Week 1 - Compulsory text (Ebrahim Afsah; Constitution-Making in Islamic Countries – A Theoretical Framework)

Electronic copy available at: http://ssrn.com/abstract=2361711

Constitution-Making in Islamic Countries – A Theoretical Framework

Ebrahim Afsah

I. Introduction How to stabilize ailing, failing or disintegrating states is an inherently difficult question. It is

also one which is increasingly dominating international agendas. As both the number and

intensity of internal conflicts has dramatically risen in the last decades, growing

interconnectedness has made it ever more difficult to cordon off instability and lawlessness

seeping from failing states. Consequently, the international community has increasingly

become engaged in the post-conflict reconstruction of states. Given the global normative

consensus around the democratic principle, virtually all international efforts have stressed the

importance of elections as a means of establishing legitimate governance. But elections rarely

ensure the necessary stabilization of a fractioned society. In fact, elections can easily

contribute to further polarization if they are held in an environment of intense competition

over power and resources, and amidst an immature institutional framework. The reason

elections have become the instrument of choice of many international efforts is the relative

ease with which they can be implemented, as well as the high normative premium attached to

the idea of popular sovereignty. This sentiment has somewhat flippantly if accurately been

summed up by an American academic:

… you must hold elections. It does not matter a great deal who wins. Hold elections and proclaim it a democracy, even if it is flawed. We must call it a democracy because that is what we stand for and that is what will enable the administration in power to claim success. It may be only an electoral or limited democracy, not liberal or pluralist democracy, but some democracy is better than none. Then what you do is you hope.1

This approach largely sums up the American approach in Iraq,2 but also other, multilateral

efforts elsewhere, for instance in Afghanistan.3 In places such as Sudan or Libya where

governments of limited democratic legitimacy are firmly entrenched, the electoral principle is

at least partially imposed, for instance in the formation of an autonomous government for

1 Howard Wiarda in Thomas P. Lauth, et al, ‘Building the Institutions of the Nation’ (2004) 33 Ga J Int’l & Comp L, 193. 2 Ebrahim Afsah, ‘Iraq: From “Troubled Law of Occupation” to Constitutional Order? China Shop Rules and International Responsibilities’ (2006) Leipziger Beiträge zur Orientforschung 21. 3 Ebrahim Afsah, ‘Afghanistan Conflict’ in Rüdiger Wolfrum (ed), Encyclopedia of Public International Law (Oxford University Press, Oxford 2009).

Electronic copy available at: http://ssrn.com/abstract=2361711

Ebrahim Afsah, “Constitution-Making in Islamic Countries – A Theoretical Framework,” in: Constitution-Making in Islamic Countries: Between Upheaval and Continuity, ed. by Rainer Grote and Tilmann Röder (Oxford: Oxford University Press, 2010).

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Southern Sudan.4 When delivering material and institutional support to a country emerging

from violent conflict, the international community today generally offers help in the drafting

of a constitutional pact to cement the fundamental bargain underlying the negotiated peace.

The inherent tension between the twin objectives of democracy and constitutionalism,

however, has often been insufficiently addressed by those aiming at external stabilization.

Furthermore, a constitution can embody an inter-factional compromise over the distribution of

power and the commitment by these factions to certain agreed normative principles. But it

cannot substitute written declarations for the absence of such a communal compact.

In Iraq, the occupation powers attempted to forge a national and political reconstruction

through the medium of constitutional drafting.5 Through an inordinate amount of cajoling a

document was indeed finalized and ratified, but the process of arriving there severely

exacerbated existing divisions and yielded a document feared to ultimately lead to the

disintegration of the state.6 In Afghanistan, a much more forgiving, less antagonistic two-step

process was used. In the first step, representatives of four major political and military groups

gathered under UN auspices abroad and agreed on the time plan for the achievement in a

series of second steps of important institutional benchmarks including elections and the

drafting of a proper constitutional contract.7 Thus, the lack of broad popular representation in

the first step was made more palpable by a commonly agreed and internationally supervised

framework for ensuring that the second step of a popular vetted constitution enjoyed

sufficient popular legitimacy. This process was inspired by, albeit substantially somewhat less

sophisticated than the equally successful South African constitutional process.8 The

international response to the conflict in Southern Sudan likewise followed a two-step logic,

albeit equally inspired by the logic of Kosovo and of South Africa. To be sure, the

Comprehensive Peace Agreement took constitutional form and clarified the outcome of many

normative and material debates, not least with respect to revenue sharing and the application

of religious law in the South. But perhaps the most outstanding feature of the Agreement was

4 L. B. Deng, ‘The Sudan Comprehensive Peace Agreement: Will It Be Sustained?’ (2005) 7 Civil Wars 244. 5 Nathan J. Brown, ‘Iraq’s Constitutional Conundrum’ (2005) 1. <http://www.carnegieendowment.org/publications> accessed 16 November 2009. 6 Zaid al-Ali, ‘Iraq: A Constitution or an Epitaph?’ (2005) <www.opendemocracy.net> accessed 14 April 2009; International Crisis Group, ‘The Next Iraqi War? Sectarianism and Civil Conflict’ (2006) Middle East Briefing No 52. 7 Ebrahim Afsah and Alexandra Hillal Guhr, ‘Afghanistan – Building a State to Keep the Peace’ (2005) Max Planck UNYB 373. 8 Heinz Klug, Constituting Democracy: Law, Globalism and South Africa’s Political Reconstruction (Cambridge University Press, Cambridge 2000).


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not its ability to resolve or channel the political struggles that had led to decades of civil war.

Instead, rather akin the Kosovo model, this internationally mediated constitutional bargain is

primarily characterized by its imposition of a rather lengthy ‘cooling off period’ with regard

to the fundamental and in the current climate irresolvable question of secession.9 As both

conflicting sides are too weak to enforce a resolution by force of arms yet remain fiercely

committed to their respective position, the best international mediation can achieve is to

postpone the decision until a more auspicious time and in the meantime establish firm

institutional and procedural channels permitting a reasonable if not exceedingly friendly co-

existence.10 The end of the period can lead to outright secession as in the case of Kosovo or to

the re-negotiation of important territorial, political and financial arrangements of the

constitutional pact, as in the ongoing case of Iraqi Kurdistan. But in any event, the period of

tranquility will have ensured that the resumption of open violence will be substantially more

difficult than in the immediate aftermath of conflict.11

Constitutions are drafted (or renegotiated) either at the end of a conflict to seal its outcome or

prior to the eruption of conflict in an attempt to stave off violence. In the midst of an ongoing

conflict, however, particularly against the background of an illegitimate and humiliating

foreign occupation, it is questionable whether the process could live up to the hopes placed in

it. The same holds true for external attempts at mediation which sometimes pre-empt the

emergence of a stable social consensus. This seems to be the case with external constitutional

support given to the political and military actors in the Sudanese and Somalia civil wars.12

The enormous pressure of time often imposed by external actors further undermines the

ability of local participants to arrive at political compromises which could subsequently find

legal expression in constitutional stipulations. Unfortunately, in Iraq the prescient prediction

by an astute observer has been largely borne out by the facts:

the rushed process places hopes on the constitution that it will be unlikely to be able to bear. … By using a technique of post-conflict institution building in the

9 Barry R. Posen, ‘The War for Kosovo: Serbia’s Political-Military Strategy’ (2000) 24 IS 39. 10 David Fromkin, Kosovo Crossing: American Ideals Meet Reality on the Balkan Battlefields (Free Press, New York 1999). 11 Jama Benomar, ‘Constitution-Making After Conflict: Lessons for Iraq’ (2004) 15 Journal of Democracy 81-95; Ebrahim Afsah, Why the Iraqi Constitutional Process Failed to Bring Peace, unpublished paper, 2006. 12 Deng (n 4); Angela M. Lloyd, ‘The Southern Sudan: A Compelling Case for Secession’ (1994) 32 Col. J. Trans. L. 419.


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midst of a very active conflict, the process of drafting a constitution in Iraq is likely to disappoint many of its participants.13

II. Centrifugal Forces In the run-up to the American-led attack on Iraq many different post-war scenarios were

discussed. One, if not the key problem concerned the strong centrifugal forces likely to be

unleashed once the strong central government had been displaced by a foreign intervention.

Created by colonial fiat out of the remnants of the Ottoman empire, Iraq, like so many other

post-colonial states, is no nation state but an artificial creation carved out by the Treaties of

Sèvres and Lausanne after World War I.14 Peter Galbraith for instance is among the most

vocal critics of the aim of keeping Iraq a unitary state because he argues that it is ‘based on an

idea of Iraq that does not exist. The fundamental problem of Iraq is an absence of Iraqis.’15

Afghanistan is likewise no nation state but a heavily fractured agglomeration of different

linguistic and tribal communities. Ironically, it was the experience of common exile and

resistance during more than two decades of civil war that for the first time in its history forged

a semblance of national identity.16 Here the creation of stable governance is not merely a

question of negotiating between conflicting parties the terms of an acceptable bargain, but the

much more arduous task of actually creating the physical and institutional infrastructure and

mind-set of statehood for the first time in its history.17 The Sudan and Libya have been much

better in creating relatively effective central governments, but their legitimacy has likewise

suffered considerably from the arbitrary nature of their colonial borders and the resulting

inclusion of marginalized minorities.18

13 Nathan J. Brown, ‘Iraq’s Constitutional Process Plunges Ahead’ (2005) Policy Outlook – Democracy and Rule of Law Project, 15 <http://www.carnegieendowment.org/publications> accessed 16 November 2009. 14 For a recent account of the characteristics of great-power interventions in the Middle East and the multi-dimensional nature of the issues see Reeva Spector Simon and Eleanor H. Tejirian, The Creation of Iraq, 1914-1921 (Columbia University Press, New York 2004). Laying out the aspect of perpetual foreign domination is William R. Polk, Understanding Iraq: The Whole Sweep of Iraqi History: From Ghengis Khan’s Mongols to the Ottoman Turks to the British Mandate to the American Occupation (HarperCollins, New York 2005). Somewhat dated but highly valuable for its broad temporal, geographical and substantial sweep are the two volumes by Malcolm Yapp, The Making of the Modern Near East, 1792-1923 (Longman, London 1987); Malcolm Yapp, The Near East Since the First World War: A History to 1995 (Longman, London 1996). 15 Peter Galbraith, ‘How to Get Out of Iraq’ (2004) 51 The New York Review of Books no pagination. 16 Afsah and Guhr (n 7) 392; Conrad Schetter, ‘Die Territorialisierung nationaler und ethnischer Vorstellungen in Afghanistan’ (2003) 44 Orient 75. 17 A. Wimmer and Conrad Schetter, ‘Putting State-Formation First: Some Recommendations for Reconstruction and Peace-Making in Afghanistan’ (2003) 15 J. Int. Dev. 525, 535-536. 18 Dirk J. Vandewalle, A History of Modern Libya (Cambridge University Press, Cambridge 2006); Douglas H. Johnson, The Root Causes of Sudan’s Civil War (James Currey Publishers, Oxford 2003); Lloyd (n 12).


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Political institutions in most post-colonial creations remained weak and unable to create

alternative loci of identification. Existing ethnic, linguistic and religious sub-national

identities could therefore only be held in check by a strong, oppressive machinery

maintaining the cohesion of the state.19 The artificial nature of many colonial constructs20 and

the attendant lack of allegiance to the state are often compounded by the rentier nature21 of

their political economies. These insulate rulers from their populations22 and dispense the need

to construct viable institutions23 and foster broad domestic constituencies. More importantly,

oil and other mineral rent provided not only the wherewithal to create strong oppressive

mechanisms, but made the state a highly attractive ‘prize’ likely to be captured by narrow

interests.24 The result has been a persistent tendency among rentier states, particularly in Arab

and African states, towards authoritarian regimes,25 a phenomenon which some have

described as a ‘resource curse.’26 It is a well-known paradox among economists that

significant mineral wealth almost invariably coincides with domestic poverty, something that

holds true even for the richest of oil states:

19 See inter alia William Cleveland, A Modern History of the Modern Middle East (3rd edn Westview Press, Boulder 2004). 20 For a good general history see Charles Tripp, A History of Iraq (2nd edn Cambridge University Press, Cambridge 2002). 21 Luciani defines ‘allocation states as all those states whose revenue derives predominantly (more than 40 per cent) from oil or other foreign sources and whose expenditure is a substantial share of GDP.’ Giacomo Luciani, ‘Allocation v. Production States: A Theoretical Framework’ in Giacomo Luciani and Hazem Beblawi (eds), The Rentier State (Croom Helm, London 1987) 63, 72 ff; Hazem Beblawi, ‘The Rentier State in the Arab World’ in Giacomo Luciani (ed), The Arab State (University of California Press, Berkeley, CA 1990). 22 Smith examines the available data and concludes that oil has led to greater regime durability due to their insulation from social pressures; Benjamin Smith, ‘Oil Wealth and Regime Survival in the Developing World, 1960–1999’ (2004) 48 American Journal of Political Science 232. 23 Mick Moore, ‘Revenues, State Formation, and the Quality of Governance in Developing Countries’ (2004) 25 International Political Science Review 297. On the evolution of Iraq’s modern socio-economic and political structures and the particular impact of the national project and its attendant dislocations see Samira Haj, The Making of Modern Iraq 1900-1963: Capital, Power and Ideology (SUNY Series in the Social and Economic History of the Middle East, State University of New York Press, Albany, NY 1997); Hann Batatu, The Old Social Classes and the Revolutionary Movement of Iraq: A Study of Iraq’s old Landed and Commercial Classes and of its Communists, Ba’thists, and Free Officers (Princeton University Press, Princeton, N.J. 1978). 24 Michael Lewin Ross, ‘What We Know About Natural Resources and Civil War’ (2004) 41 Journal of Peace Research JPR 337; Paul Collier and Anke Hoeffler, ‘Greed and Grievance in Civil War’ (2001) World Bank Working Paper; Philippe Le Billon, ‘Angola’s Political Economy of War: The Role of Oil and Diamonds’ (2001) 100 African Affairs 55. 25 Michael Lewin Ross, ‘Does Oil Hinder Democracy?’ (2001) 53 WP 325; Alan Richards and John Waterbury, A Political Economy of the Middle East (2nd edn Westview Press, Boulder 1996) chapter 3; John Waterbury, ‘From Social Contracts to Extraction Contracts: The Political Economy of Authoritarianism and Democracy’ in John P. Entelis (ed), Islam, Democracy and the State in North Africa (Indiana University Press, Bloomington, Ind. 1997); Holger Albrecht and Oliver Schlumberger, ‘”Waiting for Godot”: Regime Change Without Democratization in the Middle East’ (2004) 25 International Political Science Review/ Revue internationale de science politique 371. 26 Michael Lewin Ross, ‘The Political Economy of the Resource Curse’ (1999) 51 WP 297; Homa Katouzian, The Political Economy of Modern Iran: Despotism and Pseudo-Modernism, 1926-1979 (New York University Press, New York 1981).


