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Conventions, Constituent Assemblies, and Round Tables: Models, principles and elements of democratic constitution-making
Abstract
The article presents the Round Table form, elsewhere post-sovereign multi-stage constitution making as an independent democratic type superior to the alternatives. It locates the form along with Convention and Constituent Assembly both in a comprehensive typology based on models of regime transformation, as well as historically. After making a set of normative arguments comparing the three forms, focusing on the issue legitimation, I make a case for the synthetic nature of the Round Table in relation to the two important democratic predecessors. Finally, I reluctantly admit the path-determined nature of the Round Table that strictly speaking seems relevant only 1) in the transitions from dictatorships, if 2) new forces do not have the power to accomplish revolutionary change. Nevertheless, I argue that the principles of the Round Table (inclusion, consensus, publicity, legality and veil of ignorance) are relevant to other paths, from the point of view of their legitimation. I further claim with reference to Iraq, Turkey and the European Union that elements of the Round Table can be adopted even under conditions of revolutionary change, as well as constitutional reform.
... There is today a new paradigm of democratic constitution-making, beyond classical American and French models. 1 It emerged in Spain in 1977 and central Europe in the early 1990s, and was greatly improved upon in South Africa later in the decade. We stress its following elements. ...
... We stress its following elements. (1) Constitutions are made in two or more distinct stages. ...
The article has several theses. First we propose that there is a new method of constitution-making today, the two-stage, post-sovereign one perfected in South Africa. Second, we admit the path-dependent nature, and difficult pre-conditions, of this method. Third, we maintain that even when the full method is unlikely in a given context, its legitimating principles nevertheless can play a role through international dissemination. We explore that possibility in the context of the projected comprehensive reform of Turkey, and the constitutional revolution in Egypt. It is our belief that in these contexts one can learn both from successes of the new method and also from its failures typified by the Hungarian case that we briefly present. We are unfortunately not optimistic about the success of the new method especially where actors maintain their strong belief in the constituent power of the popular sovereign. This is likely to be the case in revolutions, but can happen in reform or even during the last state of the post-sovereign method itself.
... Often the choice of type of body will be predetermined by tradition or by existing law and practice in the area (assuming there is a desire to abide by the latter). For example, the United Kingdom is unlikely to break from its long tradition of relying on expert commissions in bringing about constitutional reform (Renwick, 2014, page 108), whereas conventions, assemblies and roundtables are more popular in countries influenced by the French and American traditions (Arato, 2012). The following explore different options. ...
... This will lead to a consideration of the normative theory of post-sovereign constitution-making or the round-table model advanced by Arato. 145 The model seeks to synthesise the best features of the two main democratic models of constitution-making via constitutional convention and constituent assembly. 146 The round-table model prescribes a two-level process whereby an interim Constitution that binds the constitution makers is first made before the final Constitution is ultimately made. ...
This article revisits the legitimacy question as it touches the Nigerian 1999 Constitution, bringing to the discourse a review and application of pertinent theoretical perspectives on constitution making and constitutional legitimacy. This theoretical and pragmatic approach introduces a refreshing angle to the debate, revealing the paucity of any attempt to ascribe any legitimacy claim to a constitution with a doubtful normative claim and fraudulent attribution of its source and legitimacy to the people. The author finds the consent basis of constitutional legitimacy as most attractive to a divided state like Nigeria, and concludes by advocating the adoption of a blend of the principles of the constituent assembly and post sovereign constitution-making models for the production of a new people-driven and inclusive constitution to meet the needs of the Nigerian people.
... This approach extended to the government formation process as a whole, where basic democratic rights such as representation were contested, leading to the bizarre dynamic where the leading Shia cleric, Ayatollah al Sistani, issued a fatwa to ensure that elected, not appointed representatives, would draft the Constitution. A. Arato (2009), p.61-4. 79 ICG. (2003 Governing Iraq, p.ii. 80 D. Feith (2009), p.447. 81 T. Dodge (2005a), pp.31-33. ICG. (2003). Governing Iraq,p.12. 82 T. Dodge (2005 b), p.712. 83 E. Herring & G. Rangwala,IRI and IIACSS polls. However, with the CPA contained in the Green Zone with limited access to the Iraqi population and no actual consultation ...
