After the Rights Revolution: Bills of Rights in the Post-Conflict State
Annual Review of Law and Social Science, Forthcoming
52 Pages Posted: 21 Jun 2010 Last revised: 5 Sep 2018
Date Written: 2010
A bill of rights that is entrenched and supreme over legislative and executive action, backed up by judicial review by independent courts, is now what we associate with a “normal” state, and the onus of justification has shifted on those wishing to omit these arrangements from any new constitution. In the post-conflict state, the adoption of constitutions that entrench civil and political rights has become part of the standard script of peacebuilding, along with the development of competitive politics and open markets.
Debates over the character and content of bills of rights are, however, no longer at the centre of more recent rounds of post-conflict constitutional politics. In examples as wide-ranging as Afghanistan, Northern Ireland, Bosnia Herzegovina, Kosovo, Cyprus, Iraq and Sri Lanka, actual and proposed peace agreements tend to combine the fragmentation of power at the centre through consociational power-sharing devices, significant territorial devolution and an acknowledgment of the multinational character of the polity – even to the point of opening up the notion of sovereignty itself, constitutionalizing a role for “kin” states of national minorities, as has occurred in Northern Ireland. It is these issues, not bills of rights, that are at the heart of contemporary post-conflict constitutional politics.
I want to puzzle through the rise and decline (but persistence) of rights-based constitutionalism. Methodologically, I do so through an engagement with a variety of distinct bodies of literature: comparative constitutional law, comparative constitutional politics, civil war studies, political theory, and ultimately, constitutional design for divided societies. My tentative conclusion is that constitutional actors have come to understand that rights-based constitutionalism cannot do all the work it has been expected to do.
Keywords: Bills of Rights, post-conflict states, comparative constitutional politics, rights-based constitutionalism, comparative constitutional law, constitutional design, Civil War
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