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As the princes have grown richer, the people of Saudi Arabia have grown poorer. … [The] protection of the rich and the powerful deprives the government of vital sources of income to address the social and economic needs of the majority of the people. The result is a skewed income distribution and the growth of extensive poverty and deprivation.27

Such domestic poverty and inequality is compounded by weak, sometimes non-existent

political and economic institutions.28 Here it is important to bear in mind that the concept of

‘rent’ can also refer to foreign aid, something particularly relevant for the discussion of

Afghanistan and Sudan.29

Many commentators infer from these structural factors an inherent need for a strong,

oppressive central government to prevent the negative outcomes of state disintegration and

societal fragmentation for the regional balance of power,30 particularly in the face of strong

irredentist ethnic claims. Removing a given dictator would, and perhaps should, lead simply

to its replacement by another strongman31 who is more amenable to Western interests.

Current dissatisfaction with the Karzai regime in Afghanistan has led to the strategic re-

evaluation of Western policy very much along these lines.32

For a variety of reasons, however, the United States has until recently asserted that its strategy

for regime change went beyond replacing individuals, striving at the eventual wholesale

transformation of the entire Middle East and North Africa into pro-Western, free-market

democracies.33 Partly, this emphasis reflects the weakness of the original justifications given

27 Nimrod Raphaeli, ‘Saudi Arabia: A Brief Guide to its Politics and Problems’ (2003) 7 Middle East Review of International Affairs no pagination, which cites extensive figures and provides a sharp analysis of the mismanagement of the oil wealth. For additional data on Saudi human development see United Nations Development Program, Human Development Report 2005 (2005) 23, 44, 46. 28 See for instance Nancy Birdsall and Arvind Subramanian, ‘Saving Iraq from its Oil’ (2004) Foreign Aff no pagination; which compares the performance of the 34 less-developed countries which boast significant oil and natural gas resources (at least 30% of total export revenue). 29 Barnett R. Rubin, The Fragmentation of Afghanistan (Yale University Press, New Haven 1995) 62; O. Therkildsen, ‘Keeping the State Accountable: Is Aid no Better than Oil?’ (2002) 33 Institute for Development Studies Bulletin 41; Chris Cramer and Jonathan Goodhand, ‘Try Again, Fail Again, Fail Better? War, the State, and the ‘Post–Conflict’ Challenge in Afghanistan’ (2002) 33 Development and Change 885. 30 Bill Park, ‘Iraq’s Kurds and Turkey: Challenges for U.S. Policy’ (2004) Parameters 18; International Crisis Group, ‘Iran in Iraq: How much Influence?’ (2005) Middle East Report No 38; Abbas William Samii, ‘The Nearest and the Dearest Enemy: Iran after the Iraq War’ (2005) 9 Middle East Review of International Affairs no pagination. 31 What Fareed Mohammad appropriately terms the ‘new man with a moustache’ strategy. In Leon T. Hadar, et al, ‘In the Wake of War: Geo-strategy, Terrorism, Oil and Domestic Politics’ (2003) 10 Middle East Policy 1 ff.. 32 Paddy Ashdown, ‘Afghanistan – can it still be won?’ The Spectator (London 15 September 2008). 33 Armin von Bogdandy, et al, ‘State-Building, Nation-Building, and Constitutional Politics in Post-Conflict Situations: Conceptional Clarifications and an Appraisal of Different Approaches’ (2005) 9 Max Planck UNYB 592-95; Eric Davis, ‘Domino Democracy: The Challenges to U.S. Foreign Policy in Post-Saddam Iraq’ in Alan


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for the war: ‘The main threats Iraq was thought to present to the United States when troops

went in – weapons of mass destruction and support for international terrorism – have been, to

say the least, discounted. With those justifications gone, the Iraq war is left as something of a

humanitarian venture.’ 34 Pointing to the lack of evidence to support earlier claims, some

commentators have cynically, if accurately, concluded that ‘the promise of democratization

remains the only justification for the war.’35 It is only very cautiously that the new US

government is shifting its strategy away from this presumed justification towards a traditional

strongman policy advocated for instance by Ashdown and the British military.36

III. Justifications for Intervention Democracy is widely believed to entail significant domestic benefits in terms of individual

freedoms, governmental accountability,37 economic performance, etc.38 Starting from the

assessment that democracy is the ‘best form of government,’39 some scholars have argued that

a right to democratic governance exists or at the very least is in the process of emerging.40

The implications of this development for international law, in particular the concept of

sovereign equality are manifold.41 Kokott considers the concept outdated and ‘skewed’ as it

postulates the equality of all political communities from the equality of their constituent

human beings:

This is based on a problematic idea of justice according to which all political communities are supposed to be co-equal because the human beings making up these polities all share a common dignity. … But the inference from the equality of man to the sovereign equality of states is flawed. For if one, correctly, values

Curtis (ed), Patriotism, Democracy, and Common Sense (Rowman and Littlefield/ Eisenhower Foundation, Lanham, MA 2004); Noah Feldman, ‘Islam and Democracy: The Great Experiment’ (2004) The Economist (London 1 Febuary 2004). 34 John Mueller, ‘The Iraq Syndrome’ (2005) Foreign Aff no pagination; Thomas Powers, ‘The Vanishing Case for War’ (2003) 50 Foreign Aff no pagination. 35 James Kurth, ‘Ignoring History: U.S. Democratization in the Muslim World’ (2005) 49 Orbis 305. 36 Helen Cooper, ‘Obama’s War: Fearing Another Quagmire in Afghanistan’ New York Times (New York City, 25 January 2009) 37 Rudolf Dolzer, ‘Good Governance: Neues transnationales Leitbild der Staatlichkeit?’ (2004) 64 ZaöRV 535. 38 Michael Mandelbaum, The Ideas that Conquered the World: Peace, Democracy, and Free Markets in the Twenty First Century (Public Affairs, New York 2002). 39 Larry Diamond, Developing Democracy: Towards Consolidation (Johns Hopkins University Press, Baltimore 1999) 2. 40 The most influential article in this respect has been Thomas M. Franck, ‘The Emerging Right to Democratic Governance’ (1992) 86 AJIL 46; see also the excellent collection of essays in Gregory H. Fox and Brad R. Roth (eds), Democratic Governance and International Law (Cambridge University Press, Cambridge 2000). 41 Juliane Kokott, ‘Souveräne Gleichheit und Demokratie im Völkerrecht’ (2004) 64 ZaöRV 517; Gregory H. Fox and Brad R. Roth, ‘Introduction: The Spread of Liberal Democracy and Its Implications for International Law’ in Gregory H. Fox and Brad R. Roth (eds), Democratic Governance and International Law (Cambridge University Press, Cambridge 2000).


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the human beings standing behind states, it cannot be inconsequential how many human beings stand behind the particular states, and likewise how their needs and desires are integrated into state policy.42

She detects a gradual shift from state sovereignty to popular sovereignty to conclude that the

protection of human rights and the right to political participation do not fall within the

protected sphere of a state’s internal affairs. The violation of state sovereignty through an

external military intervention might, it is argued, in the final analysis actually mean the ‘re-

establishment of popular sovereignty.’43 Needless to say, that such expansionist

interpretations of international law have found strong objections by those at the receiving end,

a phenomenon especially pronounced in the Islamic nations.44

A. The Pedigree of Interventionist Logic There is an obvious tension between the prohibition of the use of force and the pursuit of such

progressive values. It is probably no coincidence that many of the writers who have been

most vocal about the need to develop international law beyond the strictures of a purely state-

centric system45 have also shown an intense interest in theories of international relations,46

stressing the particular relevance of liberal theory47 for the study and development of

international law. The case for liberalism rests on the perceived inadequacy of realism as an

analytical model.48 Furthermore, realism deliberately minimizes the effect normative systems

42 Kokott (n 41) 520-1, 533, footnotes omitted: Dahinter mögen schiefe Gerechtigkeitsvorstellungen stehen, wonach alle politischen Gemeinschaften gleichwertig seien, da die sie konstituierenden Menschen in ihrer Würde gleich sind. ... Der Schluss von der Gleichheit der Menschen auf die Staatengleichheit trägt nicht. Stellt man nämlich richtig auf die hinter den Staaten stehenden Menschen ab, kann es nicht gleichgültig sein, wie viele Menschen hinter den jeweiligen Staaten stehen und auch nicht, auf welche Weise deren Willen und Bedürfnisse im Staatswillen integriert werden. 43 Ibid, 530-32; in the same vein see Michael W. Reisman, ‘Sovereignty and Human Rights in Contemporary International Law’ (1990) 84 AJIL 866 et seq. 44 Ebrahim Afsah, ‘Contested Universalities of International Law. Islam’s Struggle with Modernity’ (2008) 10 JHIL 259. 45 Anne-Marie Slaughter, ‘International Law in a World of Liberal States’ (1995) 6 EJIL 503. 46 Robert J. Beck, Anthony C. Arend, and Robert D. van der Lugt (eds), International Rules: Approaches From International Law and International Relations (Oxford University Press, New York 1996); Robert O. Keohane, ‘International Relations and International Law: Two Optics’ (1997) 38 Harv Int’l L J 487 et seq.; A.-M. Slaughter, et al, ‘International Law and International Relations Theory: A New Generation of Interdisciplinary Scholarship’ (1998) 92 AJIL 367. 47 Andrew Moravcsik, ‘Taking Preferences Seriously: A Liberal Theory of International Politics’ (1997) 51 IO 513. 48 What Wendt describes as the tendency of realism towards ‘reductionism and reification.’ Alexander E. Wendt, ‘The Agent-Structure Problem in International Relations Theory’ (1987) 41 IO 335, 340; Charles Jones, ‘Carr, Mannheim, and a Post–positivist Science of International Relations’ (1997) 45 Political Studies 232.


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can have on state behavior,49 thereby making it not very attractive to international lawyers:

‘International law faced the “Realist challenge”: the claim that law was simply irrelevant to

international politics.’50 Denouncing the association of classical liberalism with altruism and

utopianism,51 in opposition to which realism was developed,52 modern writers do not question

that interests are important but argue that ‘much of international politics is about defining

rather than defending national interests. … the problem of how states pursue their interests

…, however, is only a part of what international politics is about. Before states can pursue

their interests, they have to figure out what those interests are.’53 Contrast this approach with

the realist position which maintains that ‘[t]o say that a country acts according to its national

interest means that, having examined its security requirements, it tries to meet them.’54

Where realism thus simply postulates ‘interests defined in terms of power,’55 alternative

theoretical models reject the fixity of the national interest by emphasizing choice because

‘human beings and their organizations are purposeful actors whose actions help reproduce or

transform the society in which they live.’56 Thus, national interests are subject to normative

choice57 and can be affected by societal actors:58

States do not have interests, in the way that they have territorial boundaries. Interests are chosen — within the constraints of structures — not bestowed. Contrary to Palmerston’s famous quip, states have interests in exactly the way they have friends — as a consequence of choice within a structure of constraint.59

Realism assumes that the logic of anarchy forces states as self-help units to all act essentially

similar, irrespective of their internal composition. This position is further developed by neo-

realism which stresses the particular constraining and homogenizing effects of the 49 Indeed many key realists, such as Hans Morgenthau, have been disillusioned international law scholars with a particularly bleak view of the relevance of their old discipline. 50 Slaughter (n 45) 1-2. 51 See the influential review essay by Harold Hongju Koh, ‘Why Do Nations Obey International Law?’ (1997) 106 Yale Law Journal 2599. 52 The classic works are Edward Hallett Carr, The Twenty Years’ Crisis, 1919-1939: An Introduction to the Study of International Relations (Palgrave, New York 2001); Hans Joachim Morgenthau, Politics Among Nations: The Struggle for Power and Peace (McGraw-Hill, New York 1993). 53 Martha Finnemore, National Interests in International Society (Cornell University Press, Ithaca 1996) ix, emphasis added. 54 Kenneth Neal Waltz, Theory of International Politics (McGraw-Hill, New York 1979) 134. 55 Morgenthau (n 52) 5. 56 Wendt (n 48) 338. 57 Annika Björkdahl, ‘Norms in International Relations: Some Conceptual and Methodological Reflections’ (2002) 15 Cambridge Review of International Affairs 9. 58 Moravcsik (n 47) 516-19. 59 Bill McSweeney, ‘Moral Choice and European Integration’ in Bill McSweeney (ed), Moral Issues in International Affairs - Problems of European Integration (Macmillan, London 1998) 91, emphasis in the original.


