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Mapping the Constitutional Process

Lorianne Updike Toler

Keywords: Constitutional Drafting; Comparative Constitutionalism; Constitutional History; Libya Constitution; Constitutional Process

It is generally accepted that process bears on constitutional outcomes, and drafters increasingly desire to divine predictive guidelines from comparison—a ‘roadmap to success’—drawn from the experience of others. Developing a methodology for such a comparison is difficult, and the appearance of a pre-written ‘recipe for success’ conceals obvious pitfalls. In particular, there is an inherent tension between comprehensiveness and granularity, in that the more jurisdictions studied the less country-specific details can be included. This paper sketches the findings of a chart prepared for the Libyan Constitutional Drafting Assembly (‘CDA’) in June 2014, which compares eighteen contemporary and historical constitutional drafting processes to aide the CDA in setting its own procedure under the terms of the Libyan Constitutional Declaration (2011). The methodology presented here breaks the constitution-making process into four ‘phases’, which together encompass 35 distinctive elements of process design, ranging from the mundane (e.g. appointment of a secretariat) to the complex (e.g. public participation programmes). These are analysed temporally to draw some preliminary conclusions about process design with the aim of identifying guidelines that lead to successful constitutional outcomes. As more countries enter one or the other phase of constitutional transition, developing a more rigorous methodology for comparative study would seem imperative.

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