Assessing constitutional performance

Abstract

How should we evaluate constitutional performance? What should count as “success” in constitutional design? Is there a universal benchmark against which all constitutions, regardless of local circumstance, can be evaluated? Or is constitutional design as idiosyncratic as a person's choice in neckties? These questions, which are the focus of this volume, are necessarily raised by the emergent transnational practice of constitutional advice-giving and criticism. They are implicated every time a scholar, consultant, human-rights activist, or international organization expresses a position on a proposed constitution, whether in Somalia, Tunisia, Nepal, or the United Kingdom. They are thus necessarily questions for the governments and international organizations that fund such practices. And they are equally questions for the national publics engaged in the act of constitutional creation, who are often on the receiving end of international advice about what they should be doing. Finally, they ought to be puzzles for the growing coterie of scholars and jurists engaged in the comparative analysis and critique of new constitutions, a scholarly literature that often employs explicitly normative criteria in evaluating constitutional design. If we wanted to err on the side of grandiosity, we might even say they are questions implicated every time one decides that a constitution, as a going concern, merits our continued fidelity. The contributors to this conference have been asked to respond, from a variety of perspectives, to the seemingly simple question of what counts as constitutional success (a term we will use interchangeably with constitutional performance here). By posing this concededly naïve question, we hope to draw attention to a normative terrain that has received surprisingly little attention from scholars and practitioners who assume, often implicitly, that there is a convergent consensus on what counts as “success” in constitutional design, and that therefore it is meaningful to praise or to blame a constitution for meeting or falling short of this desideratum. In so doing, we hope to provoke more careful debate among legal and political theorists about the plural possible meanings of constitutional success or quality. The chapters assembled in this book, we think, provide a series of important landmarks and provocations in that debate rather than a singular, definitive answer to our threshold question.

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