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Constitutional Design for Divided Societies

Constitutional Design for Divided Societies Integration or Accommodation?

Author: Sujit Choudhry
Publisher: Oxford University Press
ISBN: 9780199535415
Published In: March 2008
Format: Hardback , 492 pages
Jurisdiction: U.K. ? Disclaimer:
Countri(es) stated herein are used as reference only

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Provides a coherent, theoretically grounded examination of one of the most controversial issues in contemporary constitutional design - the accommodation of diverse cultures
Offers a unique comparative approach to the problem, several case studies confront the central issues by responding to the concepts analysed in the opening section
Combines perspectives from constitutional law and political theory, aiming to bring to bear the insights of both disciplines on the complex problem

How should constitutional design respond to the opportunities and challenges raised by ethnic, linguistic, religious, and cultural differences, and do so in ways that promote democracy, social justice, peace and stability? This is one of the most difficult questions facing societies in the world today.

There are two schools of thought on how to answer this question. Under the heading of

accommodation

, some have argued for the need to recognize, institutionalize and empower differences. There are a range of constitutional instruments available to achieve this goal, such as multinational federalism and administrative decentralization, legal pluralism (e.g. religious personal law), other forms of non-territorial minority rights (e.g. minority language and religious education rights), consociationalism, affirmative action, legislative quotas, etc. But others have countered that such practices may entrench, perpetuate and exacerbate the very divisions they are designed to manage. They propose a range of alternative strategies that fall under the rubric of

integration

that will blur, transcend and cross-cut differences. Such strategies include bills of rights enshrining universal human rights enforced by judicial review, policies of disestablishment (religious and ethnocultural), federalism and electoral systems designed specifically to include members of different groups within the same political unit and to disperse members of the same group across different units, are some examples.

In this volume, leading scholars of constitutional law, comparative politics and political theory address the debate at a conceptual level, as well as through numerous country case-studies, through an interdisciplinary lens, but with a legal and institutional focus.

Readership: Scholars and advanced students of constitutional law, comparative public law, comparative politics and political theory

Sujit Choudhry: Introduction: Integration, Accommodation and the Agenda of Comparative Constitutional Law

Part I: Setting the Stage

1: John McGarry, Brendan O'Leary and Richard Simeon: Integration or accommodation? The enduring debate in conflict regulation

2: Will Kymlicka: The internationalization of minority rights

3: Sujit Choudhry: Does the world need more Canada? The politics of the Canadian model in constitutional politics and political theory

4: Alan Patten: Beyond the dichotomy of universalism and difference: four responses to cultural diversity

5: Richard H. Pildes: Groups and constitutionalism in divided societies: a dynamic approach to the design of democratic institutions

Part II: Case Studies

6: Jacques Bertrand: Indonesia's quasi-federalist approach: accommodation amidst strong integrationist tendencies

7: John Boye Ejobowah: Integrationist and accommodationist measures in Nigeria's constitutional engineering: successes and failures

8: Anver Emon: The limits of constitutionalism in the Muslim world: identity and narration in Islamic law

9: Yash Ghai and Jill Cottrell: A tale of three constitutions: ethnicity and politics in Fiji

10: Michael Keating: Rival nationalisms in a plurinational state: Spain, Catalonia and the Basque Country

11: John McGarry and Brendan O'Leary: Northern Ireland

12: John McGarry and Brendan O'Leary: Iraq's Constitution of 2005: liberal consociation as political prescription

13: Richard Simeon and Christina Murray: Recognition without empowerment: minorities in a democratic South Africa

14: Stephen Tierney: Giving with one hand: Scottish devolution within a unitary state

Edited by Sujit Choudhry, Scholl Chair and Associate Dean, Faculty of Law, University of Toronto

Contributors:

Sujit Choudhry,

University of Toronto

John McGarry,

Queens University, Ontario

Brendan O'Leary,

University of Pennsylvania

Richard Simeon,

University of Toronto

Will Kymlicka,

Queen's University, Ontario

Alan Patten,

Princeton University

Richard H. Pildes,

New York University

Jacques Bertrand,

University of Toronto

John Boye Ejobowah,

Wilfrid Laurier University

Anver Emon,

University of Toronto

Yash Ghai,

University of Hong Kong

Jill Cottrell,

University of Hong Kong

Michael Keating,

Richmond University

Richard Simeon,

University of Toronto

Christina Murray,

University of Cape Town

Stephen Tierney,

Edinburgh University

"Drawing on the disciplines of law and political science, these essays bring theoretical sophistication to the study of constitutional design in general and to case studies of the design possibilities for constitutions in divided societies. This is one of the most important recent works on constitutional design, and should interest both lawyers and political scientists." - Mark Tushnet, Harvard Law School

"The resolution of conflict in divided societies is one of the most intensely, and extensively, joined 'grand debates' of political science in recent years. Yet while constitutional analysis and constituional design figure prominently in that debate, the discipline of constitutional law itself has been largely absent. This landmark volume changes all that, and does so in a way that significantly enhances the quality of discussion. By placing a group of first-class constitutional lawyers and political scientists in dialogue with one another over the competing paradigms of integration and accommodation across a diverse range of societies and jurisdictions, it delivers a mine of new empirical insights and theoretical refinements. All in all, the book succeeds in making a compelling argument for the multi-disciplinary study of divided societies, and in instantly establishing itself as a 'must-read' for all members of that emergent 'multi-discipline'." - Neil Walker, Edinburgh University"This is a rich and provocative collection that will b e of value to a wide readership, including political scientists, legal scholars and public policy makers. Indeed, it should excite the sort of engagement by legal scholars-and not jsut comparative constitutionalists-that Choudry aims to provoke." - Robert Dunbar, The Edinburgh Law Review, Vol 13, 2009

"An excellent collection of essays and merits the attention of all researchers interested in issues surrounding constitutional law, minority rights and ethnic conflict." - Laurence Cooley, Web Journal of Current Legal Issues, September 2009

"CDDS is undoubtedly a resource for those who occupy the vast 'pragmatic' middle ground between the right and the left" - Jeffrey B. Meyers, London School of Economics, the Modern Law Review