At the beginning of the 21st century, the US led invasions into Afghanistan and Iraq. While both invasions were initially framed as security imperatives, the subsequent occupations were situated within a narrative of democracy promotion, liberalism and development. The act of invasion and the imposition of democratisation, raises the question can ‘democracy by force’ be reconciled in international law and international relations? There is little agreement of a theoretical definition of democracy in any discipline. The democracy which this study examines is both specifically Anglo-American and ‘liberal’ in terms of its origins and structural understanding. The form of democracy brought to Afghanistan and Iraq was a specific construction undertaken by the occupier, containing ‘exceptional’ characteristics and values: ‘freedom’, ‘prosperity’, ‘capitalism’, and ‘peace’ It is this combination of norms reflexively described as democratic, that was subsequently adopted by the UN and the development community. Revisions to the international legal system sought to legitimise the use of force to prevent gross violations of human rights. This was accompanied by the reframing of the State as illegitimate, where it pursued illiberal policies. In the occupations of Afghanistan and Iraq prohibitions on the use of force and transformative occupations were disregarded, in part to accomplish regime change, with far reaching implications to both international law and the international order. In addressing these events this thesis examines how democracy has been described over time, the form which has been exported and the claims made for it. It asks, where is democratisation situated in international law, and is this understanding affected by its imposition? Finally, it considers whether and what kind of democracy was delivered in Afghanistan and Iraq and how did the occupiers principles interact with overriding interests.
... The constitutional counselor to Pinochet, Jaime Guzmán, seems to have been more successful than Francisco Franco, the author of the famous sentence, according to which Spain's transition was institutionally constrained by the dictatorship. Spain did have a constitution-making process through the round table model as a key element of its transition to democracy4 Arato argues that a constituent process should consider at least three levels or stages of legitimation: at its origin, in the decision-making mechanisms, and in its ratification(Arato, 2011(Arato, , 2012.5 The term "cabildo" evokes a colonial form of local political organization that was relatively autonomous from the King of Spain until the 17 th century. ...
... A 64% rule, which has been brought forward by Caplin and Nalebuff (1988), is reasonably close to the typical qualified majority requirement of two-thirds (Democracy Reporting International, 2011, p. 4). 17 Another way to protect minorities would be establishing a round table model for the entire constitution-making process (for a detailed description, see Arato 2012). The idea of the round table model is that a multi-party instance (the round table) that includes all major groups negotiates an interim constitution and is followed by the election of a new assembly, which then drafts the final constitution. ...
The paper addresses the divergence in majority rules at the moment of creating or reforming constitutions.
While constitutions require, in most cases, qualified majorities in order to be approved at the constitutional
assembly, they normally require only simple majorities to be ratified at the referendum. We analyze the set of
conditions under which each majority rule is preferable for constitutional referendums. We argue that the
simple majority requirement for referendums in constitution-making, which is nearly universally used, lacks
a clear theoretical justification. Qualified majority rules increase legitimacy and provide additional checks on
the drafters. We further highlight when simple majority rules have advantages: when decision-making costs
in the referendum are high. Thereafter, we present an evaluation mechanism to identify the cases in which
each majority rule should be used to increase stability and legitimacy. We then apply this evaluation
mechanism to the constitution-making processes in Poland, Bolivia and Egypt, which are three examples
of diverging majority rules.
... This practical interest has been matched by scholarly interest, such as in the field of political theory, where scholars have tried to incorporate democratic innovations into theories of institutional design (Smith 2009). While authors have put forth typologies of participatory constitution-making instruments (Arato 1995(Arato , 2012, distinguishing between forms as disparate as constituent assemblies, round tables, constitutional conventions, or peace negotiations, only constitutional referendums, constituent assemblies with popular consultations, and conventions modelled on citizen assemblies will be analysed here. These are by no means the sole innovative mechanisms of participatory decision-making, which also include citizen juries, deliberative polls, and participatory budgeting. ...
