Academic journal article Journal of International Affairs

Constitutionalizing Democracy in Fractured Societies

Academic journal article Journal of International Affairs

Constitutionalizing Democracy in Fractured Societies

Article excerpt

Much as the terms "constitutional" and "democracy" are linked in the definitions of a just liberal society, the two embody antagonistic impulses in organizing the body politic. Democracy vests decisionmaking in majorities; constitutionalism removes from immediate popular control certain significant realms of politics. Nonetheless, no democratic selection process exists without ground rules of governance, and constitutionalism may be thought of as a particularly strong form of regulation of democracy.

Viewing constitutionalism as the enabling ground rules for democratic governance provides an insight into the emergence of a strong form of constitutional constraint in stabilizing democratic governance, in what I term fractured societies. The argument is that constitutionalism emerges as a central defining power in these societies precisely because of the limitations it imposes on democratic choice. For purposes of this discussion, I do not wish to explore the full dimensions of what is meant by either democracy or constitutionalism. Instead, I accept a rather spare definition of democracy as a system through which the majority, either directly or through representative bodies, exercises decisionmaking political power, and 1 use the term constitutionalism only to refer to the creation of a basic law that restricts the capacity of the majority to exercise its political will. (1) For these purposes, it does not matter whether the restraint is an absolute, as with the non-amendable provisions of the German constitution, or simply the "obduracy" of Article V of the United States constitution, or the temporal constraints requiring successive parliamentary action for constitutional reform, as in some European countries. (2) Under any such system, the constitution serves as a limitation on what democratic majorities may do. (3)

I want to focus on a function that constitutionalism serves that is not widely noted: the role of securing legitimacy for the exercise of political power in fractured societies. I have in mind societies that are characterized by deep racial, ethnic or religious animosities in which cross-racial, ethnic and religious political institutions do not exist. Under such conditions, the emergence of stable democratic rule requires dampening such animosities so that the population as a whole views the exercise of state authority as being politically legitimate, or perhaps more modestly, does not rise in armed rebellion against the state. This ability of legal restriction to provide the basis for reconstituting society has begun to attract attention as a distinct form of ordering the transition to democratic rule. Ruti Teitel, for example, dubs this phenomenon a species of transitional constitutionalism in which law itself plays "an extraordinary constituting role" in the stabilization of democratic governance. (4)

There is a rich political science literature addressing the problem of nation building in complex, divided societies. For John Stuart Mill, democratic governance in fractured societies was a non-starter:

   Free institutions are next to impossible in a country made up of
   different nationalities. Among a people without fellow-feeling,
   especially if they read and speak different languages, the united
   public opinion, necessary to the working of representative
   government, cannot exist. (5)

Subsequent work, however, looked to the national experiences in European countries such as Austria, Belgium, the Netherlands and Switzerland to claim that "consociational structures" could forge a national integration of rival elites and yield a politically stable democracy. (6) In his classic study; Arend Lijphart identified the critical elements of the consociational experiment:

   (1) government by a grand coalition of all significant segments;
   (2) a mutual veto or "concurrent majority" voting rule for some or
   all issues; (3) proportionality as the principle for allocating
   political representation, public funds, and civil service
   positions; (4) considerable autonomy for various segments of the
   society to govern their internal affairs. … 
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