Download Constitutional Design for Divided Societies: Integration or by Sujit Choudhry PDF

By Sujit Choudhry

How may still constitutional layout reply to the possibilities and demanding situations raised by means of ethnic, linguistic, spiritual, and cultural variations, and accomplish that in ways in which advertise democracy, social justice, peace and balance? this can be the most tricky questions dealing with societies on this planet this present day.

There are faculties of inspiration on the best way to solution this query. lower than the heading of "accommodation", a few have argued for the necessity to realize, institutionalize and empower changes. there are a selection of constitutional tools to be had to accomplish this target, equivalent to multinational federalism and administrative decentralization, felony pluralism (e.g. spiritual own law), different kinds of non-territorial minority rights (e.g. minority language and spiritual schooling rights), consociationalism, affirmative motion, legislative quotas, and so forth. yet others have countered that such practices may well entrench, perpetuate and exacerbate the very divisions they're designed to control. They suggest a number of substitute ideas that fall less than the rubric of "integration" that might blur, go beyond and cross-cut changes. Such options contain debts of rights enshrining common human rights enforced by way of judicial evaluate, rules of disestablishment (religious and ethnocultural), federalism and electoral platforms designed in particular to incorporate contributors of other teams in the similar political unit and to disperse participants of a similar staff throughout diversified devices, are a few examples.

In this quantity, major students of constitutional legislations, comparative politics and political conception deal with the talk at a conceptual point, in addition to via a variety of nation case-studies, via an interdisciplinary lens, yet with a felony and institutional focus.

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By way of illustration, Lijphart suggests that vote pooling in Iraq would produce a government dominated by the Shia but supported by Sunni and Kurds , and that “it is . . hard to imagine that Kurdish and Sunni members of a broadly representative constituent assembly would ever agree to a constitution that would set up such a system”. ⁷⁶ On this point, Horowitz appears ⁷⁴ Id. at 192. ⁷⁶ Id. at 98. ⁷⁵ Lijphart, Constitutional Design for Divided Societies, supra note 32. 26 Sujit Choudhry to agree with Lijphart.

The use of concrete examples serves important functions. It helps to clarify and sharpen our understanding of the sometimes abstract debate between integrationists and accommodationists. In addition, by exploring how these competing constitutional strategies play out in practice, it is possible to get a handle on the costs and benefits associated with each one. Finally, sustained and theoretically informed reflection on constitutional practice may force us to reconsider the cogency of the theories themselves.

Although their arguments are at times framed at a high level of abstraction, for Lijphart and Horowitz, theirs has never been a strictly academic debate. Rather, they have set out competing proposals for constitutional design for divided societies with a view toward contemporary, real-time application. Both Lijphart and Horowitz wrote against the backdrop of the “third wave” of democratization, which began with the transition to civilian rule in Portugal in 1974. Lijphart ⁵⁹ Horowitz also supports federalism as a device for reducing ethnic conflict.

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