Constitutional reforms almost always occur in the context of crises or some sort of “exceptional circumstances,” including regime changes (Reference RussellRussell 1993, 106; Reference ElsterElster 1995, 370). Since the Third Wave of democracy, constitutional reforms have become an essential part of democratic transition. As a result, constitutional negotiations – and renegotiations – are intertwined with transitional arrangements. Over one-fifth of all new constitutions since the Third Wave have been drafted during moments of transition. Similarly, every single Arab country with significant protests during the Arab Spring went through some kind of constitutional change in response to the uprisings. Yet, only in Tunisia, the birthplace of the Arab Spring, the constitutional reform process led to democratization. What was exceptional about Tunisia and its constitutional reform?

The Tunisian political scene was nowhere near an ideal environment for democratic transition. In effect, transitional negotiations broke down several times, most notably in June 2013 as a result of a controversial draft constitution (known as “the June Constitution”) and the assassinations of secular political leaders. In the wake of the breakdown of these negotiations, the General Union of Tunisian Workers (l’Union Générale Tunisienne du Travail, or UGTT) joined forces with three other civil society organizations (CSOs), including the Tunisian Union of Industry, Trade and Handicrafts (UTICA), the Tunisian Bar Association, and the Human Rights League, and hosted the national dialogue with leaders of different political groups (Reference ChayesChayes 2014). These four associations, which later came to be known as the National Dialogue Quartet, convinced the political parties participating in the dialogue to sign a Road Map document, which outlined the formation of a new nonpartisan government, an independent electoral commission, and modification of the June Constitution. The result of this national dialogue was a consensual constitution approved by 93 percent of the votes in the Tunisian National Constituent Assembly (NCA) and a successful democratic transition. The 2015 Nobel Peace Prize awarded to the Tunisian National Dialogue Quartet for their role in the constitution-making and peacebuilding in Tunisia marked the progressive nation as a role model for democratic transition in a region that is often characterized as hostile to democratic norms.

The National Dialogue Quartet, and more broadly the Tunisian CSOs, played three key roles in constitutional renegotiations. First, they acted as a watchdog over the Constituent Assembly, ensuring the transparency and integrity of the constitutional process. Second, CSOs were actively engaged in steering the constitutional debate by creating a public sphere for constitutional discussions through constitutional fora, conferences, round tables, and organized protests. Lastly, they acted as an independent, third-party arbiter of constitutional and political disputes. In these capacities, CSOs paved the way for democratic transition by ensuring that the constitution reflects the aspirations of the Tunisian society for democracy and equality. The influential role of civil groups was made possible through an inclusive and participatory process, which allowed all major social groups to actively engage in the constitution-making and, more broadly, in the transitional process.

By contrast, in Egypt, where the stakes were arguably much higher, efforts to weld the opposition parties into a more coherent democratic force for change failed, partly due to a weakly institutionalized and unorganized civil society undermined by decades of authoritarian domination. A participatory process, similar to that in Tunisia, took place in Egypt as well, and, in terms of sheer numbers, even more people participated and were engaged in the constitutional debate. Nevertheless, in contrast to Tunisia’s experience, the popular participation in Egypt was less effective in changing the constitution. Massive protests, boycotts, and withdrawals from the Constituent Assembly just a few days before the constitutional referendum showed that the 2012 Egyptian Constitution was not what many groups in the country wished for. Eventually, on July 3, 2013, General El-Sisi, the Egyptian army chief, capitalized on this broad dissatisfaction with the constitution and the Muslim Brotherhood government and led a coup d’état to remove the country’s first democratically elected president and suspended the constitution. With a revolution, a military coup, a counterrevolution, and two constitutions adopted in just two years, the Egyptian transitional process held the most dramatic series of events of the Arab Spring (Reference MednicoffMednicoff 2014).

Why did the Tunisian constitution-making process facilitate democratic transition while the Egyptian process failed to bring about democratic change? Previous studies suggest several factors were important for the failure of democratic transition in Egypt, such as a politically powerful military (Reference BaranyBarany 2011), a relative imbalance of power between political forces including Islamists and non-Islamists (Reference Brownlee, Masoud and ReynoldsBrownlee et al. 2015), lack of a clear design for transition (Reference BrownBrown 2013), weak CSOs as well as lack of a progressive Islamist leadership (Stepan and Linz 2013), and the country’s global and geopolitical importance (Reference MednicoffMednicoff 2014). While these factors may explain the failure of constitution-making and the broader transition in Egypt, they fall short of offering a general explanation for the success or failure of constitutions in establishing democracy across other cases. As the cases of Egypt and Tunisia show, constitutional negotiations have increasingly become intertwined with transitional negotiations; yet, the relationship between the two processes has largely remained understudied in the context of the Middle East. The question remains, what role do constitutional negotiations play in democracy-building?

