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Constitutional Design for Divided Societies: Integration or Accommodation? [Kõva köide]

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Edited by (Scholl Chair and Associate Dean, Faculty of Law, University of Toronto)
  • Formaat: Hardback, 496 pages, kõrgus x laius x paksus: 242x162x33 mm, kaal: 890 g
  • Ilmumisaeg: 27-Mar-2008
  • Kirjastus: Oxford University Press
  • ISBN-10: 0199535418
  • ISBN-13: 9780199535415
Teised raamatud teemal:
Constitutional Design for Divided Societies: Integration or Accommodation?Suurem pilt
  • Formaat: Hardback, 496 pages, kõrgus x laius x paksus: 242x162x33 mm, kaal: 890 g
  • Ilmumisaeg: 27-Mar-2008
  • Kirjastus: Oxford University Press
  • ISBN-10: 0199535418
  • ISBN-13: 9780199535415
Teised raamatud teemal:
Püsilink: https://www.kriso.ee/db/9780199535415.html
Märksõnad:
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 the world 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 multinational federalism 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 such practices 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 enshrining universal 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 different units, 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.

Arvustused

Drawing on the disciplines of law and political science, these essays bring theoretical sophistication to the study of constitutional design in general and to case studies of the design possibilities for constitutions in divided societies. This is one of the most important recent works on constitutional design, and should interest both lawyers and political scientists. * Mark Tushnet, Harvard Law School * The resolution of conflict in divided societies is one of the most intensely, and extensively, joined 'grand debates' of political science in recent years. Yet while constitutional analysis and constituional design figure prominently in that debate, the discipline of constitutional law itself has been largely absent. This landmark volume changes all that, and does so in a way that significantly enhances the quality of discussion. By placing a group of first-class constitutional lawyers and political scientists in dialogue with one another over the competing paradigms of integration and accommodation across a diverse range of societies and jurisdictions, it delivers a mine of new empirical insights and theoretical refinements. All in all, the book succeeds in making a compelling argument for the multi-disciplinary study of divided societies, and in instantly establishing itself as a 'must-read' for all members of that emergent 'multi-discipline'. * Neil Walker, Edinburgh University * This is a rich and provocative collection that will b e of value to a wide readership, including political scientists, legal scholars and public policy makers. Indeed, it should excite the sort of engagement by legal scholars-and not jsut comparative constitutionalists-that Choudry aims to provoke. * Robert Dunbar, The Edinburgh Law Review, Vol 13, 2009 * An excellent collection of essays and merits the attention of all researchers interested in issues surrounding constitutional law, minority rights and ethnic conflict. * Laurence Cooley, Web Journal of Current Legal Issues, September 2009 * CDDS is undoubtedly a resource for those who occupy the vast 'pragmatic' middle ground between the right and the left * Jeffrey B. Meyers, London School of Economics, the Modern Law Review *

