Review: Comparative Constitution Making (David Landau and Hanna Lerner eds., Edward Elgar Publishing, 2019) and The Law and Legitimacy of Imposed Constitutions (Richard Albert, Xenophon Contiades and Alkmene Fotiadou eds., Routledge, 2019)

Abstract

The two books under review – Comparative Constitutional Making (“CCM”) and The Law and Legitimacy of Imposed Constitutions (“LLIC”) are worthy additions to the burgeoning scholarship on constitution-making. LLIC tells the story of constitutions where the citizens of a state do not “constitute themselves in writing,” while CCM is a more generalized book “aimed at understanding the contexts in which constitution-making takes place, its motivations, the theories and processes that guide it, and its effects.” Rather than offering a tour d’horizon of the existing scholarship, both books make a concrete endeavour to advance the scholarly debate in realistic and pragmatic terms using multiple frames of reference: law, humanities, and the social sciences. Moreover, the scope of both books is not limited to the “usual suspects.” They draw from an impressively diverse set of countries and offer an eclectic portrait of the how, why, and what of constitution-making. This feature of the books also reflects in their contributors’ diversity, who represent institutions scattered across the globe. Nevertheless, including more voices from the Global South could have enhanced these books, especially since most 21st-century constitution-making has taken place in the Global South.

Despite their immense contributions, there are, however, a few places where these books leave the reader wanting more. Constitutional democracy reached its high point during the early 2010s, and the world has since witnessed a steady stream of countries backsliding. This time, constitutional democracy has not been subverted via coups but rather through legal means. One of the major developments that have accompanied this phenomenon has been existing democracies replacing constitutions (or at least amending existing constitutions to the point of replacement) in ways that remove checks and confer sweeping powers on would-be autocrats. These new anti-democratic constitutions often have popular support from day one. It is expected that such constitution-(re)making will only increase in the future. While otherwise offering sobering perspectives, these books barely discuss how constitution-making (whether imposed or not) is likely to be different going forward, in light of democracy’s global decline and what that entails for the various actors involved in democracy’s protection.

Additionally, despite the recent quantitative turn in comparative constitutional law, the chapters contained within the two books primarily provide theoretical, analytical, or qualitative perspectives. The only chapter in either book that employs quantitative methods, Zachary Elkins and Alexander Hudson’s chapter in CCM, shows how there is a significant difference in the likelihood of referendums failing in cases of constitutional amendments as compared to new constitutions. Though the use of quantitative methods has its limitations in establishing causal relationships in the comparative context, studies like Elkins and Hudson’s help find patterns and regularities, draw broad conclusions, and narrow down possibilities in ways other methodologies cannot. Such wide-ranging books would have benefited from more methodological diversity.

Nonetheless, both books effectively put into context the realities of constitution-making. They would be valuable additions to the libraries of those even peripherally interested in constitutions and how they are made.