Participatory Constitution-Making as a Transnational Legal Norm: Why Does It “Stick” in Some Contexts and Not in Others? (original) (raw)
How do participatory constitution building processes effect the quality of democracy
2010
Public participation in constitution building processes has been advanced as a standard operational measure, in post-conflict contexts, when states transition from non-democratic to democratic rule and during other periods of institutional crisis or reform. This is the case regardless of the scope of the constitution making activity be it a complete overhaul of the pre-existing constitution and the creation of an entirely new document or a more incremental approach to the endeavour. Ordinary citizens, civil society organizations and local nongovernmental organizations are now sitting in the front seat doing the steering, whereas domestic as well as international legal experts and national political elites serve to properly incorporate, endorse and, in the case of domestic authorities, finally approve by making it to legal provisions, the opinions of the people in the final constitution. Top-down constitution making has been replaced by bottom-up constitution building. This is at lea...
How participatory constitution building processes affect the quality of democracy
2011
Public participation in constitution building processes has been advanced as a standard operational measure, in post-conflict contexts, when states undergo regime change from nondemocratic rule and during other periods of institutional crisis or reform. This is the case regardless of the scope of the constitution making activity-be it a complete overhaul of the pre-existing constitution and the creation of an entirely new document or a more incremental approach to the endeavour. Ordinary citizens, civil society organizations and local nongovernmental organizations are now sitting in the front seat doing the steering, whereas domestic as well as international legal experts and national political elites serve to properly incorporate and endorse the opinions of the people in the final constitution. Top-down constitution making has been replaced by bottom-up constitution building. This is at least the idealistic idea. Indeed, public participation in constitution building processes is gaining ground because of the perceived beneficial effects that it causes; scholars in this vein of research, and practitioners alike, are confident that it will have positive effects on the state of democracy subsequent the venture. Yet, hitherto there has been no research that actually sets out to study this argument; hence, the question of how public participation affects the subsequent quality of democracy in states that have undergone such processes remains unanswered. This settles the need for research in this specific area, which is the contribution that my dissertation hopes to make for which the specifics will be presented in this paper.
Under what circumstances do new constitutions promote democracy? Between 1974 and 2011, the level of democracy increased in 62 countries following the adoption of a new constitution, but decreased or stayed the same in 70 others. Using data covering all 132 new constitutions in 118 countries during that period, we explain this divergence through empirical tests showing that overall increased participation during the process of making the constitution positively impacts post-promulgation levels of democracy. Then, after disaggregating constitution making into three stages (drafting, debating, and ratification) we find compelling evidence through robust statistical tests that the degree of citizen participation in the drafting stage has a much greater impact on the resulting regime. This lends support to some core principles of "deliberative" theories of democracy. We conclude that constitutional reformers should focus more on generating public "buy in" at the fron...
Citizen as Founder: Public Participation in Constitutional Approval
Public involvement in constitution making is increasingly considered to be essential for the legitimacy and effectiveness of the process. It is also becoming more widespread, spurred on by constitutional advisors and the international community. Yet we have remarkably little empirical evidence of the impact of participation on outcomes. This essay examines hypotheses on the effect of one aspect of public participation in the constitution-making process -ratification- and surveys available evidence. We find some limited support for the optimistic view about the impact of ratification on legitimacy, conflict, and constitutional endurance.
The Citizen as Founder: Public Participation in Constitutional Approval
2008
Public involvement in constitution making is increasingly considered to be essential for the legitimacy and effectiveness of the process. It is also becoming more widespread, spurred on by constitutional advisors and the international community. Yet we have remarkably little empirical evidence of the impact of participation on outcomes. This essay reports hypotheses on the effect of one aspect of public participation in the constitution-making process - ratification - and surveys available evidence. We find some limited support for the optimistic view about the impact of ratification on legitimacy, conflict, and constitutional endurance.
Post Sovereign Constitution Making: Learning and Legitimacy
International Journal of Constitutional Law
Andrew Arato's new book-Post Sovereign Constitution Making: Learning and Legitimacyhas appeared at just the right time, offering a cogent rejoinder not only to the populist politics that are currently sweeping the West but also to the liberal "normativism" that has arguably played a role in populism's rise (as its provocative antagonist). However, as its title makes clear, Arato's book is not a matter of challenging populist and liberal-normative perspectives generally, but is rather an attempt to challenge (and avoid the key pitfalls of) populist and liberal perspectives on the specific problem of constitution-making and, more precisely, on the problem of how constitutionmaking processes and their products can be rendered meaningfully democratic, or democratically legitimate. How, then, does Arato's book frame these populist and liberal perspectives on constitutional legitimacy? In the early phases of the book, constitutional legitimacy from a populist perspective is presented as a matter of how effectively a constitution represents an authoritative, constitutional subject: "The People." The problem, of course, is that a real "People"-an actual population-lacks the unitary will (and hence also the capacity for independent action) that it would need to function as an effective, sovereign authority, and populism responds to this problem by embracing a "two bodies doctrine" (at 275), with a representative sovereign (e.g., a constituent assembly, or a revolutionary leader) acting on behalf of the sovereign: "The People." From a democratic perspective, the good thing about this is that it impliedly ramps up the importance of public participation and publicity in constitution-making (although as Arato points out, the authoritarian leanings of populists like Carl Schmitt lead them to resist this implication), but it does so while endorsing a rampantly illiberal logic of imposition, since it permits the representative sovereign to flatten out the actual population into a mythical, unitary subject on whose authority he/she/it can act. In other words (and as Arato puts it), the representative sovereign of populism is always "self-authorized" 1 (at 28), the imaginative creator of the very body to which his/her/its authority is then retroactively traced. This leads us to Arato's second antagonist: liberalism. As Arato depicts it, this approach to constitutional legitimacy is a "narrowly result-oriented" (at 4) one, which will be familiar to readers of John Rawls and Frank Michelman. To somewhat simplify, such theorists "shy away from" 2 the logic of imposition that is endorsed by populists, but accept the 1 The classic example of an approach that accepts and arguably revels in this logic, as Arato argues in the first chapter of his book, is Carl Schmitt's theoretical framework in Carl SChmitt, ConStitutional theory (Jeffrey Seitzer trans., 2008).
AJIL Unbound, 2023
Anna Saunders's article, "Constitution-Making as a Technique of International Law: Reconsidering the Postwar Inheritance," is an important addition to the literature that problematizes the idea of international constitutionmaking. At the heart of Saunders's critique of international constitution making-defined as the involvement of international institutions in national constitution-making processes-is the point that the parameters of what constitutes "local ownership" of the constitution-making process is detached from debates on rethinking neoliberal economic structures and material interests. As a result, constitutions in post-conflict societies fail to speak to the socioeconomic realities of a people and, most importantly, diminish their agency to envision alternatives. Saunders offers a detailed historical account of why such failure, or what she refers to as "selective technicity," has become standard practice, and then goes further to stress the imperative of reimagining the vocabulary of what constitutes "local ownership" in the context of meaningful societal transformation. In this essay, I extend Saunders's thesis to argue that if the international constitution-making process does not shed its Eurocentric gaze, we will be unable to proffer sustainable suggestions to make the process responsive to the realities of a people.