Bargaining on Constitutions: Political Settlements and Constitutional State-building

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Based on a 2016 research paper:

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Policy point:
• Constitutional theory is a resource for those seeking to promote constitutionalism as tool for reaching political settlements to resolve conflict.
• Constitutions need to be understood as just as political and fraught as other institution-building efforts.

Abstract: This article considers the relationship between constitutions and political settlements and locates the special section articles within this wider discussion. The article points to the apparently paradoxical connection between disillusionment with internationalised statebuilding techniques on one hand, and increased international faith in constitution-making as a statebuilding tool on the other. Using understandings of the relationship of the constitution to political settlement from conventional constitutional theory, it argues that the current context of negotiated transitions requires constitution-making to be approached with an eye to the distinctive dilemmas of statecraft that pertain in contemporary transitions. The most central dilemma concerns how power-balances between political/military elites shape can be broadened to ensure the constitution’s capacity to fulfill its normative role in restraining power and delivering broader social inclusion. The article points to how the pieces which make up this special section draw together development and legal discourses to suggest how constitutional theory provides a resource for those seeking to promote constitutionalism as a tool for reaching political settlements capable of resolving conflict. It also argues that those who seek to rely on constitutions for conflict resolution, need to understand this enterprise as just a political and fraught as all other institution-building efforts.

Keywords: Concepts; Constitution-Making; Post-Conflict; Democratisation; Transition

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