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Vol 22 No 11 Nov/Dec 2017

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Making Constitutions in Deeply Divided Societies

ISBN13: 9781107005150
Published: May 2011
Publisher: Cambridge University Press
Country of Publication: UK
Format: Hardback
Price: £72.00

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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.

Constitutional and Administrative Law
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.