The new Egyptian constitution has created a variety of new institutions within the Egyptian state and also created new channels for existing institutional actors to express their views on policy and legislation. Additionally it has created new grounds for legal action against legislative and executive acts. These will have profound effects on many aspects of Egyptian politics and on the entire institutional structure of the Egyptian state. Article 4 provides that the legislature must listen to the opinion of the Higher Ulama Council of the Azhar on issues that affect Islamic shariah and Article 219 provides a fuller definition of the sources of the principles of Islamic shariah than did the previous constitution. The Azhar does not have a veto over legislation but neither is its opinion now simply that of one among many interest groups. There is, in addition, a significant jurisprudential literature on what it means, in Egyptian law, to take the opinion of a body. Thus this new provision will create the possibility of additional conflict over a variety of legislative acts that can be construed as affecting or being affected by Islamic shariah. The beginnings of this conflict can be seen in the difficulties an Islamist government had in passing legislation establishing Islamic sukuk as a funding mechanism for the government given Azhari opposition. Article 219 is less likely to have an impact on legislation than on providing additional grounds on which to challenge existing legislative or executive acts. The Supreme Constitutional Court had, under the old constitution, limited the meaning of principles of Islamic shariah. The new constitution seeks to expand them and in the process will provide litigants with additional textual resources. Egypt has not become a religious state in the way that Iran is, but its new constitution does go a long way toward making the Azhari ulama and the Azhar as an institution more involved in the unpleasant conflicts of everyday politics and will provide an example of what happens when extra-legislative institutions are involved directly in the process of legislation.

A widely accepted and oft repeated narrative of the drafting of the constitution of the Lebanese Republic in 1926 has placed the onus for its confessional articles on the French Mandate authorities who were allegedly acting to preserve Christian, and more particularly Maronite, predominance. This historiography tends to resonate well with the thesis of a number of scholars who identify the European colonial project as the chief culprit of sectarianism. Closer inspection of the critical period of the drafting of the constitutive 1926 document however reveals a more complex bargaining process amongst the Lebanese Christian and Muslim members of the constitutional committee vying for prerogatives on the one hand, and the French mandatory powers on the other. This paper analyzes the competing – and often contradictory - loyalties prior, during and after the debate between key contributors to this drafting process. Relying on the minutes of the meetings, this paper contextualizes the explicit references to the French, Swiss and Belgian constitutions which were discussed as a possible paradigm for the Lebanese multi-confessional society. Such a push to emulate or even carbon copy European blueprints was resisted by a “pull” of arguments centering on the oft-regretted alleged “exceptionalism” of Lebanese confessional pluralism. At the end of their deliberations, the deputies conceded to a mid-way compromise solution between the secular, republican ideal most espoused emotively and the “inveterate” communal reality they were confronted with on the ground. Yet the debate on confessional quotas and personal status guarantees instituted in Lebanon’s “consociational democracy” then continued to echo during the major revision of the constitution at Taif in 1989 and present day reform discussions. This paper provides the historical, political and demographic backdrop necessary to understand the divergent arguments and ultimate outcome of the current constitutional framework in Lebanon.

Few remember today that the velayat-e faqih (guardianship of the jurist), the core concept on which the Islamic Republic of Iran is based, was not part of the first constitutional draft in 1979 that had good chances of being adopted. While Khomeini proposed the adoption of the draft, it was the calls for a more inclusive process by liberal constitutionalists that ultimately lead to the establishment of a Constitutional Assembly through which the Shiite clergy was able to write clerical privileges into the final constitutional draft. The Iranian case is thus a thought-provoking example of how constitutional process and outcome can be inversely related: More inclusive processes need not translate into more egalitarian constitutions. Many regarded the ultimate result a contradiction in terms: theocratic constitutionalism (Hirschl) – a constitution that empowers rather than limits executive authority and moreover bases executive power on Islamic rather than civil law. Yet, how has the constitution held up in the past 35 years? Is it right to speak of a “constitution without constitutionalism” (Jacobsohn)? And given the role the new Egyptian constitution accords to Al-Azhar as providing religious interpretation which cannot be ignored in the legislative process, must we expect a similar dynamic as in Iran where the clerical Guardian Council may stifle majoritarian decisions in the legislature? The paper traces constitutional development in the Islamic Republic of Iran since the 1979 revolution in light of Tom Ginsberg’s (2013) typology of constitutional functions (operating manual, blueprint, billboard, and window dressing). While violations of the constitution and the rule of law more generally are almost daily occurrences in the Islamic Republic, the paper argues that the Iranian constitution is anything but a façade constitution. Indeed, what surprises the observer of Iranian post-revolutionary politics is how little the constitution is needed to window-dress and how often, by contrast, it is invoked by regime opponents and defendants alike, as either an operating manual, blueprint, or billboard. The challenges to theocratic hegemony occur precisely in the areas for contestation that the constitution provides: elections, parliament and at times, a vigilant press. The history of constitutionalism in the Islamic Republic shows also, however, that it is nothing less than Rawlsian grand compromises between these institutions that are needed to fight hegemonic preservation back. Such compromises are even harder to achieve in normal politics than in constitutional moments.