A lot of dreams have been invested in the Palestinian constitution. Its ambitious provisions promise a socially progressive, inclusive and tolerant State. Yet, today, these drafts have lost the semantic ambiguity that typically characterises constitutions in the making. It is all too easy to decide that those constitutional words have lost any hint of their politically-induced performative force. It may be tempting to imagine what things may be like had the Oslo Agreements led to a successful constitutional draft; or what could have happened had Arafat not believed that he could somehow artificially turn back the legal clock to a pre-1967 legal patchwork. It is equally tempting to imagine what could – still – happen if, instead of being merely tolerated, perduring customary laws were encouraged to lend their full gravity to a burgeoning civic movement. The sovereignty deficit that plagues the Palestinian constitution-making effort may turn out to be an asset if, by standing in the way of establishing a constitutional democracy from the top down, it has allowed customary practices to flourish.
Cambridge J. Int’l & Comp. L., (3) 1164.
Economics, Legitimacy, and Policy