—Andrew Arato, The New School for Social Research
The concept of the constituent power emerged in the revolutions of the 17th and 18th centuries. Many new constitutions since then were made through variety of non-revolutionary processes. Yet, the normative link between democratic forms of constitution making and revolution, deeply embedded in the notion of the constituent power of the people, has survived in both political and legal theory. Even Hannah Arendt, well aware of the dangers of revolutionary ruptures, considered revolutionary origins a necessary though hardly sufficient condition of the creation of fully legitimate constitutions. It is also true that she hoped to tame revolutions through postulating constitution as the necessary second stage, after liberation, of a successful revolutionary process. Yet she was quite aware in 1962 when On Revolution was written that such domestication was rarely successful. Thus she was forced to operate with the dichotomy of failed (including permanent) revolutions and American exceptionalism. This was however before the time that non revolutionary democratic radical alternatives of regime change emerged. After the experience of Spain, Central Europe and South Africa we are now able to speak of both non revolutionary forms of regime change and post revolutionary forms of democratic constitution making. It is these form of change and constitutional politics that inform my own concept of post sovereign constitution making.
Originally this concept implied only going beyond “organ” rather than state sovereignty in the sense of the German Staatslehre of the late 19th century and the French public law of the early 20th. Classical theories from Sieyes to Schmitt have implied a strong link between the constituent power and the organ of the state in which the powers of sovereignty were concentrated. In the path of the American revolution, Hannah Arendt contested that link but could only do so for a revolutionary society that was already constituted in the form of small republics that wished to federate. In the multi stage round table led paradigm that dominated the early 1990s there was no longer a need for pre-existing republics to deconstruct the sovereign embodied in a single organ. Democratic constitutions could now be seen as products of many actors, acting through multiple procedures and stages, thus over a significant length of time. Undoubtedly, the making of the U.S. Federal constitution could also be retrospectively re-conceptualized in similar terms.
Yet, the Janus faced U.S. process initially involved a plurality of sovereign states that made the formation of the Federal Union not merely a domestic matter, but also an act of treaty making under customary international law. This dimension could be neglected in the cases that inspired the post sovereign paradigm, because within already established states there was initially no reason to dethrone state sovereignty along with the one embodied in an organ. Indeed, international law today insists on constitution making to be a purely domestic matter. That insistence as old as Vatel, may now be in part obsolete and myopic, along with analyses, including originally mine, based upon it. We can no longer neglect another group of constitution making experiments from Namibia to East Timor, and from Bosnia to Afghanistan where there was a significant international role, and where state sovereignty itself had to be constituted in the first place under the guidance of other sovereigns. Given the American and international role in Iraq, that I have studied in detail, this case too cannot be treated as only an instance of domestic though pathological post sovereign constitution making, grafted onto what was legally speaking a revolution.
With Iraq I was forced to recognize that revolutions, in that case an externally imposed one, could not be banished from the modern world by normative argument and learning, especially where the preconditions of a Spanish or Polish or South African type of process were absent. I will later speak about these preconditions. Nevertheless, the Iraqi process, as deficient as it was, made me realize that elements of the new post revolutionary paradigm could be adopted even in the midst of revolutions. Whether this happens or not depends at the very least on the international dissemination of the new principles of constitution making, and possibly on the role of powerful international actors that have come to understand the significance of these principles for subsequent constitutional legitimacy.
Unfortunately, in spite of the high prestige of the South African case, we cannot at all assume that the relevant international agents have learned the lessons of the post sovereign paradigm of the 1990s. Two intellectual approaches stand in the way. One of them is a radical democratic one, popular in many parts of the world, according to which it is the task of “the people themselves” to create their own constitutions in highly participant forms, “from below”. This approach, as old as the writings of Thomas Paine and Sieyes, but already put in doubt by Madison (Federalist 40), is a heritage of revolutionary constitution making. Although the sociological identification of the relevant agency, the people as the constituent power is nearly impossible, when revolutions return as in the Arab world recently it seems equally impossible to avoid reliance on this mythical construct. Thus the conception if it is to avoid fateful circularity suffers from a pars pro toto logic, that necessarily involves the substitution of a segment of the people for the whole. The step between a model of the constituent power based on popular sovereignty, and what Carl Schmitt called sovereign dictatorship is, as he knew, a small one.
