Dialogic incrementalism in deeply divided societies

• Autores: Shamshad Pasarlay
• Localización: International journal of constitutional law, ISSN 1474-2640, Vol. 22, Nº. 2, 2024, págs. 318-353
• Idioma: inglés
• Enlaces
  • Texto completo (pdf)
• Resumen

  • Abstract A number of the world’s “deeply divided” societies are mired in violent conflicts which often grow out of historic tensions between the nation’s ethno-religious or linguistic groups. Elites within these societies tried to end these conflicts by drafting a constitution that would address the underlying grievances which fuel intergroup conflict. In many cases, however, rather than promoting peaceful political engagement, the process of constitution drafting seemed only to aggravate existing conflicts and create fresh sources of political unrest. Some deeply divided polities have avoided these worst-case outcomes by deploying an “incrementalist” approach to making constitutions. This approach asserts that deeply divided societies need not, and indeed should not, try to answer all constitutional questions. Rather, they can defer the most divisive questions for later resolution. By doing this, incrementalism focuses attention on issues over which some measure of agreement can be forged and enables constitutional ratification under fraught conditions. Critics have, however, identified two real problems with the incrementalist approach: first, once ethnopolitical elites agree to defer important questions, new developments may empower one group and allow it to stop good-faith negotiations and impose its preferred constitutional settlements. Second, the constitution’s open questions may not be resolved in a timely manner, and the lingering ambiguities can produce fresh sources of conflict. This article asks whether one can design constitution-making processes in a way that harvests the benefits of incrementalism while avoiding the problems associated with it. The article suggests that the experiences of Afghanistan and Iraq indicate that there is a particular type of constitutional incrementalism which is more likely than others to accomplish this. It describes three Afghan constitutions, each of which embraced, implicitly, the logic of incrementalism. Of these, however, only one allowed constitutional questions to be addressed in a dialogic fashion. By imposing a process of what I call “dialogic incrementalism,” Afghanistan’s 1931 Constitution helped generate a stable constitutional order. Further, the article suggests that the drafting of Iraq’s 2005 Constitution shows that dialogic incrementalism can be a conscious design option.