Book contents
- Frontmatter
- Contents
- Acknowledgments
- Introduction
- PART I Constitutions, democracy, identity
- PART II Varieties of constitutional incrementalism
- PART III Arguments for and against constitutional incrementalism
- 6 Normative arguments for constitutional incrementalism
- 7 Potential dangers
- Conclusion
- Bibliography
- Index
7 - Potential dangers
Published online by Cambridge University Press: 25 October 2011
- Frontmatter
- Contents
- Acknowledgments
- Introduction
- PART I Constitutions, democracy, identity
- PART II Varieties of constitutional incrementalism
- PART III Arguments for and against constitutional incrementalism
- 6 Normative arguments for constitutional incrementalism
- 7 Potential dangers
- Conclusion
- Bibliography
- Index
Summary
The main argument of the book has been that the adoption of incrementalist strategies with respect to foundational conflicts allows deeply divided societies either to enact a formal democratic constitution or to function within the framework of informal material constitutional arrangements. While avoidance and ambiguity are useful facilitating tools, it is important to understand their difficulties. This chapter will discuss the potential dangers that are inherent to the incrementalist approach to constitution-making: compromising basic rights, potential over-rigidity of the material constitutional arrangement, and the risk of inter-institutional polarization between the legislature and the judiciary. It will further seek to demonstrate how these dangers have been displayed in the political and legal developments in the decades since the incrementalist constitutional arrangements were put in place. The conflicts involving religious identity that were discussed in previous chapters (India's uniform civil code and the secular–religious conflict in Israel) have intensified significantly in recent decades, compared to the other conflicts that have been discussed (linguistic identity in India and national identity in Ireland). A further and much larger study is required in order to identify particular links, or causal mechanisms, that trace the different affect of various incrementalist constitutional strategies on different types of conflict. One may even doubt that such links could be drawn at all. Nevertheless, for the sake of this study, the increasing tensions around religious foundational issues in Israel and India will be analyzed below as illuminating examples of the potential dangers that are inherent to the incrementalist approach to constitution-making.
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- Making Constitutions in Deeply Divided Societies , pp. 208 - 229Publisher: Cambridge University PressPrint publication year: 2011