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 Top-down constitution making has been replaced by bottom-up constitution building.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 Top-down constitution making has been replaced by bottom-up constitution building.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.

Public participation in constitution building processes : what does it mean?

2012

Public participation in constitution building processes particularly in the aftermath of violent conflict and when states transit from authoritarian rule is being forcefully advanced by influential actors in the world community; this since there is a belief that participation will lead to better democratic levels subsequent the process. Indeed, our instincts tell us that public participation is something good, and that it ought to have a positive impact on the state of democracy. Yet, this hypothesis has not been empirically validated. However, in order to be able to study and analyse this proposition, what “participation” actually means must firstly be established. What does it mean to “participate” in the context of building a constitution? In this paper I discuss how participation can be understood and how the concept can be operationalized to suit a constitution building context. To date, twenty “participatory” constitution building processes have been carried out in post-confli...

Practical Considerations for Public Participation in Constitution-Building: What, When, How and Why?

2021

Public participation has become a core element of modern constitution-building. Robust participation is credited with a range of benefits—from improving individual behaviours and attitudes to democracy to shaping elite bargaining dynamics, improving constitutional content, and strengthening outcomes for democracy and peace. Yet it is not well understood whether and how public participation can achieve these ends. Much of what we think we know about participatory constitution-building remains theoretical. No two processes are alike, and there is no agreed definition of what constitutes a ‘participatory process’. Yet national decision-makers must contend with the key question: What does a robust participation process look like for a particular country, at a particular time, in a particular context? What considerations and principles can be derived from comparative experience to guide decisions? This Policy Paper unpacks the forms and functions of public participation across different ...

Constitution-making in the 21st century

International Review of Law

Constitutions have been made or changed in major ways in more than half the countries of the world in recent decades. This article deals with contemporary approaches to constitution-making, organising the analysis around three key phases: setting the agenda, in terms of both substance and process; design, drafting and approval; and implementation. It argues that, while all constitutionmaking processes are different, there are some distinctive features of constitution-making in the 21st century that include popular participation, the need to build trust, internationalisation in its various forms and the importance of process. The article canvasses examples of constitution-making practices that have been or are likely to be influential. It identifies and briefly explores some of the key tensions in constitution-making between, for example, international involvement and domestic ownership of a Constitution and public participation and leadership.

Legality, Legitimacy, and Democratic Constitution Making

Jus Cogens, 2019

What makes a constitution democratically legitimate? What kind of constitution making process is more likely to yield democratic and constitutionalist outcomes? These are two of the central questions guiding the work of Andrew Arato. With the recent publication of Post Sovereign Constitution Making and The Adventures of the Constituent Power, Arato significantly advances his decades long project of a normatively informed sociology of constitutional change. His main argument is historical in character: a post sovereign model of constitution making has emerged "out of the adventures of the revolutionary and populist idea of the sovereign constituent power" 1 . However, this is also an argument with normative implications: the fundamental weakness of sovereign constitution making is its elective affinity to dictatorship 2 , a political danger made evident by the history of modern revolutions. To the contrary, the post sovereign paradigm's transcendence of the revolutionary and populist logics of political action offers an alternative conception of the constituent power that is "more faithful to the values of both democracy and constitutionalism" 3 . For Arato, the study of these two models of constitution making is highly relevant: "constitution making and remaking pertains to the highest level of law making, the political design and allocation of power within a polity.