The Struggle for Constitutional Power: Law, Politics, and Economic Development in Egypt (review)

Tamir Moustafa’s The Struggle for Constitutional Power is a watershed text for the field of Middle East politics in much the way Diane Singerman’s Avenues of Participation was. In redefining politics to embrace the informal realm—the realm of the family and the neighborhood—as opposed to the formal realm of the mass party or the national legislature, Singerman enabled political scientists to perceive vibrancy and movement in authoritarian regimes where they had once only perceived apathy and quiescence. Avenues of Participation insisted on looking beyond five-year plans and charts of voting patterns, in favor of examining marriage strategies and migration patterns—all in order to understand the politics not of the Egyptian elite but of the Cairene poor. In this strikingly bold fashion, Singerman complicated what had long remained an unsophisticated, monolithic image of Egyptian autocracy.¹

Moustafa has performed a comparable service for his peers in Middle East politics by focusing attention on the vibrancy, the movement, of the past twenty-five years in Egypt’s judiciary. Indeed, his work forces a bold reconsideration of autocracy, as has Singerman’s work, by undertaking a political anthropology not of the household but of the courts. Defying the conventional wisdom of judges beholden to authoritarian masters, Moustafa challenges political scientists to view the justices of Egypt’s Supreme Constitutional Court, or SCC, in the way they view the justices of the U.S. Supreme Court or, indeed, the high courts of democratic states generally. In establishing this unconventional parallel between the behavior of judges in authoritarian states and that of judges in democratic states, Moustafa aims to elucidate a common trend he perceives, of the judicialization of politics.

The debate over judicial activism or legislating from the bench is a familiar one for analysts of American, Canadian, and European politics. But what impact could such activism have on an authoritarian regime? And what makes this activism possible, in an institutional sense? Moustafa recounts, with great effect, the ironic tale of authoritarians, on their own initiative, actually developing courts with the wherewithal to challenge executive edicts. This he attributes, in the Egyptian case, to the urgent need for foreign investment, given the inefficiencies and corruption of the state sector under Gamal Abdel Nasser’s socialist experiment. In the 1970s, as President Anwar Sadat launched his policies of infitah, or economic opening, foreign investors largely refused to take up the opportunities laid before them—that is, until there existed a legal framework within which they would feel comfortable challenging whatever efforts at expropriation the regime might choose to pursue.

The central feature of this legal framework was, according to Moustafa, the SCC, which replaced the existing Supreme Court and was granted a degree of autonomy, particularly in terms of personnel, thought necessary to assuage investor concerns. And this task the SCC performed with alacrity—on occasion, with an alacrity that cost the regime a great deal in financial terms—by forcing the Egyptian treasury to compensate those who had suffered under the program of private property sequestration enacted by Nasser. However, there was a far greater cost in store, of a political rather than a financial nature.

While SCC rulings reinforcing property rights enabled the Mubarak regime to make a claim, at least before foreign capital, to the rule of law, the justices of the SCC refused to confine their activism to economic matters. Moustafa claims that SCC justices took advantage of the position of prominence into which the executive had launched them, to undertake a program not merely of economic reform but of political reform. This was made possible by an institutional framework that vastly expanded opportunities for constitutional litigation and by a cadre of justices that was willing to take up the cases launched by political activists challenging instances of regime repression.

The image of SCC justices that Moustafa cultivates is one of savvy political entrepreneurs, who knew when, and when not, to...