MAKING CONSTITUTIONS IN DEEPLY DIVIDED SOCIETIES, by Hanna Lerner. New York: Cambridge University Press, 2011. 274pp. Hardback $94.00. ISBN: 9781107005150. Paperback $29.00. ISBN: 9781107610576
DESIGNING DEMOCRACY IN A DANGEROUS WORLD, by Andrew Reynolds. Oxford and New York: Oxford University Press, 2011. 224pp. Hardback $99.00. ISBN: 019959449X. Paperback $35.00. ISBN: 9780199594498Reviewed by Alexander Hudson, Department of Political Science, University of Texas-Austin.
pp.597-605
Introduction
Recent events in Egypt draw attention once again to the challenges of making a constitution in a divided society. The difficulties that Egyptian lawmakers have encountered in their attempt to write a constitution that reflects the aspirations of its diverse population are not unique, and pose interesting questions for social scientists. Early hopes for an inclusive process that would establish a secular state have largely been dashed as Islamists have dominated the constituent assembly. Many of the assembly’s secular Muslim and Christian members abandoned the process, seeing no hope of having their views implemented. A recent analysis of the draft constitution published by Human Rights Watch suggests that there are a number of positive points in the new constitution, but also notes omissions that many in the international community consider important, including protections for freedom of expression and religion.
The unrepresentative, rushed, and deeply conflictual process that has created the new constitution is likely to blame for many of the document’s deficiencies. A number of key provisions use ambiguous language, making it difficult to predict how these provisions will actually be implemented through legislation. The meaning of many parts of this constitution will have to be decided by legislators and judges in the years to come, and even where it is similar to the 1971 constitution the text may take on new interpretations (Brown 2012). Although the public approved the draft on December 15, 2012, nearly a year on the future of Egypt’s new constitution does not look very bright
This brief consideration of the Egyptian constitution-making process provides some context for thinking about the theoretical and practical contributions of the scholarly literature on this topic. Two recent publications that address some of the challenges inherent in constitution making, particularly as they relate to divided or otherwise volatile societies, are DESIGNING DEMOCRACY IN A DANGEROUS WORLD by Andrew Reynolds, and MAKING CONSTITUTIONS IN DEEPLY DIVIDED SOCIETIES by Hanna Lerner. While both deal with the difficult process of constitution-making, these books approach the problem from very different perspectives both in terms of theory and methodology.
The Theoretical Context [*598]
Early on in MAKING CONSTITUTIONS IN DEEPLY DIVIDED SOCIETIES, Lerner (p.17) suggests that constitutions perform two major functions: establishing institutions, and affirming the foundational values of the society. The two works reviewed here each cover one of these aspects of constitutional design. Lerner is more concerned with the foundational role of the constitution. She suggests that “By delineating the commonly held core societal norms and aspirations of the people, constitutions provide the citizenry with a sense of ownership and authorship, a sense that ‘We the People’ includes me” (p.18). Lerner’s research is motivated by the question of how societies in which such foundational issues are unsettled, or even disputed, can hope to draft a constitution.
In contrast, Reynolds’s work is most concerned with the function of the constitution in establishing the institutions of governance. Reynolds’s concern with the constitutional design of institutions is clear throughout the text, but perhaps best stated as follows: “The rules of the democratic game vary widely and the way the intricate moving parts of a nation’s democratic institutions fit together will determine how successful the democratic experiment is (p.8). The research question Reynolds here asks is, “How do the policymakers, both internally and in sympathetic western governments, better understand the discipline of constitutional design to avoid the introduction of inappropriate institutions?” (p.10).
