for more detailed general research by socio-legal area-studies experts on the MENA and other areas to make sense of both the international and the national dynamics that have shaped constitutionalism in the region, and may complicate pressures and efforts at countering the post-2011 renewed authoritarian tendencies prevalent in the region.

Through most of the Oslo peace process, a particular vision of the two-state solution dominated efforts to bring an end to the Palestinian-Israeli conflict - one premised not only on partition of land, but also on separation of peoples ("Us Here, Them There," as a 1992 Israeli Labor Party campaign slogan put it). Since the collapse of U.S. efforts to facilitate the conclusion of a "permanent status agreement" between Israel and the Palestine Liberation Organization, that vision has been the target of increasing challenges on ideological and practical grounds. One alternative that is commanding significant attention in European, American, Israeli, and Palestinian policy circles is the idea of establishing a Palestinian-Israeli confederation. A striking feature of this model is that it implies a shift not only in the kinds of arrangements that would be implemented by the parties on the ground (most notably a Schengen-style open border between the two confederated sovereign states), but also in the types of legal instruments needed to effectuate and regulate the new reality: treaties, certainly - but also constitutions. Moreover, in contrast to the Oslo framework's exclusive preoccupation with regulating Palestinian government and governance (a preoccupation echoed in most subsequent diplomatic initiatives), confederal models dedicate similar attention to Israel's government and governance and, more broadly, to the need to harmonize the two constitutional orders. This paper traces this shift and considers its implications with respect to process design. Drawing on experience elsewhere, the paper identifies potential means of coordinating international conflict resolution and internal constitutional transformation processes in the context of the formation of a Palestinian-Israeli confederation. The paper also identifies the kinds of challenges that must be overcome if such an enterprise is to be successful.

The present panel asks: "What, if anything, do recent constitutions mean in the broader sociopolitical context of the MENA? What does the experience of constitutional promulgation, and broader public attention to legal norms and institutions, suggest more broadly that might be relevant to the understanding of the MENA, and/or the fields of comparative constitutionalism and comparative politics?" One traditional question for Middle East constitution making has pertained to (a) the role of Islam and shar??a in the constitution and (b) the legitimacy of promulgated constitutions in the eyes of Islamist political actors or others concerned with the Islamic foundation of the political order. Under authoritarian regimes, Muslim intellectuals of a variety of ideological and sociological-educational backgrounds have developed elaborate theories of the constitutional order of an Islamic state. The Tunisian intellectual and party leader, R?shid al-Ghann?sh?, was particularly prolific in the years leading up to the 2011 revolution in elaborating theories of democratic legitimacy and constituent authority from an Islamic perspective. But by any metric, the 2014 Tunisian constitution contains very little of what pre-2011 Islamist theories regarded as the foundation of constitutional legitimacy. Nonetheless, Ghann?sh? and other Islamist intellectuals have defended fiercely the constitution that they helped write and sustain. They have also done so in novel religious terms, raising the idea of an ideological transformation from "political Islam" to "Muslim democracy." This essay has three primary goals: (1) to give an account of the ideological contours of the ideal of "Muslim Democracy" in contrast with the ideal Islamist constitutional theory developed in the decades prior to the 2011 revolution, (2) to ask what kind of moral commitment or consensus undergirds the commitment to the 2014 constitutional order in Tunisia, and (3) to provide a series of theoretical answers to the question "was the ideal form of an Islamic democracy impossible, and why?" The research for this paper is based both on the analysis of published books and essays, and also a weeklong series of philosophical dialogues conducted between the author and R?shid al-Ghann?sh? in December 2017 and January 2018.

The common thread among the multiple reconciliation efforts and negotiations underway to persuade the Taliban Islamic Movement to stop their armed opposition and join the political system in Afghanistan is to endeavor to abide by the Afghan constitution. After briefly reviewing Afghanistan’s constitutional journey that began with that country’s first draft constitution in 1923 and the evolving role of religion throughout, in this paper I argue that there are two problematics using the constitution as the mechanism to bring the Afghan government and the Taliban into a peaceful coexistence. First, the current National Unity Government based on a 2014 expediency arrangement is extraconstitutional and two years past its provisional mandate, rendering the constitution a weak and malleable document. Second, should the Taliban accept the constitution as it stands, there is a clause therein (Article 3) that would allow them to legally challenge all laws in the country based on how they and their supporters enact Islamic rules. The 2004 constitution drafters’ use of this preemptive symbolic language—placed therein as another last-minute expediency measure to push through a presidential system of government—has the potential of turning the country’s budding freedoms and social progress backwards and doing so within the legal boundaries of the country’s fundamental laws. In the paper, I will discuss two specific cases involving the application of Article 3 that elucidate the ambiguity inherent in the text of what constitutes Islamic beliefs and to whom and the challenge that lack of definitiveness presents to the current context in Afghanistan. The embattled constitution remains the formal glue keeping the ethnically divided country together and the guide moving it forward. Yet the government violates provisions enshrined in the constitution, in part simply by its existence, and if accepted as is and enacted by all parties, it would potentially undermine current progress. I will conclude the paper addressing the panel’s overarching theme of constitutional relevance in contemporary Afghanistan.