Participatory Constitution-Making as a Transnational Legal Norm: Why Does It “Stick” in Some Contexts and Not in Others?

Abstract

It could be argued that since the dawn of the peace-building era in the early 1990s, public participation in constitution-making processes has developed into a transnational legal norm. International organizations, NGOs, CSOs, scholars and think tanks around the globe repeatedly stress the value of including ordinary citizens in the making of their founding laws. As a consequence, the practice of participatory constitution-making has also increased. Though this is a seemingly established transnational legal norm, it is still a norm that has been more or less successfully adopted in different contexts. This article takes an interest in exploring why this is so. How is it that this norm is institutionalized in some contexts, internalized in others, institutionalized and internalized in yet other contexts, and simply rejected in still other contexts?

A consagração constitucional da política falimentar

“…No entanto, da análise aos diversos textos constitucionais, observa-se a existência de normas jurídicas que são exportadas/importadas além-fronteiras, envolvendo instituições internacionais e redes transnacionais, que ajudam a construir e a veicular a norma jurídica no campo do direito, num verdadeiro processo de difusão de políticas públicas 24 .…”

Annual Review of Constitution-Building: 2019

“…It involves initial consensus-building and bargaining around the design of institutions for the drafting and adopting of the constitutional text, choices about how decisions are made within those institutions, and developing practices and conventions for interpreting, implementing and nurturing the text following promulgation (Ghai and Galli 2006: 9). The notion that constitutions and constitutional cultures are built through the inclusion and participation of 'the people' has, since around the 1990s, transformed from an aspirational ideal into a transnational norm, particularly for post-conflict and transitioning states (Hart 2003;Saati 2017;Franck and Thiruvengadam 2010).…”

“…For centuries, philosophers and political theorists have contemplated the values and risks of public participation in the conduct of government affairs. In the 20th century, democratic peace theory scholars found empirical support for the longheld belief that liberal democracy is essential to sustainable peace (Levy 1989: 88;Saati 2015). In the 1990s, two UN Secretary-General reports accordingly linked democratization to peace and security, formally incorporating participatory constitution-building into the global peace agenda (UN Secretary-General 1992, 1996.…”

“…One key challenge for understanding the presumed benefits and risks of public participation is that there is no uniform definition of what constitutes 'participation' in the literature other than by empirical observation that the public has, in some way, taken part (Saati 2015). Participation is variously operationalized according to different normative and empirical criteria, which limits the ability to systematically examine the relationship between particular participation mechanisms, the manner in which results are used, the stage(s) of the constitution-making process during which participation takes place, and presumed outcomes for democracy, peace, legitimation, etc.…”

“…Scholars and practitioners increasingly recognize that many theories and assumptions about public participation are untested and have called for more systematic and empirical investigation (e.g. Widner 2005Widner , 2008Moehler 2008;Diamond et al 2014;Ginsburg et al 2009;Saati 2015). A notable contribution to bridging this gap includes Abrak Saati's (2015) work to define a framework to analyse and categorize participation types.…”