These books by Lerner and Reynolds can be said to represent the opposite ends of the spectrum of comparative constitutional research. The contrasts are easy to identify, and begin with the author’s respective theoretical antecedents. Lerner is grounded in the classics of liberal constitutional theory, such as Habermas, and Rawls. Lerner is also careful to position the incrementalist approach with reference to the literature on constitution making that emerged during the “third-wave” of democratization that began with the fall of the Soviet Union. While Reynolds’ theory is rooted in the theoretical tradition of the debate between Arend Lijphart (1977) and Donald Horowitz (1985), he also makes good use of the more recent works of scholars such as Larry Diamond (2005; 2008) and Pippa Norris (2008), who have deconstructed the failures of democratization in the post-Cold War era. Reynolds’ review of the relevant literature focuses more on the practical literature including international assistance missions that has been published over the last decade. Taken together, these books by Lerner and Reynolds present a diverse picture of the present state of the field of comparative constitutional research.
The Main Arguments
In DESIGNING DEMOCRACY IN A DANGEROUS WORLD, Andrew Reynolds skillfully applies an epidemiological metaphor to the process of constitution making after conflict. Seeking to answer the question of how democracy can best be established in fragile and divided states, Reynolds ( pp.21-26) describes a process of assessing the condition of the state as patient, requiring the correct institutional medicine to ameliorate the condition, and aiding the state in recovering health in the long term. [*599] Beyond this, Reynolds distinguishes between the various stages of the post-conflict governance transition, describing the state-building process in terms of medical treatment: beginning with first aid (peace settlement), and continuing on to emergency medicine (constitution writing), convalescence (democratic consolidation), and long-term health management (electoral democracy) . Reynolds is careful to note that his theory does not seek to “cure” what ails the fragile states he considers, but rather to manage their symptoms in such a way that democracy may be established and maintained (p.22).
The main thrust of the book is an attempt to ascertain through comparative research which formal institutions are best suited to particular state conditions. The goal of the constitutional process in Reynolds’ conceptualization is democracy and stability, though he acknowledges that these two do not always go together (p.53) In a very concise summation, Reynolds states: “If there is a singly take-home message drawn from this study it would be: the foundations of democratic stability rest on inclusion” (p.11). Reynolds contends that there are optimal inclusive institutions that can be applied to lessen the effects of conflict in divided societies. Yet Reynolds also cautions (citing the case of Fiji’s 1997 constitution, p.27) that constitutional design must be holistic, taking into account the interactions between various institutions .
Hanna Lerner’s research in MAKING CONSTITUTIONS IN DEEPLY DIVIDED SOCIETIES seeks to address the relationship between the identity of “the people” (especially a divided people), and the writing of a constitution (p.6). Specifically, she asks, “Where polities are still grappling with the very definition of their collectivity, crafting a formal democratic constitution that reflects shared norms and values is a daunting challenge. How can a constitution be created in the absence of societal consensus on the norms and values of the state?” (p.1).
Lerner’s main response to this question holds that it is not always necessary, or advisable, to attempt to decide all constitutional questions at the time of the drafting of the constitution. Clarity on issues of national identity, or the role of religion in the polity, may not be possible in a new and divided state. Indeed, building on the precedent set by the curious progress of the constitution-making process in Israel, Lerner endorses the idea that a state need not have a written constitution at all. Fundamentally though, Lerner claims that when there is dispute about the nature of the society, it is best to leave the aspects of the constitution that address those issues unfinished (pp.39-40). Instead, these issues can be decided over time through the regular political process ‒ as opposed to the constitution-making process ‒ in an incremental way. To be clear, Lerner’s theory is not concerned with decisions about formal institutions as Reynolds’s is, but rather with another role of the constitution – constituting “the people” through an affirmation of constitutional principles and values.
Lerner describes the process of deferring statements on such controversial issues as the nature of the society, or the relationship between groups within that society, as the “incrementalist approach [*600] to constitution-making” (p.6). The incrementalist approach does not advocate the postponement of decisions about the formal institutions of governance. Lerner suggests that—at least among the three cases considered—those decisions are not very conflictual, and are necessary from the outset (pp.39; 195-196). As India, Ireland, and Israel were all British colonies to one degree or another, their representative institutions are mostly carried over from their pre-independence governments. However, Lerner advocates strategies of “avoidance, ambiguity and ambivalence” with regard to the foundational issues of the state’s identity (p.194).