Popular participation has become a hot topic in constitution-making, taking the form of referendums, popular consultations, civic education, and citizen assemblies, among others. Underlying this rise of mechanisms of popular involvement in constitution-making are normative justifications for the direct participation of the people in such processes, including higher legitimacy and more inclusive and sustainable constitutions. Generally missing from these accounts, however, has been an investigation into the capacity of participatory mechanisms to incorporate and respond to the views of women. While appeals to the people have been justified on the grounds of their increased overall legitimacy, less attention has been paid to who, precisely, participates when these mechanisms are set up and whether women are adequately represented and listened to. This chapter seeks to begin filling this gap. It provides initial answers to the basic question of whether and how participation in constitution-making delivers for women. The chapter outlines the contours of the debate surrounding popular participation in constitution-making, then looks at three instances of popular involvement in constitutional change: the 2014 Scottish independence referendum, the 2012-14 Irish Constitutional Convention, and the 2011-14 Tunisian constitution-making experience, analysing the level and nature of women’s participation in all these processes. Subsequently, the chapter evaluates the successes and failures of participatory mechanisms such as referendums, constitutional conventions, and public consultations in empowering women as equal participants and the ability of these tools to ensure gender-sensitive deliberations. The chapter also raises questions as to whether participation is to be resorted to in all cases of constitutional reform and the propensity for it to be an obstacle to rather than a vehicle for gender equality.
... Three casesthose of Iceland, Ireland, and Romaniaindicate important shifts away from a rigid, legalistic view of constitutionalism, with its insistence on expert or elite-based constitutional politics, and in some cases also from political constitutionalism, with its emphasis on the pre-eminent parliamentary role in constitutional politics. The cases relate to forms of constitutional reform in which both legality and legitimacy are continuous, with an emphasis on established rules of revision (even if these are in practice sometimes abandoned), in contrast to more radical, rupturing forms of change in cases of for instance transitions from authoritarian to democratic systems (see Arato 2012). All three cases include some forms of more incisive civic engagement, as imagined in popular or, more directly, in democratic constitutionalism. ...
The basic values rooted in a democratic constitution serve as the foundation for protecting individual liberty, establishing an equitable society, and encouraging civic duty. At its heart, a democratic constitution must explicitly proclaim people's sovereignty, guaranteeing that all political authority is derived from popular desire. This includes holding free, fair, and regular elections that allow individuals to pick their representatives without force or manipulation. Furthermore, the constitution should guarantee fundamental human rights and freedoms such as free speech, religion, assembly, and the press, promoting an atmosphere in which different points of view may be expressed and heard. The notion of the rule of law must take first place guaranteeing that all persons and institutions are held accountable to the law, which is equitably applied and enforced. Another key component is the separation of powers, which provides checks and balances to prevent abuse of authority by different and independent departments of government (executive, legislative, and judicial). Furthermore, the constitution should encourage social justice, equality, and minority rights, guaranteeing that all people have equal opportunities and are protected from discrimination. This study focused on secondary sources of knowledge about the idea and status of the fundamental values entrenched in the democratic constitution. These principles, taken together, guarantee the creation and preservation of a dynamic, inclusive, and resilient democratic society.
This research aims at finding a strategy to strengthen Indonesia's bicameral parliament. It is a parliamentary system consisting of an Upper House and a Lower House. The Upper House, Regional Representative Council (DPD), represents certain groups or regions, and the Lower House, House of Representatives (DPR), represents national interests. Ideally the position of the DPR and DPD is in an equal position, however the DPD arrangements in the constitution have a power but do not reflect the bicameral principle. If left unchecked, it can trigger regional dissatisfaction which threatens the disintegration of the nation. This research employed normative juridical research methods with a conceptual and statutory approach. The result showed that the DPD has made efforts to strengthen it through al-sutha al tasyri'iyah (formal amendments) but failed. Moreover, the DPD has also carried out legal reviews by the Constitutional Court (judicial review) but the results have not been significant. The most realistic way to strengthen the DPD and has never been used before is through a constitutional political strategy (siyasah dusturiyah) to create constitutional conventions by vetoing draft laws whose decisions are made without involving the DPD. Therefore, the Indonesian parliamentary system can run in the double check system and check and balance paradigm in maintaining democracy and regional autonomy. Thus, if the DPD has a strong bargaining position in parliament then the goal of forming a strong bicameral parliament can be established.