The second intellectual approach that blocks the interest in the principles of the post revolutionary paradigm is that of many liberal writers, oriented to the result rather than the process of constitution making. The pragmatic idea that result excuses deficient process was insisted on by Machiavelli in the case of Romulus, and by Madison for the Philadelphia Convention. It seemed to be confirmed under authoritarian states that imposed rule of law constitutions throughout the 19th century. Today of course oktroyierte or imposed models are much less in fashion. Yet there are even social scientific attempts relying on a large number of cases trying to show that neither stability nor quality of constitutions can be correlated with any particular process of their making. This view, mostly directed against participatory models, opens the door to imposition and to the intellectual legitimation of deficient process. The conclusion many draw is that process does not matter as long as the result is well designed.
The linkage between process and outcome that is often contested today used to be a commonplace. The classical figure of the lawgiver indicates two dimensions of such linkage: the likelihood that knowledge and impartiality produce both better and more legitimate outcomes. It was not only the wisdom of this figure, but even more his disinterested perspective that was to guarantee the substantively excellent as well as legitimate result. In different ways the mythical narratives of Moses, Lycurgus and Solon all make certain that the lawgiver, as Rousseau insisted, receive no office nor position in the state. Of course the requirement guaranteeing impartiality is and has always been difficult to adhere to. And so is, obviously, its contemporary replacement, namely the veil of ignorance of Rawls. There are two ways of replacing both: by imputation from the result and by seeking to find functional equivalents. The approach through imputation recommends that the relevant issue is not how a constitution was actually made, probably through acts of extra-legal violence, but whether a constitution has such a content that it could have been produced by a wise and impartial legislator or under the veil of ignorance. The approach seeking functional equivalents on the contrary continues to focus on process, and seeks to demonstrate its consequences for the result. It may involve many devices from the non-relectability of members of the constitution making body, to institutionalized roles for public discussion as well as inclusive and highly pluralistic negotiating frameworks, before there are free elections. In case of each substitute the idea is to break the link between incumbency and outcome, to make likely that no actor is in the position to determine their precise future advantage under the constitution to be negotiated.
I admit that I remain deeply unconvinced by orientation to result in general, and the argument from imputation in particular even in the most famous case, that of Rawls. The argument that a constitution is such that it could have been the act of an ideal agency carries little weight where political actors know full well that the makers were self interested actors seeking incumbent advantages. Imputation of this type tends to work only with the passing of a significant period of time, when the legitimacy of the constitution is produced through its interpretation and enforcement. Even the Rawlsian imputation works only because he implicitly had in mind a constitution made nearly 200 years before, with origins shrouded by the myth of founding fathers. Yet even the U.S. Constitution’s legitimacy was initially in a great deal of doubt, and started to emerge, as scholars have shown, only with the culmination of the process, the making of the first 10 amendments, the Bill of Rights.
I must concede that one cannot rigorously prove, that of the world’s hundreds of constitutions since the 18th century those that have been produced in more legitimate ways (however that is defined) led to more stability and better outcomes than those that have been imposed by force. I am in any case not convinced of the value of large N research in this area. I do not doubt that there are many constitutions that can become legitimate in the long run however they are made. The Japanese constitution is the good case in point, and so is that of the Vth Republic. What I am convinced of is that recent experience whether in Hungary or Egypt, Colombia or Tunisia seems to tell us and future actors that whatever they put in constitutions, how they go about doing so can help delegitimate even largely acceptable outcomes, as well as legitimate others that may in many ways remain imperfect. As a matter of prudential judgment at the very least, actors involved in constitution making should aim to make the process as well as the result legitimate. They should not delude themselves with the idea that in the long run their constitution may acquire legitimacy, because the long run may never come, as it did not come in Egypt’s effort in 2012.
So my fundamental assumption, one that I will not seek to demonstrate beyond an appeal to experientially informed prudential judgment, is that process matters. What I wish to argue today in more detail is that revolutionary constitution making process remains highly problematic from the point of view of the legitimacy of the constitution. After conceding that revolutions will nevertheless take place, I will argue that learning from the lessons of post revolutionary constitution making by the main actors, whether internal or external, can greatly help in solving the problem of legitimacy. I want to make this case first by comparing revolution and post revolution, and second by highlighting some of the post revolutionary normative principles of constitution making. Finally I will consider the issue of time, sequence and beginning as they appeared in the post revolutionary paradigm, and the relevance of these concepts even in revolutions.
