Imposed Constitutions, Imposed Constitutionalism, and Ownership

Abstract

In 1944, Judge Learned Hand spoke at a ceremony in Central Park, New York, to swear in 150,000 naturalized citizens. "Liberty lies in the hearts of men and women," he observed, "when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it." Building or rebuilding faith in the idea of the state requires a similar transformation in mentality as much as it does in the formal laws that govern political relations. Any effort to generate a rigid template for constructing the institutions of law and order in a post-conflict environment is therefore likely to fail. As Judge Hand recognized, the major transformation required is in the hearts of the general population; any foreign involvement must therefore be sensitive to the particularities of that population both at the level of form and of substance.

Reconciling this need for sensitivity with the circumstances in which international actors have assumed responsibility for constitutional processes in post-conflict territories has led to difficulties. Two types of problem have arisen. First, the rationale for international engagement is typically the malevolence or incapacity of existing governance structures: intervention is premised precisely on the need to transform or build those structures, rather than to maintain them. Second, the limited timeframe within which resources tend to be available to post-conflict territories leads to problems in sequencing. In the absence of ongoing strategic interest, such as the European Union's ties to the Balkans, the window of opportunity for sustained attention by international actors and large scale reconstruction efforts appears to range from about one to three years. By the end of this period, control of the territory will have passed to national hands and the time for "sensitivity" will have elapsed.

Keywords: state-building, Iraq, constitution, constitutions, constitutionalism, post-conflict reconstruction, nation-building