The chapter tackles the special case of judicial review in divided societies, where judges are required to interpret the constitution in the context of ongoing public, political, and constitutional debates on the vision of the state. While empowered judiciaries are expected to serve as chief protectors of constitutionalism and liberalism, in divided societies they often face foundational controversies left unresolved by the constitutional drafters. Under such circumstances, courts’ involvement may intensify rather than mitigate identity conflicts. Drawing on the experience of India, Israel, and Tunisia, the chapter analyzes the risks and opportunities involved in constitutional drafting and constitutional interpretation in deeply divided societies, arguing that under conditions of foundational disagreements over the basic norms and values that should underpin the state, judicial intervention in controversial issues may generate a harsh political backlash and weaken the court’s legitimacy as a political neutral defender of democratic procedures.
Hanna Lerner and David Landau
This introduction to the Elgar Handbook of Comparative Constitution Making briefly lays out some of the most important recent debates in a burgeoning field. Part 1 defines constitution making and explores recent literature on why it is carried out. Part 2 considers recent work on the relationship between constitution making and “the people,” focusing on the theory of constituent power and its potential competitors. Part 3 looks at academic literature on the design of constitution making processes, focusing on three hotly-debated dimensions: the nature of the drafting body, forms of popular participation, and the role of courts. Part 4 considers the state of the art on the question of how constitution making might ameliorate or exacerbate various kinds of division, while Part 5 looks at the ways in which globalization and diffusion are impacting practices of constitution making, and the underlying question of convergence or divergence of constitution making models. Finally, Part 6 provides a map for the 25 substantive chapters that make up the rest of the handbook.
Aslı Ü. Bali and Hanna Lerner
The chapter reviews some of the key questions that arise in constitution-writing concerning the relationship of state and religion, including in religiously-divided societies. We begin by addressing the question of why the regulation of religion-state relations in constitutions presents a distinctive set of issues worthy of study. While religiously-divided societies have received comparatively less scholarly attention, compared with ethnically-divided societies, there is a growing agreement that the issues raised by religious divisions may require distinct strategies in terms of institutional design and other potential strategies. Second, we analyze the differences between constitutional debates that occur under two distinct types of religious divisions - inter-religious divisions between different religious groups and intra-religious divisions between more conservative and more liberal members of the same religion. We discuss the different sets of constitutional tools that constitutional drafters have developed in addressing the two types of religious divisions and the conflicts they engender. Finally, we turn to canvassing some of the constitutional design tools that have emerged from cases outside of the western context where religion is a central axis of constitutional debate. The growing comparative work on constitution making in societies marked by religious conflict reveals a variety of constitutional strategies, which we have divided into three categories, each with its own advantages and limitations: (A) institutional solutions such as federalism, special groups rights, power sharing or other institutional design tools which often applied in the context of inter-religious tensions, (B) incrementalist strategies including avoidance, ambiguity, deferral and nonjusticiability which are often used by drafters to address intra-religious conflicts, and (C) legal pluralism, which even if not formally entrenched in written constitutions, may be regarded as an essential constitutional strategy for both inter- and intra-religious conflicts.