Drawing conceptual boundaries is one of the defining features of constitution-making processes. These historically situated operations of boundary making are central to the definition of what counts as “constitutional” in a political community. In this article, we study the operations of conceptual delimitation performed by the Constitutional Commission (1973-1978) that drafted the 1980 Chilean Constitution, the trademark of Augusto Pinochet’s dictatorship. Using the eleven volumes of the Commission’s Official Records as our textual material (10,915 pages and 80,005 distinct words), we apply vector semantics, spectral clustering and bigram graph-based analysis to explore conceptual boundaries and the behavior of specific keywords shaping the space of constitutional meanings. Our results identify the ways in which the Commission defines the normative horizon of the new social and political order by transforming old semantic references into a renewed conceptual framework. This analysis shows the immanent relations between political action and conceptual elaboration that underlie the creation of constitutional texts, as well as the potential of computational methods for the study of constitutional history and constitution-making processes.
The Failure of Popular Constitution Making in Turkey - edited by Felix Petersen January 2020
The process of making the present Constitution of the Republic of the Union of Myanmar in Burma/Myanmar under the military dictatorship State Law and Order Restoration Council/State Peace and Development Council (SLORC/SPDC) from 1993 through to 2007 is rightly viewed as an undemocratic, repressive process. Both the citizens of Myanmar and the international community generally had no say in the whole process. Thus, the process may be viewed as one of resistance by the SLORC/SPDC against global constitution-making norms and practices, on the one hand, and local democratic politicians and groups, on the other hand. The Constitution that came into operation in January 2011 admittedly has highly undemocratic content. However, it undeniably has some democratic content that started bearing fruit, eventually culminating in the winning, in the November 2015 general election, and the coming to power of, the National League for Democracy party in March 2016. I trace the constitution making in Burma/Myanmar by expanding the time frame of analysis until 2016 and revisit the ‘resistance’ argument. Then I posit that the process is a double-pronged strategy by the SLORC/SPDC to, first, resist global and local pressures with the intention of, later, engaging with them when the time was perceived to be right and conducive to their interests.
Constitution-Making and Transnational Legal Order - edited by Gregory Shaffer April 2019
Almost all contemporary constitutions are entrenched, in other words, harder to amend than ordinary laws. “Entrenchment clauses” further raise these hurdles. They make amendments to certain parts of a constitution or amendments under certain circumstances either more difficult than “normal” amendments or even impossible. Such provisions are common around the world and in all types of political systems. Nevertheless, they are highly controversial from a normative point of view since they may be seen either as adequate means for protecting human rights, democracy, and the rule of law or as illegitimate restrictions on democratic sovereignty. Against this background, this article examines the factors that influence the codification of entrenchment clauses in contemporary constitutions. The study analyzes 210 national constitutions adopted from 1975 until 2015. It focuses on factors describing historical legacies, the political and social context of constitution-making, and characteristics of the newly established constitutional order. As will be shown, the state of democracy has almost no significant influence on the decision for or against entrenchment clauses. Instead, historical path dependencies and contingent procedural decisions on the constitution-making process predetermine that constitutional choice to a large extent.
