The 'Design Sciences' and Constitutional Success
Texas Law Review, Vol. 87, pp. 1339-1374, 2009
36 Pages Posted: 27 Jul 2009
Date Written: July 26, 2009
In this article, I engage in a brief thought experiment concerning two important yet not often-addressed aspects of constitutional-design theory. First, I place constitutional design in the broader context of what I call the 'design sciences' — the many disciplines, domains, and activities from urban planning to space exploration — that rely on design to accomplish big, noble goals. Second, I address the question of 'success' in constitutional design, namely how to define and assess the actual impact of constitutional structures in accomplishing desirable objectives. Among the possible criteria I examine are time horizon and endurance; actual implementation of constitutional aspirations; constitutional design’s contribution in accomplishing substantive goals such as democracy, prosperity, and human development; the real success rate of constitutions in mitigating existential tensions in conflict or post-conflict settings; and the (in)ability of constitutions to address some of the world’s biggest challenges, from health pandemics or climate change to widening social and economic gaps, forced migration, proliferation of weapons of mass destruction, or persisting large scale crimes against humanity — all of which require global cooperation and therefore lie largely beyond the reach of constitutions.
Keywords: constitutional design, constitutional engineering, comparative constitutional law
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