Constitutional Politics in the Middle East: With Special Reference to Turkey, Iraq, Iran and Afghanistan (Onati International Series in Law & Society) PDF
Preview Constitutional Politics in the Middle East: With Special Reference to Turkey, Iraq, Iran and Afghanistan (Onati International Series in Law & Society)
CONSTITUTIONAL POLITICS IN THE MIDDLE EAST This book is the first comparative and interdisciplinary study of constitu- tional politics and constitution making in the Middle East. The historical background and setting are fully explored in two substantial essays by Linda Darling and Saïd Amir Arjomand, placing the contemporary experi- ence in the contexts, respectively, of the ancient Middle Eastern legal and political tradition and of the nineteenth and twentieth century legal codi- fication and political modernisation. These are followed by Ann Mayer’s general analysis of the treatment of human rights in relation to Islam in Middle Eastern constitutions, and Nathan Brown’s comparative scrutiny of the process of constitution making in Iran, Afghanistan and Iraq with refer- ence to the available constitutional theories which are shown to throw little or no light on it. The remaining essays are country by country case studies of Turkey, Afghanistan and Iraq, the case of Iran having been covered by Arjomand as the special point of reference. Mehmet Fevzi Bilgin examines the making and subsequent transformation of the Turkish Constitution of 1982 against current theories of constitutional and deliberative democracy, while Hootan Shambayati examines the institutional mechanism for pro- tecting the ideological foundations of the Turkish Republic, most notably the Turkish Constitutional Court, which offers a surprising parallel to the Iranian Council of Guardians. Arjomand’s introduction brings together the bumpy experience of the Middle East along the long road to political recon- struction through constitution making and constitutional reform, drawing some general analytical lessons from it. He also shows the consequences of the fact that the constitutions of Turkey and Iran had their origins in revolu- tions, and of Afghanistan and Iraq, in war and foreign invasion. Oñati International Series in Law and Society A SERIES PUBLISHED FOR THE OÑATI INSTITUTE FOR THE SOCIOLOGY OF LAW General Editors William LF Felstiner Johannes Feest Board of General Editors Rosemary Hunter, University of Kent, United Kingdom Carlos Lugo, Hostos Law School, Puerto Rico David Nelken, Macerata University, Italy Jacek Kurczewski, Warsaw University, Poland Marie Claire Foblets, Leuven University, Belgium Roderick Macdonald, McGill University, Canada Titles in this Series Social Dynamics of Crime and Control: New Theories for a World in Transition edited by Susannah Karstedt and Kai Bussmann Criminal Policy in Transition edited by Andrew Rutherford and Penny Green Making Law for Families edited by Mavis Maclean Poverty and the Law edited by Peter Robson and Asbjørn Kjønstad Adapting Legal Cultures edited by Johannes Feest and David Nelken Rethinking Law Society and Governance: Foucault’s Bequest edited by Gary Wickham and George Pavlich Rules and Networks edited by Richard Appelbaum, Bill Felstiner and Volkmar Gessner Women in the World’s Legal Professions edited by Ulrike Schultz and Gisela Shaw Healing the Wounds edited by Marie-Claire Foblets and Trutz von Trotha Imaginary Boundaries of Justice edited by Ronnie Lippens Family Law and Family Values edited by Mavis Maclean Contemporary Issues in the Semiotics of Law edited by Anne Wagner, Tracey Summerfield, and Farid Benavides Vanegas The Geography of Law: Landscapes, Identity and Regulation edited by Bill Taylor Theory and Method in Socio-Legal Research edited by Reza Banakar and Max Travers Luhmann on Law and Politics edited by Michael King and Chris Thornhill Precarious Work, Women and the New Economy: The Challenge to Legal Norms edited by Judy Fudge and Rosemary Owens Juvenile Law Violators, Human Rights, and the Development of New Juvenile Justice Systems edited by Eric L Jensen and Jørgen Jepsen The Language Question in Europe and Diverse Societies: Political, Legal and Social Perspectives edited by Dario Castiglione and Chris Longman European Ways of Law: Towards a European Sociology of Law edited by Volkmar Gessner and David Nelken Crafting Transnational Policing: Police Capacity-Building and Global Policing Reform edited by Andrew Goldsmith and James Sheptycki Parenting after Partnering: Containing Conflict after Separation edited by Mavis Maclean Constitutional Politics in the Middle East With special reference to Turkey, Iraq, Iran and Afghanistan Edited by Saïd Amir Arjomand Oñati International Series in Law and Society A SERIES PUBLISHED FOR THE OÑATI INSTITUTE FOR THE SOCIOLOGY OF LAW OXFORD AND PORTLAND OREGON 2008 Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213-3786 USA Tel: +1 503 287 3093 or toll-free: (1) 800 944 6190 Fax: +1 503 280 8832 E-mail: [email protected] Website: www.isbs.com © Oñati IISL 2007 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission of Hart Publishing, or as expressly permitted by law or under the terms agreed with the appropriate reprographic rights organisation. Enquiries concerning reproduction which may not be covered by the above should be addressed to Hart Publishing at the address below. Hart Publishing, 16c Worcester Place, Oxford, OX1 2JW Telephone: +44 (0)1865 517530 Fax: +44 (0)1865 510710 E-mail: [email protected] Website: http://www.hartpub.co.uk British Library Cataloguing in Publication Data Data Available ISBN-13: 978-1-84113-774-2 (hardback) ISBN-13: 978-1-84113-773-5 (paperback) Typeset by Compuscript, Shannon Printed and bound in Great Britain by TJ International, Padstow, Cornwall Acknowledgement An earlier version of the chapter by Barnett R Rubin was published as ‘Crafting a Constitution for Afghanistan’ (2004) 15(3) Journal of Democracy 5. © National Endowment for Democracy and The Johns Hopkins University Press. We are grateful for the kind permission to reproduce the material by The Johns Hopkins University Press. Contents Acknowledgement ...................................................................................vii List of Contributors .................................................................................xi Introduction ..........................................................................................1 Saïd Amir Arjomand 1 Islamic Empires, the Ottoman Empire and the Circle of Justice ..........11 Linda T Darling 2 Islam and Constitutionalism since the Nineteenth Century: the Significance and Peculiarities of Iran .............................................33 Saïd Amir Arjomand 3 Bargaining and Imposing Constitutions: Private and Public Interests in the Iranian, Afghani and Iraqi Constitutional Experiments .............63 Nathan J Brown 4 The Respective Roles of Human Rights and Islam: an Unresolved Conundrum for Middle Eastern Constitutions ....................................77 Ann Elizabeth Mayer 5 The Guardian of the Regime: the Turkish Constitutional Court in Comparative Perspective .....................................................................99 Hootan Shambayati 6 Constitution, Legitimacy and Democracy in Turkey .........................123 Mehmet Fevzi Bilgin 7 Crafting a Constitution for Afghanistan ............................................147 Barnett R Rubin 8 From Interim to ‘Permanent’ Constitution in Iraq .............................163 Andrew Arato Index .....................................................................................................203
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