Sunday, November 20, 2011

Weiner: Constitutions as Peace Treaties: A Cautionary Tale for the Arab Spring

Allen S. Weiner (Stanford Univ. - Law) has posted Constitutions as Peace Treaties: A Cautionary Tale for the Arab Spring on the recently launched Stanford Law Review Online. Here are some excerpts:

The Arab Spring . . . provides an important opportunity for Tunisians, Egyptians, Libyans, and others in the region to create new governing institutions and, more fundamentally, to redefine the nature of the relationship between the citizen and the state in the Arab Middle East.

One important step in the establishment of new political orders in Tunisia, Egypt, Libya, and perhaps elsewhere will be the adoption of new constitutions. The constitution-making process in at least some of these countries is likely to prove contentious, particularly as groups and factions that have never played a meaningful role in national political life all strive to advance their preferred visions of society. In some cases, the end of authoritarian regimes has unearthed deep divisions over such issues as confessional/sectarian identity, tribal identity, regional identity, or the liberal versus religious character of the state. The protagonists on different sides of these divisions can be expected to attempt to codify—indeed, to constitutionalize—the vision of society or special role for their group they favor. Participants, however, should approach the constitution-making processes cautiously. In societies in transition, efforts to resolve deep divisions or fundamental disagreements about the nature of society through constitutional drafting may sharpen political differences and heighten the political salience of controversial issues or social cleavages. Above all, seeking a constitutional resolution of the most contested issues may discourage the development of an approach to political relations in which all parties commit to a vision of the future in which there is an acceptable, or at least bearable role, for all other parties. It may accordingly be better to defer resolution of the most contentious issues than to attempt to settle them as constitutional matters. . . .

In the West in general, and in the United States in particular, we have developed tremendous faith in the role of constitutions as instruments for creating not only an institutional framework for governance, but also a political consensus around a vision of the shape a given society will take. We may underestimate, however, the extent to which successful constitutions are the products of a set of political relations in which the parties are committed to a vision of a mutually bearable shared future, rather than generative of such relations. The leaders of Egypt, Tunisia, Libya, and other countries seeking to remake their societies in light of the events of the Arab Spring would be well-served to commit to doing the hard work of gradually building political relations based on a vision of a mutually bearable shared future, rather than seeking to resolve their most contentious ethnic, sectarian, regional, tribal, and political divisions immediately through constitutional fiat.