Assessing the Authors’ Claims
Lerner is most directly an incrementatalist. But lest Reynolds stages of treatment appear to be formulaic and definitive, his theory has an element of pragmatism that can echo Lerner’s incrementalism. Reynolds suggests, for instance, that treatments applied (i.e. institutional choices) in the “first aid” stage may have to be revised later on (p.25). This has something in common with Lerner’s description of the incrementalist approach to constitution-making in that it suggests that the first iteration of the constitution should respond to the situation at that time, while acknowledging that as the polity matures it may well be necessary to alter the constitution to further consolidate democracy. In this way, both authors take a rather pragmatic view of the early stages of constitution-making. Are pragmatism and incrementalism the same?
The views of these authors also contrast in some important ways. There is not necessarily direct conflict between these theories as they address different aspects of constitutions. However, these alternative approaches create thought provoking contrasts. Lerner’s incrementalist theory would be much more comfortable with some of the ambiguities in the Iraqi constitution of 2005 than Reynolds’s epidemiological approach is. Reynolds notes that the failure to formalize political relationships between ethnic groups Iraq could allow for a power grab on the part of the Shia majority, potentially creating conflict with the Sunni minority (p.9). Reynolds’s approach is based on the argument that particular institutions (such as proportional electoral systems, executive power sharing, and minority vetoes) can and should be put in place in order to ameliorate conflicts.
Lerner views ambiguity as a constructive aspect of a constitution (p.194). The assumption is that these confessional conflicts can be informally addressed in the short term, and formalized if necessary at a later date. It is somewhat problematic to predict how Lerner’s incrementalist theory would address Iraq, as it is not one of the cases considered. The discussion of informal consociationalism in Israel (pp.70-75) could perhaps be applied to the Iraqi case, though the confessional conflict resolved through consociational arrangements in Israel is primarily between secular and religious Jews and is thus less volatile than the more pronounced and regionally important sectarian divisions within Iraq. The conflictual aspects of the constitution in Lerner’s theory are the thorny issues caused by competing “visions of the state,” rather than political power in the government (pp.203-204). [*601]
Another difference between these two authors is in their handling of conflict. Reynolds’ approach seeks to manage violent conflict, while allowing the non-violent political conflict that is a healthy part of democracy (Reynolds 2011, 156). Reynolds is very methodical in analyzing how democratic institutions can manage conflict, reviewing both consociational (Lijphart 1977) and integrative power sharing (Horowitz 1985) (also known as centripetal) approaches to power sharing. In this debate, Reynolds is clearly on the side of consociationalism, finding the integrative power sharing approach more prone to breakdown, and incapable of ensuring power sharing (p.21). There is little room for incrementalist style ambiguity in Reynolds approach; rather formal institutions should be clearly established in order to manage conflict within the political system
Lerner’s model of incrementalism is much less structured in its management of conflict. The incrementalist approach to constitution-making attempts to avoid or postpone conflict. For example, in the case of the Irish dilemma about the description of the nature of the Irish Free State, the framers decided to include two competing definitions (p.180). In the Indian case, Lerner suggests that ambiguous language was included to overcome conflict without making a decision (p.149). A significant problem with this discussion of incrementalism as conflict avoidance is that two of the countries discussed—India and Ireland—experienced civil war during or shortly after the constitution-making process. In these cases the argument could be made that incrementalism has prevented subsequent bloodshed, but at the time of the original constitutional process it was not able to prevent the outbreak of violence.
