Rethinking ‘Constitutional Design’ and the Integration/Accommodation Dichotomy
| DOI | http://doi.org/10.1111/j.1468-2230.2010.00813.x |
| Published date | 01 July 2010 |
| Date | 01 July 2010 |
REVIEWARTICLE
Rethinking ‘Constitutional Design’ and the Integration/
Accommodation Dichotomy
Je¡rey B. Meyers
n
Sujit Choudhry (ed), Constitutional Design for Divided Societies,Oxford: Oxford
University Press, 2008,474 pp, hb d50.00.
‘There is no way of resolving the political.’
Antonio Negri, Insurgencies (19 92)
1
The Sujit Choudhry edited anthology, Constitutional Design for Divided Societies:
Integration or Accommodation? (‘CDDS’)
2
is the outcome of a workshop held in Tor-
onto in October 2006 by the Ethnicity and Democratic Governance Major Col-
laborative Research Initiative. Together with a series of conference papers
subsequently published in the International Journal of Constitutional Law,
3
it is the
culmination of half a decade of interdisciplinary research funded by the Social
Sciences and Humanities Research Council of Canada.
CDDS (re)introduces a legal audience to the debate between ‘integrationists’
(di¡erence di¡using) and ‘accommodationists’ (di¡erence recognising) theories
of constitutional design. A debate which, although familiar to academic lawyers
researching, consulting and advising on constitutional reform and nation-build-
ing projects, has until recently been developed more exhaustively in the political
science literature. A thoroughly i nterdisciplinary ¢eld of inquiry nonetheless, its
leading ¢gures are integrationist American jurist Donald Horowitz, and his
accommodationist interlocutor, Dutch-born American political scientist, Arend
Lijphart.
The Horowitz-Lijphart debate began in the ’60s and consolidated itself in the
’90s in connection not only with high pro¢le social reconstruction and constitu-
tional design projects undertaken in post-Apartheid South Africa and post-Soviet
central and eastern Europe, but also with experimental reform and devolution
negotiations in established democracies like Canada and the UK. It is the bench-
mark for boththeoretical and practical questions of constitutional design and is well
summarise d in CDDS.However, the polarities th e debate entails and the occlus ions
it permits are too infrequentlyand uncritically treated by the contributors.
n
Law Department,London School of Economics. I am grateful to Igor Stramignoni,Emily Laidlaw
and the anonymous referee for their comments.
1 A.Negri, Insurgencies: ConstituentPowerand the Modern State (Minneapolis: University of Min nesota
Press,1999).
2 References to this book will be made by unattributed page references in parentheses.
3 See generally (2007) 5 International Journal of Constitutional Law 4.
r2010The Author. Journal Compilationr2010 The Modern Law ReviewLimited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2010)73(4) 656^678
The ¢rst part of the book contains introductory and overview chapters (Part I,
Chapters1^2). Choudhry’s introduction providesa synopsis of the various contri-
butions to the anthology, as well as the justi¢catory rubric for the interdisciplin-
ary joiner of comparative politics and comparative law in the ¢eld of
constitutionalism. John McGarry, Brendan O’Learyand Richard Simeon’s chap-
ter sets out the problematic of constitutional design and the history of the Horo-
witz-Lijphart debate more generally. Here the stage is set for both the theoretical
(Part II, Chapters 3^6)and case study chapters to follow (Part III, Chapters 7^15).
Prior to summarising and critiquing the contributions however, all ¢fteen of
which treat the Horowitz-Lijphart debate as their primary heuristic device, I will
£esh out its key turnings.
BASIC TERMS AND FRAME OF THE DEBATE
Choudhrydescribes the Horowitz-Lijphart debate as having emerged ‘against the
backdrop of pluralist accounts of democratic politics put forward by American
scholars such as Seymour Lipset’ (16). Lijphart, a pluralist in the vein of Lipset, is,
in the political science vernacular, a ‘consociationalist’rather than a ‘majoritarian’
democrat. Consociationalist theories of institution-building and government
design favour shared executives, proportionaterepresentationlegislatures and fed-
eral division of power. Horowitz, who is less communitarian and more classically
liberal in his ethos, is sceptical of elaborate recognition-based structures of gov-
ernment.‘Integrationists argue that consociationalism has apoor track record; that
consociational structures harden and rigidify pre-existing group di¡erences; and
that the central assumption of consociation is mistaken, for there is no reason to
believe political elites will be any more accommodating, or will have thelatitude
to be, than their supporters.’
4
Horowitzian integrationists ‘disfavour democratic
structures that give substantial anatomy to sub-groups and de¢ned identities,
and, to the extent integrationists support federalism, it is typically a federalism
in which the constituent units are not dominated by any single nationality or reli-
gious, linguistic, tribal, or similar community.’
5
Despite theirobvious di¡erences, the accommodationist and the integrationist
mode of constitutional design share as much as they do not. Both are broadly
liberal insofar as they take for granted their basic departure point in the modern
state form and the constitutionalmetaphysicsto which it corresponds. Few, if any,
of the contributors to CDDS consider in any sustained sense more radicalor alter-
native imaginings of political diversity. This is unfortunate and something which
I will addresspresently. Nevertheless, the di¡erencesbetween the two sides ofthe
debate are neither inconsequential nor narrow.They £ow from divergent de¢ni-
tions of twocentral terms in political theory:‘equality’ and‘democracy’. The di⁄-
culty is that these terms, not unlike otherpoliticaltheoryconcepts, are empty, or
at best shiftingsigni¢ers which tend, likethe ‘human’ in‘human rights’, to be both
4 R. H. Pildes,‘The Legal Structure of Democracy’in K. E. Whittington, R. Daniel Keleman and
G. A. Caldeira (eds), The Oxford Handbook of Law and Politics (Oxford: Oxford University Press,
2008) 333.
5ibid.
Je¡rey B.Meyers
657
r2010The Author. Journal Compilationr2010 The Modern Law ReviewLimited.
(2010)73(4) 656^678
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