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international structure on the behavior of states.60 By stressing the malleability of national

interests and individual agency, liberal and constructivist critiques of realism, however, reject

its status quo bias and emphasize the scope for effecting value-based progressive change.61

The respectability of realism after 194562 was based on its capacity of ‘proffering a hard-

boiled code of conduct for the Cold War and disdaining the dangerous moralism of

international law’63 which had dominated the inter-war years with such disastrous results.64

Realism’s strong emphasis on caution and the balance of power, together with its strong

pessimism about human nature,65 seemed particularly well-suited for the requirements of a

bipolar world marked by nuclear stalemate, making stability by far the overriding concern.66

Towards the end of the Cold War, however, the increasing rigidity of the theoretical

framework coupled with an ever sharpening bipolar arms race and international tension, led

many to search for theoretical alternatives which allowed for peaceful transformation by de-

emphasizing the competition over power in favor of interdependence.67

B. Structural and Paradigmatic Change The unexpected end of the Cold War gave a strong boost to alternative theoretical approaches,

due to realism’s inability to explain, let alone predict change in the international system.68

The end of bipolar competition resulted in two contradictory, but related theoretical

60 The standard work in this respect is Waltz, Theory of International Politics. For a multi-dimensional theoretical critique see Robert O. Keohane (ed), Neorealism and its Critics (Columbia University Press, New York 1986). 61 For a realist approach that interestingly does take account of domestic value preferences see Graham T. Allison and Robert D. Blackwell, ‘America’s National Interests’ (Harvard University, Cambridge, Mass. 2000). 62 Encyclopaedia Britannica, ‘International Relations - The Postwar Ascendancy of Realism’ (2006) <http://www.britannica.com/eb/article-38889> accessed 14 April 2009. 63 Slaughter (n 45) 1. 64 Carr (n 52). 65 Kenneth Neal Waltz, Man, the State, and War: A Theoretical Analysis (Columbia University Press, New York 1959); Reinhold Niebuhr, The Structure of Nations and Empires: A Study of the Recurring Patterns and Problems of the Political Order in Relation to the Unique Problems of the Nuclear Age (A. M. Kelley, Fairfield, N.J. 1977); Reinhold Niebuhr, Moral Man and Immoral Society: A Study in Ethics and Politics (Westminster John Knox Press, Louisville, KY 2001). 66 John Lewis Gaddis, ‘The Long Peace: Elements of Stability in the Postwar International System’ in Sean M. Lynn-Jones (ed), The Cold War and After: Prospects for Peace, (MIT Press, Cambridge, Mass. 1991). 67 Robert O. Keohane and Joseph S. Nye, Power and Interdependence (Longman, New York 2001); Robert O. Keohane and Joseph S. Nye, After Hegemony: Cooperation and Discord in the World Political Economy (Princeton University Press, Princeton, N.J. 2005); Kenneth A. Oye, Cooperation under Anarchy (Princeton University Press, Princeton, N.J. 1986). 68 For a short description of the evolution and end of the bipolar conflict see Ebrahim Afsah, ‘Cold War (1947-1991)’ in Rüdiger Wolfrum (ed), Encyclopedia of Public International Law (Oxford University Press, Oxford 2009).


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developments with important policy repercussions: the demise of realism69 and the rise of

proponents of an activist foreign policy.70 Theoretical schools interested in interdependence

and institutionalism saw an unprecedented window of opportunity now that the bipolar

stalemate had been overcome. Institutions such as the United Nations were believed to be

finally able to function as originally intended, as the trustees of the collective interest and

enforcers of collective security. The 1991 war against Iraq was widely believed to have

ushered in a new age of truly global cooperation. As the fear of nuclear annihilation was

receding, stability as the overriding end in itself became less important and attention shifted to

the perceived opportunities for transforming local conflicts. It was now felt possible, if not

imperative, to use the available preponderance of power to spread progressive values in the

collective interest, if necessary against the will of local despots.71

It is in this climate that the above mentioned calls for the progressive transformation of

international law were made. The sacrosanct nature of state sovereignty lost credence in line

with the reduction of the systemic need for stability and the perceived analytical and

normative shortcomings of the concept.72 This essentially liberal intellectual movement,

however, was made possible by the relative demise of realism as the voice of conservative

caution and moderation in foreign policy. With the end of the strictures of the Cold War, neo-

conservative triumphalism73 was mirrored by calls for a more activist foreign policy

essentially in the pursuit of values.74 The ideological transformation of neo-conservative

thinking is itself a direct result of the way the Cold War ended which they interpreted as

vindication of the ideologically motivated foreign policy under Reagan:

How, then, did a group with such a pedigree [of marked distrust of social engineering] come to decide that the ‘root cause’ of terrorism lay in the Middle East's lack of democracy, that the United States had both the wisdom and the

69 Charles W. Kegley, Jr., ‘The Neoidealist Moment in International Studies? Realist Myths and the New International Realities: ISA Presidential Address March 27, 1993 Acapulco, Mexico’ (1993) 37 International Studies Quarterly 131. 70 Peter J. Katzenstein, Analyzing Change in International Politics: The New Institutionalism and the Interpretative Approach (MPI für Gesellschaftsforschung, Köln 1990), 26. The classical realist account on the topic is Robert Gilpin, War and Change in World Politics (Cambridge University Press, New York 1981); see also Waltz’ response in Kenneth Neal Waltz, ‘Reflections on Theory of International Politics: A Response to My Critics’ in Robert O. Keohane (ed), Neorealism and its Critics (Columbia University Press, New York 1986). 71 Robert O. Keohane and J. L. Holzgrefe (eds), Humanitarian Intervention: Ethical, Legal, and Political Dilemmas (Cambridge University Press, Cambridge 2003). 72 Ryan Goodman and Derek Jinks, ‘Toward an Institutional Theory of Sovereignty’ (2003) 55 Stanford Law Review 1749. 73 Francis Fukuyama, ‘The End of History?’ (1989) 16 The National Interest 3. 74 Joshua Muravchik, Exporting Democracy: Fulfilling America’s Destiny (American Enterprise Institute, Washington, DC 1991).


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ability to fix this problem and that democracy would come quickly and painlessly to Iraq? Neoconservatives would not have taken this turn but for the peculiar way that the cold war ended. … [The foreign policy establishment] felt that the Reaganites were dangerously utopian in their hopes for actually winning, as opposed to managing, the cold war. And yet total victory in the cold war is exactly what happened in 1989-91.75

There is thus a convergence of liberal and neo-conservative thinking76 about the inadequacy

of the traditional concept of sovereignty. Unlike realism, both of these schools of thought

consider the internal composition of states to be important determinants of foreign policy, and

thus having immediate security implications:

… we’ll wage a comprehensive strategy to defend our country, and we will use every asset at our disposal. And one of the most powerful assets we have is freedom. Free nations do not breed resentment. Free nations do not export terror. Free nations become allies in the war against terror. By spreading freedom, we help [to] keep the peace.77

Under the constraints of bipolar competition, the sovereign equality of states became the key

principle to avoid ideologically motivated intervention which could have easily derailed the

fragile nuclear balance. But once the constraining element of bipolar stalemate was lifted,

value-based intervention becomes not only possible or desirable, but deemed to be an outright

imperative of responsible foreign policy, due to the alleged security benefits liberal

democracy is believed to entail. Although the aggressive use of the rhetoric of ‘freedom’

became a staple of US policy in the early 1980s, it was used opportunistically and remained

subservient to the overarching goal of strategic victory: ‘Reagan subordinated all other

foreign policy issues to the imperative of winning the Cold War. The spread of freedom in

and of itself was never an animating impulse.’78

After its end, however, the US rhetorical stance became more explicit. Kristol and Kagan

have for instance openly demanded an American ‘benevolent hegemony’ because ‘[i]t is

precisely because American foreign policy is infused with an unusually high degree of

morality that other nations find they have less to fear from its otherwise daunting power.’79

75 Francis Fukuyama, ‘After Neoconservatism’ The New York Times (New York 2006) no pagination. 76 Kurth (n 35) 310-11. 77 George W. Bush, ‘Remarks by President Bush at Victory 2004 rally, 1 November 2004’ (2004) <www.whitehouse.gov/news/releases/2004/11/20041101-24.html> accessed 14 April 2009. 78 See the debate in Leslie H. Gelb, Robert W. Merry, et al, ‘The Freedom Crusade Revisited’ (2005) The National Interest no pagination. 79 Robert Kagan and William Kristol (eds), Present Dangers: Crisis and Opportunity in American Foreign and Defense Policy (Encounter Books, San Francisco, Calif. 2000); For critical rejoinders see Fukuyama (n 75);


13

This is a marked departure from realism which predicts balancing against a predominant

power and minimizes the role of motives because in a situation of anarchy and uncertainty

motivations of the adversary matter less than its capabilities.

With the benefit of six years experience in Iraq and eight years in Afghanistan, most of these

ideas have by now been thoroughly refuted. As even early supporters such as Francis

Fukuyama eventually conceded, the policy achieved neither democratization nor enhanced

security:

As we approach the third anniversary of the onset of the Iraq war, it seems very unlikely that history will judge either the intervention itself or the ideas animating it kindly. By invading Iraq, the Bush administration created a self-fulfilling prophecy: Iraq has now replaced Afghanistan as a magnet, a training ground and an operational base for jihadist terrorists, with plenty of American targets to shoot at.80

IV. The Democratic Peace There is a persistent academic and popular belief that irrespective of normative preferences

for democratic governance, there are important internal and external security benefits

associated with it. Democracies are believed to foster an internal culture of dialogue and

compromise that effectively limits the effects of sectarian strife by channeling potentially

violent disputes over divergent interests into peaceful political competition.81 More

importantly, democracies are widely believed to pursue more peaceful foreign policies.82

Taken together, these two hypotheses argue strongly for the global promotion of democracy,

not out of an altruistic normative preference but for reasons of self-interest. Democracy

equals peace, as the theory holds.

Furthermore, there is good empirical and theoretical evidence towards the proposition that

democracy spreads in ‘waves’, i.e. that regional and international demonstration effects are

Stephen M. Walt, Taming American Power: The Global Response to U.S. Primacy (W.W. Norton & Co, Boston, Mass. 2005). 80 Fukuyama (n 75). 81 Rudolph J. Rummel, Power Kills: Democracy as a Method of Nonviolence (Transaction, Brunswick, NJ 1997). 82 Doyle’s two-part article has been influential in framing the debate, Michael W. Doyle, ‘Kant, Liberal Legacies, and Foreign Affairs, Part 1 and 2’ (1983) 12 Philosophy and Public Affairs 205; for a critical discussion of the theory’s main claims see David E. Spiro, ‘The Insignificance of the Liberal Peace’ (1994) 19 IS 50; Christopher Layne, ‘Kant or Cant: The Myth of the Democratic Peace’ (1994) 19 IS 5. See also: Bruce Russett, Grasping the Democratic Peace: Principles for a Post-Cold War World (Princeton University Press, Princeton, N.J. 1993); Rudolph J. Rummel, ‘Democracies ARE Less War-like than Other Regimes’ (1995) 1 European Journal of International Relations 457.


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crucial.83 The success of post-communist democratization in Central and Eastern Europe

powerfully underscored the importance of regional dynamics in the socialization84 of states

and their re-definition of national interests and identity.85 Despite the overall rise in the

number of, at least nominally, democratic states large parts of the world seemed resistant to

the allegedly inexorable spread of democracy, leading some experts to ask whether ‘the third

wave of democratization [was] over?’86 Interestingly, demonstration effects again played an

important role, as both undemocratic regimes and illiberal democracies were regionally

clustered.87

If, therefore, democracy is not only normatively desirable but carries important security

benefits, and if the existence of a democracy is likely to lead to the further democratization of

an entire region,88 a good analytical case can be made that the risks associated with external

intervention would be outweighed by the eventual benefits.89 There is an obvious scope for

the disingenuous use of political and humanitarian arguments to cover a hidden agenda based

on national or narrow group interests.90 But beyond such cynical readings there is an

important current of academic and official thought which believes, rather sincerely,91 that

after the successful end of the ‘third wave’ of democratization in Eastern Europe, the time has

come to use the unique position of dominance to export democracy and reap its expected local

and global benefits.92 Stressing the ‘the uniqueness of our power, unrivalled, not just today

but ever,’ Krauthammer for instance argues that: ‘The rationality of the enemy is something 83 The standard reference is Samuel P. Huntington, The Third Wave: Democratization in the Late Twentieth Century (University of Oklahoma Press, Norman 1991). Schmitter and Dahl agree with the idea of its wave-like spread but differ in their classification of the historical periods, Philippe C. Schmitter, ‘The International Context of Contemporary Democratization’ (1993) 2 Stanford Journal of International Affairs 1; Robert A. Dahl, Polyarchy: Participation and Opposition (Yale University Press, New Haven 1971) 10-11. 84 Finnemore (n 53) chapter 1. 85 Friedrich Kratochwil, Rules, Norms, and Decisions: On the Conditions of Practical and Legal Reasoning in International Relations and Domestic Affairs (Cambridge University Press, Cambridge 1989); Peter J. Katzenstein (ed), The Culture of National Security: Norms and Identity in World Politics (Columbia University Press, New York 1996); Ailsa Henderson and Nicola McEwen, ‘Do Shared Values Underpin National Identity? Examining the Role of Values in National Identity in Canada and the United Kingdom’ (2005) 7 National Identities 173. 86 Diamond (n 39) 24. 87 Ibid chapter 2. 88 Davis (n 33). 89 Ivo H. Daalder and James M. Lindsay, America Unbound: The Bush Revolution in Foreign Policy (Brookings Institution Press, Washington, DC 2003); Joshua Micah Marshall, ‘Remaking the World: Bush and the Neoconservatives’ (2003) Foreign Aff no pagination. 90 Ryan Goodman, ‘Humanitarian Intervention and Pretexts for War’ (2005) 99 AJIL no pagination. 91 Bernard Lewis, ‘Freedom and Justice in the Modern Middle East’ (2005) Foreign Aff, no pagination, final paragraph 92 Ronald D Asmus, ‘A Transatlantic Strategy to Promote Democratic Development in the Broader Middle East’ (2005) 28 The Washington Quarterly 7.


