Academic journal article Texas Law Review

The "Design Sciences" and Constitutional "Success"

Academic journal article Texas Law Review

The "Design Sciences" and Constitutional "Success"

Article excerpt

We all know the rule of umbrellas - if you take your umbrella, it will not rain; if you leave it, it will.

- Ralph Waldo Emerson (American philosopher)1

Design can be art. Design can be aesthetics. Design is so simple, that's why it is so complicated.

- Paul Rand (American graphic designer)2

The literature on constitutional design is vast. Its essentials are wellknown to participants of this expert forum and need not be reproduced here.3 In a nutshell, it suggests that desirable social and political outcomes may be accomplished through optimal institutional planning and implementation. It often engages in a quest to find the "best" or most suitable constitutional rule across cultures in order to suggest the "best practice" in a given polity or an optimal combination of rules and institutions for a given polity or regime. In democratic settings, the purported normative goal of such design may be the enhancement of the political system's democratic credentials (e.g., participation and representation), the increase of accountability and transparency, and the balancing of the principles of majority rule with the idea that democracy may have more to it than mere adherence to those principles. At the more practical level, such design may aim at enhancing the quality and effectiveness of public policy making and, by extension, supporting political, cultural, and economic development in a given polity. Effective constitutional design is also said to positively affect economic growth, most notably via increasing a given regime's international credibility vis-à-vis foreign investors.4 In transition settings - most commonly, transitions from an authoritarian regime to a democratic or at least quasi-democratic regime - constitutional design is aimed at ensuring effective transition while maintaining the incentives of major stakeholders to uphold the transitional pact and accomplish its stated goals. Finally, with respect to conflict-ridden settings, constitutional design is often viewed as a means for mitigating deep tensions in polities torn along ethnic, linguistic, religious, or cultural lines. In this context, the short- to medium-term goal of constitutional design is to reduce the level of violence; increase credibility and trust among pertinent stakeholders, coalitions, and oppositions; and ultimately set the foundations for a nexus of political institutions and procedures that would allow for long-term unity, peace, and stability. To that extent, the literature on constitutional design of this kind, often referred to as "consociationalism," emphasizes the significance of joint-governance institutions, mutual veto points, power-sharing mechanisms, and the like.5 In its more sophisticated "integrationist" guise, this brand of scholarship advocates the adoption of institutions that would make the political process more attractive to recalcitrant stakeholders, encourage moderation, and diffuse the causes for strife by providing incentives to vote across group lines.6

All of these approaches to constitutional design share in common a belief that constitutional provisions, institutions, and arrangements can and should be optimized so as to induce, support, or allow social and political change. While by idealist accounts constitutions evolve organically and are said to reflect the authentic people's will or a polity's enduring values, constitutional design advocates a second-order, pragmatic vision of constitution making as a response to concrete problems and challenges. Constitutions may be engineered so as to accomplish these goals. In that respect, the enterprise of constitutional design shares the core elements of what may be termed the "modernist narrative." Destiny may be averted and passions controlled, for man has the ability to tame nature and shape and reshape reality through rational, goal-oriented data gathering, planning, and implementation. And while nature is fearsome and possibly chaotic, careful institutional engineering can introduce order, help overcome challenges, solve problems, and ultimately create better opportunities in order to serve the public good. …

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