Building on theories of democracy and the recently developed conjectures in comparative constitutionalism, this book examines the circumstances under which constitutions facilitated or failed to facilitate democratic transition during the largest wave of popular movements in the twenty-first century in the Middle East and North Africa (MENA). The core argument of this book is that constitutional negotiations facilitate democratic transitions if they succeed in designing a constitution capable of resolving societal cleavages and the political ills prevalent in society. CSOs can help bring about such constitutions if they are engaged in constitutional negotiations through an inclusive and participatory process. Before expanding on this argument, I first briefly discuss the concept of democracy, followed by the conceptualization of constitutions, as well as constitutional functions and changes. I then present my thesis and conclude the chapter with a brief overview of the Arab Spring upheavals and constitutional changes in the Arab world.

Democratic Process, Democraticity, and Democratization

The causal link that I seek to establish in this book is that a democratic process leads to a democratic constitution, which itself leads to democratization. We should, as such, differentiate between democratic processes, democratic constitutions, and democratic outcomes (i.e., democratization). To make this distinction, we should first ask what democracy is. That is, what characteristics a country should have to be counted as a democracy?

As Reference CoppedgeCoppedge (2012, 11) suggests, one of the most difficult challenges in studying democratization lies in conceptualizing democracy. Indeed, democracy is one of the most contested concepts in political science. A minimalistic definition of democracy entails a system of government in which rulers are selected through competitive elections (Reference SchumpeterSchumpeter 1942). The more contemporary applications of this electoral conception overlap with Dahl’s concept of polyarchy. Reference DahlDahl (1998) identifies five criteria for democracy including effective participation, equality in voting, gaining enlightened understanding, exercising final control over the agenda, and inclusion of adults. Reference DahlDahl (1998), however, develops these utopian criteria in the context of the government of very small and voluntary associations. And while he argues that these criteria can also be applied to the government of a state, he acknowledges that no association can realistically meet all these criteria (Reference DahlDahl 1998, 42).

In some of his earlier works, Reference DahlDahl (1971) establishes the minimum, attainable threshold for what he calls polyarchal democracy, that is, modern large-scale democratic government. Dahl’s concept of polyarchy has two dimensions, including contestation and inclusiveness, which to some degree parallels the Schumpeterian concept of electoral democracy. Dahl’s polyarchy, however, is more elaborate and has six institutional requirements including: “(1) elected officials; (2) free, fair, and frequent elections; (3) freedom of expression; (4) alternative sources of information; (5) associational autonomy; and (6) inclusive citizenship” (Reference DahlDahl 1998, 85). Dahl’s concept of democracy, while not accepted by all political scientists, is a well-known starting point for many scholars who offer alternative definitions of democracy (Reference CoppedgeCoppedge 2012).

As Reference CoppedgeCoppedge (2012, 12) argues, while there are numerous definitions of democracy, almost all can fit into one of the six overlapping models of democracy: socioeconomic, people’s, participatory, representative, liberal, and deliberative democracy. Since people’s democracy is limited to some communist regimes, deliberative democracy is still in an experimental phase, participatory democracy is still limited to some Western countries and only to a limited extent, and socioeconomic equality is not considered in many cultures as necessary or event relevant to democracy, these models of democracy lack the generalizability necessary to compare democratic regimes (Reference CoppedgeCoppedge 2012). However, all democratic states today enshrine some form of representative democracy ranging from “popular sovereignty,” which emphasizes the rule of the majority, to “liberal democracy,” which emphasizes limits on the powers of the majority (Reference CoppedgeCoppedge 2012).

Going back to the question of what constitutes a democratic state, I adopt a liberal representative definition of democracy to determine whether a country has transitioned to democracy. On the one hand, to distinguish between democracies and hybrid regimes, we cannot use a minimalistic, Schumpeterian definition. On the other hand, we cannot operationalize democratic regimes or democratization using utopian characteristics such as Reference DahlDahl’s (1998) five criteria that are “unattainable.” Neither can we use models with limited generalizability and applicability to transitioning states, such as participatory or deliberative definitions. While I build on participatory and deliberative models of democracy to conceptualize and operationalize democratic constitution-making processes, I believe we cannot use these models to determine whether a country has transitioned to democracy.Footnote ¹ Indeed, as previous studies show, participatory and deliberative decision-making processes, including participatory budgeting or participatory and deliberative constitution-making, do improve a country’s level of democracy down the road (Eisenstadt et al. 2017). However, we cannot argue that a country is really “a deliberative democracy,” even though elements of participatory or deliberative decision-making processes might to some extent be at work. By contrast, we can call a state “a liberal representative democracy” if it meets the minimum institutional requirements. Besides guaranteeing basic human rights, liberal representative democracy should limit the tyranny of the majority by guaranteeing some fundamental rights to minority groups. It should also limit the government’s arbitrary use of power by “creating constitutional checks on executive, legislative, and judicial powers” (Reference CoppedgeCoppedge 2012, 13). Democratization can, thus, be achieved when there is a shift toward rule of law and constitutionalism (i.e., the limit on the arbitrary use of power) and when the government guarantees protection of rights, including minority, group, and associational rights.

Democratization in this sense is more likely to be achieved when representatives of major political and societal interests are involved in the constitutional bargain during the transition, highlighting the importance of democratic constitution-making processes. Building on participatory and deliberative models of the democratic theory, I argue that a democratic constitution-making process has two main features, including being inclusive and participatory. Theories of deliberative democracy contend that democratic authenticity requires substantive and real public participation and deliberation (Reference DryzekDryzek 2000), which empowers citizens, particularly the marginalized in society (see Reference ChambersChambers 2003). As will be discussed in the next chapter, democratic authenticity in constitution-making is most likely to be realized through inclusive and participatory processes where major societal, political, and interest groups, including civil society and citizenry, are allowed to take part in the constitutional bargain.

