David Landau

Constitution-Making Gone Wrong

With the recent wave of regime change in the Middle East, the process of constitution-making must again become a central concern for those interested in comparative law and politics. The conception of constitutional politics associated with Jon Elster and Bruce Ackerman views constitution-making as a potentially higher form of lawmaking with different dynamics than ordinary politics and states that ideally, constitution-making should be designed so as to be a relatively deliberative process where the role of group and institutional interests is deemphasized. I argue that a focus on achieving deliberation and transformation through constitution-making is unrealistic in certain situations and that theorists should instead often focus on avoiding worst-case scenarios of authoritarian regimes or breakdowns of order. Constitution-making moments must not be idealized; they are often traumatic events. In these situations, the central challenge of constitution-making is not to achieve a higher form of lawmaking but rather to constrain unilateral exercises of power. I use two recent Latin American examples where the constitution-making process was problematic to illustrate the difficulty. If political forces in assemblies are left unconstrained or poorly constrained, they can reshape politics to create a quasi-authoritarian regime (as occurred in Venezuela), or their attempt to impose a constitution on a reticent minority may create a constitutional breakdown (as nearly occurred in Bolivia). Some of the normative recommendations of followers of the dominant model – for example, that constitution-making should be highly participatory and should be undertaken in a specialized constituent assembly – emerge as problematic under this reconceptualization because they may increase the likelihood of a worst-case outcome. Finally, I apply my theory in order to get some analytic leverage on the current constitution-making process in Egypt. Contrary to most observers, I argue that the military may be playing a pro-democratic role by helping to constrain otherwise dominant electoral groups.

The evolution of the separation of powers in the global south and global north

The separation of powers has been a central tenet of constitutional design since the French Revolution and the design of the United States Constitution. Perhaps its most prominent defense has been that preventing the concentration of power in any one political institution would help to guard against the abuse of power. Indeed, this idea is one which has a long pedigree and analogues in many parts of the world. While there was no developed doctrine of the separation of powers in pre-colonial African societies with much power concentrated in the hands of traditional leaders, such leaders were nevertheless required to consult with and seek the approval of advisory councils or popular assemblies (on matters of particular importance): this created opportunities by members of the community to check the power of the leader.1 Some of the theoretical foundations for the later development of the separation of powers doctrine in constitutional law were laid by Aristotle in Ancient Greece who recognized the desirability of a threefold division of power between a deliberative dimension, an executive dimension (he referred to this as the magistracy) and a judicial one.2 Whereas Aristotle focused on what would be an excellent form of government for the community, modern notions of the separation of powers developed during the Renaissance period, where the emphasis was placed firmly on how to ensure that power was not abused in a manner that severely circumscribed the liberty of individuals. Such ideas were initially put forward by John Locke3 and developed by Montesquieu, who argued for the necessity of distinguishing between a legislature (which made laws),

Legal Pragmatism and Comparative Constitutional Law

This chapter, for inclusion in the Elgar Handbook on Comparative Constitutional Theory (edited by Gary Jacobsohn and Miguel Schor) considers the place of legal pragmatism in comparative constitutional law. The article first defines legal pragmatism as a theory that is anti-formal, eclectic, contextual, and instrumental, and articulates and responds to some common critiques of these central tenets. It then explains that while legal pragmatism is sometimes viewed by its adherents (such as Richard Posner) as being mostly of relevance in United States constitutional theory, it actually has much to say to the field of comparative constitutional law. The chapter argues that the insights of pragmatism can usefully be viewed in synthesis with important tools of comparative constitutionalism, such as proportionality, in order to suggest ways in which those tools can be broadened and improved. It also can help to point out the importance of “blind spots” that are deemphasized in existing theories, like questions of remedy and case selection.

Judicial Role and the Limits of Constitutional Convergence in Latin America

Much recent work has examined and found support for a convergence thesis – the idea that constitutional law across countries is becoming increasingly similar through time. This piece critically examines the convergence thesis in Latin America. While much recent work has focused on the level of constitutional text, this chapter argues that a more meaningful approach for many purposes would look at either judicial enforcement or actual enjoyment of rights. The chapter considers two issue areas – same-sex marriage and socioeconomic rights – where there are high-level pressures towards convergence within the region. It shows nonetheless how courts have used differing conceptions of justiciability and remedy to reach significantly different solutions to the enforcement of these rights. This enduring divergence is rooted in differing conceptions of judicial role, which in turn are a product of a number of factors including judicial design, constitutional and judicial history, the configuration of political institutions, and idiosyncratic factors related to individual judges. Most of these factors are unlikely to show a clear trend towards convergence through time. Thus, on-the-ground convergence is likely to remain limited, since those seeking to promote convergence would need to align low-level factors impacting the behavior of judges as well as high-level factors like consciousness or the constitutional design of particular rights. This finding in turn raises broad questions about both the possibility and desirability of convergence in Latin American constitutional law.