From Critique of Revolution to a New Theory of Radical Change
I will now mention only the main components of this post revolutionary or post (organ) sovereign alternative in constitution making, and compare it to the logic of revolution. First and foremost in post-revolution no group, no institution, nor leader is in the position, as in the constructive phase of all revolutions, to claim the right to speak for the people as a whole. If such a claim is nevertheless made, the institutional structure of post revolution helps to defeat it, without the kind of open and violent struggle over the embodiment of the sovereign characteristic of many revolutions. (Furet, Morgan, Lefort) The central institution of post revolution is the Round Table, but, unlike constituent assemblies of the classical type in most revolutions, it does not claim sovereignty, and frankly admits its own legitimation problems. Its form of representation is plural and accountable, rather than the absolute and unitary representation of revolutions. Second, the initial rules of transition are negotiated, rather than imposed. These rules are generally incorporated in a kind of interim constitution. Thus while revolution tends to produce one constitution, post revolution produces two. Third, parties or at least individuals who have participated in the old regime, are part of the negotiations, rather than the object of a new exclusion. Thus previous friend and enemy relations are converted into those of political opponents. Fourth, the public sphere and public discussion participate in the process autonomously and in plural forms, rather than as unitary opinion mobilized from above. Fifth, there may be legal continuity, but if that is impossible the process is quickly brought under rules of law. In revolutions, the will of an assembly or the prerogative of the executive dominates, at least provisionally. Or: while the legality of revolution is based on the principle that the will of the revolutionary agency is law, post revolution is legal in the more demanding sense that its provisional government itself is under the rule of law. Thus, sixth, constitutionalism is not only the intended result, but is applied to the very process of constitution making. Such is the function, once again, of interim constitutions. Finally, whereas in revolutionary governments there is in general no separation of powers, in post revolution a constitutional court is established that controls the acts of the provisional government, and in South Africa at least even the output of the constitutional assembly.
This post revolutionary complex is in general legitimated in terms of plurality of principles that can be interpreted in Weber’s sociological conception of legitimacy, but can also be justified on more demanding normative levels. Empirically we have seen that plurality of inclusion, mutual recognition by former enemies, bargaining under consensual rules, openness to publics, legality in the sense of rule of law governed process, free and competitive elections under fair rules midway in the process play an important role in gaining the acceptance of most political forces and mass constituencies. This apparently eclectic group of principles, can be justified normatively, if no less eclectically. The liberal principle of the rule of law, powerful as it is, does not alone suffice, nor allows the distinguishing of post revolution from system preserving reform. But more normative principles are available. As I already argued in the 1990s, pluralistic inclusion and consensual decision-making can be interpreted as empirical forms of the veil of ignorance of Rawls, or as its functional equivalents. With a large number of negotiating actors, and consensual rules, the likelihood is that no one can control the process in terms of foresight, especially given the absence of previous free elections, nor predict the power distribution afterwards. This idea has more recently given rise to the “insurance model” of Thomas Ginsburg. More recently, following Johann Van der Walt, I have stressed Derrida’s idea of the gift, that makes possible for formerly dominated groups to accept their enemies as opponents, if not exactly friends. Finally, more recently still, I have adopted Claude Lefort’s idea that democracy should be defined not in terms of elections but more fundamentally in terms of opening up the space of power and allowing no one to re-occupy it. The post sovereign model can be linked exactly to this concept of democracy. The involvement of the public sphere all along and elections midway through the process remain important however, if the empty space is to be kept open by an inclusive, public political process and not merely by competing elites as in some versions of polyarchy and elite pluralism. This stress on the public sphere is the Arendtian and Habermasian dimension of the justification complex.
It is my hypothesis, supported by the work of Heinz Klug, that the international influence of the new paradigm is deeply tied to its powerful and plural normative assumptions, as well as the relative empirical success of some of its cases, especially the culminating South African version. I believe and will now argue that this paradigm has had profound international influence even where it could not be adopted. This is an important point, because post revolution in terms of the totality of its components is admittedly path dependent, easily applying to the transition from dictatorships, but not as Condorcet once called it to the transition from a free to an even more free political form. Moreover, it presupposes a relatively equal balance of forces, or at least such an appearance to the major contending forces in a society. We should make no mistake about it, where the elite of an old regime is strong and secure enough, it will most likely choose a path of reform seeking to change things so that things can remain the same (as Lampedusa’s and Visconti’s hero Tancredi asserts) or for the sake of incumbent advantage only as in the recent cases of Turkey and Hungary. Similarly, where a revolutionary elite is capable of overthrowing an old regime, and occupying the space of power it will generally try to do so. Only where one elite can no longer, and the other cannot yet rule, with uncertain time horizons in both cases, will the post revolutionary option as a whole be a likely one. Finally, it is possible that disagreements between relatively equal sides will be so deep, that no compromise seems to be possible, and if there is an attempt to produce a complete interim constitution, or especially a permanent one, negotiations will totally fail. What I would like to argue is that none of these important considerations must mean the irrelevance of the new model whenever its demanding preconditions are not available. Both the norms that its protagonists rely on and some of the devices they have introduced may become relevant, even in revolutions. And even in the case of continued fundamental disagreement on some issues, constitutions can be agreed upon. That is what I will try to show in three steps.