A genuinely inclusive and participatory process is more likely to lead to consensual and democratic constitutions in transitioning states than noninclusive processes. That is, nondemocratic processes – including window-dressing and populist processes that only appear inclusive and participatory – cannot democratize constitutions or generate societal consensus over the constitutional terms. But what constitutes a democratic constitution? Reference Carey, Barany and MoserCarey (2009) argues that constitutional ideals have three characteristics including democracy, temperance, and durability. Democracy refers to the kind of ideals one expects to see in the constitution such as the inclusiveness property of constitutions and the degree to which they reflect the popular consensus. Thus, for Reference Carey, Barany and MoserCarey (2009), democracy is the most prominent constitutional ideal. Temperance refers to constitutional properties that limit the power of officeholders and encourage moderation and deliberation through establishing checks and balances. Lastly, durability refers to constitutional stability over time.

Refining and expanding Carey’s constitutional ideals, Reference Landemore, Ginsburg and HuqLandemore (2016) considers nine criteria for a “good constitution,” including formal qualities, Gordian Knot factor, rights-heaviness, democraticity, temperance, deliberative capacity, value fitness, adaptability, and minimal expected durability. Reference Landemore, Ginsburg and HuqLandemore (2016, 79) argues that a good constitution should “(1) be a clear, concise, logically coherent document; (2) offer reasonable procedural solutions to foreseeable political conflicts; (3) protect and entrench rights of various kinds, first and foremost human rights, as well as (4) entrench democratic principles – centrally political equality and majority rule.” Such a document should also “delineate (5) a temperate political system, characterized by (6) deliberative capacity … [and] contain (7) values and principles that are representative of citizens’ preferences while allowing for (8) the possibility of change over time and yet retaining (9) a decent (sufficient) life expectancy” (Reference Landemore, Ginsburg and HuqLandemore 2016, 79).

Indeed, not all democratic constitutions are “good” constitutions. Building on Reference Landemore, Ginsburg and HuqLandemore (2016), I argue that, at a bare minimum, a democratic constitution should entail democraticity, rights-heaviness, and temperance. Democraticity refers to the overall democratic quality of the constitution. Such a quality includes several important components, such as the degree to which a constitution reflects the popular consensus and the degree to which a constitution promotes government transparency. Landemore’s democraticity is similar to Carey’s democracy ideal of the constitution with one difference. Contrary to Reference Carey, Barany and MoserCarey (2009), who considers various constitutional rights under the democracy ideal, Reference Landemore, Ginsburg and HuqLandemore (2016) proposes a separate category for consideration of rights: rights-heaviness. By rights-heaviness, Reference Landemore, Ginsburg and HuqLandemore (2016) refers to both the quantity and quality of constitutional rights. For Landemore, the minimum threshold for a good constitution is the entrenchment of basic human rights. Most undemocratic constitutions, however, also include basic human rights, which have become a common fixture of all constitutions (Reference Elkins, Ginsburg, Melton, Ginsburg and SimpserElkins et al. 2014b). Democratic constitutions, as such, should guarantee a wider array of rights including basic human rights as well as association and group rights, such as minority group’s rights. Lastly, democratic constitutions should limit the government’s arbitrary use of power by institutionalizing checks and balances.Footnote ²

I argue that these democratic characteristics of the constitution-making process and the content of constitutions can explain the successful and failed pathways of democratization during the Arab Spring. Without a democratic process, a democratic constitution is less likely to materialize. It matters who sits – and who does not sit – at the constitutional negotiation table. When large segments of society are not represented in the constitutional bargain, the constitution is less likely to protect their interests. Without popular consensus, protection of group rights, and constrained governments, new constitutions will fail to facilitate democratization.

There is then a clear link between what I define as a democratic regime and the characteristics of democratic constitutions. In other words, democratization cannot be achieved without constitutional democraticity, rights-heaviness, and temperance. These democratic characteristics of constitutions, in turn, depend to a large extent on the democratic features of constitution-making processes (i.e., participation and inclusion). Constitutions, as such, play an important role in establishing democracy. Not all constitutions, however, function as democratizing tools.

Constitutions as Contracts

Constitutions fulfill different functions in democratic and authoritarian settings. In authoritarian regimes, for example, Reference Ginsburg, Simpser, Ginsburg and SimpserGinsburg and Simpser (2014) argue that constitutions serve four key purposes. They can function as an “operating manual” to offer a means of binding authoritarians so that members of the ruling coalition do not act outside of the prescribed norms. Similarly, constitutions can be “billboards” that advertise autocrats’ policy statements, “signaling the intentions of leaders within the regime to those outside of it.” Alternatively, when serving as “blueprints,” constitutions describe societal aspirations rather than political institutions as they exist. Lastly, under the “window-dressing” function, “the text is designed to obfuscate actual political practice” (Reference Ginsburg, Simpser, Ginsburg and SimpserGinsburg and Simpser 2014, 6–8). Besides these four functions, constitutions in authoritarian settings can help formalize pacts among different competing groups (Reference Ginsburg and MoustafaGinsburg and Moustafa 2008) or legally change publicly undesirable policies (Reference MoustafaMoustafa 2007). They can also provide the legal basis for leaders’ political, social, and economic plans (Reference NegrettoNegretto 2013). Many rulers find it less costly and more legitimate to enforce their wishes through constitutional amendments, as was demonstrated by Singapore’s ruling party’s move to constitutionally suppress opposition parties (Reference Silverstein, Ginsburg and MoustafaSilverstein 2008) or the Algerian government’s constitutional amendment in 2008 to remove presidential term limits (Reference GouiGoui 2015).

