Rethinking Afghanistan's Longest-Lived Constitution: The 1931 Constitution through the Lens of Constitutional Endurance and Performance Literature

Abstract

The 1931 Constitution of Afghanistan is derided in the existing literature as a “step backwards,” a “do nothing constitution,” a document containing “numerous unclear and contradictory provisions,” and a “hodgepodge of unworkable elements.” This Article attempts to re-evaluate the 1931 Constitution through the lens of constitutional performance and constitutional endurance literature, arguing that the 1931 Constitution was far more successful than its critics realize. Specifically, this Article tests the 1931 Constitution against some “midrange” benchmarks of constitutional performance that Tom Ginsburg and Aziz Huq used to test the success of the 2004 Constitution of Afghanistan. This Article finds that the 1931 Constitution survived for more than three decades—surpassing the average lifespan of other written constitutions in the world by more than a decade. Moreover, under this Constitution, Afghanistan experienced some elements of democratic governance, as a wide range of political movements began to take hold. The 1931 Constitution created a method of governance that successfully channeled through formal institutions, conflict among Afghanistan’s powerful and well-armed stakeholders. Tested against these benchmarks of constitutional performance, the 1931 Constitution was considerably successful. This Article further evaluates the longevity of the 1931 Constitution through the lens of the constitutional deferral theory. This Article highlights that constitutional deferral played a key role in ensuring that the 1931 Constitution promoted ongoing debate regarding controversial constitutional issues—leading to its survival. The longevity of the 1931 Constitution thus provides evidence to support Rosalind Dixon and Tom Ginsburg’s claim that an “optimal”1 level of significant constitutional deferrals might contribute to constitutional stability and help constitutions survive longer.

Keywords: Afghanistan, Constitutional Success, Deferral, Constitutional Endurance