If the objective of constitutional design for severely divided societies is a set of institutions that will foster democracy, legitimacy, and conflict reduction, then aspiring constitutional designers must think about constitutional processes that might be conducive to such results. As of now, there is little authoritative wisdom about how to structure such processes, and there are many starting conditions that constrain process choices. Among the common constraints are a sense of crisis in which constitution makers must work; the frequent conflation of constitutional processes with peace processes to end civil wars; and a sense that bargaining among political insiders might be illegitimate. This paper makes the case for processes that are broadly inclusive and involve a high degree of consensus, but it shows that inclusion and consensus in constitution-making bodies in severely divided societies are often at odds. The paper argues for processes that promote: compromise among participants (particularly through the provision of adequate deliberation time); the coherence of conflict-reducing measures (so that institutions do not work against each other); and the clarity of constitutional provisions (so as to minimize willful misinterpretation later). But the paper makes clear that these goals, too, are often in conflict and must be traded off against each other. The paper also shows that certain elements in the constitution-making environment inhibit sound processes. Severe time limits prevent adequate deliberation, and external advice often focuses processes on goals that produce little payoff but incur heavy costs. The presence of significant constraints and tradeoffs make choosing a suitable, much less optimal, process a daunting task.
About the Speaker:
Donald L. Horowitz is the James B. Duke Professor of Law and Political Science Emeritus at Duke University and Senior Fellow at the International Forum for Democratic Studies of the National Endowment for Democracy. He is the author of seven books: The Courts and Social Policy (1977), which won the Louis Brownlow Award of the National Academy of Public Administration; The Jurocracy (1977), a book about government lawyers; Coup Theories and Officers’ Motives: Sri Lanka in Comparative Perspective (1980); Ethnic Groups in Conflict (1985, 2000); A Democratic South Africa? Constitutional Engineering in a Divided Society (1991), which won the Ralph Bunche Prize of the American Political Science Association; The Deadly Ethnic Riot (2001); and Constitutional Change and Democracy in Indonesia, published in 2013 by Cambridge University Press and issued in a Bahasa Indonesia translation in 2014.
Professor Horowitz has been a Visiting Professor at the University of Chicago Law School and at the Central European University and a Visiting Fellow at Wolfson College, Cambridge, at the Law Faculty of the University of Canterbury in New Zealand, at Universiti Kebangsaan in Malaysia, in the Academic Icon program at the University of Malaya, and in the Distinguished Visitor program at the National University of Singapore. In 2001, he was Centennial Professor at the London School of Economics, and in 2001-02, he was a Carnegie Scholar. In 2009, he was presented with the Distinguished Scholar Award of the Ethnicity, Nationalism, and Migration Section of the International Studies Association.
Professor Horowitz is currently writing a book about constitutional process and design, particularly for divided societies, a subject on which he has advised in a number of countries. In 2010-11, he was a Fellow of the Woodrow Wilson Center, working on this project. In 2011-12, he was a Jennings Randolph Senior Fellow at the U.S. Institute of Peace and a Reagan-Fascell Fellow at the National Endowment for Democracy, and in 2013, he was a Siemens Prize Fellow of the American Academy in Berlin. Elected to the American Academy of Arts and Sciences in 1993, he served as President of the American Society for Political and Legal Philosophy from 2007 to 2010. In 2011, Professor Horowitz was awarded an honorary doctoral degree by the Vrije Universiteit Brussel, the Flemish-speaking Free University of Brussels.
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