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Enlightened Constitutionalism


Madhavi Sunder


University of California, Davis - School of Law


UC Davis Law, Legal Studies Research Paper No. 48

Abstract:     
In his important new essay, "Imposed Constitutionalism," Noah Feldman shares his dilemma as an American constitutional advisor to the fledgling democracy in Iraq: How can we Western outsiders exercise influence in constitutional processes without undermining local autonomy and democracy itself? His answer: We cannot. Ironically, the conclusion of his insider's account is that political outsiders ought to take no part in - indeed, they ought not even to influence - the constitutions of new democracies. Western influence is imposition.

It is brave of Feldman to describe the very actions that brought him fame as problematic. And it is rare to see a person with real power to affect a country's constitution graciously make the case for abdicating that power. But Westerners' deference to local elites and our elision of internal traditions of dissent for equality within new Islamic democracies has the perverse effect of buttressing local fundamentalists' claims that equality is Western and anathema to Islam. The problem is that while Feldman sees democracy in the Muslim world as homegrown, he seems to imagine egalitarianism as largely exogenous to Islamic democracy. Thus, egalitarianism becomes imposed by Westerners in ways that undermine democratic self-determination. But, as my own research has shown, Islamic communities increasingly demonstrate endogenous commitments to equality. These commitments are evident especially in the challenges posed by Islamic women reformers to traditions of patriarchy offered under a religious guise. Depicting equality claims as imposed works against the claims of internal reformers who would seek to reconcile Islam and equality and who desire affirmation of their views from a sympathetic global public. The unintended consequence of Feldman's proposal is that we side with the fundamentalists instead of the egalitarian reformers.

I suggest instead that now is the time for active engagement - for throwing our lot in with those who seek an Islamic democracy that is respectful of women's equality and fundamental rights to open debate and critical reason. An enlightened constitutionalism, in contrast to an imposed constitutionalism, recognizes that modern nations are much more heterogeneous and porous than previously imagined. Enlightened constitutionalism would not shut down the channels of transnational dialogue in the name of facilitating self-determination, because it understands that external influence on the internal is inevitable - that deference is inevitably choice. Furthermore, it sees cross-cultural discourse and dissent as important goods in themselves - for example, as sources of support for internal reformers and as potential inspiration for new ideas. In the end, the commitment of enlightened constitutionalism to embrace dialogue even in the face of postcolonial and neocolonial power turns on a particular understanding of human beings themselves. Enlightened constitutionalism reflects the cosmopolitan constitution of us all: the inspiring human ability to create ourselves as historical beings, selecting and modifying diverse traditions to suit our changing needs and aspirations in modernity.

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Date posted: June 17, 2005  

Suggested Citation

Sunder, Madhavi, Enlightened Constitutionalism. Connecticut Law Review, Vol. 37, 2005. Available at SSRN: http://ssrn.com/abstract=744824

Contact Information

Madhavi Sunder (Contact Author)
University of California, Davis - School of Law ( email )
Martin Luther King, Jr. Hall
Davis, CA 95616-5201
United States
530-752-2896 (Phone)
530-754-5304 (Fax)

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