Panel 4: A Constitutional Issue: DSD at the Birth of a Nation
March 8, 2008
1:45 P.M. – 3:15 P.M.
Constitutions map out a plan to resolve conflicts in society through legal and political processes. Drafters of constitutions are thus fundamentally Dispute Systems Designers. This panel will open up a dialogue between the field of DSD and the field of constitutional law, and find out what we can learn from each other.
- Moderator, Erin Ryan
- Eileen Babbitt
- Noah Feldman
- Robert Mnookin
- Adil Najam
Photos:
Chieh-Ting Yeh
March 8, 2008 @ 1:50 pm
How do we analogize DSD tools like mediation or arbitration to constitutional design?
Bob Bordone
March 8, 2008 @ 2:02 pm
Bob Mnookin raises the interesting question of whether, to contain a conflict, you might design a system that delays ultimate break-up. If that is the case, do we call this a bad design or a good one because it lasted for at least 100+ years and prevented any violence?
Bob also asks the question of whether we should push for reconciliation or divorce. another question — are there other ways to design reconciliation that might be more realistic….one that could create a new “3d culture?”
Akilesh Ayyar
March 8, 2008 @ 2:04 pm
I wonder what factors weigh into whether certain ethnic cleavages are more amenable to integration than others…
Chieh-Ting Yeh
March 8, 2008 @ 2:10 pm
Federalism can be seen as a balance between reconciliation and divorce, or a compromise: the central government separating and trading powers and jurisdictions with each other…that’s one axis of the 3D space. What might be the other dimensions?
Sarah Woodside
March 8, 2008 @ 2:12 pm
I’m struggling with whether we are forcing the label of “dispute system design” onto existing processes. Is constitution-building really a form of dispute system design? I understand they overlap, but are we as dispute system designers “claiming” a field that does not belong to us?
Bob Bordone
March 8, 2008 @ 2:12 pm
Adil says that constitutionalism is not a design problem. He contends that great constitutions are actually badly designed. But with the elections/delegates example he seems to contend that simplicity means good design. I can appreciate the idea that simplicity is a sign of good design. Indeed, one of Costantino’s design principles suggests keeping it simple. But maybe that’s not the case.
I’m not persuaded that it’s not a design problem. It might not be the only explanation, but it’s part of it. “Respect for the document” is part of the design itself. The process and participation are all part of the design.
Chieh-Ting Yeh
March 8, 2008 @ 2:13 pm
What about conflict-ridden ethnic divide that does not fit nicely into geographic groups? It’s easy to separate the Flemmish and the Walloons; even maybe Kosovo from Serbia, but no one would ever advocate a federalism in the US where racial minorities live in one geographical corner (in fact we’ve tried it with Liberia and native American reservations…)
Bob Bordone
March 8, 2008 @ 2:15 pm
Sarah — I don’t think people who are designing constitutions think they are designing disptue systems. But I do think that is part of what they are doing. And I think they’d do a better job of it if they were exposed to our field.
For example, Adil is not a DSD person. Therefore, as he spoke about ‘design’ he clearly meant only the text of the document. But for the rest of us, we thought of design as including the process, the particiaption, the legitimacy, and everything else he said was “essential” for success.
Bob Bordone
March 8, 2008 @ 2:16 pm
Eileen suggests that talking about design implies a move toward a liberal democratic order. Is that necessarily so? What assumptions underlie that.
Michael Moffitt
March 8, 2008 @ 2:22 pm
Constitutional forms, it seems to me, have an implicit goal of keeping a country together (with descriptions of the mechanisms by which the single country maintains its unity). I share the question raised by Sarah Woodside (comment #5 above) about whether constitution-framing really is best understood as a DSD question. But even if we accept that constitutionalism is an example of DSD, I don’t think we ought to treat them as coterminous. It seems to me that there may be as many dispute systems design questions involved in a breakup as in the maintenance of a relationship. And I wonder whether DSD might be an interesting lens through which to examine what a national divorce might look like.
Breaking up, as they say, is hard to do.
Chieh-Ting Yeh
March 8, 2008 @ 2:23 pm
I think the framework of Power-Rights-Interest can be used to look at big constitutional political disputes; maybe we can evaluate how political disputes are solved by categorizing them as power/rights/interest based methods?
David Lee
March 8, 2008 @ 2:24 pm
I appreciate Eileen’s point that time is needed to give birth to a “good” constitution in Kosovo and how interim constitutions can become rigid over time. However, isn’t there something to be said to have a document for the purposes of stability, particularly in periods of political turmoil? Wouldn’t neighboring states and the international community be interested in having a stable region very quickly, before the instability spreads?
Bob Bordone
March 8, 2008 @ 2:30 pm
did anyone get Noah’s definitino (or lord bollingbrook’s) definition of a constitution? can you post it?
Chieh-Ting Yeh
March 8, 2008 @ 2:33 pm
I’ll take a shot and please correct/refine, thanks!