The New Model in Revolutions. Critique and Norms
Revolutions are of course empirical phenomena, and they cannot be banished by mere normative critique or even by the existence of other alternatives of radical transformation. In the Arab world, but not only there, revolutions have returned in a dramatic manner. The same is true, though less obviously, for the specifically revolutionary method of constitution making: a relatively quick, basically one stage process dominated by sovereign constituent assemblies. This form of the “constituent power” has also returned is some settings where the process, missing the stage of liberation, differed from classical revolutions, in particular the Andean republics of Latin America.
Given the reversion to what many thought was the past, I find astonishing that the normative assumptions of the new post revolutionary model, namely plurality, consensus, legality and publicity have reappeared even in revolutions in the form of their immanent critique. Revolutions of course have been strongly criticized before. However right on some issues, I leave aside the perspectives of classical liberals and conservatives not sharing the goal of radical transformation in a relatively short historical time frame. Revolutions have also been seriously criticized by revolutionaries to whom a given revolution or a given type did not or cannot not go far enough. Such was the oft-repeated critique by Marx of the merely political or bourgeois revolutions. Note that he did not criticize substitution of part for whole as such, but only when the part is not truly universal in its interests nor radical in its needs. Similarly, Trotsky’s critique of “the revolution betrayed” or “the unfinished revolution”, typical figures for the revolutionary critique of revolutions, no longer criticized Leninist substitution, but only its bureaucratic and egocratic deformation that in 1905 he thought inevitable assuming the Bolshevik model. In a sense the self critique of revolution was more radical in the French revolution, when representative democracy and later the Jacobin dictatorship were attacked in the name of direct grass roots forms. But even these conceptions of the Enragés and the Hébertistes, as of the radical groups of the English Revolution before them, did not challenge sovereign embodiment itself but only the instance that claimed it, whether the Legislative Assembly, the Convention or Parliament. Neither the issue of political plurality nor that of genuine legality ever came up especially as constraints of the radical groups themselves.
It is otherwise in contemporary revolutions, and it is not only a matter of articulating critical perspectives around issues of inclusion, consensus, legality and public involvement. The introduction of the norms of post revolution can actually influence the process in a positive sense, as in Tunisia (2011-2014) and Colombia (1991), or can lead to its crisis with uncertain (possibly: counter-revolutionary) outcome as in the case of Egypt and possibly yet in Venezuela. I will stress only the two dimensions of the plurality of inclusion in negotiations, and the adherence to legality in the sense of the rule of law. Certainly, the same could be done with open, bottom up public participation in the process but I do not yet have the empirical knowledge to tackle that issue.
1. Plurality and consensus
The contrast between Tunisia and Egypt is even more striking than the parallel one between Colombia and Venezuela. In Tunisia a constitutional assembly has recently completed its work producing a document that most sides declared as a very acceptable “second best”. Such an outcome does not emerge from nothing. The constitutional assembly, as it has been often noted, could only operate on the bases of a coalition, since no party, not even the leading Ennahda had a majority. It is less often realized that the assembly was a product of a relatively proportional electoral rule, and it is almost never noticed that the electoral rule was itself a product of inclusive participation and negotiation in the Ben Achour commission of 2011 (Stepan, 2012). In Colombia two decades earlier, the initiative for a constitutional assembly outside the legal rules of change came from a highly public student movement organizing an informal referendum. Nevertheless, the rules of transition including the highly and unusually proportional electoral rule were negotiated by Pres. Gaviria with all the main political parties. (Segura/Bejarano 219-221; 228-229) The outcome was a genuinely pluralistic assembly that stayed within its rules in spite of having been declared “sovereign” by the Supreme Court, and wound up producing a constitutionalist constitution that has functioned in an impressive manner for 20 years or more.
The contrast with Egypt and Venezuela is also impressive. Without going into the details, in the earlier and extremely well documented case of Venezuela, in 1999, the rules of transition were established from above, by the presidency. The electoral rule hidden in a referendum, and its manipulation by the president, wound up producing a wildly disproportionate assembly that moved on to capture the plenitude of powers formally for itself but in reality the chief executive. As a very predictable result a hyper-presidentialist constitution was produced. Venezuela has since moved from one constitutional crisis to another.
