Constitution Writing & Conflict Resolution

During the past thirty-five years, nearly 200 new constitutions have appeared in countries at risk of internal violence.  Internationally brokered peace accords have entailed the development of constitutions not only in the Balkans but also in Cambodia, East Timor, Rwanda, Chad, Mozambique, and the Comoros. New fundamental laws have featured in the adoption of multiparty systems from Albania to Zambia. 

It is not hard to think of examples of some constitution writing processes that have aggravated levels of conflict and others that appear to have reduced difficulties.  For example, Africa specialists often contrast the divergent experiences of countries that held national conferences as part of the move to multiparty rule.  In Congo-Brazzaville, the organization and tone of the country’s national conference intensified ethnic conflict and distrust among political elites, precipitating civil war.  In Chad, the 1996 conference helped worsen a Francophone/Arab rift.  In Togo, the military held delegates hostage.  By contrast, the design and management of the national conferences in Benin and Mali instilled higher levels cooperation among political elites and established models for resolving problems well after the transition had ended.   Spain, South Africa, and Namibia attract attention as happier stories too, although they all left important issues unresolved-- and although violence diminished only very slowly in the Spanish case.

Policy makers have started to ask what we have learned and specifically whether some constitutional reform processes are more likely than others to deliver a reduction in violence or more rights-respecting fundamental documents.  For example, over the past five years, the Commonwealth, the U.S. Institute of Peace, and the NGO International IDEA have worked to develop good practice guidelines for the conduct of constitution writing. 

Implicit in these initiatives are two claims.  One is that the process used to develop a new constitution matters for outcomes we care about, such as the inclusiveness of new polities, respect for rights, and willingness of potential spoilers to lay down arms.  One can imagine several different causal story lines.  For example, procedures may influence whether drafters consider a wide range of interests, choose to compromise, etc.  They may thus indirectly affect the level of order and the character of the new polity by shaping the terms chosen for constitutional texts.  They may also exercise a range of direct effects on these outcomes, whether by creating models for societal dispute resolution, providing norms around which people may coordinate their expectations, generating information necessary for citizens to monitor compliance, or setting a tone for discussion and dispute resolution.   Arguably, in the initial years of the life of a new constitution, when politicians are still exploring what the terms themselves mean in a practical sense, the drafting process may influence levels of conflict more strongly than content. While it takes time for people to learn about the incentive structures new constitutions create, the writing procedures sends signals that have an immediate impact on attitudes.

The second implicit claim in the programs launched by International IDEA, USIP, and others is that we can distill reliable generalizations from experience.  This challenge is more difficult.  Our instincts tell us that process makes a difference, but it is devilishly hard to show that it does.  A number of very serious comparative analytic problems hamper the ability to give a social science answer to the question policy makers have asked. 

This project describes recent patterns of constitution drafting, drawing on a dataset the author developed in part for the United States Institute of Peace.  It then reviews some of the causal claims implicit in many current efforts to develop good practice guidelines and carries out some simple tests, using the author’s datasets.    

Institutions for Fragile States
Under the auspices of the collaborative project I run (see “Links”), I am investigating the effectiveness of several alternative service delivery mechanisms in fragile states.

Good Faith & Fair Dealing
In recent years the principles of “good faith and fair-dealing” have crept into a variety of international agreements and into the UNIDROIT provisions advanced by the International Institute for the Unification of Private Law.  In its broadest form, good faith performance of a contract “emphasizes faithfulness to an agreed common purpose and consistency with the justified expectations of the other party” and excludes behavior that violates “community standards of decency, fairness or reasonableness.”    The principle protects the reasonable expectations of contracting parties.  There is much room for variety in application.  Fair-dealing, the less expansive and less controversial term, refers mainly to procedural fairness.  For example, in employment law, it would insist that a worker receive at least one warning, notice, and an opportunity to be heard before dismissal.

Originally embedded in the civil law systems of continental Europe, Latin America, and parts of Africa, “good faith and fair dealing” entered the United States through the Uniform Commercial Code in the early twentieth century.  The ideas met initial resistance in America, as they did in England, where the general presumptions were that parties who freely enter an agreement may set their own terms and courts may not re-write contracts.  Subsequently the concepts gained currency in several aspects of contract law in Anglo-American systems.  International agreements are now spreading the principles to new parts of the world and new types of transactions and relationships.

The breadth of “good faith” leaves much room for interpretation. This project explores the way legislatures, courts, and publics define these ambiguous concepts and apply them in several broad types of disputes.  It asks whether a common international norm is evolving to help define “what’s fair” or whether there are distinctive patterns of reasoning, tailored to different social structures, contexts, and cultures around the globe.  It analyzes the causes of these trends, with particular attention to the way inequality in relationships shapes preferences and rules.  The end product will be a book that is at once a popularly accessible discussion of “good faith” in a period of globalization and an investigation of the politics surrounding the definition and spread of a new international norm.