From Public Participation to Constitutional Legitimacy: Evidence from Tunisia

AuthorTofigh Maboudi,Ghazal P. Nadi
Date01 June 2022
Published date01 June 2022
Subject MatterArticles
2022, Vol. 75(2) 441 –457
Political Research Quarterly
© 2021 University of Utah
Article reuse guidelines:
DOI: 10.1177/10659129211014279
Authoritarian leaders frequently violate the terms of their
own constitutions to suppress dissenting voices, leading
to a public mistrust of such “non-constitutionalist” con-
stitutional arrangements (Brown 2002). This legacy of
authoritarianism has instigated a challenge for transi-
tional states which seek to create a constituency of citi-
zens that trusts and supports the new constitutional order
(Maboudi and Nadi 2016). Since the Third Wave of
democracy, several transitional states including those
emerging out of the Arab Spring have found a partial
solution to this challenge in participatory constitution-
making processes. This global trend in participatory con-
stitution-making raises the question of whether citizen
participation in constitution-making processes enhances
constitutional legitimacy in these transitional states.
Models of participatory constitution-making predict
that broad public participation through national dialogue
meetings, conferences, workshops and focus groups, con-
stitutional campaigns, and information sessions can
expose the public to the constitution, fostering constitu-
tional literacy and a sense of ownership, because citizens
feel that they are part of the constitution-making process
(Wing 2008). Consequently, this sense of ownership can
generate public support for the constitution (Hart 2003).
Participatory constitution-making models contend, as
such, that public participation is a solution not only to
legitimize the constitution but also to bolster democratic
transition (Benomar 2004; Diamond 2005). Despite these
normative predictions, there is scant empirical evidence
that participation in constitution-making processes actu-
ally enhances public support for the constitution (Moehler
2006; Wing 2008). In this article, we attempt to evaluate
this relationship by looking at public opinion about the
constitution in Tunisia.
We examine the impact of popular participation on per-
ceived constitutional legitimacy using data from an origi-
nal survey of 1,220 Tunisians conducted in 2014 by the
Transitional Governance Project, as well as open-ended
interviews with Tunisian constitution drafters, political
party leaders, and civil society representatives.1 The sur-
vey data show that most Tunisians (53 percent of the
respondents) support their constitution. Overall, 47 per-
cent of the respondents were engaged in one activity per-
taining to the constitutional reform process and 19 percent
reported participation in two or more constitutional activi-
ties, with 34 percent reporting no participation at all. Our
statistical analysis indicates that participation in the activi-
ties surrounding the constitution-making process has a
1014279PRQXXX10.1177/10659129211014279Political Research QuarterlyMaboudi and Nadi
1Loyola University Chicago, IL, USA
Corresponding Author:
Tofigh Maboudi, Department of Political Science, Loyola University
Chicago, 1032 W. Sheridan Rd., Chicago, IL 60660, USA.
From Public Participation to
Constitutional Legitimacy: Evidence
from Tunisia
Tofigh Maboudi1 and Ghazal P. Nadi1
Does public participation in constitution-making processes enhance constitutional legitimacy? Using an original public
opinion survey conducted in Tunisia shortly after the adoption of the 2014 Constitution, this article examines whether
public participation in constitution-making activities enhances perceived constitutional legitimacy. The results show
that participants are more likely to support the constitution and its institutions than non-participants. We argue that
participation increases constitutional literacy among the general public and this increased knowledge impacts the
respondents’ perception of the constitution. The empirical findings confirm normative assumptions of participatory
model of the democratic theory and suggest that inclusive and participatory constitutional reform processes, in
contrast to an elitist approach, are more likely to yield democratic constitutional outcomes which are supported by
larger segments of the society.
constitutional legitimacy, participatory constitution-making, democratic theory, public participation
442 Political Research Quarterly 75(2)
2 Political Research Quarterly 00(0)
statistically significant correlation with the respondents’
support for the constitution. In other words, those who
reported some form of participation in the constitutional
process are more likely to be literate about the content of
the constitution and to support it, compared with non-par-
ticipants. We also find that participants who actively
worked to influence the constitution are more likely to
support it than those who were only passively involved or
not involved at all. Building on participatory model of the
democratic theory, this article contends that broad partici-
pation through elections, information campaigns, and pro-
test activism surrounding controversial provisions can
create a national constitutional debate, diffuse information
about the constitution, and ultimately invoke popular sup-
port for the constitution.