As Reference Ginsburg, Simpser, Ginsburg and SimpserGinsburg and Simpser (2014) argue, authoritarian leaders may seek to implement constitutional change for several reasons. Through constitutional reforms, authoritarians seek to control their challengers within the ruling coalition, signal intentions of reform (whether genuine or not) to regime critics (domestic and international), and, perhaps, bargain over transitions of power and future regime prospects. Whatever the case, societal pressures for liberalization, as O’Donnell and Schmitter (1986) and Reference PrzeworskiPrzeworski (1991) argue, constitute part of the reason for authoritarian constitutionalism. Authoritarians need stability, aim to distribute risk, and also seek information to control actors inside and outside their coalition through sanctions, and constitutions can deliver these ends for them.

In democracies, by contrast, constitutions serve two simultaneous functions: they enable the government to rule while at the same time constraining it. Achieving these constitutional objectives, needless to say, has proven to be a challenge, especially for new democracies. In James Madison’s (Federalist Paper #51) words, “[i]n framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to control the governed; and in the next place, oblige it to control itself.” A central question in democratic theory concerns the mechanisms by which the rules and institutions (especially those identified in the constitution) that constrain a government are maintained and enforced (Reference OrdeshookOrdeshook 1992, 138). In the last few decades, at least two models have emerged to address this concern, which, following their central arguments, can be labeled as “contractual” and “self-enforcing” models.

In the first model, constitutions are conceptualized as contracts between the state and society or even among citizens (Reference Brenan and BuchananBrenan and Buchanan 1985). This view was built on the modern social contract theory, which regards the state as a social contract among men (and women) (Reference Hobbes and MorganHobbes 1968; Reference LockeLocke 1988; Reference RousseauRousseau 1997). Several economists employed this conceptualization in the 1980s to answer important questions regarding the limits on the exploitative power of governments and the problem of maintaining the constitutional contract (see, e.g., Reference Buchanan and FaithBuchanan and Faith 1987; Reference Aranson, Gwartney and WagnerAranson 1988; Reference Grossman and NohGrossman and Noh 1988; Reference Epple and RomerEpple and Romer 1989; Reference Wagner and RowleyWagner 1987). Reference NiskanenNiskanen (1990, 57), for example, suggests that a constitution is a unique form of “contract among various parties to form a government in which the government – the object of the contract – has the dominant power to interpret the rules and resolve any disputes in its favor.” An effective constitution, as such, is a “set of rules that serve the interests of the current dominant coalition” (Reference NiskanenNiskanen 1990, 58). The constitution or its specific rules and provisions are maintained as long as the benefits of maintaining the set rules exceed the costs for the dominant coalition.

Scholars have raised several criticisms of these contractual or, as Reference Grossman and NohGrossman and Noh (1988) call them, “proprietary” government models. The major criticism focuses on how such a contract and its terms are defined and enforced (Reference OrdeshookOrdeshook 1992). The conventional explanation is that the Supreme Court, as a third party, interprets or enforces the constitution. But, as critics point out, this explanation only pushes the problem back a step as now we must ask how social groups enforce the rules and regulations that define the Supreme Court’s (or any other third party’s) jurisdiction (Reference NiskanenNiskanen 1990; Reference OrdeshookOrdeshook 1992). There are several other reasons why a third-party justification is not an adequate explanation. As Reference NiskanenNiskanen (1990) notes, there is no plausible theory to explain why the Supreme Court should have the authority or the incentive to play this role. The American Constitution itself does not empower the Supreme Court as the arbiter of constitutional disputes between different branches. Moreover, the Supreme Court is specific to the United States (although it has become more popular across the world in the last few decades), and in many countries, the highest court does not have any constitutional role (Reference NiskanenNiskanen 1990).

Partly as a response to these criticisms, a new literature, using a game-theoretic approach, has emerged that conceptualizes constitutions not as “contracts” but as “devices” by which organized social groups coordinate to achieve particular outcomes (see, e.g., Reference North and WeingastNorth and Weingast 1989; Reference PrzeworskiPrzeworski 1991; Reference OrdeshookOrdeshook 1992; Reference WeingastWeingast 1997). A constitution endures only if it is self-enforcing (Reference OrdeshookOrdeshook 1992), and to be self-enforcing, it should overcome the coordination problem (Reference WeingastWeingast 1997). The coordination problem is similar to a Prisoner’s Dilemma game; the only difference is that the game is played repeatedly indefinite number of times (Reference OrdeshookOrdeshook 1992). There are multiple equilibria in an iterated Prisoner’s Dilemma game, which can resolve the dilemma to each player’s satisfaction. This multiplicity of equilibria is the key here because it implies that the only way players (i.e., citizens, groups, or political entities) can achieve a mutually agreeable outcome is to coordinate their strategies. In other words, it is the repetition of the game, rather than the exogenous enforcer (third party) that allows the establishment of outcomes as equilibria. If each person (or player) believes that the other will abide by the rules, then both players have the incentive to act accordingly. As such, the agreement (constitution) will be self-enforcing (Reference OrdeshookOrdeshook 1992, 147).

