34 Pages Posted: 17 May 2004 Last revised: 8 Nov 2010
This article explores the tension between constitutionalism and democratic majoritarianism in the context of emerging democracies characterized by deep ethnic or religious fractures. For many years, the political science orthodoxy prescribed a strategy of "consociationalism" that settled power-sharing arrangements as a bargain between political elites and rendered politics to a perpetual recognition of the primacy of ethnic or religious divides. The history of consociationalist experiments, in countries such as Lebanon and Cyprus, has been one of numerous unfortunate descents into communal warfare.
Since the fall of the Soviet Union, there has been a dramatic new round of nation-building in formerly repressive and fractured societies. Rather than turn to consociationalism to constrain the risk of unbridled majoritarianism and the threat of communal war, these countries have by and large employed a form of strong constitutional authority, typically enforced by an independent constitutional court, to prevent democratic politics from consuming itself.
This article contrasts the experience of two such countries: South Africa and Bosnia. South Africa presents an example of a judicially-enforced constitutional order that allowed a remarkably stable multiracial society to emerge from the fall of apartheid. Bosnia, by contrast, came into the era of independence through a structured political power-sharing among the various ethnic groups, enforced through the Dayton peace accords. In both cases, the national constitutional courts played a critical role in attempting to secure the transition to stable democratic governance. In the case of South Africa, that was a role directly contemplated by the transitional accords. In the case of Bosnia, however, the Bosnian Constitutional Court was compelled to unwind some of the consociationalist strands of Dayton in order to prevent a renewal of ethnic factional war.
Keywords: constitutionalism, democracy, consociationalism, South Africa, Bosnia
JEL Classification: K11, K33
Suggested Citation: Suggested Citation
Issacharoff, Samuel, Constitutionalizing Democracy in Fractured Societies. Texas Law Review, Vol. 82, 2004; Columbia Public Law Research Paper No. 04-72. Available at SSRN: https://ssrn.com/abstract=547425