Constitutional Design for Divided Societies

How should constitutional design respond to the opportunities and challenges raised by ethnic, linguistic, religious, and cultural differences, and do so in ways that promote democracy, social justice, peace and stability? This is one of the most difficult questions facing societies in the world today. There are two schools of thought on how to answer this question. Under the heading of accommodation, some have argued for the need to recognize, institutionalize and empower differences. There are a range of constitutional instruments available to achieve this goal, such as multinational federalism and administrative decentralization, legal pluralism (e.g. religious personal law), other forms of non-territorial minority rights (e.g. minority language and religious education rights), consociationalism, affirmative action, legislative quotas, etc. But others have countered that such practices may entrench, perpetuate and exacerbate the very divisions they are designed to manage. They propose a range of alternative strategies that fall under the rubric of integration that will blur, transcend and cross-cut differences. Such strategies include bills of rights enshrining universal human rights enforced by judicial review, policies of disestablishment (religious and ethnocultural), federalism and electoral systems designed specifically to include members of different groups within the same political unit and to disperse members of the same group across different units, are some examples. In this volume, leading scholars of constitutional law, comparative politics and political theory address the debate at a conceptual level, as well as through numerous country case-studies, through an interdisciplinary lens, but with a legal and institutional focus.

Sujit Choudhry holds the Scholl Chair at the Faculty of Law, University of Toronto, where is Associate Dean. He has written widely on comparative constitutional law and constitutional theory. His previous books include The Migration of Constitutional Ideas (Cambridge University Press) and Dilemmas of Solidarity (University of Toronto Press).

- Introduction: Integration, Accommodation and the Agenda of Comparative Constitutional Law - Part I: Setting the Stage - 1: John McGarry, Brendan O'Leary and Richard Simeon: Integration or accommodation? The enduring debate in conflict regulation - 2: Will Kymlicka: The internationalization of minority rights - 3: Sujit Choudhry: Does the world need more Canada? The politics of the Canadian model in constitutional politics and political theory - 4: Alan Patten: Beyond the dichotomy of universalism and difference: four responses to cultural diversity - 5: Richard H. Pildes: Groups and constitutionalism in divided societies: a dynamic approach to the design of democratic institutions - Part II: Case Studies - 6: Jacques Bertrand: Indonesia's quasi-federalist approach: accommodation amidst strong integrationist tendencies - 7: John Boye Ejobowah: Integrationist and accommodationist measures in Nigeria's constitutional engineering: successes and failures - 8: Anver Emon: The limits of constitutionalism in the Muslim world: identity and narration in Islamic law - 9: Yash Ghai and Jill Cottrell: A tale of three constitutions: ethnicity and politics in Fiji - 10: Michael Keating: Rival nationalisms in a plurinational state: Spain, Catalonia and the Basque Country - 11: John McGarry and Brendan O'Leary: Northern Ireland - 12: John McGarry and Brendan O'Leary: Iraq's Constitution of 2005: liberal consociation as political prescription - 13: Richard Simeon and Christina Murray: Recognition without empowerment: minorities in a democratic South Africa - 14: Stephen Tierney: Giving with one hand: Scottish devolution within a unitary state