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beyond our control. But the use of our power is within our control. If that power is used

wisely, constrained not by illusions and fictions but only by the limits of our mission.’93

Many have denounced the ideological and intellectual rigidity of such ‘democratic

Trotskyism’94 that disregards the inherent difficulties of transplanting political institutions by

narrowly emphasizing the malleability of political culture and institutional design, especially

in the Middle East.95 Nevertheless, official American doctrine96 has largely accepted the logic

of the democratic peace ‘betting the farm that the theory holds and will help Washington

achieve a peaceful, stable, and prosperous Muslim world’97 once a precedent has been set.98

There are, however, significant doubts whether the alleged security benefits associated with

democracy can withstand empirical scrutiny.99

Internally, the transition to democracy is often accompanied by high degrees of violence

following the breakdown of the old order.100 Thus even if, as UN Secretary General Boutros-

Ghali asserts, ‘a culture of democracy is fundamentally a culture of peace’,101 the process of

democratization during which such a culture of peace could evolve may stimulate ethnic and

sectarian conflict and ’induce weak states to meet communal rebellion with repression rather

than accommodation.’102 Furthermore, the electoral process is likely to exacerbate existing

tensions when in the absence of overarching political interests primordial allegiances become

key mobilizing forces:

93 Charles Krauthammer, ‘Democratic Realism - An American Foreign Policy for a Unipolar World’ (2004) <http://www.aei.org/publications/ pubID.19912,filter.all/pub_detail.asp> accessed 14 April 2009; see also the critique by Francis Fukuyama, ‘The Neoconservative Moment’ (2004) 57 The National Interest no pagination. 94 Michael W. Reisman, ‘Why Regime Change is (almost always) a Bad Idea’ (2004) 98 AJIL 516, 523. Fukuyama likewise makes the interesting point that ‘[i]t is not an accident that many in the [core neo-conservative] group started out as Trotskyites.’ Fukuyama (n 75). 95 Eric Davis, ‘History Matters: Past as Prologue in Building Democracy in Iraq’ (2005) 49 Orbis 229; Robert Kaplan, ‘Barren Ground for Democracy’ New York Times (New York 2004); Samuel P. Huntington, ‘Democracy for the Long Haul’ (1996) 7 Journal of Democracy 3; George Packer, ‘Dreaming of Democracy’ (2003) New York Times Magazine (New York 2 March 2003); Ross (n 25). 96 National Security Council, ‘National Security Strategy of the United States of America’ (2002) <www.whitehouse.gov/nsc/nss.pdf> accessed 14 April 2009, see also the discussion in von Bogdandy, et al (n 33) 592-95. 97 John M. Owen, ‘Iraq and the Democratic Peace’ (2005) Foreign Aff no pagination. 98 Foad Ajami, ‘The Autumn of the Autocrats’ (2005) Foreign Aff 21. 99 F. Gregory Gause, ‘Can Democracy Stop Terrorism?’ (2005) Foreign Aff no pagination; Edward D. Mansfield and Jack Snyder, ‘Prone to Violence’ (2005) The National Interest no pagination; Edward D. Mansfield and Jack Snyder, Electing to Fight: Why Emerging Democracies Go to War (MIT Press, Cambridge, Mass. 2005). 100 Ebrahim Afsah, ‘The End of Militarism. Civil-Military Relations in the Federal Republic of Germany’ (Ph.D. thesis, Trinity College, University of Dublin 2008) especially chapter III ‘Conceptualising Militarism’. 101 Boutros Boutros-Ghali, ‘An Agenda for Democratization’ (1996) 7-8. 102 Diamond (n 39) 5.


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Elections in many newly democratizing states have been an ethnic census, not a deliberation about public issues. Ethnic leaders can quickly mobilize nationalist mass movements based on crony and clan ties, common language and cultural practices. It is harder for secular or ‘catch-all’ leaders to forge new ties across groups.103

V. Illiberal Democracies The promise of the democratic peace therefore carries an important caveat: while liberal

democracies are in fact more peaceful, both internally and externally, illiberal democracies

might actually be worse than the autocratic, albeit stable, regimes they replace.104 It is in this

vein that the influential democracy theorist Larry Diamond stresses the need for

‘consolidation,’ i.e. the deepening of democratic practices beyond the mere emphasis on

elections.105 As Huntington aptly points out: ‘Democracy is one public virtue, but not the only

one, and the relation of democracy to other public virtues and vices can only be understood if

democracy is clearly distinguished from the other characteristics of political systems.’106

Zakaria concludes in the same vein that ‘[i]f a democracy does not preserve liberty and law,

that it is a democracy is a small consolation.’107

A. Defining Democracy For analytical clarity it is thus advisable to deploy a minimalist definition of democracy as

simply a process of selecting governments,108 in line with Joseph Schumpeter’s classic

definition as (merely) a system ‘for arriving at political decisions in which individuals acquire

the power to decide by means of a competitive struggle for the people's vote.’109 Clearly, such

a limited understanding poses problems if taken as a description of a desirable polity, but

analytically it is important to distinguish between the distinct, and sometimes competing

values to be incorporated in a political community.

103 Fareed Zakaria, ‘The Rise of Illiberal Democracy’ (1997) 76 Foreign Aff 35; Mansfield and Snyder, ‘Prone to Violence.’ (n 99). 104 Mansfield and Snyder, Electing to Fight: Why Emerging Democracies Go to War (n 99). 105 Diamond (n 39) 8-10, he continues to define the distinct elements of liberal democracy in the following pages. 106 Huntington (n 83) 5-13, esp. 6. 107 Zakaria (n 103) 40. 108 Samuel P. Huntington, ‘The Modest Meaning of Democracy’ in Robert A. Pastor (ed), Democracy in the Americas: Stopping the Pendulum (Holmes and Meier, New York 1989) 15. 109 Joseph Schumpeter, Capitalism, Socialism, and Democracy (2nd edn Harper, New York 1947) 269.


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Schumpeter’s understanding of democracy consists essentially of the right to periodically

chose among competing elites those to act on behalf of the citizenry. He was, perhaps

influenced by his experience of the descent of Austrian democracy into fascism after 1934,

deeply suspicious of more direct political involvement of ‘the electoral mass [that] is

incapable of action other than a stampede.’110 This has been criticized as ‘indeed, as spare a

notion of democracy as one could posit without draining the term of meaning.’111 Zakaria

stresses the need for analytical rigor in order to arrive at proper policy prescription:

But to go beyond this minimalist definition and label a country democratic only if it guarantees a comprehensive catalogue of social, political, economic, and religious rights turns the word democracy into a badge of honor rather than a descriptive category. … To have democracy mean, subjectively, ‘a good government’112 renders it analytically useless.113

While it might be true that there is a powerful association between democracy and liberty,

namely that ‘countries that hold free elections are overwhelmingly more liberal than those

that do not,’114 it is important to distinguish analytically between free elections that are

constitutive of democracy in its strict meaning, and the protection of individual and group

autonomy through the meaningful protection of rights and the imposition of limits on the

exercise of power. The peace-inducing effects, as well as the ‘endurance’ of the democratic

character of a polity cannot convincingly be attributed to the mere existence of competitive

elections. Here again, a democracy’s ability to withstand pressures to revert to authoritarian

forms of government is strongly affected by demonstration effects:

Reverse waves threaten not only political freedoms and human rights but also world peace. The first reverse wave gave rise to the expansionist fascist regimes that brought on World War II. The second reverse wave spread during the peak of the Cold War and fed a number of regional conflicts and civil wars, in which the major powers became directly or indirectly involved.115

Electoral choice is an important element in our appreciation of a democratic regime as a

‘good’ form of government, but its longevity and its peacefulness depend on the effective

110 Schumpeter (n 109) 283. 111 Diamond (n 39) 284, fn. 32. See also David Held, Models of Democracy (Stanford University Press, Stanford, CA 1996) 196-98. 112 On the complexities of the concept of ‘good governance’, especially its definition and meaningful measurement, see also Dolzer (n 37); Georg Philip, ‘The Dilemmas of Good Governance’ (1999) 34 Government and Opposition 226. 113 Zakaria (n 103) 25. 114 Marc F. Plattner, ‘Liberalism and Democracy’ (1998) 77 Foreign Aff 173; Russell Bova, ‘Democracy and Liberty: The Cultural Connection’ (1997) 8 Journal of Democracy 115, table 1; discussed in Diamond (n 39). 115 Ibid 5.


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protection of individuals and groups against undue coercion from state, church, or powerful

interests, i.e. constitutional liberalism.

B. Constitutional Liberalism The Western experience since 1945 has largely embodied both democracy and constitutional

liberalism, making it thus ‘difficult to imagine the two apart, in the form of either illiberal

democracy or liberal autocracy.’116 Citing empirical and case data Zakaria establishes that

these latter manifestations are not only perfectly plausible theoretically, but have in fact been

the historical Western, and contemporary non-Western norm. Their theoretical and historical

distinctiveness is likewise stressed by Schmitter:

Liberalism, either as a conception of political liberty, or as a doctrine about economic policy, may have coincided with the rise of democracy. But it has never been immutably or unambiguously linked to its practice.117

Zakaria maintains that only in the late 1940s did most Western countries become actually

democratic, but that, importantly, already a century earlier most of them had put in place

important elements of constitutional liberalism, namely ‘the rule of law, private property

rights, and increasingly, separated powers and free speech and assembly’ without being

democratic. Government in Western Europe and North America was therefore not

characterized by democracy but by constitutional liberalism: ‘The “Western model” is best

symbolized not by the mass plebiscite but the impartial judge.’118

The analytical difference between democracy and constitutional liberalism and their historical

distinctiveness has powerful policy implications regarding the sequencing of institutional

design. There is strong empirical evidence that constitutional liberalism will in time lead

towards democracy, but democracy on its own will not necessarily bring constitutional

liberalism.119 But not only are the two concepts analytically distinct, they exist in a markedly

tense relationship:

… any conception of democracy invariably encompasses a commitment to rule by majoritarian preferences, whether expressed directly or through representative bodies. At the same time, any conception of constitutionalism must accept pre-existing restraints on the range of choices available to governing majorities.120

116 Zakaria (n 103) 26. 117 Philippe C. Schmitter, ‘II. More Liberal, Preliberal, or Postliberal?’ (1995) 6 Journal of Democracy 15, 16. 118 Zakaria (n 103) 27. 119 Ibid 28. 120 Samuel Issacharoff, ‘Constitutionalizing Democracy in Fractured Societies’ (2004) 82 Tex L Rev 1861 .


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C. Degenerating Democracies Tocqueville recognized that ‘[t]he very essence of democratic government consists in the

absolute sovereignty of the majority.’ But simultaneously he was quite clear that majoritarian

systems not tempered by constitutional restraints on the exercise of power have a tendency to

degenerate into a ‘tyranny of the majority.’121 It is this tension between majoritarian

sovereignty and minority protection that has marked democratic theory from its very

beginning. Already Aristotle warned: ‘Where the multitude have the supreme power, and

supersede the law by their decrees … demagogues spring up’ and democracy degenerates into

despotism.122

There has thus been some agreement over time that ‘the best realizable form of government is

mixed, or constitutional, government, in which freedom is constrained by the rule of law and

popular sovereignty is tempered by state institutions that produce order and stability.’123 That

democracy is a force that can undermine liberty is well-understood for all types of societies.

But in fractured societies divided by historical, ethnic, linguistic, religious, or class cleavages

democracy can be a particularly insidious divisive force:

In the face of this rather dismal account … of the concrete failures of democracy in divided societies … one is tempted to throw up one’s hands. What is the point of holding elections if all they do in the end is to substitute a Bemba-dominated regime for Nyanja regime in Zambia, the two equally narrow, or a southern regime for a northern one in Benin, neither incorporating the other half of the state?124

Even if we don’t conclude that democracy ‘is simply not viable in an environment of intense

ethnic preferences’,125 it seems evident that merely holding elections is insufficient and that

additional institutional mechanisms in the form of constitutional restraints are necessary to

make it work. To ascertain whether democracies remain democratic, and stay peaceful one

needs to look beyond competitive elections. Huntington identifies three big waves of

democratization (1828-1926, 1943-1964, 1974-1990s) and points out that both earlier periods

121 Arthur Goldhammer (tr), Alexis de Tocqueville, Democracy in America (Library of America, New York 2004). 122 Aristotle, Ernest Barker (tr), The Politics (2nd edn Cambridge University Press, Cambridge 1988) 1292. 123 Diamond (n 39) 2; Held (n 111) chapter 1 and 2. 124 Donald L. Horowitz, ‘Democracy in Divided Societies’ in Larry Diamond and Marc F. Plattner (eds), Nationalism, Ethnic Conflict and Democracy (The Johns Hopkins University Press, Baltimore 1994). 125 Alvin Rabushka and Kenneth A. Shepsle, Politics in Plural Societies: A Theory of Democratic Instability (Merrill, Columbus, OH 1972) 62-92.


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resulted in reverse waves of democratic breakdown,126 caused by a multitude of factors quite

beyond the scope of this chapter.127 The ongoing debate about the perceived peacefulness of

democracies was markedly rekindled by Doyles’ 1983 essay in which he conceded that ‘[t]he

decisive preference of [the] median voter might well include “ethnic cleansing” against other

democratic polities.’128 Zakaria thus correctly concludes that: ‘the democratic peace is

actually the liberal peace. … without constitutional liberalism, democracy itself has no peace-

inducing qualities.’129

The ‘fallacy of electoralism’130 ignores the degree to which even genuinely contested

elections may exclude significant portions of the population from competing effectively for

power and/or advancing their interests, as well as the extent to which important policy areas

may remain outside the purview of elected officials and thus democratic oversight.131

Furthermore, the design of the electoral process itself can have an enormous impact on the

way the democratic process is played out, especially with regard to the degree to which it

allows genuine participation of all groups.132 There is always a trade-off in electoral design

between efficiency and representativeness. This refers both to the outcome of the election, for

instance stable majorities, as well as the practicalities of implementing the actual election. For

instance the first post-war Iraqi elections were held for such practical reasons as a single

nation-wide electoral district, despite strong reservations about the inherent and inevitable

Sunni exclusion.

126 Huntington (n 83) 15. 127 On the causal reasons see the magisterial Juan J. Linz and Alfred Stepan (eds), The Breakdown of Democratic Regimes (Johns Hopkins University Press, Baltimore 1978). 128 Michael W. Doyle, Ways of War and Peace: Realism, Liberalism, and Socialism (Norton, New York 1997) 127. 129 Zakaria (n 103) 38. 130 Terry Lynn Karl, ‘Imposing Consent? Electoralism versus Democratization in El Salvador’ in Paul Drake and Euardo Silva (eds), Elections and Democratization in Latin America, 1980-1985 (University of California at San Diego, San Diego 1986). 131 Diamond (n 39) 9; Philippe C. Schmitter and Terry Lynn Karl, ‘What Democracy Is. and Is Not’ (1991) 2 Journal of Democracy 75. 132 Diamond (n 39) 99-111. For a classical treatment of majoritarian and consensual models in the design of the electoral process see Arend Lijphart, Democracies: Patterns of Majoritarian and Consensus Government in twenty-one Countries (Yale University Press, New Haven 1984); Arend Lijphart and Bernard Grofman, Electoral Laws and Their Political Consequences (Agathon Press, New York 1986); Arend Lijphart and Carlos H. Waisman, Institutional Design in New Democracies: Eastern Europe and Latin America (Latin America in global perspective, Westview Press, Boulder, Colo. 1996).