The participatory and inclusive constitution-making
process in Tunisia created an unprecedented venue for
different societal groups to mobilize and influence the
constitutional bargain. To force the moderate-Islamists
Ennahda which controlled the National Constituent
Assembly (NCA) into compromise over the constitution,
the non-Islamist opposition parties and independent civil
society organizations including labor unions dissemi-
nated information and raised public awareness about the
constitution (Chayes 2014). These groups organized sev-
eral platforms, meetings, and protests which expanded
public participation beyond the state-sponsored National
Dialogue meetings (The Carter Center 2014). Under
mounting pressure from the opposition and the public, the
NCA modified several contentious provisions. This cycle
of public mobilization and constitutional changes pro-
voked a national debate about the constitution and
increased public awareness about the constitution.
Ultimately, the national constitutional bargain yielded a
magna carta built on societal consensus, unprecedented
in the Arab world, which was deemed legitimate by most
groups in the Tunisian society.
This article is organized as follows: After an overview
of the normative debate about the impact of citizen
engagement in constitution-making processes on consti-
tutional legitimacy, we explain the main hypotheses of
this study. Next, we present a brief description of the con-
stitutional process in Tunisia, followed by a description
of the data, operationalization of the main explanatory
and outcome variables, and the results. Finally, we dis-
cuss the results and their implications, focusing on the
critical role of participation in legitimizing constitutions
and spreading knowledge about the text.
Participatory Constitution-making
and Constitutional Legitimacy
Constitutional legitimacy is a broad concept reflecting
whether the constitution is drafted or has come into effect
in a legitimate way (Elster 1993; Moehler 2008).2 For
instance, constitutions created under foreign military
occupation (Chesterman 2005) or imposed by an execu-
tive decree in authoritarian regimes (Wing 2008) are
often considered to lack legitimacy. Constitutional legiti-
macy and political legitimacy, more broadly, invoke
social consensus and bolster states’ international status
(Elster 1993). Constitutional legitimacy can also assist
states to implement harsh but necessary policies (such as
economic reforms) by creating a “moral duty of obedi-
ence” among the general public (Barnett 2003, 113).
Despite the increasing focus on constitutional legitimacy
in the last few decades, constitutions of the Second Wave
of democracy failed to bring about democratic gover-
nance, stability, and a constituency of citizens willing to
support and defend their constitutions. Searching for an
explanation, studies in comparative constitutionalism
have explored democratic theories and suggest that the
nature of constitution-making processes has serious
implications for the legitimacy of constitutions (Hart
2003; Widner 2008).
Elster (1993) suggests that there are three forms of
constitutional legitimacy pertaining to the process of con-
stitution-making. First, a constitution enjoys “upstream”
legitimacy if the constituent assembly has come into
power in a legitimate way. Therefore, if the assembly is
elected through a free and fair election, it has “upstream”
legitimacy, but if it is appointed by the ruler or comes into
power through an elite pact, it is not legitimate. Second, a
constitution has “process” legitimacy if the decision-
making procedure of the assembly is democratic.
Constitution that are perceived to be the outcome of elite
bargains, rather than the common good, and those that are
shaped under the influence of the incumbent or threat of
the military lack “process” legitimacy. Finally, Elster
(1993) suggests that there is a “downstream” legitimacy
that only constitutions ratified through a public referen-
dum will enjoy.
In terms of legitimacy of the constitution itself, Fallon
(2005) presents three different forms of legitimacy in the
context of the U.S. constitution: legal legitimacy, moral
legitimacy, and sociological legitimacy. Legal legitimacy
depends on lawfulness of the constitution; “that which is
lawful is also legitimate” (Fallon 2005, 1794). Moral
legitimacy is a “function of moral justifiability or respect-
worthiness” (Fallon 2005, 1796). Finally, in terms of soci-
ological legitimacy, a constitution “possesses legitimacy
in a strong sense insofar as the relevant public regards it as
justified, appropriate, or otherwise deserving of support
for reasons beyond fear of sanctions or mere hope for per-
sonal reward” (Fallon 2005, 1795). Sociological legiti-
macy, as such, is a necessary condition for legal legitimacy
of constitutions because the constitution is law when it is
accepted by the general public (Fallon 2005).

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