Nathan Brown at “The Arabist” blog sees the format for compromise between Morsi and broadly speaking liberal forces in a statement from Egypt’s Supreme Judicial Council that, in sum, seeks to distinguish between those acts by the chief executive that fall under the doctrine of “Acts of Sovereignty” and those that mistakenly intrude upon normal law and politics.
Brown acknowledges that the distinction may be difficult for some even to understand, much less accept:
If that is less than clear, the problem is not merely my ability to explain. It’s also the doctrine itself.
“Acts of sovereignty” is a vague idea that past authoritarian rulers have used as a bulldozer. A lot of judges are embarrassed about the doctrine and the Supreme Constitutional Court in Egypt tried to chip away at it in the 1980s and 1990s and even move toward an approach more familiar to Americans in which courts restrain themselves in some “political questions” that are properly left for the political process rather than any judicial one
If Egyptian jurists are “embarrassed,” they should be embarrassed not by invocation of the doctrine with all of its ambiguities, which are in principle universal and inherent to the formation of states, but by the political failures underlying the predicament.
Brown later refers to the Egyptian 20th Century and French 19th Century legal precedents under discussion as “abstruse,” but the French legal tradition on this question that developed during the 18th-19th Century did so under circumstances of repeated breakdowns of the state – revolution, counter-revolution, invasion, and sometimes more than one at a time – not on the basis of some legal scholar’s afternoon musings. French law had good reason to seek detailed (not the same as fully coherent) protocols for declaration of the “state of siege.” 20th Century Egyptian history reveals a similar problematic.
As for current circumstances, the fact that the new Egyptian constitution is not yet written and ratified implies that an Egyptian people is literally not yet fully constituted. It’s busy being born or re-born, finding itself in the historical mirror – thus the strongly perceived abnormality and uncertainty of the current period, which President Morsi hopes to foreshorten, for better or for worse. For that aim, or pretext, he is called “dictator,” but, as Leo Strauss observed, a dictatorship can be received as “just” by the people or by philosophers (or history), if in the way that a punishment is just. The resort to the “act of sovereignty” reflects a failure of the state, and at some level a failure of the state presumes a failure of the people to assert itself self-consciously, to stand up on its own. Yet “revolution” is also a punishment in this sense, equally the result of a failure of the state – a desperate call to the “constituting power” from which any actually “constituted power” derives and that in theory can wipe away any inherited law, institution, or tradition.
The resultant confusions and un-clarities are not scholarly curios, but the most fundamental problems of governance, at the core of everything that a given polity will call or be able to call lawful or criminal, just or unjust. We can seek sociological, economic, cultural and other explanations for the survival of some laws and structures and the extinction of others, and for the placement of one individual, group, movement, class, etc., in the position to perform “acts of sovereignty,” but such acts are concrete, not merely logical or lawful, determinations: They will not merely be reasoned or argued into being.
For the same reason, forcing or persuading Morsi and his movement to compromise will not by itself solve the Egyptian problems. It may however help to constitute a new Egyptian sovereignty along broader lines than purely Islamist ones, supply the deficits in the Islamist theory of the modern nation-state, and preserve a liberal democratic opening – not small things.