“System of customs, usage, and norms that shapes and legitimates employment of state power”
David Lee
March 8, 2008 @ 2:35 pm
If I had gotten everything down, I believe what Noah said about the definition is:
“Constitution = system of customs, usages, practices and norms that taken together shape and legitimate the use of public power in the state. “
Sarah Woodside
March 8, 2008 @ 2:35 pm
“customs, usages, practices, and norms…”
Bob Bordone
March 8, 2008 @ 2:36 pm
thanks, david and sarah!
Chieh-Ting Yeh
March 8, 2008 @ 2:39 pm
Just want to raise the question of the role of political parties in the customs/usages/practices/norms that is the constitution…
David Lee
March 8, 2008 @ 2:43 pm
Found this quotation from Lord Holingbroke which may be useful:
“”By constitution,” wrote Lord Bolingbroke in 1733, “we mean, whenever we speak with propriety and exactness, that assemblage of laws, institutions and customs, derived from certain fixed principles of reason, directed to certain fixed objects of public good, that compose the general system, according to which the community hath agreed to be governed.”
Somehow, I enjoyed Noah’s summary of the definition a little better! 😉
David Lee
March 8, 2008 @ 2:45 pm
I totally agree with Noah’s theoretical point that the constitutional process is a live and ever-evolving one – but from a system design perspective, how does one evaluate the “design” element though? Is the evaluation of a design and the recognition that the constitutional process is an evolving one necessarily a paradox?
Lisa Blomgren Bingham
March 8, 2008 @ 2:53 pm
There is a terrific research project underway by the following folks, who have written an article entitled “The Lifespan of Written Constitutions” (not yet published, I think)
Tom Ginsburg, University of Illinois, College of Law
Zachary Elkins, University of Illinois, Department of Political Science
James Melton, University of Illinois, Department of Political Science
They do an empirical analysis of all written constitutions adopted or amended since 1789. The average duration of a written constitution is 7 years. They conclude that constitutions are more durable if 1) they emerge under conditions characterized by an open, participatory process, 2) they to be specific, so that the parties will share information and commit to the negotiation process, and 3) they are flexible and subject to amendment for changing conditions.
Does this not suggest that both the process of developing the text, implementing it, enforcing them, and amending them are all legitimately considered subject to DSD?
hnmcp
March 8, 2008 @ 2:57 pm
The Lifespan of Written Constitutions – http://repositories.cdlib.org/cgi/viewcontent.cgi?article=1212&context=berkeley_law_econ
Michael Moffitt
March 8, 2008 @ 4:03 pm
Just a quick note to memorialize (because it does not appear elsewhere in this blog, and because I do not expect that it will appear in the written version of his remarks) that Bob Mnookin announced to the audience his aspiration to be named Ambassador to Belgium.
Bon chance / Veel geluk, Bob
Terry Amsler
March 8, 2008 @ 7:08 pm
It only makes sense that the issue of legitimacy of constitutions is strongly connected to the processes and participation by which they are framed, formed, adopted and changed over time. And I agree with earlier commentators that these matters my be usefully examined and impacted through DR theory and DR system design. On the subject of managing shorter term instability, the attention (through DR design frameworks and processes) to contested yet “engagable” resources and power (and power-sharing) issues would often be far more helpful, in the short term anyway, than hand-wringing about historical/ethnic antagonisms and contestations. This approach offers the same benefits as “brief therapy” — namely that small successes will yield new framings, political imagination and will, and possible solutions.
This is a great discussion, and suggests exactly how ADR can offer benefits on the broader social, political and academic landscape.
Ines Wu
March 10, 2008 @ 7:45 pm
I wondered about Eileen’s final comment to the student’s question about the situation in Lebanon. She said that people should not wait for the elites to take action and should be able to do something to prevent the situation from going violent. This is a very powerful statement. However, I wondered about its feasibility. It seems to me that “people” is a rather vague concept in this setting. We usually talk in terms of stakeholders and interest groups in the DSD context, for this is the way to sort people’s interests and target them. But what is “people’s” interest? To me it’s rather a collection of interests of people from different groups. They can be radically different if not contradicting each other. And if my understanding is right, then the level of specification is just not right.
Rene Pfromm
March 16, 2008 @ 2:47 pm
Bob Mnookin raises the question whether integration is always the best approach to dealing with ethnic cleavages. Whilst I agree with his point in general, the problem remains where separation does not work, e.g. for economic reasons, or (as is also pointed out in comment #7) where there is no clear geographic cut between the ethnic groups (cf. ex-Yugoslavia).
Regarding Bon’s comments on the federal structure of Belgium, I am also wondering what role the (in fact quite small) German federal community in Belgium (around 73.000 people) plays, and how constitution and federalism work for them as one of the three communities.
Rene Pfromm
March 16, 2008 @ 2:48 pm
Both, Eileen and Nadil, mention the importance of “identity” for constitutions as DSD. Eileen also points out the distrust of the people, the role of the government before and during ethnical conflicts, as well as the role of the leaders and their constituencies. Against the background of ethnical conflicts and genocides, I wonder how these issues can successfully be handled when negotiating and designing a post-conflict constitution…
daisyhudson
September 21, 2009 @ 12:51 pm
Who wrote the constution of Kosovo? What were their qualifications? What steps did the wrirer take to write this constution? What rights do the constution protect? And what was the ratification process?