The Pressing Challenges for Constitutionalism in the Middle East
Joint Paper by H. Chodosh and C. Mallat
Revolutionary history demonstrates that the toppling of stubbornly repressive regimes requires an unusual alignment of mind-boggling incompetence at the top and extraordinary courage and political skill at the bottom. Even on those rare historical occasions when the ancien régime falls, it is even more difficult to replace dysfunctional, authoritarian systems with effective, self-limiting, democratic governments that are dedicated to peace and prosperity for all. During the recent revolts in the Middle East Arab, we observed the sudden, sweeping, and largely successful efforts to topple the governments of Tunisia and Egypt, followed by the fall of Libya this past year, and ongoing struggles in Syria, Yemen, Bahrain, and other countries throughout the region. Yet the development of constitutional democracies, prosperous economies, and freedom and security for the peoples of the Middle East is far from certain. We cannot know whether the Arab Spring will blossom into a new constitutional order for countries throughout the region. If history is any guide, however, we can observe with confidence that the road ahead will be blocked by formidable obstacles. With humility, we can develop a tentative roadmap of adaptive, practical solutions. Based on nearly many years of combined experience in the Middle East, most recently as key leaders of the Global Justice Project: Iraq, Presidential Dean Hiram Chodosh and Professor Chibli Mallat will address a series of related constitutional challenges of design and implementation that reforming countries in the region now confront and offer some humbling lessons and tentative directions for the future. Critical issues will include the fundamental role of a constitution (as basic law or covenant with the future), the relationship between religion and the state, the consolidation of security forces under the executive power, independence of the judiciary, the rights of women and underrepresented groups, federalism and the competition between hierarchical and coordinate ideals of institutional authority, the relationship between constitutional design and institutional reform, as well as the process for constitutional reform itself.
Dean Chodosh is a leading expert in institutional justice reform, and author of five books, including Global Justice Reform: A Comparative Methodology (NYU Press, 2005) and 60 major articles, book chapters, and special reports. He is also the editor of three new book series: one with Aspen Publishers titled Law Across Borders, and the other two with Oxford University Press including Iraq Law and Policy. He also has served as a Senior Fulbright Scholar in India (2003) and as an adviser to the UNDP in Asia, the World Bank Justice Reform Group, the IMF Legal Department, the State Department, and many supreme courts, ministries, and commissions in the Middle East and Asia. He received his J.D. from Yale Law School and his B.A. from Wesleyan University. Prior to his appointment as dean of the S.J. Quinney College of Law, University of Utah in 2006, Dean Chodosh served as the Hostetler Professor of Law and Associate Dean for Academic Affairs at Case Western Reserve University School of Law, where he also directed the Frederick K. Cox International Law Center and received the Distinguished Teacher Award (2001). Dean Chodosh currently serves as the Hugh B. Brown Presidential Professor, Dean of the S.J. Quinney College of Law, and the Senior Presidential Adviser on Global Strategy at the University of Utah. In 2011, Dean Chodosh received the Gandhi Peace Award for his law reform work on conflict throughout Asia and the Middle East.