Acknowledgements xiii
Table of Cases xv
PART I INTRODUCTION AND OVERVIEW
1 Bridging comparative politics and comparative constitutional law: Constitutional design in divided societies
3
Sujit Choudhry
1. Introduction: Comparative constitutional law missing in action
3
2. The Lijphart-Horowitz debate
15
3. Integration versus accommodation
26
4. Lessons for the integration-accommodation debate
32
2 Integration or accommodation? The enduring debate in conflict regulation
41
John McGarry, Brendan O'Leary, and Richard Simeon
1. Distinguishing integration and accommodation from assimilation
42
2. Integration
45
3. Accommodation
51
Centripetalism
53
Multiculturalism
56
Consociation
58
Territorial pluralism
63
4. Engagements between integrationists and accommodationists
67
Stability
71
Distributive justice
78
Democracy
82
5. When is integration or accommodation appropriate?
85
Integration
85
Accommodation
86
6. Conclusion
87
PART II THEORETICAL PERSPECTIVES
3 Beyond the dichotomy of universalism and difference: Four responses to cultural diversity
91
Alan Patten
1. Disestablishment
93
2. Nation building
97
3. Cultural preservation
101
4. Equality of status
105
5. Conclusion
109
4 The internationalization of minority rights
111
Will Kymlicka
1. 'The basic international framework
112
2. Limitations of the international framework
114
3. Rethinking the approach
126
4. Conclusion
138
5 Does the world need more Canada? The politics of the Canadian model in constitutional politics and political theory
141
Sujit Choudhry
1. Introduction: Brian Barry versus Will Kymlicka
141
2. The Canadian model: Accommodation and integration
144
3. Will Kymlicka and the rise of the Canadian model in political theory
153
4. The politics of the Canadian model: Canada in constitutional crisis
159
5. Lessons from the Canadian model in crisis: A procedural and a substantive crisis
165
6. Conclusion: The lesson of the Canadian model for multinational polities
171
6 Ethnic identity and democratic institutions: A dynamic perspective
173
Richard H. Pildes
1. Ethnic identity
176
2. Democratic institutions
184
Multistage democratic processes
185
Novel voting systems
188
Integrationist political spheres and accommodationist cultural spheres
193
Courts as unwinders of ethnic political bargains
195
Federalism and territorially-based devolution
198
3. A dynamic perspective on institutional design
200
PART III CASE-STUDIES
7 Indonesia's quasi-federalist approach: Accommodation amid strong integrationist tendencies
205
Jacques Bertrand
1. Introduction
205
2. From integration to accommodation in Indonesia: Decentralization and "special" autonomy
208
3. Special autonomy: An ambiguous reconciliation for Papuans
222
4. The Law on Aceh: All but federacy
226
5. Conclusion
231
8 Integrationist and accommodationist measures in Nigeria's constitutional engineering: Successes and failures
233
John Boye Ejobowah
1. The background
234
2. Constitutional engineering through the combination of integrationist and accommodationist devices
239
3. Accomplishments of the Nigerian design
243
4. Inadequacies of the Nigerian design
246
5. Political patronage, godfathers, and lawlessness
249
6. Constitutional rescue
254
7. Conclusion
257
9 The limits of constitutionalism in the Muslim world: History and identity in Islamic law
258
Anver M. Emon
1. Introduction
258
2. Historicist jurisprudence: Manifesting the transcendent through law
261
3. Muslim state constitutions and protections for religious minorities
265
4. Illustrating the tension at work: Saudi Arabia and Egypt
267
5. Understanding historical Shari'a
271
5.1 A Qur'anic basis manifested in historical Shari'a?
272
5.2 The case of wrongful-death damages
274
5.3 Restrictions on building and repairing religious places of worship
280
6. Conclusion
284
10 A tale of three constitutions: Ethnicity and politics in Fiji
287
Yash Ghai and Jill Cottrell
1. Background
288
2. The 1970 constitution
291
3. The 1990 constitution
297
4. The 1997 constitution
300
4.1 The approach of the commission
301
4.2 Modifications by the Joint Parliamentary Select Committee
303
4.3 The operation of the Constitution: The electoral system
305
4.4 Power sharing
307
4.5 Fijian administration
310
5. Coups and overthrow of the constitution
311
6. Conclusion
312
11 Rival nationalisms in a plurinational state: Spain, Catalonia, and the Basque Country
316
Michael Keating
1. Accommodating national diversity
316
2. Political traditions in Spain
318
3. Catalonia
319
4. The Basque Country
322
5. Accommodating nationalism
325
6. Renegotiating autonomy
332
7. The issues at stake
337
8. Conclusion
340
12 Iraq's constitution of 2005: Liberal consociation as political prescription
342
John McGarry and Brendan O'Leary
1. Introduction
342
2. Iraq's constitution: Self-rule and shared rule
347
3. Iraq's constitution and federal shared rule
359
4. Conclusion
366
13 Consociation and its critics: Northern Ireland after the Belfast Agreement
369
John McGarry and Brendan O'Leary
1. Introduction
369
2. Consociational theory and Northern Ireland's Belfast Agreement
373
2.1 The neglected treatment of self-determination disputes
374
2.2 The neglected role of external actors in the promotion and operation of consociations
379
2.3 The neglected treatment of security issues
383
3. The debate between consociationalists and their integrationist and centripetalist critics
385
3.1 Stability
385
3.2 Fairness
396
3.3 Democracy
401
4. Conclusion
407
14 Recognition without empowerment: Minorities in a democratic South Africa
409
Christina Murray and Richard Simeon
1. Mapping diversity in South Africa
412
2. Designs for a new South Africa
418
2.1 The Lijphart-Horowitz debate
419
3. Constructing "The New South Africa"
422
3.1 Elections, legislatures, and executives
424
3.2 Language and cultural rights: Recognizing diversity in the private sphere
426
3.3 Multilevel governance
431
4. Conclusion
434
15 Giving with one hand: Scottish devolution within a unitary state
438
Stephen Tierney
1. Introduction
438
2. Plurinational constitutionalism: The conceptual challenge
440
3. Devolution for Scotland: Plurinational realignment without federalism?
446
3.1 Plurinational elements in the devolution settlement: Autonomy and recognition
447
3.2 Integrationism within the devolution settlement: Intrastate relations
451
4. Concluding remarks
459
Index 461
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).