10 April 2008

'Symposium: Constitution Drafting in Post-Conflict States' (Wm & Mary L Rev)

The March 2008 issue of the William & Mary Law Review is devoted to a symposium on 'Constitution Drafting in Post-Conflict States'. This wonderful collection brings together articles by: Angela Banks, Paul D. Carrington, Zachary Elkins, Tom Ginsburg, & James Melton, James Thuo Gathii, Ran Hirschl, Donald L. Horowitz, Vicki Jackson, Inga Markovits, Balakrishnan Rajagopal, Kim Lane Scheppele, Karol Edward Soltan, Jane Stromseth, Mark Tushnet, William Van Alstyne, and Jennifer Widner.

Here's a taste of a few of the articles featured:

Ran Hirschl's paper "The Theocratic Challenge to Constitution-Drafting in Post-Conflict States" opens with the observation that "Over the past few decades, principles of theocratic governance have gained enormous public support in developing polities worldwide". The article goes on to explore "several key aspects of constitutionalism in a theocratic world".

Vicki Jackson has a contribution entitled "What's in a Name? Reflections on Timing, Naming and Constitution-Making". From this article's Introduction:

"There is a paradox, well described by Jon Elster, that the crisis conditions that often lead to constitution-making are incompatible with the kind of deliberation thought necessary for the creation of a constitution consistent enough with the needs of its polity to be successful. “Post-conflict” situations are likely to involve crises that motivate constitution-making, but are also likely to create conditions in which the probability of creating a lasting constitution at one blow is low. This essay explores the consequences of this observation, suggesting that those committed to constitutionalism need an expanded repertoire of approaches in post-conflict societies (including contingent, incrementalist, revisable or interim approaches). Moving directly to traditional, comprehensive forms of constitutionmaking in some circumstances may be antithetical to promoting the conditions necessary for constitutionalism—including trust inlegal institutions"

Inga Markovits and Kim Lane Scheppele both address the influence of 'forward-looking' and 'backward-looking' perspectives in constitution-making. From Markovits' article "Constitution-Making after National Catastrophes: Germany in 1949 and 1990":

"Constitutions, usually, are new beginnings: after some seismic shift in a country’s history—a revolution, a lost war, a collapse of government—a nation sets out to reinvent itself. It can do so by looking back into the past or forward into the future. Most constitutions will do a bit of both, but their character will differ depending on which time perspective is foremost in the drafters’ minds. In this Essay, I will compare three twentieth century German constitutions; all three, responses to political disintegration and collapse. The first, the German Grundgesetz of 1949, drew its inspiration mainly from the past and became extraordinarily successful. The other two, the first East German Constitution, also of 1949, and the last East German attempt at constitution making, the Roundtable Constitution of 1990, looked mainly to the future and were thorough failures. I will describe how considerations for the past or for the future shaped these constitutions, examine what went right or wrong in their respective lives, and ask whether we can draw any lessons from their fate that may explain what it is that makes a constitution succeed or fail. Did the drafters’ attitudes to time play any role in the effectiveness of their creations?"

And from Kim Lane Scheppele's paper "Constitution between Past and Future":

"Because the explicit aim of constitutions generally is to improve upon an existing condition, the faces of constitution drafters are almost invariably imagined to be turned toward the future, bright with hope. What this Essay suggests, however, is that constitution drafters invariably look even more toward a past than they do toward a future. (...) Constitutional theory, in my view, needs to take on board this basic observation: Constitutions in their moments of creation cannot
be inspired solely by imagined futures. Perhaps even more crucially, they encode imagined pasts."

Two other articles, finally, discuss the (im)possibility of cross-system normative teaching and learning. In "Some Skepticism about Normative Constitutional Advice", Mark V. Tushnet is, well, skeptical about giving normative constitutional advice. From the Introduction:

"I suggest that what primarily determines the content of constitutions are the intensely local political considerations “on the ground” when the constitution is drafted, and therefore that normative recommendations about what “should” be included in a constitution or constitution-making process are largely pointless. Scholars can accumulate information about constitutions and their drafting and try to draw inferences about what will work. Yet, predicating normative advice on such studies is hazardous at best."

William van Alstyne's article "Quintessential Elements of Meaningful Constitutions in Post-Conflict States", on the other hand, is a careful attempt at drawing some normative 'lessons' from earlier constitutional experiences across systems and cultures.

Highly recommended.

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