The De Facto Authority in Syria: The Legal Framework of the New Government’s Decisions
On December 8, 2024, Syria experienced a significant shift in governance when opposition forces successfully ousted dictator Bashar al-Assad, who subsequently sought refuge in Russia. This was followed by a formal transfer of power from the Prime Minister’s Office of the former regime, enabling the new government to assume authority, issue decisions, and negotiate agreements aimed at rebuilding the state and restoring stability. This transition has raised pressing questions about the legality and constitutionality of the decisions issued by the new government, given its status as a de facto authority rather than an elected or traditionally constitutional body.
Discussions surrounding the legitimacy of decisions in such circumstances draw on legal principles encapsulated in the doctrine of de facto authority. This doctrine examines how decisions made by authorities that have not ascended to power through conventional constitutional mechanisms are treated. To understand the nuances of this issue, it is essential to explore three primary legal theories that address the legitimacy of such decisions and their relevance to the Syrian context.
Absolute Illegitimacy Theory
The Absolute Illegitimacy Theory posits that any government that comes to power through unconstitutional means, such as coups or revolutions, cannot be considered legitimate under any circumstances. According to this theory, all decisions made by such a government are null and void, as legitimacy derives exclusively from adherence to the constitution, which serves as the social contract between the ruler and the governed.
Proponents of this theory argue that the sovereignty of the people is the sole source of legitimate authority in democratic systems. Therefore, any seizure of power outside constitutional frameworks constitutes a violation of the popular will. They contend that even if political or social justifications exist for revolutions or coups, these do not grant political actors the right to bypass the constitution, which represents the highest legal authority in society.
This strict stance is upheld by some states and international organizations, such as the African Union, which has refused to recognize regimes that gained power through force, as seen in Burkina Faso (2015), Mali (2020), and Guinea (2021).
In Syria, supporters of the former regime may align with this theory, arguing that the new government did not come to power through elections or transparent constitutional processes but through the forceful removal of the old regime. They may use this theory to challenge the validity of any decisions made by the new government as unconstitutional.
However, this theory faces significant criticisms, particularly its disregard for the social and political realities that create de facto situations. Rigid application of this theory could lead to legal vacuums and administrative paralysis, undermining the principle of necessity that often prevails in such scenarios. Therefore, its inflexible application may hinder state stabilization and the rebuilding of institutions.
De Facto Legitimacy Theory
In contrast, the De Facto Legitimacy Theory is more pragmatic. It recognizes the authority of a de facto government as temporarily legitimate if it succeeds in maintaining order and ensuring state stability, based on the principle of necessity. According to this theory, decisions made by a de facto government are acceptable as long as they aim to manage state affairs and establish stability.
Advocates of this theory argue that revolutions or coups often necessitate a governing authority capable of managing state affairs to prevent chaos and institutional collapse. Acknowledging the authority of de facto governments and legitimizing their decisions may be essential for maintaining public institutions and facilitating a peaceful transition to constitutional stability.
Historical examples of this theory include post-revolutionary France after 1789, where a new legitimacy was established based on de facto governance, and Syria itself after the Ba’ath Party coup in 1963. A similar precedent can be seen in Iran following the Islamic Revolution in 1979.
In Syria’s current situation, this theory holds particular relevance. The new government has established control over state institutions and ensured the provision of essential services. Moreover, international recognition and support from major powers bolster its de facto legitimacy.
Nonetheless, this theory is not without its criticisms. Its flexibility can be exploited to justify prolonged de facto governance without returning to constitutional frameworks, potentially fostering undemocratic practices and delaying the transition to a sustainable legitimate system.
Theory of Differentiation
The Theory of Differentiation strikes a balance between the previous two theories by distinguishing between types of decisions issued by a de facto authority. According to this theory, decisions are considered legitimate if they are necessary for state continuity and public welfare. However, decisions that exceed the bounds of necessity and bring about significant long-term changes to the state are deemed illegitimate.
This approach differentiates between essential decisions, such as providing public services, and those driven by partisan or personal interests. By doing so, it ensures accountability and prevents the misuse of power by de facto authorities.
Practical applications of this theory can be seen in Egyptian judiciary rulings following the July 1952 revolution, where certain decisions, such as property confiscations, were overturned for exceeding the mandate of necessity. Similar distinctions were made in French courts during the Vichy government (1940–1944) and in South Africa following the end of apartheid.
In Syria, this theory could serve as a practical framework for evaluating the decisions of the new government. For instance, laws aimed at rebuilding infrastructure or ensuring basic services might be deemed legitimate, while decisions involving major constitutional changes or long-term agreements without public consultation could be considered illegitimate.
However, this theory also faces challenges, particularly in distinguishing between necessary and non-necessary decisions. Clear and transparent criteria are essential to its successful application.
Constitutional Challenges in Syria: From Revolution to Stability
Syria’s current situation is uniquely complex, making reliance on a single theory inadequate for assessing the legitimacy of the new government’s decisions. Instead, the government could adopt a transparent approach, focusing on necessary decisions that serve the public interest while establishing a transitional legal framework that clearly defines and limits its powers during this sensitive period.
For example, a recommended course of action would include drafting a new constitution through a public referendum and organizing free and fair elections as soon as feasible. Such measures could enhance the government’s legitimacy both domestically, by securing popular support, and internationally, by gaining recognition from major states and organizations.
Ultimately, the legitimacy of the Syrian government’s decisions will depend on how it exercises its authority. By prioritizing necessary and temporary decisions aimed at stabilizing the state and addressing citizens’ needs, while presenting a clear roadmap for political and legal reform, the government has the opportunity to garner both popular and international acceptance. The greatest challenge lies in balancing the need for order with adherence to constitutional principles to ensure long-term legitimacy and stability.
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Ibraheem Jabr is a seasoned legal professional with extensive expertise in international law, human rights, and commercial legal support. Based in Eindhoven, Netherlands,Ibraheem is the Founder and Legal Counsel at Legal Bridge, where they provide expert legal advice to EU-based government agencies and law firms navigating the complex legal landscape of the Middle East and North Africa (MENA) region.