Egypt’s almost classical revolution is the much more interesting case, with so far even worse results. Here, in a genuinely popular uprising, the Supreme Command of the Armed Forces, the SCAF was able to grab governmental power relatively early. All interim rules and constitutional arrangements were declared unilaterally by the SCAF, and if there were any consultations they were on a very narrow bases that included at times the Muslim Brotherhood, but not the new grassroots activists who were the main subjects of the uprising. These activists demanded a delay of elections, and the prior formulation of a constitution that would make these genuinely free and competitive. They were disregarded. The end results were rules that helped to produce two decisive victories in very early parliamentary and presidential elections for the Muslim Brotherhood, aside from the military the only truly organized political force. The Egyptian electoral rule was not much more disproportional than the one in Tunisia, but it appeared so given the way it was made and the fact that it benefited just one party rather than several. Moreover, the initial imposed rules for forming a constituent assembly allowed the parliamentary majority to construct a majoritarian body. When this led to a conflict both with the activists and the courts, the latter dissolving parliament and one but not both of its constituent assemblies, the newly elected MB president declared by decree the constitutional process to be free from further judicial interference. A new constitution was enacted, and lasted for 6 or so months. It was then brought down by the largest popular mobilization yet, and another military intervention leading to the imposition of a series of highly repressive policies, including the enactment of a second constitution by a group chosen by the military leadership alone. Neither of the two ratificatory referenda in 2012 and 2013 were fair, since the voters only had the choice of agreement or the continuation of emergency government, first Morsi’s, and then the SCAF’s. In the end, the introduction of the norms of inclusion, and consensus only disorganized the process, but failed to improve it. The same was true of “legality”.
2. Rule of law
Let me note the rule of supreme or constitutional courts in three of the cases just discussed. In Colombia and Venezuela they have acted in a permissive manner, and when the Court in Venezuela finally did not, it was badly packed and side-lined by the presidency. In Egypt the courts attempted to restrain political imposition, and force the creation of various consensual schemes, but they failed. Nevertheless, such a role for courts that has been identified as an aspect of the „new constitutionalism” by Said Arjomand and others, is extremely unusual in a revolutionary constituent process. Whether permissive or not, the intervention of a mere constitué in the constituant implies the need to legitimate the very process of constitution making as legal. Given that aspiration, in at least three countries, it is striking that in Venezuela and Egypt legality was repeatedly ruptured, or the rule of law was replaced by executive prerogative. In Egypt the various declarations of the SCAF and of President Morsi implied that the only law is the will of the one who embodies the sovereign. The same was true, technically, in the case of the Venezuelan Constituent Assembly that abrogated the powers of Congress, in spite of a Supreme Court decision that refused to recognize the assembly’s claim of sovereignty, of the exercise of the “the original constituent power.”.
The subversion of legality in two of the four cases does not however indicate the irrelevance of post revolutionary normative criteria in contemporary revolutions. There was in fact a veritable race [Wettkampf], as Schmitt might have noted, in Venezuela and Egypt between institutions representing legality, and those relying on will or prerogative. It was not predetermined that legality would lose, as he believed. In Colombia where legality won, it was probably because of a combination of consensual beginning and strategic self-limitation by the Supreme Court. In Tunisia where constitutional jurisprudence was extremely weak before the revolution, a constitutional court was first established by the Constituent Assembly in the new 2014 Constitution, (articles 115 to 121). Legality was however never seriously challenged or broken during the process, and in any case given the plural assembly no one was in position to usurp the power to violate the rules of transition agreed upon. This example shows that strong participation by a court is not a necessary, but at best a desirable condition of enforcing legality in radical change. At the same time, over-reach by a Court seems to lead to its defeat, with damaging consequences for both legality and its legitimating role. When that happens, as Egypt showed, not only the judicial institutions but also their executive antagonist can turn out to be losers.
The New Model in Revolutions: Time and Sequence
Learning from post revolution can take place on the normative level, but it can also take cognitive forms focusing on strategies and mechanisms. Rather than emphasizing specific procedures that can be transplanted from one form to another, I would like to emphasize two general concepts relevant to all forms: time and sequence. Revolutionary constitution making is relatively fast, and imposition is rarely time consuming. Post revolutionary process is slow, not only because consensus takes more time than imposition, but also because of the very character of a multi-stage process. As we found out in the externally imposed revolution in Iraq, even the acceleration of one stage, in that case the last one, on American wishes, can have disastrous consequences. (Istrabadi; Zaid Al Ali) Conversely, the South African process took six years or more, with the last stage, the Constitutional Assembly taking almost two years. In Iraq the last drafting stage took a mere 3 months. While a multi stage process was adopted in that country, its first stage was exclusionary because of American wishes, and the last stage even more so because of the pressure of time. Similarly, the Egyptian 2012 process lasted 8 months, with the second constituent assembly deliberating for only 5 before a constitution was voted on in a referendum. On the contrary, the Tunisian constituent assembly worked for almost 2 and a half years before it has recently enacted the new constitution. The pluralistic Colombian assembly deliberated and drafted for one year, as against the Venezuelan assembly with its immense Chavista majority, that did its job in five months. As these examples show learning from the way time was used in the post-revolutionary paradigm can be very significant in revolutions too, and also where quasi-revolutionary constituent assemblies are used.