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The choice of the electoral system needs to take into account the particular historical pattern

of internal division in order to avoid ‘the possible exclusion, alienation, apathy, and

illegitimacy of majoritarian outcomes, or the potential fragmentation, low governability, and

even paralysis of proportional ones.’133 As will be shown below, electoral design has often

had a big, and mostly negative impact on the constitutional process in post-conflict situations.

VI. Institutions Matter If thus, elections in and of themselves are insufficient to account for most of the potential

benefits generally associated with democratic governance, analytically a stronger emphasis

should be placed on the cultural correlates of democracy, i.e. ‘[t]he development of a pattern,

and ultimately a culture, of moderation, accommodation, cooperation, and bargaining among

political elites’ which is increasingly stressed in process-oriented thinking on democratic

transition and consolidation.134 It is precisely this cultural element of procedural legitimacy

and integration that is crucially important in a post-conflict situation, but due to its inherent

difficulty is often disregarded in favor of formal elections: ‘[In civil wars] no solution was

possible without an answer as to who should govern. The international community’s formula

was free elections, a compelling idea in the abstract but ferociously difficult to implement in

conflict-ridden countries.’135

A. Democratic Culture The cultural element outlined here is directly linked to institutional design, not supposedly

primordial essentialist traits somehow ingrained in a particular culture or religion. Referring

to Paul Wolfowitz’ boastful claims about the salutary ‘shaming effect’ of a decisive Arab

defeat in Iraq, Joyce recounts that the traditional Western reaction to shame has been steadfast

resistance and revengefulness:

Having been brought low does not make one generous and forgiving. Quite the opposite; the abused often become the abusers. The bitterness and resentment the

133 Diamond (n 39) 103; Ken Gladdish, ‘Choosing an Electoral System: The Primacy of the Particular’ (1993) 4 Journal of Democracy 53 134 Diamond (n 39) 166, emphasis in the original. 135 Robert A. Pastor, ‘Review Essay: Postconflict Elections, Democratization, and International Assistance’ (1999) 93 The American Political Science Review 1023. See also Plamen Tonchev, ‘From Bullets to Ballots and Beyond: Building Post-conflict Democracies in Asia and Europe’ (2005) 3 Asia Europe Journal 379; Marina Ottaway, ‘Promoting Democracy after Conflict: The Difficult Choices’ (2003) 4 International Studies Perspectives 314; Terrence Lyons, ‘Postconflict Elections, Democratization, and International Assistance’ (2004) 11 Democratization 36; Krishna Kumar (ed), Postconflict Elections, Democratization, and International Assistance (Lynne Rienner, Boulder, Col. 1998).


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Arabs feel for the humiliations they have suffered in Iraq and Palestine should be understandable. But we act as though they are essentially different from us and will be improved by such experiences.136

Chiding the mistaken preconceptions that have underwritten official policy, Lynch is

similarly critical of the postulated psychological difference and inferiority of subjugated

peoples:

One such assumption is that Arabs respect power and scorn attempts at reason as signs of weakness — and so the way to impress them is to cow them into submission. Another assumption is that Arab public opinion does not really matter, because authoritarian states can either control or ignore any discontent. Still another is that anger at the United States can and should be disregarded because it is intrinsic to Islamic or Arab culture, represents the envy of the successful by the weak and failed or is simply cooked up.137

There is little denying the fact that the states that remain undemocratic after the ‘third wave’

of democratization of the 1980s and 1990s pose particularly potent problems with regard to

the preconditions often deemed necessary, a point painfully obvious in both Afghanistan and

Sudan, and to a slightly lesser degree in Libya and Iraq.138 The fact that virtually no Islamic

nation has successfully adopted democratic governance has tempted many commentators to

point out the alleged incompatibility of its religious precepts with the demands of a modern,

democratic and preferably liberal polity.139 Interestingly, the argument is being advanced

from both sides of the alleged cultural divide:

There is a common view that the shari‘a is fixed and clearly discernible from its sacred sources. For Muslim ideologists this fixity and clarity are functions of its divine origin. For many Western observers they are functions of the fixity of ‘Muslim society’, totally other from the ‘the West’, with religion as its essence. … There is a kind of ideological symbiosis between the two. ‘Muslim society’ in this perspective is not amenable to analysis in terms of economics, politics or sociology, but has religion as its essence which moves it and determines its processes.140

136 Anne Joyce, ‘Editor’s Note’ (2003) 10 Middle East Policy iii, emphasis added 1. 137 Marc Lynch, ‘Taking Arabs Seriously’ (2003) Foreign Affairs, no pagination, emphasis added 138 See for instance Howard Wiarda who considers Iraq and Afghanistan as inherently unsuitable for democratic governance, citing socio-economic development, political culture, institutional weakness, weak civil society, tribal divisions, and weak leadership, in Lauth, et al (n 1) 189-94. Tony Smith essentially shares the same viewpoint, Tony Smith and Larry Diamond, ‘Was Iraq a Fool’s Errand?’ (2004) Foreign Affairs no pagination. 139 For an intelligent discussion see John L. Esposito and John O. Voll, Islam and Democracy (Oxford University Press, New York 1996); John L. Esposito, Islam and Politics (Syracuse University Press, Syracuse 1998); Hamid Enayat, Modern Islamic Political Thought: The Response of the Shi’i and the Sunni Muslims to the Twentieth Century (I.B. Tauris, London 2005). 140 Zubaida, Law and Power in the Islamic World (I.B. Tauris, London 2005) 1, 3.


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An analytically more rewarding and more policy-relevant approach would focus on those

sociological, institutional, and constitutional preconceptions that are in fact amenable to

change. Mansfield and Snyder thus point to these preconceptions to argue in favour of a much

more cautious and patient effort to nurture the necessary institutional preconditions:

All of the risk factors are there. The media and civil society groups are inflammatory, as old elites and rising oppositions try to outbid each other for the mantle of Islamic or nationalist militancy. The rule of law is weak, and existing corrupt bureaucracies cannot serve a democratic administration properly. The boundaries of states are mismatched with those of nations, making any push for national self-determination fraught with peril. Per capita incomes, literacy rates and citizen skills in most Muslim Middle Eastern states are below the levels normally needed to sustain democracy. The richer states’ economies are based on oil exports, which exacerbate corruption and insulate regimes from accountability to citizens.141

They stress the turbulent early stages of democratization that easily will lead to high degrees

of internal and external violence fuelled by ethnic and/or nationalistic mobilization:142 ‘[t]he

nationalist and ethnic politics that prevails in many newly democratizing states loads the dice

in favor of international and civil war.’143

B. Polarizing Elections To avoid political rivalry in divided societies degenerating into ethnically-based patronage

and aggression it is thus important to proceed to the phase of open electoral contestation only

well after institutional reform has been instigated. Denouncing the idea of imposing

democracy from without by sheer force of arms as an ‘oxymoron,’ it is stressed that ‘[r]arely

are matters so desperate that there is no alternative to forced-pace democracy promotion at

gunpoint. It is better to be patient and get the sequence right.’144

Note that the preconditions outlined here concern institutional design, not waiting until

economic parameters have changed. While it is ‘a truism that the better the performance of a

democratic regime in producing and broadly distributing improvements in living standards,

the more likely it is to endure,’ there seems to be no absolute threshold of wealth below which

141 Mansfield/Snyder ‘Prone to Violence’ (n 99). 142 For a very nuanced elaboration of the issue of nationalism see Haas’s two-volume work which contrasts the experience of a number of new democracies with more established European ones, and arrives at a largely positive impact of liberal nationalism during the process of modernisation. Ernst B. Haas, Nationalism, Liberalism, and Progress: The Dismal Fate of New Nations (Cornell University Press, Ithaca 2000); Ernst B. Haas, Nationalism, Liberalism, and Progress: The Rise and Decline of Nationalism (Cornell University Press, Ithaca 1997). 143 Mansfield/Snyder ‘Prone to Violence’ (n 99). 144 Ibid last para.


24

democracy is unsustainable.145 The same hold true for the alleged need to alter religious

preferences presumably deemed to be incompatible with democratic norms.146 Most of these

institutional preconditions concern constitutional arrangements and administrative capacity,

especially the existence of an impartial and effective civil service and judiciary. But building

these institutions often runs counter the interests of an outside intervener in trying to maintain

control at manageable cost by relying on local elites whose legitimacy is questionable. The

short-term expedients of divide and rule increases ethnic polarization and thus conflicts with

the long-term transition to a stable democracy:

Even if the empire does not take active steps to politicize ethnicity, the act of unleashing demands for mass political participation that nascent democratic institutions often are not strong enough to manage is likely to increase the risk of a polarized, violent, unsuccessful transition.147

Limiting the scope for majoritarian abuse through strong legal protections of individual and

group autonomy, limitations on the exercise of power, and effective redress mechanisms can

be achieved through appropriate constitutional design. But while it might be relatively easy to

impose elections on a given country, it is much more difficult to establish constitutional

liberalism, let alone trying to do this by force. Nevertheless, despite its inherent difficulty

there does not seem to be a ready alternative, for ‘[d]emocracy without constitutional

liberalism is not simply inadequate, but dangerous, bringing with it the erosion of liberty, the

abuse of power, ethnic divisions, and even war.’148

VII. The Need for Constitutional Limits If democracy can be defined as ultimately ‘popular political self-government,’ a simple

definition of constitutionalism could be the ‘containment of popular political decision-making

by a basic law.’ 149 At the heart of constitutionalism lies the paradox of why a democratic

system that associates legality with representative government should deliberately choose ‘to

constitute its political life in terms of commitments to an originating agreement — made to be

treated by the people as binding on their children, and deliberately structured to be difficult to

145 Diamond (n 39) 78, emphasis added, 78-88, 200-4, 263-4. 146 See also Patrick Rosenow, ‘Sind der Nahe und Mittlere Osten demokratieresistent? Über das Verhältnis von Islam und Demokratie’ (2005) Rissener Einblicke 17. 147 Mansfield/Snyder, ‘Prone to violence’ (n 99); Linda Colley, ‘The US is Now Rediscovering the Pitfalls of Aspirational Imperialism’ The Guardian (London 17 December 2005) 148 Zakaria (n 103) 43. 149 Frank I. Michelman, Brennan and Democracy (Princeton University Press, Princeton, N.J. 1999) 5-6.


25

change.’150 Two answers to this seeming paradox are traditionally given, and a third is

particularly relevant in the context of divided societies.

A. Protecting Rights The first concerns the protection of individual and group autonomy against majoritarian

decisions. As Dworkin puts it: ‘The Constitution, and particularly the Bill of Rights, is

designed to protect individual citizens and groups against certain decisions that a majority of

citizens might want to make, even when that majority acts in what it takes to be the general or

common interest.’151 Apart from its obvious relevance in all societies, this aspect is

particularly pertinent in politically polarized or ethnically divided societies. If combined with

effective mechanisms of judicial or administrative redress, rights prevent the abuse of power

and thus ensure that political contests do not degenerate into absolute conflicts by

safeguarding a core of essential interests that remains beyond the political sphere, and thus

majoritarian control. This necessary protection against the ‘tyranny of the majority’ can

ultimately only be provided by constitutionalisation and judicial review.152

Furthermore, the observance of rights schemes is an effective litmus test for the overall

‘civility’ of a given regime. A polity’s descent into barbarity and aggression relies on the

progressive removal of constitutional controls. Basic human rights and fundamental freedoms

constitute thus an early warning mechanism, a point stressed during the negotiations of the

European Convention on Human Rights:

Evil progresses cunningly, with a minority operating, as it were, to remove the levers of control. One by one freedoms are suppressed, in one sphere after another. Public opinion and the entire national conscience are asphyxiated. … It is necessary to intervene before it is too late. A conscience must exist somewhere which will sound the alarm to the minds of a nation menaced by this progressive corruption, to warn of the peril and to show them that they are progressing down a long road which leads far, sometimes even to Buchenwald or Dachau.153

The violation of these standards of decency indicates the potential descent into dangerous

despotism, explaining why states with a recent history of terror place much greater

importance on international legal safeguards and monitoring than relatively stable liberal 150 Laurence H. Tribe, American Constitutional Law (3rd, Foundation Press, New York 2000) §1-8, at 20. 151 Ronald Dworkin, Taking Rights Seriously (Harvard University Press, Cambridge, Mass. 1978) 133. 152 See Ronald Dworkin, A Bill of Rights for Britain (Chatto & Windus, London 1990) 13-14; Ronald Dworkin, Justice in Robes (Belknap Press, Cambridge, Mass. 2006). 153 Rapporteur Teitgen in Council of Europe (ed), Collected Edition of the Traveaux Préparatoires (Council of Europe, Strasbourgh 1975) 292.


