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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