The question of gaining time, has played a key role in Hannah Lerner’s recent work, one that she first introduced in Constellations. (11:2; 2004) According to her when time is a scarce resource for political actors who are unable to agree, incremental constitutional change and deferral of major decisions represents the only model possible. In this approach all the future time necessary can be used to come to agreement where it was initially impossible. This is what was done in Israel and India according to her. Leaving aside the entirely different approach to entrenched, constitutional constitutions in the two countries, her proposal is an alternative to mine, and has been adopted for some of the cases I discuss here, in particular Iraq and Egypt. (Haider Hamoudi, see my review) It is however not clear in this model when supposedly fundamental disagreements really allow no compromise, and why such initial disagreements may not harden rather than loosen with the passing of time. In fact they did harden in Israel, Lerner’s main case. There is no question that her model generates more time for constitution making than the post revolutionary or post sovereign model advocated by me, that tends to fail when its time is overly extended, as in the Hungarian case recently. The right time in the post sovereign model is somewhere between “too little” and “too much”. As the Israeli case shows the time in Lerner’s model may be very long, as Israel is still without a developed and entrenched documentary constitution, with a structurally weak judicial review and a poor prospect for rights protection, in spite of occasional forays by the Supreme Court on their behalf.
With that said there may be types of deferral, whether in revolutions or post revolutions, that may be necessary if the parties cannot agree at what is the final drafting assembly. What then needs to be decided is the nature and extent of what is to be deferred, how and by what means, to whom, for how long, and by what authority. Open ended constitutional principles e.g. are unobjectionable, and they are present in all constitutions. They tend to defer ultimate construction to constitutional or other apex courts. Deferring matters to the amending power is something all constitutions inevitably do, when they have distinct rules for revision. But it is very objectionable to defer matters to future legislatures by the authority of an ordinary legislature as in Israel. Saving time is one matter, abandoning a two track structure fundamental for constitutionalism is quite another. The problem is not avoided in a single chamber legislature controlling amendments by a qualified majority, as we have seen in Hungary. In that country the problem was not the existence of an interim constitution that generated more time for constitution making, but deferring the task of final constitution making indefinitely, and to a qualified parliamentary majority whenever the famous 2/3 could be achieved.
Time is important. But whenever there are attempts to rely on the principles of the new paradigm, sequence becomes even more so. And this can be true in revolutions too, especially where the normative stress on consensual process becomes influential. In Iraq’s externally imposed revolution, when the U.S. authorities there finally decided to support and even sponsor Sunni inclusion, during the summer of 2005, it was time and sequence that defeated their effort. The last stage during which this project was to be realized was too constrained in time to allow inclusion to be realized. At that time, the opposition between Sunni parties and the then dominant Shi’ite group, the SCIRI (Supreme Council of the Islamic Revolution in Iraq) seemed fundamental and irreconcilable on the question of state structure. Most Sunnis wanted a strong central state, even if they had to concede asymmetrical federalism to the Kurdish region. SCIRI wanted a super-region for the Shi’a, that could very well have destroyed the integrity and financial stability of the Iraqi federal state. As we now know SCIRI had Iranian support, but not that of the majority of Arab Shi’a in Iraq. And, the apparently irreconcilable antagonism was perhaps reconcilable if given enough time, as we subsequently found out. (Istrabadi; Hamoudi, Al Ali). But there was not enough time, because of the self-contradictory American demands.
Sequence, as I said was even more important. We know this also from Indian history. There elections in 1946 still under colonial rules, but with British departure on the agenda, led to the overwhelming victory of just two parties, Congress and the Muslim League who were incapable of agreement over the nature of the state in several rounds of negotiation. (Simla 1, Simla 2: Keay India. A History; Yasmin Khan The Great Partition) Subsequently, these parties were unable to function within the framework of a single constituent assembly. Negotiations before elections, including many more actors who were still on the scene could have perhaps led to a different result. So would have more time, that could have made the parties realize the consequences of their choices, namely three, eventually four partitions, rather than only one, with disastrous consequences. In Iraq too elections occurred before inclusion, but here the Americans chose a different strategy than the British in India, and tried to subsequently include the excluded, the Sunni, by co-option. When at an earlier time they created a whole Governing Council by co-option such a move could have worked. But after elections the legitimacy gap between elected representatives and ones “imposed” by the Americans was huge. In the end the Shi’ite and Kurdish leaders just made a deal among themselves, and told the Sunnis they must take it or leave it. Though the constitution was narrowly ratified, a tremendous intensification of the civil war was the short term result.