Building on both “contractual” and “self-enforcing” models, Reference Elkins, Ginsburg and MeltonElkins et al. (2009) follow the rationalist approach in institutional studies to introduce their “theory of renegotiation.” Following the “contractual” model, they define constitutions as a specific type of contract and call “bargains,” which are meant to endure. Unlike the “contractual” model, however, constitutional bargains are not enforced by a third party (although constitutional courts can resolve ambiguities down the road); rather, they are self-enforcing (Reference Elkins, Ginsburg and MeltonElkins et al. 2009, 76–77). “A constitution will be maintained only if it makes sense to those who live under its dictates,” they write, “so a crucial quality of any successful constitution is that it will be self-enforcing” (Reference Elkins, Ginsburg and MeltonElkins et al. 2009, 7). The model of Elkins et al. also assumes that a constitutional bargain, once adopted, will endure as long as there are no endogenous or exogenous shocks that would alter the cost–benefit analysis for groups considering remaining in or exiting from the bargain.

Constitutions, as such, change when those under its rule find it less costly (and more beneficial) to alternate the rules. Given the costs associated with constitutional renovations, constitutional change becomes more likely when the constitution no longer serves its purpose. In such circumstances, the cost of maintenance and enforcing the constitution becomes much higher than its benefits. Constitutional renegotiation can be initiated by any party in the bargain, which anticipates higher future costs than benefits. It can be initiated by the incumbent, winners, or authoritarian leaders (which we can collectively refer to as “top-down” processes) or alternatively by the opposition, losers, or grassroots movements (“bottom-up” processes).

Prior to the Arab Spring, the majority of constitutions in the Middle East were drafted through a top-down process. Constitutional bargains were, thus, limited in their scope and purpose. If we understand constitutions as “the basic legal framework for governing” and constitutionalism as “ideologies and institutional arrangements that promote the limitation and definition of means of exercising state authority,” then the general purpose of constitutions in the Arab world was defining state authority and organizing power without necessarily limiting it (Reference BrownBrown 2002, 8–12). For Nathan Reference BrownBrown (2002), such “nonconstitutionalist” constitutions have three functions. First, they are “symbolic,” that is, constitutions have become so common that it is difficult to imagine state sovereignty without a constitution (written or non-written). Second, they can be “ideological,” as many constitutions go into length to proclaim the basic ideology of the state. And finally, nonconstitutionalist constitutions can be “enabling,” making lines of authority and succession clear but not restricting the actions of leaders. Thus, constitutions in the region were historically drafted not for the sake of constitutionalism but for extra-constitutional purposes. And as Brown notes, democracy cannot exist without constitutionalism. The Arab Spring uprisings, however, changed the cost–benefit calculation of several Arab leaders and forced them to enter new constitutional bargains.

Constitutional Renegotiations in a Nonconstitutional World

Eleven Arab countries in the MENA changed their constitutions after the 2011 popular uprisings. The failure of Arab constitutions in establishing the rule of law and constitutionalism over a long period, along with increased constitutional knowledge in the public sphere, precipitated a call across the region to renegotiate constitutional bargains.

Since the twentieth century, Arab constitutions have faced many challenges, from colonial rule to independence wars and modernization, all of which threatened their stability. Rather than perishing, these constitutions endured by changing forms. They selectively borrowed constitutionalist language from European constitutions, establishing democratic institutions such as political parties, parliaments, and courts, but modified them to serve authoritarianism (Reference BrownBrown 2013). The outcomes of these selective borrowings were Frankenstein-style constitutions that were neither democratic nor authoritarian. They allowed multicandidate presidential elections, for example, but made it extremely difficult for anyone but the incumbent to qualify or win. Constitutions were rich in “escape hatches” that allowed the executive to breach provisions of the bargain repeatedly. Over time, constitutional modifications resulted in more authoritarian than democratic constitutions and created strong, unchecked executive authority across the region (Reference BrownBrown 2002).

Constitutions were, as such, not “making sense” anymore for people who lived under their mandate. They did not limit the executive power or enforce the rule of law. But CSOs and other democratic forces were too weak to challenge the state for a new constitutional bargain. It was not until the late 1970s and early 1980s when a public sphere for constitutional talks was formed. Economic and political liberalizations in the 1970s and 1980s led to more freedom of speech across the region. Opposition press emerged in countries like Egypt. Media with higher professional standards and greater ability to cover news, such as Aljazeera, entered the market which, through the expansion of satellite receivers, created new competitors against authoritarian state-owned media that once had the monopoly of controlling the news feed. Furthermore, nongovernmental organizations (NGOs), think tanks, and universities started to hold discussions and conferences on trending political issues (Reference BrownBrown 2013). Expansion of postsecondary education, along with increased internet penetration and social media, made the general public more aware of a host of political matters.