Increasingly, an important—even central—issue in constitutional transitions is dealing with the diversity of populations in different regions, i.e., with territorial cleavages. When this territorial dimension is important, it can greatly complicate both the process of constitution making and the design of legitimate and stable constitutional institutions. Put simply, the theory and practice of constitution making often implicitly presupposes that there is a single people, and that the purpose of constitution making is for that entity to decide on the constitutional framework under which this people will govern itself. However, in many cases the very idea of a single people is not accepted—or is seriously qualified by deep diversity that creates a layered or composite national identity. Such demographic diversity can have serious implications for how constitutional processes are conducted and how constitutional institutions are designed, especially when it has a strong territorial dimension. This is an increasingly pervasive phenomenon in contemporary constitution making. In the last two or three decades, many countries that have engaged in constitutional debates have had to address (or are continuing to address) the territorial character and structure of the state. The diversity of these countries suggests that no single process or institutional design provides policy makers with a simple formula to address their different circumstances. This paper presents a framework for considering constitutional transitions that involve significant territorial cleavages. It is designed to assist political leaders, citizens and advisers engaged in a process of constitutional transition where the territorial character and structure of the state is an issue alongside other constitutional questions. After briefly discussing the significance of constitutions and the nature of constitutional transitions, it considers the political nature of territorial cleavages, the challenges they can present for constitutional processes that are not always framed with territorial issues in mind, and some options for constitutional design that may help manage or accommodate such cleavages.
Die polnische Verfassungsgebung zwischen 1989 und 1997 widersprach fast allen Annahmen und Empfehlungen der klassischen Theoriebildung. Heißt es, ein Verfassungsgebungsprozess könne verfeindete politische Lager an den Verhandlungstisch bringen und im Idealfall aussöhnen, wurde er im polnischen Fall zu einer Chiffre für parteipolitische Auseinandersetzungen und politisch-kulturelle Deutungskämpfe.
On December 1, 2013, the Croatian voters adopted a constitutional amendment in a referendum. It changed Art. 62 of the Croatian constitution, declaring marriage a union between a woman and a man.
Until recently there has been relatively little attention paid to the question of how the relationship between the state, its citizens and the nation is articulated in constitutional texts. This paper seeks to address this gap through an examination of how the rules of belonging to the nation are discussed by the political elite and how these discussions find their final formulation in the constitutional texts. The analysis focuses on the Turkish case at two constitution-writing moments (1924 and 1961). While such moments have conventionally been assumed to be 'revolutionary', the data on Turkey highlights continuities rather than radical changes over time. More particularly, it underscores the resilience and salience of the principle of nationalism over time.
The aim of this article is to reframe the debate on societal constitutionalism and constitutionalization from a spatial to a temporal framework. This analytical shift is due to the dramatic acceleration of societal processes, which are increasingly crossing the spatial boundaries of nation-states and of all the other social structures embedded in peculiar places. This high-speed society is characterized by the so-called temporalization of complexity, which influences every aspect of social life and, in particular, the “validity” of law. On the basis of this theoretical background, I would like to show that changing the form of observation from a spatial to a temporal framework may help in understanding the future of constitutionalism in a different and creative way. To cite some of the examples presented in this article, such shifts in the form of observation could help us to reconsider: (a) why so many scholars prefer now to talk about “processes” of constitutionalization instead of constitutions as “structures”; (b) the growing relevance of courts instead of legislative bodies for processes of global constitutionalization; (c) the blurring or vanishing of the modern distinction between pouvoir constituant/pouvoir constitué; and (d) the fundamental role of human rights and dignity within the processes of global constitutionalization. The temporalization of constitutions could help us to understand and foresee a new and emerging ideal of societal constitutionalism in which the processes and structures of the structural coupling between (not national) polities and law are open to the challenges of a hyper-complex world society.
