O'Leary, Brendan --- "Making constitutions in deeply divided places: maxims for constitutional advisors" [2019] ELECD 2416; in Landau, David; Lerner, Hanna (eds), "Comparative Constitution Making" (Edward Elgar Publishing, 2019) 186

Book Title: Comparative Constitution Making

Editor(s): Landau, David; Lerner, Hanna

Publisher: Edward Elgar Publishing

Section: Chapter 9

Section Title: Making constitutions in deeply divided places: maxims for constitutional advisors

Author(s): O’Leary, Brendan

Number of pages: 26

Abstract/Description:

Though there is no precise legal or political science of constitutional engineering, maxims are articulated here regarding constitution making for deeply divided places, constitutional drafting, and about constitutional advisors themselves. Constitutional settlements for deeply divided places may take a long time, and yet are likely to have short lives, even if they are comprehensive, inclusive, and have widespread support at their inception. Governments without formal constitutions cannot make credible bargains, but constitutions cannot guarantee settlements. When they are negotiated, they rarely start with blank pages. They are layered with norms and expectations from previous settlements, whether ratified or implemented, or otherwise. Therefore, advisors are unlikely to be useful until immersed in the drafting histories of previous negotiating successes, and failures. Constitution makers will not be guided by statistically informed legal and social science. Advocates of locally novel institutions and practices are better off citing examples from places locally admired, or visibly flourishing (if only in comparison to their recent past). Advisors should be wary of an obsessive focus on process in the making of constitutions: after all the goal is the end-product, a workable constitution for a deeply divided place, and that should guide strategy and tactics on process (though process sometimes shapes outcomes). Agents making constitutions assume (often wrongly) that advisors will follow the system of their countries of origin, or their interests, or both. In fact, international constitutional advisors have a distinctive reformist bias. They are prone to promote abroad the reforms they believe their home system requires. Lastly, there is a limited repertoire of grand strategies available to the ethical constitutional advisor working in a deeply divided place, committed to standard human rights protections, and well disposed toward representative government.