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states. Moravcsik has analyzed the travaux préparatoires and voting pattern during the

negotiations of the ECHR and concluded convincingly that it was not the liberal democratic

states such as Britain or Sweden which were its strongest supporters, but those states which

had just emerged from authoritarianism and wished to hedge against a possible domestic

reversal of political fortunes by keeping the control mechanism beyond national control.154

The same point was made by Klug who stated that: ‘A standard explanation for the shift to

democratic constitutionalism, and the empowerment of courts it implies, in states emerging

from dictatorships and social conflict is that the shift is a reaction to that society’s particular

past.’155

Obviously constitutional rights and fundamental freedoms remain ineffective if not backed by

a strong and independent judiciary. In recent years there has been a growing trend to transfer

ever larger subject areas from the political sphere to constitutional courts, partly because a

polarized political class is unable or unwilling to reach consensus and thus ‘out-sources’

divisive issues to unelected judges precisely to prevent further polarization by removing the

issue from the democratic political process.156

This dynamic plays itself out rather interestingly throughout parts of the Middle East where

‘growing support for principles of theocratic governance poses a major threat to the cultural

propensities and policy preferences of secular and relatively cosmopolitan elites.’157 The

ostentatious Islamization of the state and judiciary, done essentially to bolster the legitimacy

154 Andrew Moravcsik, ‘The Origins of Human Rights Regimes: Democratic Delegation in Postwar Europe’ (2000) 54 IO 217; Oona A. Hathaway, ‘Do Human Rights Treaties Make a Difference?’ (2002) 111 Yale Law Journal 1935; Kenneth W. Abbott, et al, ‘The Concept of Legalization’ (2000) 54 IO 401; Robert O. Keohane, Andrew Moravcsik, and Anne-Marie Slaughter, ‘Legalized Dispute Resolution: Interstate and Transnational’ (2000) 54 IO 457. 155 Heinz Klug, Constituting Democracy: Law, Globalism and South Africa’s Political Reconstruction (Cambridge University Press, Cambridge 2000) 23. 156 Ran Hirschl, ‘The Political Origins of the New Constitutionalism’ (2004) 11 Indiana Journal of Global Legal Studies 71; Samuel Issacharoff, ‘The Enabling Role of Democratic Constitutionalism: Fixed Rules and Some Implications for Contested Presidential Elections’ (2003) 81 Tex L Rev 1985; Ronald Dworkin (ed), A Badly Flawed Election: Debating Bush v. Gore, the Supreme Court, and American Democracy (New Press, New York 2002). 157 Ran Hirschl, ‘Constitutional Courts vs. Religious Fundamentalism: Three Middle Eastern Tales’ (2004) 82 Tex L Rev 1819; Lama Abu-Odeh, ‘Modernizing Muslim Family Law: The Case of Egypt’ (2004) 37 Vand J Transnat’l L 1043; Kilian Bälz, ‘Islamisches Recht, staatliche Rechtsetzung und verfassungsgerichtliche Kontrolle: Der ägyptische Verfassungsgerichtshof und der Schleier in staatlichen Schulen’ (1997) 57 ZaöRV 229; Adel Omar Sherif, ‘The Rule of Law in Egypt from a Judicial Perspective: A Digest of the Landmark Decisions of the Supreme Constitutional Court’ in Eugene Cotran and Mai Yamani (eds), The Rule of Law in the Middle East and the Islamic World: Human Rights and the Judicial Process (I.B. Tauris, London 2000); Ran Hirschl, ‘The Struggle for Hegemony: Understanding Judicial Empowerment through Constitutionalization in Culturally Divided Polities’ (2000) 36 Stanford J Int’l L 73.


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of governments with exceedingly narrow support bases,158 often led to the creation of

constitutional courts charged with the application of Sharī‘ah to placate the theocratic

preferences of mobilized masses.159 In effect, however, the jurisdiction of these courts has

often been quite willing to depart from the allegedly unalterable divine law to promote legal

reform much in line with Hirschl’s description of elite interests.160

B. Checking power The second justification for constitutionalisation concerns the distribution and structure of

power, i.e. how governmental tasks are distributed among different agencies and offices, how

conflicts are resolved between them, how government changes and how it is held accountable.

On a purely functional level, this concerns simply the rules of the game laid down in advance

for the sake of predictability and efficiency in the orderly conduct of governmental business.

It is already at this basic functional level that many constitutions in the developing world,

particularly in the Middle East, fail miserably. The revolutionary Iranian constitution of 1979,

for instance, has, despite numerous amendments and ad hoc procedural reforms,161 not

succeeded in delineating an effective distribution of tasks and powers among the numerous

branches of government.162

On a more normative level, the separation of powers is believed to act as an effective

guarantee against the abuse of governmental authority by providing ‘checks and balances’

through the functional interdependency of state organs.163 The basic underlying idea is a

158 For a critical discussion of these policies in Saudi Arabia, Pakistan, Sudan, Egypt and Iran see Zubaida (n 140) 153-6, 158-9, 165-73, chapter 6. See also Tamir Moustafa, ‘Conflict and Cooperation between the State and Religious Institutions in Egypt’ (2000) 32 International Journal of Middle Eastern Studies 11; Steven Barraclough, ‘Al-Azhar: Between the Government and the Islamists’ (1998) 52 Middle East Journal 236. 159 Clark Benner Lombardi, ‘Note: Islamic Law as a Source of Constitutional Law in Egypt: The Constitutionalization of the Shari’a in a Modern Arab State’ (1998) 37 Colum J Transnat’l L 81. 160 Ran Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Harvard University Press, Cambridge, Mass. 2004) chapter 2; Nathan J. Brown, ‘Islamic Constitutionalism in Theory and Practice’ in Eugene Cotran and Adel Omar Sherif (eds), Democracy, the Rule of Law, and Islam (Kluwer Law International, London 1999); Martin Lau, ‘Islam and Constitutional Development in Pakistan’ (1999) 6 Yearbook of Islamic and Middle Eastern Law 44. 161 The most important of these has been the creation of the Expediency Council (shuraa-ye maslahat). Discussed in Zubaida (n 140) 210-13; Chibli Mallat, The Renewal of Islamic Law: Muhammad Baqer as-Sadr, Najaf, and the Shi’i International (Cambridge University Press, Cambridge 1993) 89-106. 162 See inter alia Asghar Schirazi, The Constitution of Iran: Politics and the State in the Islamic Republic (I.B. Tauris, London 1997); Silvia Tellenbach, Untersuchungen zur Verfassung der Islamischen Republik Iran vom 15. November 1979 (K. Schwarz, Berlin 1985). 163 Maurice J. C. Vile, Constitutionalism and the Separation of Powers (Liberty Fund, Indianapolis 1998); Eli M. Salzberger, ‘A Positive Analysis of the Doctrine of Separation of Powers, or: Why Do We Have an Independent


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simple one, namely that ‘political constitutions are incomplete contracts and therefore leave

room for the abuse of power.’164 By creating conflicts of interests between the various

branches of government but forcing them to agree eventually in the formulation of policy,

greater accountability can be achieved than is possible through intermittent elections, as well

as greatly increasing transparency and information flow.

This dynamic must be harnessed by the constitutional drafter to ensure that the incentive

structures for individual and institutional actors within government produce an outcome that

truly represents the will of the majority of the people, not that of narrow particular interests.

The interplay of individual incentives and public interests has been eloquently summarized by

James Madison’s famous prescription that:

Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State.165

In its fundamental, mechanistic sense, the separation of powers therefore simply ensures that

the rules of the game remain fair, that majorities can change, and that those elected remain

accountable to the electorate; basically ‘that government truly represents the will of the

majority of the people.’166

Judiciary?’ (1993) 13 International Review of Law and Economics 349; Andrew Moravcsik, ‘Reassessing Legitimacy in the European Union’ (2002) 40 Journal of Common Market Studies 603. 164 Torsten Persson, Gerard Roland, and Guido Tabellini, ‘Separation of Powers and Political Accountability’ (1997) 112 The Quarterly Journal of Economics 1163. 165 The Federalist No. 51 in James Madison, Alexander Hamilton, and John Jay, The Federalist Papers (Penguin Classics, London 1987). 166 Issacharoff (n 120) 1863.


29

A somewhat more sophisticated, critical reading, however, sees the doctrine of the separation

of powers as essentially an anti-majoritarian device to protect ‘certain minorities [and their

interests] whose advantages of status, power, and wealth would … probably not be tolerated

indefinitely by a constitutionally untrammeled majority.’167 In recent years one could observe

a growing tendency of moving ever larger policy areas from the realm of competitive politics

into the supposedly neutral adjudication by unelected judges. Hirschl’s views concur largely

with the position expressed several decades earlier by Dahl, stressing the inter-elite consensus

likely to emerge from such a system, often to the detriment of majority interests. Dahl

considers it ‘unlikely to suppose that a court whose members are recruited in the fashion of

the [US] Supreme Court justices would long hold to norms of rights of justice that are

substantially at odds with the rest of the political elite.’168 The picture that emerges is one of

collusion between organized narrow interests against majoritarian interests, a process that is

likewise in evidence at the international level where an unprecedented amount of power is

transferred from representative institutions to judicial bodies.169

But whatever stance we take on the increasing ‘judicialization’ of politics, the general

principle is largely uncontroversial. The separation of legislative, executive, and judicial

powers is a necessary device to avoid usurpation and tyranny by those to whom these powers

are entrusted and remains a ‘basic constitutional principle [as] a necessary precaution, even in

a democracy that periodically elects its own rulers.’170

C. Bridging Division The third justification for constitutional restraints concerns credible minority guarantees and

is perhaps the most pertinent in divided societies. It is crucial to reassure the minority ‘that

167 Robert A. Dahl, A Preface to Democratic Theory (University of Chicago Press, Chicago 1965) 31. 168 Robert A. Dahl, ‘Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker’ (1957) 6 Journal of Public Law 279. 169 Hirschl (n 156) Martin Shapiro and Alec Stone Sweet, On Law, Politics, and Judicialization (Oxford University Press, Oxford 2002); C. Neal Tate and Torbjörn Vallinder, The Global Expansion of Judicial Power (New York University Press, New York 1995); generally less critical of the shift of policy issues to the judiciary are: Alec Stone Sweet, Governing with Judges: Constitutional Politics in Europe (Oxford University Press, Oxford 2000); Joseph H. H. Weiler, The Constitution of Europe :“Do the New Clothes have an Emperor?” and other Essays on European Integration (Cambridge University Press, Cambridge 1999) 188-218; Moravcsik (n 163). 170 For a good explanation and theoretical examination of why this is the case, see Persson, et a, (n 164) 1164 et seq. The precautionary element is stressed by George W. Carey, ‘Separation of Powers and the Madisonian Model: A Reply to the Critics’ (1978) 72 The American Political Science Review 151; Paul E. McGreal, ‘Ambition’s Playground’ (2000) 68 Fordham Law Review 1107.


30

democratic rule would not simply be an invitation to majoritarian retribution [because]

without some formal guarantee of security, power would never be ceded except on the closing

end of a bloody civil war.’171 The importance of these considerations has been dramatically

underscored during the Iraqi constitutional process. The failure to credibly reassure the

formerly dominant Sunni Arab minority that it would continue to enjoy a reasonable position

in the new political edifice has been a major driving force behind the ferocious insurgency

and civil war.172 Likewise, the bloody civil war in several parts of Sudan has been driven in

no small part by the inability and unwillingness of the central institutional structure to protect

the various minorities from abuse by governmental and private interests.173

The protection of rights and freedoms, and the separation of powers are pertinent in any

democratic polity, however homogenous or peaceful. But the challenge of a factionalized

post-conflict society is to create a framework which offers sufficient incentives and secures

enough legitimacy for all parties to engage in a political process with significant legal and/or

physical guarantees as a substitute for violent conflict.174

The principal paradox of constitutional democracy — why a democratic system that

associates legality with representativeness should deliberately choose to ‘pre-commit’175

certain values as beyond the political process to be administered by non-representative

institutions such as an independent judiciary — assumes here an entirely new meaning. The

challenge of divided societies consists of persuading potential ‘spoilers’ that their interests

will be taken care of in the democratic process, precisely by keeping certain core interests

outside the scope of the normal democratic political process and guaranteeing these in

advance through an inter-elite covenant. Whether this original covenant is written or

unwritten,176 two basic theoretical approaches are possible: consociationalism, or

constitutionalism.

171 Issacharoff (n 120) 1876. 172 Ahmed S. Hashim, Iraq’s Sunni Insurgency, Adelphi Paper 402 (International Institute of Strategic Studies, London 2009); Robert I. Rotberg, ‘Book Review’ (2005) 120 Political Science Quarterly 133. 173 Deng (n 4). 174 Issacharoff (n 120) 1863-70. 175 Stephen Holmes, ‘Precommitment and the Paradox of Democracy’ in Jon Elster and Rune Slagstad (eds), Constitutionalism and Democracy (Cambridge University Press, Cambridge 1988). 176 As in the Lebanese agreement of 1943.


31

In both cases legal restrictions provide the basis for reconstituting society, especially during

the transition towards democracy.177 In deeply divided societies the original covenant

provides a roadmap for the practical distribution of assets and influence. But apart from

mutual security reassurance, the constitutional pact confers legitimacy to the political process

and its outcome by dampening animosities between the antagonistic societal groups.178 The

legal restrictions on the exercise of power become in this respect as important as the mere

distribution of power between different groups; legal provisions assume thus ‘an

extraordinary constituting role’ in the stabilization of the democratic political process and the

transition to a stable and peaceful post-conflict order.179

VIII. Consociationalism Initially, democracy was thought impossible in fractured societies due to the absence of a

political community with sufficiently strong bonds of loyalty and reciprocity: ‘Free

institutions are next to impossible in a country made up of different nationalities. Among a

people without fellow-feeling, especially if they read and speak different languages, the

united public opinion, necessary to the working of representative government, cannot

exist.’180 This perceived necessity of a reasonably homogenous demos continues to be a

sharply contested issue.181 It is uncontroversial that effective administrative and representative

institutions are easier to install in ethnically and linguistically homogenous polities. Popular

comparisons between post-war reconstruction efforts in Afghanistan and Iraq vis-à-vis

Germany and Japan are for a number of reasons largely vacuous, not least due to the ethnic

homogeneity and long state traditions of the latter as compared to the shallow patina of

statehood placed over a highly fractured society in the former. Katz strongly rejects such

inappropriate comparisons: ‘Are Afghanistan and Iraq as nations anything like Germany and

Japan? Is the situation in which the United States finds itself in Afghanistan and Iraq in any

177 Issacharoff (n 120) 1863. 178 Donald L. Horowitz, Ethnic Groups in Conflict (University of California Press, Los Angeles California 1985); Horowitz (n 124). 179 Ruti Teitel, ‘Transitional Jurisprudence: The Role of Law in Political Transformation’ (1997) 106 Yale LJ 2008 2011. 180 John Stuart Mill, On Liberty and Considerations on Representative Government (Basil Blackwell, Oxford 1947) 292. 181 Not least with regard to the alleged ‘democracy deficit’ in the European Union. See for instance the debate between Weiler and Mancini, G. Federico Mancini, ‘Europe: The Case for Statehood’ (1998) 4 ELJ 29, 41; Joseph H. H. Weiler, ‘Europe: The Case against Statehood’ (1998) 4 ELJ 29, 49 at 55; Deirdre M. Curtin, Postnational Democracy - The European Union in Search of a Political Philosophy (University of Utrecht, Utrecht 1997) 3, 62.


