How can societies still grappling over the common values and shared vision of their state draft a democratic constitution? This is the central puzzle of Making Constitutions in Deeply Divided Societies. While most theories discuss constitution-making in the context of a moment of revolutionary change, Hanna Lerner argues that an incrementalist approach to constitution-making can enable societies riven by deep internal disagreements to either enact a written constitution or function with an unwritten one. She illustrates the process of constitution-writing in three deeply divided societies - Israel, India and Ireland - and explores the various incrementalist strategies deployed by their drafters. These include the avoidance of clear decisions, the use of ambivalent legal language and the inclusion of contrasting provisions in the constitution. Such techniques allow the deferral of controversial choices regarding the foundational aspects of the polity to future political institutions, thus enabling the constitution to reflect a divided identity.
• An interdisciplinary approach, drawing on ideas from constitutional law and the politics of identity • Three case studies exemplify societies that succeeded, despite internal conflicts and political crises, in formulating lasting democratic constitutional arrangements • Proposes an innovative theoretical framework for addressing the problem of constitution-drafting in divided societies
Contents
Part I. Constitutions, Democracy, Identity: 1. Introduction; 2. Three paradigms of democratic constitutions; 3. The incrementalist approach to constitution-making; Part II. Varieties of Constitutional Incrementalism: 4. Informal consociationalism in Israel; 5. Constructive ambiguity in India; 6. Symbolic ambivalence in Ireland; Part III. For and Against Constitutional Incrementalism: 7. Normative arguments for constitutional incrementalism; 8. Potential dangers; 9. Conclusion.
Reviews
'In helping us to gain valuable insight into the constitutional politics of this activity, Hanna Lerner has provided us with an extremely important interpretive analysis that should become a staple of the literature of constitutional design.' Gary Jeffrey Jacobsohn, Tulsa Law Review
'… the great strength of this book is to compare and reflect on foundational constitutional moments with long-term (positive and negative) consequences for individual rights and group relations within these states.' Bill Kissane, Nations and Nationalism
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