Lerner and Reynolds are mostly in agreement about the importance of determining the formal institutions of democracy at the beginning of the constitutional project, broadly understood. They also agree that these decisions may have to be revisited over time. However, Lerner’s theory doesn’t take into account how decisions about institutions are made, or on what basis these matters should be decided. The incrementalist approach assumes that parties will be able to agree on institutions, and that the conflict will be over more foundational subjects dealing with the definition of the nation. The incrementalist model is able to make this assumption because the three cases examined were all British colonies or protectorates, and as Lerner notes, were highly influenced by the Westminster model (Lerner 2011, 195).
A Few Points on Methods
In MAKING CONSTITUTIONS IN DEEPLY DIVIDED SOCIETIES, Lerner takes a comparative approach to analysis of the three cases of Israel, India, and Ireland. Lerner’s methodological approach, employing thick description and historical context, shares overlaps with some of Gary Jacobsohn’s influential work, especially as exemplified in THE WHEEL OF LAW (2003). Indeed, Lerner’s sample of “I-countries” matches Jacobsohn’s. (One might suggest that in comparative constitutional studies, the I’s have it.) Lerner’s uses a great deal of historical investigation to fully describe the processes of constitutional development in which her theory is [*602] interested.
Reynolds is concerned with a broader research question, and his choice of research methods reflects this. In DESIGNING DEMOCRACY IN A DANGEROUS WORLD, Reynolds also uses cases – five total, three of which he has personally advised. Much of the heavy lifting in the research is accomplished through a quantitative analysis of 66 cases across 20 independent variables, two dependent variables, and four intervening variables Reynolds conducts the quantitative analysis via a number of techniques, but the largest part of the analysis uses robust regression models. The book remains highly engaging even for those not so methodologically inclined, as Reynolds keeps the discussion moving both rhetorically and substantively with descriptions of the individual cases.
Both authors chose methods that are appropriate to their research questions. In Lerner’s case, there simply are not very many example of the incrementalist approach to constitution-making. A study of this phenomenon must necessarily use qualitative methods. Further, Lerner is concerned primarily with theory development, a task to which a comparative historical study is well suited. Seeking broader applicability, Reynolds’s use of a mix of quantitative and qualitative methods works very well. The data analysis Reynolds brings to bear is convincing, while his explanation of a number of individual cases adds color and interest to the narrative.
How Well Do These Theories Travel?
The difference in the attention that Lerner and Reynolds pay to decisions about formal institutions of government is the key to the question of the broader applicability of these approaches to constitution-making. Lerner’s theory is built on cases of constitution-making that took place immediately after independence from Britain. The small sample considered in Lerner’s study, and similarity between cases also suggests that the theory may not travel well. Reynolds’s 66 cases span the greater part of the universe of potential cases of contemporary constitution-making, and thus speaks in some way to nearly every potential case of constitution-making.
It seems likely that Lerner’s theory is most applicable to newly independent states (a category of cases of which we are not likely to see very many more), but may travel well enough to some cases of transition from authoritarian rule. In particular the incrementalist approach may be highly applicable to the process currently unfolding in Egypt. Some of the debates about the content of Egypt’s new constitution, such as the status of the Koran as a/the source of law, could be addressed well by Lerner’s incrementalist approach. Egypt’s process has a number of similarities with the cases Lerner’s discusses. Egypt is a divided society in which adequate representation of competing views of the society in the constituent assembly has been a significant and unresolved problem. At the same time the formal institutions in the constitution have not deviated significantly from the pattern of the previous regime. These are some of the hallmarks of the three cases of incremental constitution making that Lerner’s book analyzed. In short, the incrementalist theory applies most directly to cases of moderate change from the ancien regime. [*603]
Reynolds’s epidemiological approach is best suited to cases of post-conflict democratization. The countries considered in the book’s “case treatment plans” (Afghanistan, Iraq, Sudan, Zimbabwe, Burma, and Syria), include both cases of transitions from authoritarianism and post-conflict democratization. The theory applies best, however, to cases of more fundamental state-building. Reynolds’s approach to constitution-making is most appropriate to processes that seek to build formal institutions “from scratch,” as it were.
