By Hanna Lerner
How can societies nonetheless grappling over the typical values and shared imaginative and prescient in their kingdom draft a democratic structure? this can be the significant puzzle of constructing Constitutions in Deeply Divided Societies. whereas such a lot theories speak about constitution-making within the context of a second of progressive swap, Hanna Lerner argues that an incrementalist method of constitution-making can allow societies riven by way of deep inner disagreements to both enact a written structure or functionality with an unwritten one. She illustrates the method of constitution-writing in 3 deeply divided societies - Israel, India and eire - and explores a few of the incrementalist ideas deployed by means of their drafters. those contain the avoidance of transparent judgements, using ambivalent criminal language and the inclusion of contrasting provisions within the structure. Such suggestions permit the deferral of arguable offerings in regards to the foundational facets of the polity to destiny political associations, therefore permitting the structure to mirror a divided id.
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2 (1995): 161. 6 incrementalist approach to constitution-making 33 in the minority, as in the case of Orthodox Jews in Israel, but it may also be the majority, as is the case in Turkey. In either case, however, what is important is that each of the camps in deeply divided societies – whether liberal or illiberal, whether in the majority or the minority – wishes to impose its political philosophy on the state as a whole. Each side wants the constitution to express its aspirations and goals. The Israeli case provides, again, an interesting illustration.
38 legitimacy of the new constitution in an existing cultural and political homogeneity. John Jay, in Federalist no. 2, stressed the uniform features of the American people, arguing that the enactment of a federal (rather than confederal) constitution was the most appropriate for “a united people, a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs” (The Federalist Papers by Alexander Hamilton, James Madison and John Jay (Bantam Books, 1982) 7).
But in the case of the liberal idealt ype constitution this requirement seems at first glance to be in conflict with the basic concept of a liberal constitution, and hence it merits a more detailed explanation. The liberal constitutional model is perceived by many as normatively superior to the nation-state one, as it is seen as going beyond national, ethnic and religious identity and providing a culturally neutral basis for political unity. Habermas’ constitutional patriotism purports to replace cultural attachments with allegiance to the democratic procedures of the state and to institutions and symbols that are potentially of universalist appeal.