Legal scholars agree that law is the most rational construct of human culture, deliberately designed to regulate societal order and establish a cohesive social structure governed by agreed-upon principles. Law is both a product of reality and a mechanism for shaping it, making any legal framework’s legitimacy dependent on its relevance to the present and its capacity to guide societal transformation. Accordingly, the validity of a legal text lies not in its internal coherence alone but in its practical adaptability and its ability to create new legal realities.
State Erosion and the Transitional Challenge
Since 2013, the Syrian state has experienced a profound disintegration. In areas outside regime control, administrative and legal structures collapsed, replaced by alternative entities assuming state functions. Meanwhile, in regime-held territories, state authority was increasingly supplanted by militias sharing its powers and characteristics.
Rights and freedoms can only flourish within a structured legal environment—one that must be actively shaped through the recognition and protection of individual rights. Over the past twelve years, Syria’s state institutions, legal frameworks, and public infrastructure have been severely eroded. The Transitional Authority, which assumed its mandate on December 8, 2024, has inherited shattered institutions, fragmented laws, and a collapsed administrative system. Its primary task is to restore the concept of the state and develop a legal environment that ensures the effective functioning of rights and duties.
This process requires an understanding of a fundamental paradox: individuals create the legal environment through the exercise of their rights, yet these rights can only be exercised within an established legal framework. Managing this dynamic is the key challenge of the transitional period.
The Nature of the Transitional Period and Public Authority
The fundamental role of the state is to ensure public security, public health, and social stability, each of which encompasses numerous functions. In Syria’s transitional phase, several critical realities must be addressed:
- Parallel Power Structures: Armed groups operating outside state control wield coercive power. The National Dialogue Conference’s final statement rightly declared these groups unlawful in paragraph 3.
- Absence of Public Services: Civilian entities have taken over public service roles, necessitating institutional reform, as outlined in paragraph 15 of the final communiqué.
- Lack of Legal Oversight: With no structured judicial mechanisms to mediate conflicts, informal bodies—such as religious or community-based councils—have emerged. The constitutional declaration must establish clear judicial provisions, as emphasized in paragraph 10 of the final statement.
- Fragmented Local Governance: Various autonomous administrations operate outside state authority, including self-administrations in the northeast and local councils in the northwest. These structures must be dissolved to reestablish centralized governance and preserve national unity, though this issue was notably absent from the conference’s final statement.
- Erosion of Legally Protected Freedoms: Rights and freedoms must be reestablished with clear legal guarantees. The final statement acknowledges this in paragraphs 7 and 8, though it fails to explicitly endorse the right to form political groups—an omission that could encourage the fragmentation of society along ethnic, sectarian, or regional lines, rather than fostering a political landscape based on civic engagement.
Given these conditions, the Transitional Authority must be recognized as an exceptional governing institution, requiring a non-traditional constitutional framework. The transitional system will not conform to standard parliamentary, presidential, or national assembly models, but rather, an adaptive governance structure suited to Syria’s unique challenges. This approach aligns with constitutional legal doctrines on emergency governance, particularly the principles of state continuity and necessity, as seen in the jurisprudence of French, Egyptian, and Syrian legal systems.
Key Objectives of the Interim Constitutional Declaration
- Preserve the Syrian state by maintaining its legal and administrative structures as much as possible.
- Minimize the creation of new institutions, instead leveraging existing administrative frameworks to support transitional governance.
- Ensure the Transitional Authority’s ability to govern effectively, preventing institutional overlap and bureaucratic paralysis.
- Safeguard fundamental rights and freedoms, providing Syrians with the legal space to shape the country’s post-transitional political system.
Structure of the Interim Constitutional Declaration
The declaration must avoid imposing a rigid state structure, allowing Syrians to determine their future governance model. It should serve as a technical framework, establishing the legal environment necessary for the transitional period’s success. Its scope should be focused and concise, covering:
- Rights and Freedoms: Clear guarantees and mechanisms for enforcement.
- Transitional Authority: Definition, mandate, powers, and operational framework.
- Judicial Oversight: Establishment of an independent judiciary, potentially through a constitutional council or court.
- Local Administration: Relationship with the central authority and mechanisms for resolving disputes.
- Transition Roadmap: Conditions for concluding the transitional phase and moving to a permanent political structure.
Despite reservations about the National Dialogue Conference, many of its recommendations offer a pragmatic foundation for drafting the interim constitutional declaration, which is expected to be issued in the coming days. Syria urgently needs such a framework, and it must adhere to the core principles set by the conference, ensuring a stable and functional transition toward a new political order.
Mohammad Sabra is the former Chief Negotiator for the opposition
This article was translated and edited by The Syrian Observer. The Syrian Observer has not verified the content of this story. Responsibility for the information and views set out in this article lies entirely with the author.