The development of these public and political spheres contributed to the emergence of a common framework for assessing major political problems in the Arab world in the wake of the 2011 uprisings. As Brown argues, “[The Arab Spring upheavals] have been premised, in large part, on the proposition that the ills of Arab politics need a constitutional solution” (2013, 41). It is no accident that the majority of protesters concentrated on rule of law, dignity, and government harassment. From Western Sahara to the Levant to the Arabian Peninsula, protesters were more organized than before, and rather than having a wide range of demands, they surprisingly focused on their constitutions. With their nations in search of new social contracts or new pacts that could protect them from the state itself, Arab leaders had no choice but to negotiate new constitutional bargains. But these new constitutional bargains mostly failed to change the status quo, as they did not lead to more accountability, rule of law, or constitutionalism. Less than a decade into these new bargains, it seems that most Arab constitutions have failed to deliver what they promised. Why did these constitutional bargains fail in resolving the problems that prompted them in the first place?

Constitutions and Democratization: The Missing Link

This book suggests that the inclusion of different organized groups in constitutional processes leads to democracy. Groups participating in constitutional (re)negotiations need to coordinate their strategies to achieve a mutually beneficial equilibrium, which is a Magna Carta that successfully resolves social, ideological, and political dilemmas and is deemed “fair” by all groups. The key assumption here is the iteration of the game. To overcome the coordination problem inherent in a repeated game, groups participating in constitutional (re)negotiations must learn to participate and to choose “voice” over “exit” (Reference HirschmanHirschman 1970). This in turn would instigate trust among these groups, leading to compromise, and subsequently democracy (Reference AxelrodAxelrod 1984). In other words, the success or failure of constitutional (re)negotiations in establishing democracy depends to a large extent on whether they can resolve the ideological and political dilemmas prevalent in societies with social or religious divisions and a legacy of authoritarianism. The resolution of these dilemmas requires public and inclusive constitutional debates. Constitutions should not be silent on ideological issues that divide society or leave the door open for the executives’ abuse of power. Constitutional renegotiations provide a unique opportunity for transitional states to engage in public debates on these issues and build trust among the relevant parties. The question is why such comprehensive debates did not take place in most Arab polities.

The answer lies in the inclusion or lack thereof of CSOs at the bargaining table. Through constitutional fora, conferences, roundtables, and focus groups, CSOs play a vital role in steering constitutional debates. And through organizing protests, gatherings, and national dialogues, they are the dominant democratic force in shaping the public and political spheres. Most CSOs are dedicated advocates of human rights, social and individual equality and justice, and strong democratic institutions, including an independent judiciary (which could protect them from future retaliations). And when they are institutionalized, organized, and financially and bureaucratically independent, they can steer constitutional debates in the direction that not only can resolve social and ideological cleavages but also can concentrate on other urgent issues such as human rights and democratic institutions. We should, however, note that even with the presence of an institutionalized civil society, some constitutional negotiations still do not succeed in resolving ideological and political cleavages. The reason is a vector of unfavorable exogenous factors including the dominance of nondemocratic forces such as the military and the prevalence of ethnoreligious or regional divisions that can polarize civil society and render it ineffective in steering constitutional debates.Footnote ³

CSOs, however, can play the abovementioned roles as much as they are allowed to be or succeed in forcing themselves into being part of the constitutional negotiations. An inclusive and participatory constitution-drafting process can guarantee access to civil groups. The main function of inclusive processes is to signal a credible commitment by the incumbent (or the majority group). Allowing the main segments of society to take part in constitutional negotiations in a transparent manner increases the cost of breaching particular provisions of the bargain for any party. Through inclusive processes, participating groups learn democratic negotiations and compromise. More likely than not, the result of these democratic negotiations is a binding agreement that is viewed as “fair” by most groups and, hence, has a higher prospect of success in institutionalizing the rule of law.

In sum, the argument in this book builds on three propositions. First, constitutional negotiations have a higher prospect of success in establishing democracy in transitioning states if they resolve social, ideological, and political dilemmas. Second, constitutions can resolve these problems best through a participatory and inclusive process. Third, the link that connects constitution-making processes to the resolution of these dilemmas is civil society. Without the engagement of CSOs during constitutional moments, new constitutions can face hurdles in establishing democracy. In other words, the missing link that connects constitution-making processes to successful democratization is a strong and independent civil society that can shape and steer constitutional debates. In the next sections, I elaborate on each of these three propositions.