32

way comparable? I do not see how a knowledgeable person could think so.’182 Likewise,

Kurth: ‘it strains credulity that anyone would argue that the most relevant comparison to Iraq

were the homogenous nations of West Germany and Japan in the 1940s.’183

Nevertheless, a number of deeply divided societies have managed to achieve significant

political stability with high degrees of representativeness, as well as good levels of economic

performance. Lijphart developed the concept of the consociational elite consensus to account

for the paradox of the fractured, yet democratic and stable societies of Austria, Holland,

Switzerland and Belgium. Its defining characteristics are:

… (1) government by a grand coalition of all significant segments; (2) a mutual veto or concurrent-majority voting rule for some or all issues; (3) proportionality as the principle for allocating political representation, public funds, and civil service positions; (4) considerable autonomy for various segments of the society to govern their internal affairs.184 (emphasis added)

The consociational principle, thus, allocates power across competing interests independent of

the political process, with a strong emphasis on consensual decision-making procedures.185

Elections do not affect the overall distribution of power among various societal groups, but

only the representations within each group as political offices are allocated to particular

groups beforehand. Such formal power-sharing arrangements are premised on the assumption

that in deeply divided societies elections can be little more than an ‘ethnic census.’186

Consociational arrangements have been deployed with varying degrees of success for instance

in Sri Lanka,187 Cyprus,188 Bosnia,189 or, most prominently, Lebanon.190 There has been

182 Stanley N. Katz, ‘Gun Barrel Democracy? Democratic Constitutionalism Following Military Occupation: Reflections on the U.S. Experience in Japan, Germany, Afghanistan and Iraq, Princeton Law and Public Affairs Working Paper No. 04-010’ (2004) Princeton Law and Public Affairs Working Paper Series at 13-18, especially 15-16. 183 Kurth (n 35) 310. 184 Arend Lijphart, Democracy in Plural Societies: A Comparative Exploration (Yale University Press, New Haven 1977) 25. 185 Rudy B. Andeweg, ‘Consociational Democracy’ (2000) 3 Annual Review of Political Science 509; Steven I. Wilkinson, ‘Conditionality, Consociationalism and Ethnic Conflict Moderation’ (Paper presented at the Conference on ‘From Power-Sharing to Democracy: Post- Conflict Institutions in Ethnically Divided Societies,’ University of Western Ontario, November 8-10, 2002, 2002). 186 Mansfield/Snyder, ‘Prone to violence’ (n 99); Zakaria (n 103) 35. 187 Hushang E. Chehabi, ‘The Absence of Consociationalism in Sri Lanka’ (1980) 11 Plural Societies 55. 188 Lijphart (n 132) 184; Lijphart (n 184) 158-61; A. Jarstad, Changing the Game: Consociational Theory and Ethnic Quotas in Cyprus and New Zealand (Dept. of Peace and Conflict Research, Uppsala University, Uppsala 2001). 189 Issacharoff (n 120) 1883-91; Florian Bieber, ‘Consociationalism: Prerequisite or Hurdle for Democratisation in Bosnia? The Case of Belgium as a Possible Example’ (1999) 2 South East Europe Review 79; Sherrill Stroschein, ‘What Belgium Can Teach Bosnia: The Uses of Autonomy in ‘Divided House’ States’ (2003) 3 Journal on Ethnopolitics and Minority Issues in Europe 1.


33

intense controversy about the ability of consociationalism to deliver on the promised stability

outside the European context with its relatively muted factional conflicts.191

Whether a negotiated settlement can actually overcome the divisions within a highly fractured

society is a matter of some dispute. The historical record is not very optimistic in this regard

and seems to indicate that ‘stable civilian governance is most likely to emerge from post-

conflict societies when one ethnic group has accomplished clear dominance or destruction of

the other.’192 The greater stability of military victories over negotiated outcomes193 has led

some commentators to suggest that international mediation efforts are inherently futile and

instead one should ‘give war a chance,’194 i.e. allow civil wars to reach their ‘natural’

conclusion where either one group is clearly dominant or segregation leads to ethnically

homogenous parts being formed.

Be this as it may, negotiated outcomes cannot provide stability in defiance of factual realities

on the ground. One problem of consociationalism has been its inability to deal with societal

change, reflecting either normative or demographic changes.195 Once the conditions that give

rise to the original inter-elite covenant change, consociational arrangements are very difficult

to alter precisely for the reasons that guarantee their stability when functioning as intended:

their consensual orientation and relative isolation from democratic pressures.

These very features of consociationalism are, furthermore, fairly costly even in periods of

normal operation. Because stability and inter-factional compromise are its paramount aims,

competing values are habitually downplayed, not least equality and efficiency. Thus,

consociational arrangements are often plagued by a host of endemic practical and normative

problems, such as inequality of political and economic opportunity, legal inequality,

corruption, inefficiency of decision-making, institutional duplication, severe limitation on

190 Richard Hrair Dekmejian, ‘Consociational Democracy in Crisis: The Case of Lebanon’ (1978) 10 CP 251; A. Ziegfeld, ‘The Limitations of Confessional Consociationalism in Lebanon’ (2002) 28 World Outlook – Dartmouth College 49; Joseph G. Jabbra and Nancy W. Jabbra, ‘Consociational Democracy in Lebanon: A Flawed System of Governance’ (2001) 17 Perspectives on Global Development and Technology 71. 191 Horowitz, Ethnic Groups in Conflict (n 178) 568-76. 192 Issacharoff (n 120) 1867. 193 Roy Licklider, ‘The Consequences of Negotiated Settlements in Civil Wars, 1945-1993’ (1995) 89 APSR 681, 686. 194 Edward N. Luttwak, ‘Give War a Chance’ (1999) 4 Foreign Affairs 36. 195 Dekmejian (n 190).


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electoral choice, the perpetuation of factional identities and attendant centrifugal

tendencies.196

Overall, thus, pure consociationalism has been a relatively crude political instrument for

addressing the particular problems of divided societies.197 Increasingly, more sophisticated

constitutional arrangements seek to achieve the key objective of post-conflict nation-

building,198 namely the creation of an integrated political authority that can command loyalty

and legitimacy beyond ethnic appeals, through the use of constitutional authority as a means

of diffusing ethnic or racial tensions.199

IX. Constitutionalism The main difference between the two approaches concerns primarily the nature of the

restrictions laid down in the original covenant, i.e. whether power itself is distributed a priori

and outside the political process, or whether the exercise of power is strictly regulated

according to a pre-arranged normative agreement. Constitutionalism is thus based on the

recognition that constitutional stipulations offer a much larger tool box for community-

reinforcing measures than the mere pro-rate distribution of perks and power found in

consociationalism. Closely linked is the extraordinary expansion of judicial review of the

various branches of government, including legislative acts traditionally held to be exclusively

within the purview of the sovereign power of Parliament.200

In deciding the limits of majoritarian prerogatives, constitutional courts have generally

refrained from a Dworkian ‘moral reading of the constitution,’201 relying more on ‘pragmatic

adjudication’ by asking which constitutional values are most conducive to the attainment of

stable democratic governance, i.e. showing ‘a disposition to ground policy judgments on facts

196 Diamond (n 39) 154-59. 197 The Ṭā’if Accord which ended the civil war in Lebanon resurrects the basic features of the consociational pact while attempting to provide for the gradual elimination of political confessionalism. See inter alia Michael C. Hudson, ‘Trying Again: Power-Sharing in Post-Civil War Lebanon’ (1997) 2 International Negotiation 103; Jabbra and Jabbra (n 190); Theodor Hanf, John Richardson (tr), Coexistence in Wartime Lebanon: Decline of a State and Rise of a Nation (I.B. Tauris / The Centre for Lebanese Studies, London 1993). 198 See also Michael W. Doyle and Nicholas Sambanis, ‘International Peacebuilding: A Theoretical and Quantitative Analysis’ (2000) 94 APSR 779. 199 Issacharoff (n 120) 1867. 200 James L. Gibson and Gregory A. Caldeira, ‘Defenders of Democracy? Legitimacy, Popular Acceptance, and the South African Constitutional Court’ (2003) 65 Journal of Politics 1. 201 Ronald Dworkin, Freedom’s Law: The Moral Reading of the Constitution (Harvard University Press, Cambridge, Mass. 1996) 75.


35

and consequences rather than on conceptualisms and generalities.’202 It appears questionable

whether anything but a pragmatic approach by judicial institutions could in the long run

ensure the continued acceptance of constitutional constraints which are likely to be eventually

identified by democratic majorities ‘for what they in fact are: antidemocratic devices.’203

As pointed out above, consociational arrangements are relatively easy to conclude, but often

do not conform to normative standards of democracy and legal equality. They are also fairly

cumbersome tools of political administration, and deal badly with societal change and are

thus likely to give rise to renewed conflict to adjust the system to such changes. Robust

constitutionalism attempts to assuage minority concerns not through formal power-sharing,

but through an inter-elite consensus on basic normative principles which are to be kept

outside the sphere of majoritarian politics, to be administered by an independent judiciary

(often in the form of a constitutional court) whose composition again is not subject to

majoritarian control. Such arrangements are normatively more satisfying as they avoid the

institutionalized perpetuation of sectarian identities, but require much higher procedural and

substantial standards of legitimacy, thus requiring much more institutional ‘depth’ and

bureaucratic capability.

Its essence, a justiciable constitution, requires not only a universal commitment by all

political actors to an agreed normative canon, but also a judiciary able, independent, and

legitimate enough to be entrusted the task of deciding fundamental questions of immediate

political relevancy, often against the wishes of the majority. The normative canon204 to be

agreed among all the political actors must contain strong anti-majoritarian elements

(individual and group rights protection;205 inter-agency and federal checks and balances;206

202 Richard A. Posner, Law, Pragmatism and Democracy (Harvard University Press, Cambridge, Mass. 2003) 59, 57-96. 203 Issacharoff (n 120) 1869. 204 Siri Gloppen, South Africa: The Battle over the Constitution (Aldershot, Ashgate/ DartmouthPublisher, 1997) 199; Issacharoff (n 120) 1875. The following examples are taken from the South African experience where 34 Principles were enshrined in the 1993 Interim Constitution. Importantly, the final constitution could not be adopted unless held to be in accordance with these Principles by the independent constitutional court established as part of the interim arrangements. 205 Principle V (equality before the law). 206 Principle VI (separation of powers); Principle VII (independent judiciary); Principle VIII (requirement of multi-party legislature and representative government based on proportional representation); Principle X (requirement of formal law-making); Principle XXVI (guarantee of an ‘equitable share’ of national resources for provinces and local governments); Principle XXIX (independent Public Service Commission and Reserve Bank).


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supermajority requirements207 for particularly important issues, such as constitutional

amendments, which amounts to a de facto minority veto).

But legitimacy, crucially, derives from the implementation of these norms into the final

constitutions by democratically legitimated representatives and subsequent democratic

ratification. The dilemma of assuaging minority concerns, necessary for a peaceful transition,

through an elite-brokered normative commitment while simultaneously adhering to

democratic norms of majority rule requires a carefully orchestrated transition period. The

South African Constitutional Court describes the solution to the dilemma as follows:

In essence the settlement was quite simple. Instead of an outright transmission of power from the old order to the new, there would be a programmed two-stage transition. An interim government, established and functioning under an interim constitution agreed to by the negotiating parties [who had no democratic claim to the requisite mandate from the electorate], would govern the country on a coalition basis while a final constitution was being drafted. A national legislature, elected (directly and indirectly) by universal suffrage, would double as the constitution-making body and would draft the new constitution within a given time. But – and herein lies the key to the resolution of the deadlock — that text would have to comply with certain guidelines agreed upon in advance by the negotiating parties. What is more, an independent arbiter would have to ascertain and declare whether the constitution indeed complied with the guidelines before it could come into force.208

Constitutionalism can thus be seen as a rejection of the stifling formal power-sharing and the

institutionalization of legal distinctions between citizens characteristic of consociational

arrangements. Due to the greater ease with which consociational power-sharing can be

achieved, however, it may be a highly useful tool during an interim transitional phase. While

more difficult to achieve, the final constitutionalist system is likely to enjoy much greater

degrees of political legitimacy and thus be much more stable than one based on a negotiated

inter-elite bargain.209 Recent proliferation of the latter approach is in no small part the result

of growing legal sophistication and greater international willingness to apply the findings of

comparative constitutional law to the challenge of societal stabilization through appropriate

transitional mechanisms.210

207 Principle XVIII (constitutional amendments require two-third majority in national assembly plus a majority of provincial legislatures) 208 In re. Certification of the Constitution of the Republic of South Africa, 1996 (4) SALR 744, 779 (CC)(S.Afr.). 209 Donald L. Horowitz, A Democratic South Africa? Constitutional Engineering in a Divided Society (1991) 97-98. 210 Issacharoff (n 120) 1865, 1870.


