Session 1—Western Constitutional Tradition
Vernon Bogdanor, Research Professor at the Institute for Contemporary British History, King's College London, addressed why a constitution might fail: “it is less due to virtues or defects in the constitution itself, and more a feature of the societies in which they must operate”. This was exemplified in Kosovo, where the difficulty was putting the constitution into practice rather than actually writing it. The Westminster model will not work wherever you have a permanent majority versus a minority, he explained: “here a winner-takes-all system will not work”.
Bogdanor then explained how Britain’s constitutional model differs from that of the European Union. “Europe does have a constitution, the Treaty of Rome 1957,” he stressed, “it is the opposite pole to the Westminster model, based on separation of powers, not a centralised system”. Parliament was created to sustain an executive but the European Union ‘parliament’ has to sustain a dialogue with lots of other institutions.
“We, the British, take the view that those who have power should be elected, this is not the case in the EU”, continued Bogdanor, explaining why the British constitutional system conflicts with that of the EU. The antagonistic opposition versus government in Westminster is highlighted by the rectangular House of Commons, whereas the European Parliament is a hemicycle. Moreover, a European commitment does not follow from the original understanding of the British constitution, where the parliament exercises supreme sovereignty. Thus Britain is pitted against Europe when thinking about undivided power, bringing the discussion to the question “can we change to fit with Europe?”
Robert Hazell, Director of the Constitution Unit at UCL, proposed that “the British constitution will continue to evolve in a series of steps, without any thought through strategy or searchlight shining ahead”. Bogdanor concluded that thus far the most apt comment on Britain’s relationship with Europe came from Ernest Bevin: “If you open that Pandora’s Box, you never know what Trojan horses will jump out”.
Tony Badger, Professor of American History at Northumbria University, rejected the common criticism that the United States constitution is responsible for ‘gridlock’ in federal government, between either the two legislative houses or the executive branch versus the houses. Nicholas Cole, Senior Research fellow at Pembroke College, Oxford, supported his argument that inaction is ‘safer’ than action in the eyes of the US constitution, “the bias of the constitution came from the belief that action could be a product of tyranny of sovereignty”.
Divided government is in fact the norm; only 10 years in the last 50 have seen an undivided federal government. “The gridlock”, Badger argued, “comes from the ideological polarisation between the two parties, the constitution has very little responsibility”. US partisanship is only becoming more pronounced; it is now assumed that you need 60 seats in the Senate to be able to make a significant legislative impact.
The prevailing attitude towards the US constitution has always been more critical than needs be, concluded Badger, “the crucial issues affecting the US are not difficult to solve because of gridlock, they are made possible to solve by democracy”.
Malik Dahlan, Principal at Institution Quraysh for Law & Policy, asked about the tension in constitutional norms of having an aspirational element versus a more functional purpose. Colleen Graffy, Associate Professor at Pepperdine University, stressed that the US constitution is an object of veneration, which serves a practical political purpose, as opposed to the British constitution which is often attacked by politicians, despite its remarkable flexibility.
Badger concluded that significant constitutional change in the US in the coming years was unlikely, and that each period of re-emerging criticism of the constitution has, in fact, preceded a particularly rich period of American legislative history.
Session 2—The Middle East and North Africa Region
Malik Dahlan stressed the importance of talking about ‘perspectives’ when looking at Islamic constitutional thought, given the lack of an Islamic constitutional law discipline. The Medina Constitution, a 1400 year old document whose literal translation to Latin is ‘civitatus’, or in English ‘legislative document’, established rules for social order in the Islamic world. The Medina Constitution, like the Magna Carta, is enshrined in written from, and has been revered throughout its history.
When defining ‘caliphate’, “there is no concept of a divine right to rule”, explained Dahlan, looking at the similarities between Wahhabism, with its descriptions of war and jihad and hatred of the Sykes Picot agreement, with Islamic State (ISIS). There is a lot of Islamophobia in and about the region, he pointed out, including the misguided conception that the espoused rights of the individual in Islamism are at odds with those of the West.
A major problem, Dahlan continued, was the fall of the Two Holy Mosques in Mecca, once a centre for learning and jurisprudence. Notions of the Islamic pillars, such as zakat (alms) have, without an authoritative recognised constitutional voice, become subject to abuse by those in power, rather than being used for public rights and freedoms.
Lorianne Updike Toler, a constitutional legal historian, warned that the Arab world has suffered from the loss of its historical constitutionalism, principally the separation of powers, both philosophically and in its application. Process has, until recently, provided drafters with a ‘blank spot’. Procedure and problems with constitutionalism in the MENA region are treated as issues to be dealt with by ‘normal’ political practice, she explained, enforced by simple majorities as opposed to super-majority consensus-building. Engaging and facilitating public opinion is also important in building a successful constitution, Updike Toler argued, and “too much international influence, as seen in Iraq and Afghanistan, stops the polity from believing that their constitution is organic”.
While the textual commitments to rights in the MENA region might be exceptional, she observed, debate about the system of governance has been neglected, leading to insufficient separation of powers. “When you say separation of powers you need equal division of powers to maintain protection from imposition by others, and this needs to extend to constitution writing itself,” she argued, “without plenary discussion you can’t develop a culture of cooperation and debate”.
Good process can overcome the context in which people are trying to write a constitution, Updike Toler concluded. An early example was Libya in the 1950s, where three essentially distinct nations were helped by the UN to write a constitution, hold plenary discussions, before completing the process independently and developing a national culture.
Session 3—Constitutional Conventions and the Process of Negotiation
The third session featured Nicholas Cole, Senior Research fellow at Pembroke College, Oxford, in conversation with Hywel Williams, Senior Adviser at the Legatum Institute. The discussion focused on Cole’s research about the possible use of the US Constitutional Convention (Philadelphia 1787) for strategy and procedure in multi-party decision-making.
A great innovation in the US, Cole explained, is that the process did not have a sole law giver. He also dispelled the myth that a great group of philosophers met and “spoke about abstract issues for four months before writing a constitution”. In fact, he argued, the focus during the convention was on language and process, not philosophy.
About the Roads to Freedom Series
As part of the Legatum Institute's 'The Culture of Prosperity' programme, this series offers a progress report on the idea of freedom. The history of the developed west has been shaped by the increased degree of freedom exercised by individuals who have been able to escape the constraints that prevailed in the past. Previous generations have been stifled by prejudice and poverty, by class hierarchies, state repression and determined obscurantism. By the 1990s, and after the collapse of the Berlin Wall, many considered that the advance of an agenda which recognised the legitimacy of free markets and the morality of individual liberty was well nigh inevitable. But in the past two generations advocates of freedom have also been confronted by significant obstacles. The speakers in this series will draw conclusions from the study of the past while also seeking to find ways of removing the obstacles to freedom’s progress.
The Constitution of Freedom: Why some constitutions succeed- while others fail” is co-organised by the Legatum Institute’s Culture of Prosperity and Transitions Forum programmes.