The same problem of sequence was consciously raised in Egypt’s revolution in the debate concerning the timing of elections. As we have seen in the first rate documentary, The Square, even among democratic, secular people there were disagreements concerning the sequence of election and constitution making. Those who argued for elections soon, supporting the position of the MB, were right to argue that the transition to democracy requires elections, and that elections were a good way of replacing the government of the SCAF. But those who argued for a constitution first were right to realize that free and competitive elections required some legitimate constitutional settlement. Although there were interim rules in place, these were imposed by the SCAF in several steps. Thus even in a revolution, there was a choice between the temporal priority of one stage or the other. Unfortunately no one seemed to realize that the way out of the dilemma was the sequence of an inclusively negotiated interim constitution first, elections second, and final constitution third. That is the lesson that could have been learned from the experience of post revolution, e.g. from the South African pattern.
When elections did come first, and it was commonly realized that the result would be majoritarian constitution making, the grass roots movement struggled to achieve consensual constitutional principles à la South Africa to partially bind such an assembly, whose composition they also tried to regulate. When the SCAF perverted this effort, by including its own favorite military oriented principles (in the Selmi Draft), the project failed. And when the Constitutional judges tried to regulate the composition of the constituent assembly they too failed, ultimately in the face of elections the results of which could not be altered arbitrarily, and by co-option. While the Muslim Brotherhood, like Ennahda in Tunisia, could have practiced self-restraint, in Egypt it was not forced to do so, and it did not. In Tunisia, where negotiation came first and elections afterward, the sequence facilitated that self-limitation of the strongest party. In Egypt, the wrong sequence, namely the omission of inclusion and comprehensive negotiations in the very beginning of the process, before elections, could not be redeemed in its later stages.
The New Model in Revolutions: The Question of Beginnings
Finally, the post revolutionary or post sovereign paradigm offers solutions to the difficult problem of beginning, that is relevant also in revolutions, especially when the structure of the state is the object of contention. That problem has three parts: 1. How do you create constitutionalism constitutionally when there is none before? 2. How do you begin democracy democratically? 3. How do you create a constitution in the name of the people when the constitution creates the people?
As to the first two questions, I will repeat my earlier answer. Because of the fictional if hypocritical rule of law in authoritarian regimes, relying on paper constitutions, using that constitution and especially its amendment rule for real for the first time is generally possible. Even if the constitution is authoritarian, its amendment rule allows it to be changed and even democratized. That is part of the answer concerning democratic beginning, namely relying on existing democratic fictions. The other part of the answer is Lefortian. (My article on Lefort). While it is not possible to have elections determining the initial rules of elections, thus a purely electoral beginning is impossible, it is possible to empty the space of power without re-occupying it. While such a move in itself produces only a polyarchy, rather than democracy in Dahl’s terms, even an incomplete democracy should have the mechanisms to produce free and fair elections before elections. That mechanism is precisely the inclusive negotiated process, supervised by the public sphere.
The third question is the most difficult, and is highly relevant to “deeply divided societies”. Recently in Constellations Zoran Oklopcic made it even more challenging by insisting, accurately enough for many cases, that who “the people” is spatially and socially can be determined (only?) by what he thinks of as an internationalized pouvoir constituant. Thus he tries to go beyond an idea found in thinkers as diverse as Schmitt and Habermas, that the state and its people are products of factual historical processes prior to any constitution. I too have been convinced of that position. Oklopcic now goes on to argue that a constituent power is at work in that prior construction, but it cannot in strict logic be found in a territorial people that needs to be constructed in the first place. That construction is often, or perhaps always the work of state makers interacting with other states.
