CONSTDEMID · We the divided people: Constitutions, Democracy and identity conflicts

Final Activity Report Summary - CONSTDEMID (We the Divided People: Constitutions, Democracy and Identity Conflicts)

The objective of the research was to develop a new theoretical paradigm for the understanding of the relations between constitutions and identity, through a comparative study of several processes of constitution making in context of internal struggle over the identity of the state. How can a constitution be created in the absence of societal consensus on the norms and values of the state? The challenge of crafting a democratic constitution in a polity that is still grappling with its collective definition was the central question of the project. This issue is a matter of great importance for peace-making and stabilization of post-conflict and deeply divided societies. In recent years constitutions have become a leading tool for mitigating conflicts and promoting democracy in divided societies. However, under conditions of deep internal disagreement, enacting a formal constitution is a high-stakes game that can undermine political stability and derail democratisation. This has recently been the case in countries such as Iraq and Afghanistan, where the debate over the constitution revealed deep divisions among the framers with regard to foundational norms and values that should underpin the state. In my book Making Constitutions in Deeply Divided Societies, which resulted from the project (forthcoming at Cambridge University Press) I argue that when a society is riven by deep internal disagreements over the nature of the state-to-be, an incrementalist, evolutionary approach to constitution drafting may work. The book shows how the drafters in deeply divided societies such as India, Ireland and Israel deployed various incrementalist strategies in order to circumvent the potentially explosive conflicts that were present at the time of independence. These constitutional strategies included avoiding clear-cut decisions, using ambiguous legal language, and inserting internally contradictory provisions in the constitution. Thus, while most exiting theories discuss constitution-making in the context of a moment of revolutionary change, I argue in the book that by deferring controversial choices to a future date, the incrementalist approach to constitution-making enables deeply divided societies to enact a formal democratic constitution or to function with a material, unwritten, constitution. The applicability of the incrementalist approach to constitution making in other deeply divided societies was examined through additional comparative research which included the cases of Israel, Turkey, Indonesia, Bosnia, and the European Union. The second phase of the researched focused on identity conflicts along religious lines, particularly around issues of religion and state, and examined in a series of articles the advantages and disadvantages of the incrementalist approach to constitution writing. While this approach may facilitate political stability and democratic consolidation in the early years of the state, applying in to the area of religion may generate risks which undermine democracy in the long run, for example through the infringement of basic rights or the escalation of the institutional tension between judiciary and legislature.

Data: CORDIS, © European Union