Constitutional Design for Divided Societies Integration or Accommodation?

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  • Format: Hardcover
  • Copyright: 2008-06-09
  • Publisher: Oxford University Press

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How should constitutional design respond to the opportunities and challenges raised by ethnic, linguistic, religious, and cultural differences, and do so in ways that promote democracy, social justice, peace and stability? This is one of the most difficult questions facing societies in theworld today. There are two schools of thought on how to answer this question. Under the heading of "accommodation, some have argued for the need to recognize, institutionalize and empower differences. There are a range of constitutional instruments available to achieve this goal, such as multinationalfederalism and administrative decentralization, legal pluralism (e.g. religious personal law), other forms of non-territorial minority rights (e.g. minority language and religious education rights), consociationalism, affirmative action, legislative quotas, etc. But others have countered that suchpractices may entrench, perpetuate and exacerbate the very divisions they are designed to manage. They propose a range of alternative strategies that fall under the rubric of "integration"that will blur, transcend and cross-cut differences. Such strategies include bills of rights enshrininguniversal human rights enforced by judicial review, policies of disestablishment (religious and ethnocultural), federalism and electoral systems designed specifically to include members of different groups within the same political unit and to disperse members of the same group across differentunits, are some examples. In this volume, leading scholars of constitutional law, comparative politics and political theory address the debate at a conceptual level, as well as through numerous country case-studies, through an interdisciplinary lens, but with a legal and institutional focus.

Author Biography

Sujit Choudhry holds the Scholl Chair at the Faculty of Law, University of Toronto, where is Associate Dean. He has written widely on comparative constitutional law and constitutional theory. His previous books include The Migration of Constitutional Ideas (Cambridge University Press) and Dilemmas of Solidarity (University of Toronto Press).

Table of Contents

Acknowledgementsp. xiii
Table of Casesp. xv
Introduction and Overview
Bridging comparative politics and comparative constitutional law: Constitutional design in divided societiesp. 3
Introduction: Comparative constitutional law missing in actionp. 3
The Lijphart-Horowitz debatep. 15
Integration versus accommodationp. 26
Lessons for the integration-accommodation debatep. 32
Integration or accommodation? The enduring debate in conflict regulationp. 41
Distinguishing integration and accommodation from assimilationp. 42
Integrationp. 45
Accommodationp. 51
Centripetalismp. 53
Multiculturalismp. 56
Consociationp. 58
Territorial pluralismp. 63
Engagements between integrationists and accommodationistsp. 67
Stabilityp. 71
Distributive justicep. 78
Democracyp. 82
When is integration or accommodation appropriate?p. 85
Integrationp. 85
Accommodationp. 86
Conclusionp. 87
Theoretical Perspectives
Beyond the dichotomy of universalism and difference: Four responses to cultural diversityp. 91
Disestablishmentp. 93
Nation buildingp. 97
Cultural preservationp. 101
Equality of statusp. 105
Conclusionp. 109
The internationalization of minority rightsp. 111
The basic international frameworkp. 112
Limitations of the international frameworkp. 114
Rethinking the approachp. 126
Conclusionp. 138
Does the world need more Canada? The politics of the Canadian model in constitutional politics and political theoryp. 141
Introduction: Brian Barry versus Will Kymlickap. 141
The Canadian model: Accommodation and integrationp. 144
Will Kymlicka and the rise of the Canadian model in political theoryp. 153
The politics of the Canadian model: Canada in constitutional crisisp. 159
Lessons from the Canadian model in crisis: A procedural and a substantive crisisp. 165
Conclusion: The lesson of the Canadian model for multinational politiesp. 171
Ethnic identity and democratic institutions: A dynamic perspectivep. 173
Ethnic identityp. 176
Democratic institutionsp. 184
Multistage democratic processesp. 185
Novel voting systemsp. 188
Integrationist political spheres and accommodationist cultural spheresp. 193
Courts as unwinders of ethnic political bargainsp. 195
Federalism and territorially-based devolutionp. 198
A dynamic perspective on institutional designp. 200
Indonesia's quasi-federalist approach: Accommodation amid strong integrationist tendenciesp. 205
Introductionp. 205
From integration to accommodation in Indonesia: Decentralization and "special" autonomyp. 208
Special autonomy: An ambiguous reconciliation for Papuansp. 222
The Law on Aceh: All but federacyp. 228
Conclusionp. 231
Integrationist and accommodationist measures in Nigeria's constitutional engineering: Successes and failuresp. 233
The backgroundp. 234
Constitutional engineering through the combination of integrationist and accommodationist devicesp. 239
Accomplishments of the Nigerian designp. 243
Inadequacies of the Nigerian designp. 246
Political patronage, godfathers, and lawlessnessp. 249
Constitutional rescuep. 254
Conclusionp. 257
The limits of constitutionalism in the Muslim world: History and identity in Islamic lawp. 258
Introductionp. 258
Historicist jurisprudence: Manifesting the transcendent through lawp. 261
Muslim state constitutions and protections for religious minoritiesp. 265
Illustrating the tension at work: Saudi Arabia and Egyptp. 267
Understanding historical Shari'ap. 271
A Qur'anic basis manifested in historical Shari'a?p. 272
The case of wrongful-death damagesp. 274
Restrictions on building and repairing religious places of worshipp. 280
Conclusionp. 284
A tale of three constitutions: Ethnicity and politics in Fijip. 287
Backgroundp. 288
The 1970 constitutionp. 291
The 1990 constitutionp. 297
The 1997 constitutionp. 300
The approach of the commissionp. 301
Modifications by the Joint Parliamentary Select Committeep. 303
The operation of the Constitution: The electoral systemp. 305
Power sharingp. 307
Fijian administrationp. 310
Coups and overthrow of the constitutionp. 311
Conclusionp. 312
Rival nationalisms in a plurinational state: Spain, Catalonia, and the Basque Countryp. 316
Accommodating national diversityp. 316
Political traditions in Spainp. 318
Cataloniap. 319
The Basque Countryp. 322
Accommodating nationalismp. 325
Renegotiating autonomyp. 332
The issues at stakep. 337
Conclusionp. 340
Iraq's constitution of 2005: Liberal consociation as political prescriptionp. 342
Introductionp. 342
Iraq's constitution: Self-rule and shared rulep. 347
Iraq's constitution and federal shared rulep. 359
Conclusionp. 366
Consociation and its critics: Northern Ireland after the Belfast Agreementp. 369
Introductionp. 369
Consociational theory and Northern Ireland's Belfast Agreementp. 373
The neglected treatment of self-determination disputesp. 374
The neglected role of external actors in the promotion and operation of consociationsp. 379
The neglected treatment of security issuesp. 383
The debate between consociationalists and their integrationist and centripetalist criticsp. 385
Stabilityp. 385
Fairnessp. 396
Democracyp. 401
Conclusionp. 407
Recognition without empowerment: Minorities in a democratic South Africap. 409
Mapping diversity in South Africap. 412
Designs for a new South Africap. 418
The Lijphart-Horowitz debatep. 419
Constructing "The New South Africa"p. 422
Elections, legislatures, and executivesp. 424
Language and cultural rights: Recognizing diversity in the private spherep. 426
Multilevel governancep. 431
Conclusionp. 434
Giving with one hand: Scottish devolution within a unitary statep. 438
Introductionp. 438
Plurinational constitutionalism: The conceptual challengep. 440
Devolution for Scotland: Plurinational realignment without federalism?p. 446
Plurinational elements in the devolution settlement: Autonomy and recognitionp. 447
Integrationism within the devolution settlement: Intrastate relationsp. 451
Concluding remarksp. 459
Indexp. 461
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