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49 Cornell Int'l L.J. 227 (2016)
Constitutional Design without Constitutional Moments: Lessons from Religiously Divided Societies

handle is hein.journals/cintl49 and id is 245 raw text is: Constitutional Design Without Constitutional Moments: Lessons from Religiously Divided Societies Ash Bali & Hanna Lernert High stakes constitution-writing exercises have burst into the head- lines in recent years from Iraq and Afghanistan to Egypt and Tunisia. In some cases, heated debates have given way to conflict and even violence as transitioning societies struggle to resolve fundamental conflicts over iden- tity. The challenges of constitution-making are more acute in societies that are marked by deep religious divisions, as is the case in many Muslim- majority countries that are currently undergoing political transitions. In this Article, we examine a distinctive feature of the current wave of new constitutional exercises: the challenge of constitution-drafting under condi- tions of deep disagreement over the state's religious or secular identity. The Article offers three major contributions. First, we provide a detailed qualitative examination and comparison of constitution-making in the seven relatively understudied cases of Egypt, Indonesia, India, Israel, Lebanon, Tunisia, and Turkey. Second, our examination of these cases informs a critical assessment of some common assumptions in the litera- ture that are drawn from well-studied, Western cases of constitution-draft- ing like those of the United States and France. We argue that an understanding of constitution-drafting as higher-order law-making that is designed to resolve questions of identity and entrench a foundational defi- nition of we the people is inapposite at best and, at worst, may exacerbate conflict in religiously-divided countries. Thirdly, we develop a framework that expands the range of constitution-drafting tools and strategies dis- cussed in the comparative law literature by identifying novel design fea- tures drawn from the qualitative cases and their potential merits. f Ash Bali, Professor, UCLA School of Law and Hanna Lerner, Senior Lecturer, Tel Aviv University Department of Political Science. For their helpful suggestions on our theoretical argument and their invaluable contributions to our thinking about the country cases described in this Article, we would like to thank Murat Akan, Nathan Brown, Mark Farha, Tom Ginsburg, Bill Kissane, Mirjam Kuinkler, John Madeley, Nadia Marzouki, David Mednicoff, Tamir Moustafa, Ergun Ozbudun, Ulrich Preuss, Ben Schonthal, Shylashri Shankar, Tine Stein, Alfred Stepan, and Mila Versteeg. Our work on this Article benefited greatly from our fellowships at the Center for Interdisciplinary Research (ZiF) at Bielefeld University, Germany, in 2014. We are also grateful to Aaron Glasserman, Mack Eason, and Catarina Prata for excellent research assistance. 49 CORNELL INT'L L.J. 227 (2016)

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