The Arab Spring: Constitutional Continuity and Change

The most common narrative on the popular uprisings in the Arab world (the Arab Spring) is that the sequel of upheavals started on December 17, 2010, when a twenty-six-year-old street vendor, Mohamed Bouazizi, set himself on fire in front of a local municipal office in the city of Sidi Bouzid in central Tunisia after his property was confiscated by local officials (Reference Brownlee, Masoud and ReynoldsBrownlee et al. 2015). This action led to massive protests in Sidi Bouzid. President Zine El Abidine Ben Ali, the Tunisian dictator, initially ignored the protests, then called them riots. He finally recognized the severity of the circumstances and paid a visit to Bouazizi at the hospital, but his visit was too little too late. Bouazizi died a few days later, and his shocking death triggered massive protests across the country against unemployment, corruption, and government brutality. Under mounting pressure, President Ben Ali was forced to flee the country after the military refused to use force to put down the protests. A relatively peaceful democratic transition followed Ben Ali’s departure, leading to the promulgation of the most progressive Arab constitution in January 2014.

The revolution in Tunisia spreads rapidly across the MENA. In Egypt, hundreds of thousands of protesters gathered in Tahrir Square and other squares around the country and demanded the departure of their own dictator, President Hosni Mubarak. Seeing Mubarak as a liability, the powerful Egyptian military forced the president to resign only eighteen days after the protests started. Soon it became clear that although Mubarak resigned, the military was less willing to give up power. The sweeping electoral victory of the Muslim Brotherhood and deep divisions between the Islamists and non-Islamists resulted in a controversial constitution in 2012, which led to mass protests against the democratically elected President Mohamed Morsi. The military capitalized on popular dissatisfaction with the Muslim Brotherhood government, staged a coup, and paved the way for a new constitution in 2014. The relatively democratic constitution of 2014 did not survive long, and in 2019, the Egyptian parliament approved a bill to amend the constitution, changing the length of presidential terms to six years with two-term limits. This change allows current President El-Sisi to potentially remain in office until 2030.

In Morocco, a group of youths (later named the February 20 Youth Movement) organized a mass protest in Rabat, Casablanca, and other cities on February 20, 2011 (Reference BenchemsiBenchemsi 2012). Demonstrators called for major reforms including a new, more democratic constitution. In response to the protests, King Mohammed VI gave a rare, televised speech, known as the “March 9 speech,” promising a “comprehensive constitutional change” featuring “the rule of law,” an “independent judiciary,” and an “elected government that reflects the will of the people through the ballot box,” making Morocco the first nation to change its constitution in response to the Arab Spring uprisings (Reference BananiBanani 2012, 11–15). In another relatively poor monarchy, Jordan, the protests started as early as January 2011. The fate of Jordan was very similar to that of Morocco. Protesters concentrated on unemployment, inflation, corruption, and real constitutional and electoral reforms to make the Hashemite kingdom a true constitutional monarchy. Like his Moroccan counterpart, King Abdullah II of Jordan was able to skillfully manage the situation by a series of constitutional changes in 2011, 2014, and 2016, which provided nothing but mere lip service to democracy.

In Yemen, violence escalated fast, as President Ali Abdullah Saleh was unwilling to give up power until he narrowly escaped an assassination attempt in June 2011. He eventually signed a power transition plan, prepared by the Gulf Cooperation Council (GCC), to relinquish power in November 2011. Yemen seemed to be on track for democratic transition with the appointment of Abdrabbuh Mansur Hadi as the interim president who took office in February 2012. But shortly after a draft constitution was introduced in January 2015, the Shia Houthis from the less affluent south, who were excluded from the constitutional renegotiation, rebelled and occupied the presidential palace. Soon, Saudi Arabia formed a Gulf coalition against the Houthi rebels, pushing Yemen further into a civil war, which has so far claimed thousands of lives.

In Syria, like Yemen, an armed rebellion against the regime was met with a violent response from the state and armed international intervention, which fueled the civil war. Unlike in Yemen, however, the Syrian protesters from Raqqa, a poor Sunni town and the birthplace of the uprisings, did not initially chant Erhal (Leave!) and were only demanding more rights and greater equality. From January to March 2011, the protests were minor and mostly concentrated in Daraa and other small Sunni-populated towns. Syria’s Alawi Shia dictator, President Bashar Al-Assad, however, reacted to these protests with an iron fist. In mid-March, major protests erupted in Daraa and Damascus in response to the Baathi government’s brutal crackdown of peaceful protests, such as the incarceration and torture of fifteen young students who were writing anti-government graffiti, including the thirteen-year-old Hamza Al-Khateeb, who was tortured and killed by the regime. A few months later, the rebel Free Syrian Army was created on July 29, 2011, marking the transition into an armed insurgency. President Al-Assad made some late promises for change, including a new constitution adopted in 2012, which did not make any changes to the authoritarian status quo. The rise of the terrorist organization Islamic State of Iraq and Syria (ISIS) on the one hand, and increasing support from Iran, Hizbullah (the Lebanese paramilitary group), and Russia, on the other, eventually kept Al-Assad in power.

In the Gulf region, major protests erupted only in Saudi Arabia and Bahrain. In Saudi Arabia, in addition to constitutional reforms in 2013, King Abdullah moved quickly with co-opting the protesters by financial promises, including the creation of jobs for the youth, and managed to control the situation. Unlike the rest of the Gulf region, however, the protests in Bahrain were considered strategically important for regional and global powers, including Saudi Arabia and the United States. The small, Shia-majority island ruled by a minority Sunni dynasty is a close ally to Saudi Arabia and hosts the US Fifth Fleet in the Persian Gulf. Iran, which supports the Shia Bahraini, has historical claims over the island. Therefore, when the protests began among the Shia population for justice and equality, they were met with a government crackdown with the help of the Saudi militia. Despite Bahrain Emir’s pledges for democratic reforms, constitutional changes in 2012 and 2017 did little in changing the status quo or satisfying popular demands for equality and justice.

