Constitutional Design Without Constitutional Moments: Lessons from Religiously Divided Societies

Abstract

High stakes constitution-writing exercises have burst into the headlines in recent years from Iraq and Afghanistan to Egypt and Tunisia. In some cases, heated debates have given way to conflict and even violence as transitioning societies struggle to resolve fundamental conflicts over identity. The challenges of constitution-making are more acute in societies that are marked by deep religious divisions, as is the case in many Muslimmajority countries that are currently undergoing political transitions. In this Article, we examine a distinctive feature of the current wave of new constitutional exercises: the challenge of constitution-drafting under conditions of deep disagreement over the state's religious or secular identity.The Article offers three major contributions. First, we provide a detailed qualitative examination and comparison of constitution-making in the seven relatively understudied cases of Egypt, Indonesia, India, Israel, Lebanon, Tunisia, and Turkey. Second, our examination of these cases informs a critical assessment of some common assumptions in the literature that are drawn from well-studied, Western cases of constitution-drafting like those of the United States and France. We argue that an understanding of constitution-drafting as higher-order law-making that is designed to resolve questions of identity and entrench a foundational definition of "we the people" is inapposite at best and, at worst, may exacerbate conflict in religiously-divided countries. Thirdly, we develop a framework that expands the range of constitution-drafting tools and strategies discussed in the comparative law literature by identifying novel design features drawn from the qualitative cases and their potential merits.

Understanding the impact of confessional diversity in the Lebanese public sector. Case study: The Lebanese Ministry of Finance

“…The political power and governmental positions in the country were shared informally on a confessional basis. Such that the President of the Republic, the Commander-in-Chief of the army, and the Central Bank are always Maronite Christians, the Prime Minister is Muslim Sunni, the Speaker of the Parliament Muslim Shi'ite, and all the other governmental and military offices and posts are proportionally shared by the various communities (Bali & Lerner, 2016). It is evident from the preceding that the National Charter was a clear expression of the state of division in Lebanese society.…”

Rights Constitutionalism and the Challenge of Belonging: An Empirical Inquiry into the Israeli Case

“…38-48. 6. See, for example, on South Asia: Tushnet and Khosla 2015;on Hungary and Poland: Rupnik 2018;Blokker 2019;Halmai 2019;on Israel: Hirschl 2014, 43-68;Mordechay and Roznai 2017;Roznai 2018;on Brazil: Daly 2020; on seven states, in the context of constitution drafting: Bâli and Lerner 2016. might be connected to inherent shortcomings of the liberal rights ethic itself, increasingly exposed by these environmental conditions. A prominent representative of this view is Marcel Gauchet, the French political philosopher and historian.…”

Formal and Informal Consociational Institutions: A Comparison of the National Pact and the Taif Agreement in Lebanon

“…has proven sufficiently resilient to serve as the basis for the contemporary Lebanese constitutional order." 28 The 1926 constitution introduced two elements of consociationalism: segmental autonomy and proportionality. The two key articles that provide for segmental autonomy for the 17 officially recognized religious communities are articles 9 and 10.…”

“…The main consociational innovation of the National Pact was to allocate the top positions in the state to designated sects: executive presidency (Maronite Christian), prime minister (Sunni Muslim), and speaker of the House of Deputies (Shia Muslim). 37 None of these changes were codified, let alone constitutionalized. The National Pact was a "gentleman's agreement" between the Maronite Christian Khoury, who would become president, and the Sunni Muslim Solh, who would become prime minister on independence.…”