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X. Models of Constitution-Making Apart from the indirect democratic legitimacy derived from the election of the drafters and

the subsequent ratification of the final product, there is an emerging new model of democratic

constitution-making which stresses direct public participation in the process. In much of the

developing world constitutional thinking continues to follow the traditional ‘Lancaster

model’, named after Lancaster House in London where indigenous elites negotiated with the

British colonial power the terms of independence. The ensuing bargain is then laid down in a

constitutional document closely modeled on that of ‘mother country,’ often maintaining close

institutional connections between the two entities.211 A similar approach could be termed the

‘Missouri or McArthur model,’ namely the imposition of a constitution by occupational fiat

as in the case of the Japanese constitution which saw virtually no Japanese input but was

drafted by General McArthur’s handlers in English and subsequently translated into

Japanese.212 This was the approach favored by the US administration which before the

invasion ‘envisioned the new Iraqi constitution as a state-of-the-art document largely written

by experts and bestowed on the country after a long period of occupation.’213

A. The Importance of Public Participation It is questionable whether this approach has survived the rise of norms of democratic

participation so closely interlinked today with normative claims of self-determination.214

Clearly, elites continue to be important in the process of negotiating an end to violence and

drafting the terms of the constitutional covenant. But there needs to be a balance between elite

211 Hasani Claxton, ‘Land and Liberation: Lessons from the Creation of Effective Land Reform Policy in South Africa’ (2003) 8 Michigan Journal of Race and Law 529, 538-539; H. W. O. Okoth-Ogendo, ‘The Politics of Constitutional Change in Kenya since Independence’ (1972) 71 African Affairs 9; M. Ndulo, ‘Constitution-making in Africa: Assessing both the Process and the Content’ (2001) 21 Public Administration and Development 101; Bereket H. Selassie, ‘Creating a Constitution for Eritrea’ (1998) 9 Journal of Democracy 164. 212 Ian Buruma, Inventing Japan, 1853-1964 (Modern Library, New York 2003); Kyoko Inoue, MacArthur’s Japanese Constitution: A Linguistic and Cultural Study of its Making (University of Chicago Press, Chicago 1991); Dale M. Hellegers, We, the Japanese People: World War II and the Origins of the Japanese Constitution (Stanford University Press, Stanford, CA 2002); Yasuhiro Okudaira, ‘Forty Years of the Constitution and Its Various Influences: Japanese, American, and European’ (1990) 53 L & Contemp Probs 17 213 Marina Ottaway, ‘An Effective Iraqi Constitution Cannot Be Imposed By Fiat’ (2004) The Chronicle of Higher Education (Washington 20 February 2004) 214 Marc Weller and Stefan Wolff, Autonomy, Self-governance and conflict Resolution Innovative Approaches to Institutional Design in Divided Docieties (Routledge, London 2005); Mark Warren, ‘Democratic Theory and Self-Transformation’ (1992) 86 The American Political Science Review 8; Hurst Hannum, Autonomy, Sovereignty, and Self-Determination: The Accommodation of Conflicting Rights (University of Pennsylvania Press, Philadelphia, PA 1996); Karen Knop, Diversity and Self-Determination in International Law (Cambridge University Press, Cambridge 2002); Christian Tomuschat (ed), Modern Law of Self-Determination (Martinus Nijhoff, The Hague 1993).


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pact-making and the participation of the population.215 The role of international experts in this

respect is often over-stated along a conceptual model oriented on the Lancaster model. While

there is a clear need for external expertise, particularly regarding the application of innovative

concepts derived from comparative constitutional legal scholarship, there must be a clear

recognition that the suspicion about foreigners trying to impose a constitution on a new nation

is real and likely to engender resistance.216 This suspicion is heightened by the unhappy

legacy of most post-colonial constitutions which quickly degenerated into autocratic rule,217

as well as concerns about cultural and religious distinctiveness, particularly in Islamic

nations.218

Some have argued that democratic sovereignty entails the right of the community to deviate

from the standard canon of constitutional rights: “Democratic constitutionalism holds that

constitutional law, fundamental law, is still political and should be democratically self-given,

and … that peoples can differ even on matters of fundamental rights.”219 Whichever position

one takes on the perceived legitimacy of such claims to cultural or religious specificity, the

evolving theoretical and empirical consensus seems to be that without some meaningful

public participation and consultation already at the drafting stage,220 constitutional processes

are unlikely to acquire the kind of democratic legitimacy and ‘ownership’ necessary for a

stable post-conflict order: ‘[O]ne of the reasons why, particularly in post-conflict countries,

there is so much emphasis on this idea of legitimacy is the hope that along with the legitimacy

will also come stability.’221 Often the process of civic education about the constitutional

process is given to a constitutional commission222 which combines the dual task of soliciting

technical expertise and fostering an inter-elite pact, as well as ensuring public participation.223

215 Louis Aucoin in Lauth, et al (n 1) 175-76. 216 Louis Aucoin in Lauth, et al (n 1) 174. 217 Louis Aucoin, ‘The Role of International Experts in Constitution-Making: Myth and Reality’ (2004) 5 Georgetown Journal of International Affairs no pagination. 218 Afsah (n 44) 266-70. 219 Jed Reubenfeld in Jed Reubenfeld and Anne-Marie Slaughter, ‘Is International Law a Threat to Democracy?, Debate at the Council of Foreign Relations, 27 February 2004’ (2004) <http://www.cfr.org/publication.html?id=6829> accessed 14 April 2009. 220 On the role of public participation in the Afghan constitutional process, supported by UNAMA, see Afsah and Guhr (n 7) 425-27. 221 Louis Aucoin in Lauth, et al (n 1) 180. 222 Giovanni M. Carbone, ‘Constitutional Alternatives for the Regulation of Ethnic Politics? Institution-building Principles in Uganda’s and South Africa’s Transitions’ (2001) 19 Journal of Contemporary African Studies 229. 223 S/RES/1546 (2004) of 8 June 2004, op. para. 7 (a) (i), (ii), and (iii).


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B. Act of Completion or Constitutional Practice Closely linked is the concern about a functional as opposed to an idealist reified notion of

constitutionalism as ‘a dynamic, political process, rather than a fixed mode of distributing

power, rights, and duties.’224 Put differently, the terms of the constitutional covenant are less

important than collective behavior conforming to its tenets: ‘Our constitution is (what is

relatively stable in) our activity; a stranger learns its principles by watching our conduct.’225

Rather than the structural features of a fixed constitutional document, the functional view thus

emphasizes social reality,226 i.e. the practice of constitutionalism as something to be achieved

and commonly learned,227 not something that can merely be announced by an elite in final

documentary form. With regard to Africa the issue has been aptly summarized as something

to be achieved, not announced:

The paradox lies in the simultaneous existence of what appears as a clear commitment by African political elites to the idea of the constitution and an equally clear rejection of the classical or at any rate liberal democratic notion of constitutionalism. … The process of constitution making … cannot be regarded as a simple reproduction of some basic principles that particular societies may have found operational. … The political history of many societies is replete with struggles for an optimal balance between the few on whom constitutions confer power and the vast majority for whose benefit it is supposed to be exercised. What is clear is that in no society has that balance been achieved through the promulgation of a constitution per se.228 (emphasis omitted and different emphasis added)

The traditional model of an ‘act of completion,’ the constitution as a final settlement or social

contract is contrasted by Hart to the modern process-oriented ‘conversational model’ where

publics claim a right not only to political participation but also in the formulation of the

foundational norms that govern it. This argument is partly premised on the emerging right to

democratic governance229 which subsequently came to include a right to participate in

constitutional processes. Two pronouncements by the UN Human Rights Committee

explicitly interpret Art. 25 in this light: ‘Citizens also participate directly in the conduct of

public affairs when they choose or change their constitution.’230 And likewise: ‘At issue in the

224 Douglas Greenberg, et al. (eds), Constitutionalism and Democracy: Transitions in the Contemporary World (Oxford University Press, New York 1993) xix. 225 Hanna F. Pitkin, ‘The Idea of a Constitution’ (1987) 37 Journal of Legal Education 167. 226 Greenberg, et al (n 224) xvii. 227 See the definition in Stanley N. Katz, Constitutionalism in East Central Europe: Some Negative Lessons from the American Experience (Berghan Books, Providence, RI 1994) 14. 228 H. W. O. Okoth-Ogendo, ‘Africa’ in Douglas Greenberg, et al. (n 224) 66, 67, 79-80. 229 Initially focused mainly on electoral processes, see Fox and Roth (n 41). 230 Human Rights Committee, General Comment on Article 25 of the ICCPR, the right to participation, issued on 12 July 1996.


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present case is whether the constitutional conferences constituted a ‘conduct of public affairs’

[within the meaning of Art. 25] … [and] the committee cannot but conclude that they do

indeed constitute a conduct of public affairs.’231 In addition, the right to participate in the

formulation of foundational norms has important bearings on the legitimacy, and thus

effectiveness and stability of the resulting constitutional order:

We used to think of a constitution as a contract, negotiated by appropriate representatives, concluded, signed, and observed. The constitution of new constitutionalism is, in contrast, a conversation, conducted by all concerned, open to new entrants and issues, seeking a workable formula that will be sustainable rather than assuredly stable. It is in such an environment of conversational constitutionalism that the issue (startling to some traditionalists) of a right to participate in making a constitution has arisen. The idea is hotly contested by those who argue that only elites in modern societies possess the moderation, technical expertise, negotiation skills, ability to maintain confidentiality, and above all rational incentives to compromise so as to maintain power that make for effective constitution making. But it is hard to argue against democracy. The elite-made constitution, according to the new paradigm, will lack the crucial cultural element of legitimacy. It will do so because the process, not just the final text, is seen as flawed.232 (emphasis added)

The South African Constitution of 1996 is widely regarded as a model, not only for its

innovative content, but especially due to the highly inclusionary nature of the process by

which it came about. The careful two-phased structure of that process, the long time allowed

for its completion, the combination of confidential inter-elite negotiations with carefully

timed broad participation after necessary assurances had been given to minority interests, and

the carefully built up trust between all participants, all attest to the inherent difficulty of

participatory constitution-making, which, however, is ‘critical to the strength, acceptability,

and legitimacy of the final product.’233

XI. Conclusion The establishment of a stable political community that is not inordinately dependent on

repressive violence rests ultimately on the voluntary acceptance by the populace of the given

institutional order as legitimate. This crucial link between legitimacy and stability has been

repeatedly stressed in the literature reviewed above. Increasingly, legitimacy is becoming tied 231 Individual complaint under Optional Protocol I to the ICCPR Marshal v. Canada, Human Rights Committee, CCPR/C/43/D/205/1986, 3 December 1991. 232 Vivien Hart, Democratic Constitution Making, USIP Special Report No 107 (United States Institute of Peace, Washington, DC 2003) 3. 233 Ibid 7-8, 12.


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to norms of democratic participation. But as we have argued, the commitment to majoritarian

decision-making which lies at the heart of democracy will in and of itself not necessarily yield

a stable polity without a modicum of liberalism. This in turn depends on a functioning

institutional structure and learned behavioral patterns of compromise and legality. Effectively

contested elections are thus a necessary, but by no means sufficient element of a functioning

democracy. Furthermore, in the context of immature political institutions elections have the

potential to polarize and further deepen existing societal divisions.

Particularly in fractionalized post-conflict societies elections can thus have a nefarious impact

which needs to be actively countered through appropriate checks on the exercise of

majoritarian power in order to reassure minority interests and include them in the political

process. In its most basic meaning, the constitutional compact is therefore little more than the

solemn promise by all actors to forego the use of violence as a means of securing their

interests and instead contest peacefully for power and resources within agreed normative

limits. At the heart of the constitutional compact thus lies the commitment by all societal

actors towards a political community ‘in which there is real assurance that the members of

that community will not fight each other physically but will settle their disputes in some other

way’234 In order for this compact to withstand centrifugal pressures and discourage the

potential recourse to violence, it must embody an reasonably fair distribution of power and

resources and credible guarantees against potential abuse.

Whether such guarantees take consociational or constitutional forms, or a mixture between

the two is less relevant than the behavioral patterns that underlie them. Process is in this

respect at least as important as the substance of constitutional provisions, and this importantly

extends already to the drafting stage. The idea of a constitution as ‘an act of completion,’235

i.e. the manifestation of an elite consensus that aims at resolving the sources of conflict once

and for all no longer seems adequate, neither analytically nor policy-wise. There are too many

dead-letter constitutions whose stipulations are not translated into constitutional practice

because the institutional and cultural prerequisites do not exist. Culture in this context is to be

understood as simply a set of recurring behavioral patterns. Stressing human agency, it is

underlined that behavior is learnable and dependent on the institutional structure in which

234 Karl W. Deutsch, Political Community and the North Atlantic Area (Princeton University Press, Princeton, N.J. 1957) 5, emphasis added. 235 Hart (n 232).


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group interaction takes place. It is thus distinct from the culturalist claims by some authors

who ascribe primordial, unalterable normative values and behavioral patterns to groups solely

on the basis of their shared affiliation to pre-existing religious or ethnic identities.

But while societal behavior is eminently malleable and by no means predetermined by that

society’s religious or ethnic designation, we need to be equally clear that the mere stipulation

of certain norms or behavioral traits in a constitutional document will not be sufficient to

effect change. Democratic practice and the actual experience of having one’s interests

secured through the non-violent, predictable, and equitable workings of institutions is crucial

for the learning of participatory behavior and the acceptance of democratic norms. In this

respect, far too much emphasis has been placed in popular and academic discourse on the

alleged incompatibility of religious norms with abstract definitions of democracy. Certainly,

constitutions always express the normative aspirations and conception of the good life in a

given society and such conceptions can show great variance across different nations.

But at a much more fundamental level, a constitution is primarily a set of rules about how

power is apportioned, how conflicts over interests are to be carried out, how individual and

group autonomy is to be protected. These rules of the game can and should be analyzed

neutrally and objectively to assess their impact on the, potentially malfunctioning, political

machinery. The strains from a maladjusted institutional machinery can ultimately derail the

constitutional edifice, leading to a resumption of fractional violence and possibly

disintegration. Often these strains are predictable, particularly when the existential interests of

some groups have clearly not been taken into consideration, leaving them no incentive to

remain within the political framework erected by the constitutional compact.

This has largely been the result of the Iraqi constitutional process where basic notions of

equity, participation, and consensus-building have been disregarded. The ominous result has

been mounting sectarian violence leading possibly to the disintegration of the country in a

bloody civil war. Whatever has been learned in the constitutional debates of a number of post-

conflict societies during the last two decades236 seemed to have been disregarded in that

236 United States Institute of Peace, Iraq’s Constitutional Process - Shaping a Vision for the Country’s Future, USIP Special Report No. 132 (United States Institute of Peace, Washington, DC 2005).


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process. Its failure should caution decision-makers towards a more circumspect handling of as

delicate a process as the negotiations of a founding constitutional pact.

Documents

Week 1 - Compulsory text (Ebrahim Afsah; Constitution-Making in Islamic Countries – A Theoretical Framework)