From Public Participation to Constitutional Legitimacy: Evidence from Tunisia

• Author: Tofigh Maboudi,Ghazal P. Nadi
• Date: 01 June 2022
• Published date: 01 June 2022
• DOI: 10.1177/10659129211014279
• Subject Matter: Articles

2022, Vol. 75(2) 441 –457

Article

https://doi.org/10.1177/10659129211014279

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DOI: 10.1177/10659129211014279

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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

research-article2021

1Loyola University Chicago, IL, USA

Corresponding Author:

Tofigh Maboudi, Department of Political Science, Loyola University

Chicago, 1032 W. Sheridan Rd., Chicago, IL 60660, USA.

Email: tmaboudi@luc.edu

From Public Participation to

Constitutional Legitimacy: Evidence

from Tunisia

Tofigh Maboudi1 and Ghazal P. Nadi1

Abstract

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.

Keywords

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).