When my Arab friends talk about “the humiliation of the street” and express their earnest support for the protesters’ demand that Mubarak step down, I empathize with them. But one observation stands in the way of my fullest sympathy. Egypt has a constitution, and nobody is saying that Mubarak has violated it. We can agree — can we not? — that people shouldn’t be able to change a country’s legitimate constitutional leaders merely by taking to the streets. If Mubarak has not violated the constitution, his rule is illegitimate only to the extent that Egypt’s constitution is itself illegitimate.
What has been missing in the U.S. government’s response is some consideration of the central constitutional question. We have expressed solidarity with the protesters’ demand that elections be opened to all parties and that the sweeping emergency detention powers that were promulgated in 1981 be lifted. But our recognition of the states that were created in the wave of decolonization — recognition we granted automatically, with no regard to the nature of their regimes — has left us with no objective criteria with which to judge the legitimacy of any state’s constitution under international law. As a result, we are forced to focus on the marginal problem of Mubarak rather than the central problem of Egypt’s constitution.
In Mubarak’s speech this week, he promised to address the grievances related to elections and emergency powers, through a dialogue with the opposition, and through constitutional amendments if necessary. But that will not solve the problem. The constitution confers upon the president sweeping, arbitrary powers that are incompatible with checks and balances, basic freedoms, and a true representation of what James Madison called “the multiplicity of interests.”
Egypt’s constitution needs a fundamental transformation. In the meantime, the country will remain a halfway house between dictatorship and democracy. But the U.S. government will feel bound to recognize its sovereign legitimacy anyway, because under current international law, we recognize the “sovereignty” of whatever regime happens to control the official territory of the state — and hence, by implication, we also recognize the legitimacy of its constitution. The complications that arise from the automatic recognition of state sovereignty, which have hamstrung the administration’s response to this crisis so far, will only grow worse and more dangerous in the decades ahead.
There should be objective criteria for judging the legitimacy of constitutions. As the positivist legal philosopher Hans Kelsen argued decades ago, the legitimacy of a given constitution is ultimately a question of international law. My fellow conservative hawks will shriek, but the question of constitutional legitimacy must be a matter of objective and internationally accepted principles. Certainly it cannot turn only on current popular support, given the vicissitudes and vagaries of public opinion.
Egypt was born into perhaps the worst set circumstances that any state could be born into, namely the socialist decolonization movement that swept the globe after the Second World War. The premises of the decolonization movement — independence (for local dominant majorities), sovereign equality, non-interference in the domestic affairs of sovereign states, and socialism — were all confirmed as legitimate in the Charter of the United Nations, where there were no standards for membership.
This was a recipe for the proliferation of dictatorships, and after Egypt’s independence in 1952, the new regime of Gamal Abdel Nasser quickly adopted a stiflingly socialist and authoritarian orientation. To be fair, Nasser was a more genuine believer in democratic liberties than in economic ones. His various constitutional schemes were based on the premise that Egyptians were not ready for modern democratic institutions, but could be made ready through appropriate participation in the political process, so long as the state could meet the people’s needs. Egypt quickly became a dictatorship clad in thin constitutional raiment, one that drew its “legitimacy” not from conformity with any objective criteria, but rather from popular support, often in the form of hostility toward Israel. Its constitution was thus a Faustian bargain with a mass mob — precisely the mass mob we see today, coming round to collect its debts, on Liberation Square in Cairo.