According to Hannah Arendt, “the great and, in the long run, perhaps the greatest American innovation in politics as such was the consistent abolition of sovereignty within the body politic of the republic, the insight that in the realm of human affairs sovereignty and tyranny are the same.” This statement can profitably be put together with Hans Kelsen's 1920 “Die Souveranitatsvorstellung freilich muss radikal verdrangt werden.” He best explained this idea twenty-five years later, when he defined (as before) sovereignty as the nonderivability of the domestic legal order from, and its supremacy over, all other sources of law, including and even in particular international law. Under a sovereignty regime, international law gains its validity only because it is so recognized by a domestic system, and the laws of other domestic systems, even more indirectly, are seen as valid only because of the requirements of international law. Sovereignty regimes are thus epistemologically solipsistic, and politically even worse, potentially. “A person whose political attitude is nationalism and imperialism will naturally be inclined to accept the hypothesis of the primacy of national law. A person whose sympathies are for internationalism and pacifism will be inclined to accept the hypothesis of the primacy of international law.” The latter will therefore seek (politically, or morally at least) to suppress sovereignty regimes. Leaving for another occasion consideration of Kelsen's remarkable though not wholly convincing argumentation for this position, we note that the two perspectives, his and Arendt's, could be seen as entirely incompatible or as complementary. Arendt's statement is about supposed historical fact, whereas Kelsen's is about a moral-political norm rather than a legal norm. An unconvincing way of reconciling them would be to say that what is both fact and a norm in America is mere norm elsewhere, and Arendt's appeal to “the long run” seems to suggest such a relationship between a model and its desired normative influence. But it is doubtful that Kelsen would have thought that in the period of the rejection of the League of Nations or at the time of the founding of the United Nations Americans were not confronted with the same fateful choice as other states. More relevant here is that it is very clear that Arendt considers the American abolition of sovereignty to pertain to internal affairs only, first, because she explicitly says “within the body politic,” and second because she even implies (very rightly) that the point or one of the points of forming a more perfect union was to enhance external sovereignty. The task was to “reconcile the advantages of monarchy in foreign affairs with those of republicanism in domestic policy” (OR, 152). It would be absurd to call this a chance or careless remark, given that the correspondence of its thrust with the intentions of the authors of The Federalist had to be entirely clear to Arendt.
Bekanntester deutscher Philosoph der Gegenwart. Seit mehr als fünfzig Jahren prägt Jürgen Habermas das intellektuelle Leben Deutschlands und darüber hinaus. Mit seinem Werk nimmt er entscheidenden Einfluss auf die Wissenschaften, auf Politik und aktuelle gesellschaftliche Diskussionen. Neben einem Überblick zur Biografie stellt das Handbuch Habermas intellektuelle Kontexte, wie z. B. die Frankfurter Schule, vor und beleuchtet die wichtigsten Stationen seines komplexen Werkes. Der Schlussteil informiert über Begriffe und Konzepte, die sich durch das gesamte Werk ziehen.
This article reconstructs a model of 'post-sovereign constitution-making', namely, a multi-stage, democratic model with round table or multi-party negotiations as its centre piece, involving two constitutions with free elections in between, and overall enforcement through a Constitutional Court. This is the model that was more or less perfected in South Africa in the 1990s. In comparison, Hungary, the empirical object of the study, is seen as an imperfect realisation, because the final stage, not provided for in the interim Constitution, was not completed in a democratic process. The author thus sees the role of the Hungarian Constitutional Court as compensatory, and inevitably weakening, given the weak legitimating background provided by an incomplete process. A case in point is the jurisprudence of constitutional amendments. In light of the inherited amendment rule, the Constitution of the regime change could only be reliably protected if the Hungarian Constitutional Court adopted one or another version of amendment review, in the path of the Indian 'basic structure' doctrine. The article tries to show that a fourfifths rule concerning constitutional replacement, adopted during an unsuccessful effort at constitution-making, could be a textual support for such a review. Subsequent to the conclusion of this research, the new right-wing Hungarian Parliament abolished the fourfifths rule, by using the two-thirds amending rule. This, in the author's view, is prima facie unconstitutional.
The quest for freedom from hunger and repression has triggered in recent years a dramatic, worldwide reform of political and economic systems. Never have so many people enjoyed, or at least experimented with democratic institutions. However, many strategies for economic development in Eastern Europe and Latin America have failed with the result that entire economic systems on both continents are being transformed. This major book analyzes recent transitions to democracy and market-oriented economic reforms in Eastern Europe and Latin America. Drawing in a quite distinctive way on models derived from political philosophy, economics, and game theory, Professor Przeworski also considers specific data on individual countries. Among the questions raised by the book are: What should we expect from these experiments in democracy and market economy? What new economic systems will emerge? Will these transitions result in new democracies or old dictatorships?
- Bozóki