Comparative Constitution Making
Show Less

Comparative Constitution Making

Edited by David Landau and Hanna Lerner

Recent years have witnessed an explosion of new research on constitution making. Comparative Constitution Making provides an up-to-date overview of this rapidly expanding field.
Buy Book in Print
Show Summary Details
You do not have access to this content

Chapter 9: Making constitutions in deeply divided places: maxims for constitutional advisors

Brendan O’Leary


Though there is no precise legal or political science of constitutional engineering, maxims are articulated here regarding constitution making for deeply divided places, constitutional drafting, and about constitutional advisors themselves. Constitutional settlements for deeply divided places may take a long time, and yet are likely to have short lives, even if they are comprehensive, inclusive, and have widespread support at their inception. Governments without formal constitutions cannot make credible bargains, but constitutions cannot guarantee settlements. When they are negotiated, they rarely start with blank pages. They are layered with norms and expectations from previous settlements, whether ratified or implemented, or otherwise. Therefore, advisors are unlikely to be useful until immersed in the drafting histories of previous negotiating successes, and failures. Constitution makers will not be guided by statistically informed legal and social science. Advocates of locally novel institutions and practices are better off citing examples from places locally admired, or visibly flourishing (if only in comparison to their recent past). Advisors should be wary of an obsessive focus on process in the making of constitutions: after all the goal is the end-product, a workable constitution for a deeply divided place, and that should guide strategy and tactics on process (though process sometimes shapes outcomes). Agents making constitutions assume (often wrongly) that advisors will follow the system of their countries of origin, or their interests, or both. In fact, international constitutional advisors have a distinctive reformist bias. They are prone to promote abroad the reforms they believe their home system requires. Lastly, there is a limited repertoire of grand strategies available to the ethical constitutional advisor working in a deeply divided place, committed to standard human rights protections, and well disposed toward representative government.

You are not authenticated to view the full text of this chapter or article.

Elgaronline requires a subscription or purchase to access the full text of books or journals. Please login through your library system or with your personal username and password on the homepage.

Non-subscribers can freely search the site, view abstracts/ extracts and download selected front matter and introductory chapters for personal use.

Your library may not have purchased all subject areas. If you are authenticated and think you should have access to this title, please contact your librarian.

Further information

or login to access all content.