Fair Play and the Public's Role in Constitution-Making

28 Pages Posted: 18 Jan 2013

See all articles by Lorianne Updike Toler

Lorianne Updike Toler

Information Society Project, Yale Law School

Date Written: January 18, 2013


The increased role of technology in constitution-making and its improved possibilities for popular contributions in the Arab Spring and elsewhere raises interesting questions regarding public constitution-making and the obligation to obey the law.

The question that will be addressed in this paper is what methods of public participation in constitution-making will create an obligation to obey the new constitutional regime under a “completed” version of John Simmons’ theory of fair play. In answering that question, this paper will first canvas methods of public participation, using examples from three states where public involvement in constitution-making was significant, Iceland, South Africa, and the United States. This paper will then explore Simmons’ theory of fair play and “complete” it, rendering it capable, under certain circumstances, of recognizing fair play obligations to obey the law that are more easily scalable. This paper will also develop a construct implied within Simmons’ theory in identifying when a community constitutes a “cooperative scheme.”

Finally, this paper will then analyze whether and what kinds of participatory drafting methods and schemes qualify under Simmons’ “completed” theory in creating scalable, prima facie fair play obligations to obey the law.

Keywords: constitution-writing, constitution, comparative constitutionalism, fair play, John Simmons, public participation, Arab Spring

JEL Classification: K19

Suggested Citation

Updike Toler, Lorianne, Fair Play and the Public's Role in Constitution-Making (January 18, 2013). Available at SSRN: https://ssrn.com/abstract=2202829 or http://dx.doi.org/10.2139/ssrn.2202829

Lorianne Updike Toler (Contact Author)

Information Society Project, Yale Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

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