A great deal of the motivation—and indeed the contribution—of Reynolds’ DESIGNING DEMOCRACY IN A DANGEROUS WORLD is systematic application of “lessons learned” to new cases. The whole system of analysis is structured toward this end. A later researcher could simply add data on a new case to Reynolds’ analytical framework and arrive at recommendations for institutional choices in a new constitution. Indeed, Reynolds includes two “future patients,” Burma and Syria. Both are now both experiencing some sort of regime transition. In its rather drawn out constitutional process, Burma has recently adopted some democratic reforms, while Syria is presently afflicted by political violence that is likely to end in regime change of some kind. Reynolds prescience in choosing these two cases as future patients is remarkable.
Lerner’s work is not directed in this way, and it would be unfair to ask the question of applicability in quite the same way. However, Lerner’s theory could be applied to other cases. Alongside the earlier discussion of sectarian division in Egypt, another interesting case to which Lerner’s theory of incrementalism speaks is the status of Quebec within Canada. It could be argued that an incremental approach has been taken toward nationality within the Canadian constitution. From the beginning of the constitutional project with the unification of Upper and Lower Canada in 1841, uniting the “twin solitudes” of the Canadian peoples has presented an intractable political challenge. In 1982, 1987, and 1992, attempts were made to institutionalize the definition of the relationship between English and French Canada, but the issue remains somewhat unresolved to this day. Perhaps the incrementalist strategies of “avoidance, ambiguity and ambivalence” have served Canada well in forestalling separatism or conflict (Lerner 2011, 194). The obverse of this lack of conflict is the fundamental lack of progress on an issue that continues to present problems for the country. The question might be asked, will incrementalism ever solve a complicated problem?
Conclusion
The epidemiological metaphor Reynolds uses is commendable for both its utility in helping the reader to imagine the very real pathologies inherent in bad institutional choices, and for its receptivity to application in comparison with other theoretical approaches. Indeed, an epidemiological metaphor has been used in constitutional studies before, notably in Elkins, Ginsburg and Melton’s (2009) research on the life expectancies of constitutions. Reynolds’s metaphor can easily be carried over to a discussion of Lerner’s theory. Reynolds’s prescription is for an [*604] activist approach to illness: using the appropriate medicines to treat the symptoms of state instability and democratic failure. To be clear, however, Reynolds does not expect to cure the disease, but rather to treat the symptoms and ameliorate the effects of the condition (p.22).
Applying the medical metaphor to Lerner’s work, the prescription would differ in some ways. Lerner’s theory could be likened to a more naturopathic approach: relying on the natural immune system of the body to address the illness in its own time, developing anti-bodies to counter the disease. The metaphor should not be stretched too far with regard to Lerner’s theory, as she does support the development of agreement on institutional forms. However, the major tenet of the incrementalist theory is that where agreement cannot be reached in a divided society, it is better to delay decision on those points to a later date.
Although they arrive at very different theories about how constitutions should be made, both of these works present advances to the extant literature on constitution-making. Reynolds’s broader methodological approach enables his theory to travel better to address new cases, but Lerner’s theory of incremental constitutional development can speak to issues of identity as they relate to constitution-making in divided societies. In terms of fit, Lerner’s theory best addresses cases of remaking a constitution where formal institutions are already accepted to a great extent. It will be interesting to see if Lerner’s incrementalist approach can be fully applied to analysis of the ongoing constitution making process in Egypt. Reynolds’s theory works best in cases where a new constitution is cut from whole cloth and institutions are selected purely on the basis of their appropriateness to the conditions of the society. We shall have to wait and see if Reynolds’s prescience is selecting Syria as a potential case translates into a successful application of the approach to constitution making advocated for in DESIGNING DEMOCRACY.
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Copyright 2013 by the Author, Alexander Hudson.