Among all Arab leaders, Libya’s Muammar Qaddafi had the worst fate. In Libya, uprisings started in February 2011 after security forces opened fire on a protest in the city of Benghazi. With the military remaining loyal to Libya’s dictator, protests soon turned into a blood bath. After the UN Security Council authorized all necessary means to protect civilians in March 2011, NATO intervened by attacking Qaddafi’s forces and military strongholds. After four decades in power, Qaddafi was captured and killed by a group of rioters in August 2011. The National Transitional Council (NTC), which led the revolt, became the de facto government of Libya between 2011 and 2012 and adopted an interim constitution (Constitutional Declaration) in 2011. Article 30 of this constitution called for the election of a national legislative body, the General National Congress (GNC), in less than a year. The to-be-elected GNC was tasked with appointing a committee to draft a permanent constitution in sixty days and submit the draft for approval in the GNC, with subsequent ratification coming through a public referendum. Political turmoil and concerns over the proportional make-up of the GNC, however, led the NTC to amend the Constitutional Declaration only a few days before the legislative elections (Reference Gluck, Allen, Bulmer, Ginsburg, Gluck, Hasebe, Ngenge and ToniattiGluck 2015). The outbreak of violence, with some 300 militia groups fighting each other, regional divisions, and lack of any constructive negotiations have so far prevented the creation of a permanent constitution that binds Libyans together.

To the western borders of Libya, protests started in Algeria from late December 2010 and continued until early 2012. The massive protests around the country had similar causes including unemployment, inflation, corruption, restrictions on freedom of speech, and poor living conditions. The Algerian government responded with a series of reforms and suppression of the protests. The first major reform was the lifting of the state of emergency in February 2011. During the initial months of the uprisings, President Bouteflika, Algeria’s ruler since 1999, announced that he would initiate a series of democratic reforms in the country. Bouteflika appointed his minister of state and senior advisor, Ahmed Ouyahia, to undertake the constitutional reform process. After five years of consultations behind closed doors, constitutional amendments were introduced and approved by both legislative chambers in February 2016. The constitutional reform package included seventy-four amendments and thirty-eight new provisions. The most important change was made to Article 74, which since 2008 lifted a two-term limit on the presidency so as to allow Bouteflika to run for a third and fourth term. The 2016 constitution reinstated the presidential term limit, although it allowed Bouteflika to finish his fourth term in 2019 and to run for a fifth term if he wished. Although eventually the status quo did not change and Bouteflika weathered the uprisings, the 2016 revised constitution embodies more civil rights and liberties than its predecessors, including the recognition of the role of women and youth in society, freedom of the press, and more linguistic rights for the Imazighen minority (Reference MaboudiMaboudi 2019, 568–569).

Lastly, in a usually forgotten case, the Kingdom of Oman, minor protests had a significant impact on political and economic reforms. The demonstrations started with about 200 protesters gathering on January 17, 2011, against rising prices of goods, corruption, and low wages. The protests increased, on and off, until they peaked in April. The government managed the protests by initiating a number of social, political, and economic reforms including constitutional amendments in October 2011 and increasing the minimum wage. Although the status quo did not change and the position of Sultan Qaboos, the King of Oman, remained very strong, those small protests were strong enough to bring about reforms that were ignored for years in the kingdom.

As this brief overview shows, the Arab Spring uprisings were closely tied to constitutional reforms throughout the Arab world. While a number of these constitutional reforms did change the status quo, most failed in bringing about meaningful reforms. Nonetheless, this wave of constitutional reforms is unprecedented in a region, which boasts constitutional stability. As Table 1.1 shows, the average duration of the fifty-five constitutions adopted in the region from 1861 to 2019 is twenty-six years, which is seven years longer than the global average age of constitutions (Reference Elkins, Ginsburg and MeltonElkins et al. 2009). The most durable constitution in the region is the Lebanese Constitution of 1926, a constitution that was suspended and reinstated twice by the French colonial administration (Reference BrownBrown 2002, 71).Footnote ⁷

What has changed since the first Arab constitution in 1861? As Nathan Reference BrownBrown (2002) noted in his seminal book, Constitutions in a Nonconstitutional World, while constitutions and constitution-making have evolved in the region over the last century and a half, these constitutional renovations have not brought constitutionalism and rule of law to the Arab world. There was some hope that the constitutional wave of the Arab Spring might eventually establish constitutionalism and democracy in the region. But that dream very soon faded away as authoritarianism withstood the popular pressure for democratic reforms. The new constitutional order in the Arab world, with the exception of Tunisia, could not remedy the social and political ills that triggered the unprecedented uprisings in the region. This outcome was partly because of noninclusive and nonparticipatory processes and partly because of a lack of strong and independent civil society. The next chapter evaluates the relationship between democratic constitution-making processes and the democraticity of the constitution using empirical evidence from two cross-national studies.