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Towards a study of the role of law in the Arab Spring

The Arab Spring has been the subject of a growing body of scholarship. Much of this commentary has hitherto related to political and economic analysis of the events that took place in many Arab countries since December 2010. Nevertheless, the role of law remains understudied. There are several inter-related temporal, empirical, and theoretical difficulties that impede a proper analysis of the role of law in the Arab Spring. It is vital to overcome these limitations in order to take the role of law seriously.

Temporally, it is problematic to assess the meaning and significance of legal developments in reference to a short period of time. For instance, the assessment of legislative acts cannot be separated from questions about their enforceability, their judicial interpretation, and their (intended or unintended) consequences. Additionally, a focus on specific developments may miss the fact that they may be superseded shortly after by later developments. These issues point towards the need to locate events in wider processes in order to fully grasp their significance and meaning. It also suggests that one needs to complement the analysis of symptoms with root causes.

Empirically, the limited access to primary sources and legal materials may reduce the role of the “legal system” to a limited number of highly visible legal texts or landmark judicial rulings. In some cases, the focus is exclusively on the outcome of the rulings and not on the legal reasoning involved. The more primary sources are consulted, the richer one’s understanding of the role of law.

These difficulties may be rooted in deeper theoretical issues that relate to the study of law. First, is a formalist-textualist analysis of the role of law that separates law-in-the-books from law-in-action. This formalistic inquiry disregards judicial agency in developing the law. After all, the judges are not mechanically applying the law but are engaged in interpreting ambiguous standards, filling gaps, or reconciling inconsistent legal materials. In other words, judges are legislatures. This means that the legal resolution of social and political conflicts is not explicable merely by reference to the legal materials.

Additionally, one may be tempted to dismiss the role of law as a mere “reflection” of political and social developments; in other words, to reduce law to politics or society. The sense of politicized judiciary in Egypt, for example, may lend support to the initial impression that law equals politics. However, acknowledging the intertwinement between law and politics should not lead to collapsing law into politics. If one recognizes judicial agency in making the law, takes into consideration long-standing legal traditions, considers the corporate or professional identity of the judiciary, underscores the ways in which legal discourse shapes our consciousness and impacts practices and institutions, and highlights deep political fissures as the backdrop for judicial work—then one needs to acknowledge that the law is “relatively autonomous” from political and social interests. The practical questions become: what are the social and political conditions, how did they change over time, how does the law become a field for political struggle, and what did the judges do in a particular country. Social and political fissures are foregrounded in revolutionary moments and as such require scholars to move beyond theories that presuppose a coherent legal system. The analysis of law needs to foreground contradictions.

Protest on Tahir Square by Floris Van Cauwelaert. CC BY-SA 2.0 via Wikimedia Commons.

Moreover, a reflective study of the role of law is undermined by the neglect of local context. In the aftermath of the Arab Spring, international organizations dramatically increased their interest in the region. Like the international NGOs’ interest in Central and Eastern Europe after the fall of the communism, these organizations channelled funds to projects that sought to establish the “rule of law”, “transitional justice”, “institution building”, “judicial reform”, “constitution-making”, and the like. The difficulty with these projects and the reporting or commentary associated with them is their reliance on a “one-size-fits-all” approach that does not appreciate the differences amongst Arab countries, and in many cases has been consistent with hegemonic neo-liberal understandings of the international order. This approach allows little room for an endogenous evolution of legal systems and may lead to unintended consequences given the imposition of de-contextualised legal templates. Moreover, as these efforts are aimed at “public law”, they neglect the social background conditions in which public arrangements operate.

The nuanced study of the role of law is further undermined by particular instances of empirical legal studies. A sociological analysis of the role of law would certainly benefit from a carefully-designed empirical inquiry. Yet, there is a risk of reductionism if empiricism does not inquire about its “data” and presuppositions. It would provide neither jurisprudential nor sociological or historical depth.

Finally, a reflective analysis of the role of law needs to set aside the “confirmation bias”. One example of this is the mechanical application of pre-existing theory to concrete case studies. Thus, reality does not contribute to the development of theory. Rather, in this unidirectional movement from theory to reality, the theorist merely applies a ready-made toolkit to the Arab Spring without sufficient inquiry into the case studies and whether the Arab Spring provides a room for questioning these theories. Long-standing, binary distinctions in legal and political theory would need to be revisited because filtering reality through these distinctions merely simplifies it to make it “fit” the theory. In particular, constitutional and legal experiences outside the European and North American orbit have long been discounted or made exotic by the deployment of a variety of distinctions that tend to exaggerate the differences between western, liberal constitutions and other constitutions. Additionally, these abstract distinctions do not illuminate the actual workings of legal and constitutional orders.

To conclude, overcoming these limitations would enable scholars to take the role of law in the Arab Spring seriously. It will also enable them to take the Arab Spring itself seriously as a contributor to the global study of legal and constitutional theory rather than short-lived academic fashion.

Featured image credit: “Protesters raise their hands with the four finger sign representing Rabaa during a march in Maadi, Cairo, on the six month anniversary of the violent crackdown against supporters of ousted President Mohamed Morsi, Feb. 14, 2014.” (Hamada Elrasam/VOA). Public domain via Wikimedia Commons

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