Making Constitutions in Deeply Divided Societies

Author: Hanna Lerner
Publisher: Cambridge University Press
ISBN: 9781107610576
Published In: April 2013
Format: Paperback , 274 pages
Jurisdiction: International ? Disclaimer:
Countri(es) stated herein are used as reference only

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How can societies still grappling over the common values and shared vision of their state draft a democratic constitution? This is the central puzzle of Making Constitutions in Deeply Divided Societies. While most theories discuss constitution-making in the context of a moment of revolutionary change, Hanna Lerner argues that an incrementalist approach to constitution-making can enable societies riven by deep internal disagreements to either enact a written constitution or function with an unwritten one. She illustrates the process of constitution-writing in three deeply divided societies – Israel, India and Ireland – and explores the various incrementalist strategies deployed by their drafters. These include the avoidance of clear decisions, the use of ambivalent legal language and the inclusion of contrasting provisions in the constitution. Such techniques allow the deferral of controversial choices regarding the foundational aspects of the polity to future political institutions, thus enabling the constitution to reflect a divided identity.

• An interdisciplinary approach, drawing on ideas from constitutional law and the politics of identity

• Three case studies exemplify societies that succeeded, despite internal conflicts and political crises, in formulating lasting democratic constitutional arrangements

• Proposes an innovative theoretical framework for addressing the problem of constitution-drafting in divided societies

Acknowledgments	viii
Introduction	1
Part I Constitutions, democracy, identity	13
1 Three paradigms of democratic constitutions	15
2 The incrementalist approach to constitution-making	30
Part II Varieties of constitutional incrementalism	47
3 Informal consociationalism in Israel	51
4 Constructive ambiguity in India	109
5 Symbolic ambivalence in Ireland	152
Part III Arguments for and against constitutional incrementalism	191
6 Normative arguments for constitutional incrementalism	193
7 Potential dangers	208
Conclusion	230
Bibliography	235
Index	258

Hanna Lerner
Tel-Aviv University

'In helping us to gain valuable insight into the constitutional politics of this activity, Hanna Lerner has provided us with an extremely important interpretive analysis that should become a staple of the literature of constitutional design.' Gary Jacobsohn, H. Malcolm Macdonald Professor in Constitutional and Comparative Law, University of Texas, Austin