Unfortunately Oklopcic seems to forget that even in Carl Schmitt, if inconsistently, the constituent power is defined in terms of both power and authority. Like Hannah Arendt we should insist on distinguishing yet coupling these two dimensions. Yes, foreign states or international instances can and almost always do play a role in state formation as in Namibia and recently in Cambodia, East Timor, the Balkans and Afghanistan. They can also dramatically fail as did the British Cabinet Mission Plan in India, in 1946, leading to partition and autochthonous constitution making in two territorial states in forms noone initially intended, with countless attendant disasters. But in either case we should ask Rousseau’s question, concerning such efforts, namely “what can make it legitimate?” What Oklopcic describes in the Balkans is undoubtedly factually true, but does it carry the stamp of legitimacy either in the philosophical or sociological sense? Today it is possible to refer to the Hague and Geneva conventions and the UN charter that certainly allow peace making by states and the international community even if they involve territorial changes, including sometimes secession, though not in general annexations. These same instruments deny however the right of a foreign state or even international representatives to dominate constitution making. Even the American conquerors of Japan and Iraq tried to satisfy this principle, at least formally, in the first case hypocritically.
Of course for legitimacy one needs more than just a set of international norms, that are in reality difficult to enforce, among other things because it is difficult to fully differentiate state and constitution making. Yet, not making that distinction contributed to the failing of the British Cabinet Mission Plan in India. The plan proposed not only a method of constitution making, and the outlines of the territorial settlement, but also prejudged the result in a developed constitutional form that could satisfy neither the Muslim League nor Congress. As Granville Austin suggests (p.3) this was a task that no non-Indian should have attempted.
The two stage process of the post revolutionary paradigm can be an important help in the effort of at least partially differentiating state and constitution making, meaning by the former the construction of the territory and sometimes the population of the state, and including in the latter the formation of a coercive organization. In the South African case e.g the territorial parameters of the new state, including federalism, were affirmed, and entrenched as parts of the judiciable constitutional principles. In Iraq, too this happened in a weaker form, with American and international authorities participating. But here, unfortunately, the territorial principles were not fully entrenched against changes by the constitutional assembly. It was this issue over which Sunni representatives were later excluded, after their inclusion. In any case after the American role in making the interim constitution, the final one was largely made by Iraqi actors with U.S. and UN pressure on very few points. Unlike in Germany in 1948, on issues concerning state structure there was no external input. (Zaid Al Ali article) The differentiation between two stages in both South Africa and Iraq did allow a (partial) separation of the territorial dimension of state making and constitution making, but it was violated when the Iraqi Assembly radically changed the formula for region formation. In South Africa the terms of the original federal bargain were enforced by the new but certainly domestic Constitutional Court even against the constitutional assembly. The difference between these two deeply divided societies was striking, yet in neither one should we speak of an international pouvoir constituant, or an externally imposed final constitution, but only an ultimately failed international role in territorial state making in the Iraqi case.
In my view the two distinctions, one between territorial state formation with a likely international role, and constitution making, and the other between power and legitimate authority should be relevant also in revolutions in deeply divided societies. These distinctions could be the clue to the solution of the Ukrainian crisis. Very briefly, in Ukraine it is obviously very difficult to identify the subject of popular sovereignty, namely “the people”. One can make the claim that “the people” is the grassroots movement identified as the Maidan, but one can also claim that the people are represented only through the results of the last election, where parties representing the East have been victorious. The subject of democratic self determination moreover is in doubt. Is it only the people of the whole of Ukraine, or do the people of specific regions too have the right to determine their territorial fate? In any case there is a fundamental disagreement not only concerning the identity of the people, but the structure of the state in which its or their political capacities should be institutionalized. That disagreement can be solved in four obvious ways: imposition, civil war, secession/partition or negotiations. Obviously, negotiations are the preferable option, since imposition may lead to civil war, and possibly partition as in India and elsewhere. Moreover, partition or secession will repeat the same problems in two smaller scale states. But should such negotiations precede free elections, or should they take place after them? The problem of sequence as presented here indicates that elections should not be at the beginning of an over-all process, and that premature elections could make later negotiations impossible. Now that presidential elections did take place, inclusive negotiations should at least precede parliamentary elections.
Secondly, who should be parties to the negotiations? Obviously, the exclusion of one of the main parties to the conflict as so far cannot work, or lead to a legitimate result. Along with Oklopcic, I also accept the idea that neighboring powers could and perhaps should participate. But I cannot accept the corollary, namely that the constitution as a whole should be the product of this internationalized process. The two stage paradigm pioneered in post revolution supplies the possible answer that should be relevant to the revolutionary context of the Ukraine, even if the demarcation between the two stages, state and constitution making is hardly obvious or automatic. Self limitation on the part of external actors would be in my view a pre-condition of success, even if so far, neither Russia nor the U.S./EU have exhibited this specific and important virtue.
Suggested citation: Andrew Arato, Time and Sequence in Changes of Constitutional Regimes, Int’l J. Const. L. Blog, June 21, 2014, available at: http://www.iconnectblog.com/2014/06/time-and-sequence-in-changes-of-constitutional-regimes/