[Elster, Jon (1992), Making sense of constitution-making, East European Constitutional Review 1 (1):15-?]
[This text was transmitted to me, hence there are no page numbers and the italics/paragraphs may be distorted]

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Making Sense of Constitution-Making

An analytical framework to help understand a process of legal and political redefinition

by Jon Elster

For social scientists, the events unfolding in Eastern Europe constitute both a challenge and an opportunity. As a scholarly community, we notoriously failed to predict the downfall of communism. Perhaps we can do better in understanding the emergence of a new political order. A central task of the Center for the Study of Constitutionalism in Eastern Europe is to elaborate a set of analytical constructs and hypotheses that can impose some order on what might otherwise seem like unintelligible sound and fury.

Our goal is to confront existing theory with events, and to try to generate new theory when- ever the accepted wisdom seems inadequate. The occasion is unique. Although there have been waves of constitution-making in the past - in the late eighteenth century, in the wake of the 1848 Revolution, after the First and Second World Wars, in the newly liberated African countries in the 1960s, and after the fall of the dictatorships in Southern Europe in the mid-1970s - the cluster of countries in Eastern Europe are in a very special situation. All are emerging from a forty-year history of Communism. All must make a simultaneous transition to democracy and the market. Historically, their developments are highly intertwined. They differ in many respects, while being similar in others - an ideal situation for comparative analysis. The Center's research is focused on political developments. However, we are also concerned with the impact of constitutional change on the economic transition. A "devil's- advocate summary" of the relationships is provided in the following diagram:

[diagram]

Here an arrow from X to Y means that X, to be effective, requires Y. A blocked arrow means that X is an obstacle to Y. The argument is that democracy will be an obstacle both to price reform (because it will make some people poor or unemployed) and to ownership reform (because it will make some people very rich). Democracy, to be stable, needs a constitutional framework; constitutionalism, to be legitimate, needs a democratic pedigree. Moreover, ownership reform will not create the right incentives unless there are constitutional guarantees for property.

Finally, neither price reform nor ownership reform will be effective in the absence of the other. It is easily seen that if all these statements are true, economic reform is impossible. The Center is not, of course, committed to this conclusion. The diagram serves only to locate some of the causal connections around which this part of our research will be organized.

The study of political developments has a backward-looking component and a forward- looking component. Although the latter is the more important part of the research agenda, the former cannot be overlooked. The way in which the societies in Eastern Europe deal with their past may turn out to be decisive for their ability to move forward. The Center has already sponsored a conference on "retribution and restitution" (see the report by Dwight Semler of page 30) and will pursue these issues in its publications and other activities.

Focusing on the Process

With regard to constitution-making proper, our analytical approach is mainly process- oriented. We want to understand the mechanisms by which constitutions come into being. At the most fundamental level, this requires an analysis of the motivations of the main parties involved. It takes little acquaintance with the East European scene to observe that interest, reason (understood as impartial concern for the common good) and passion all have a powerful influence on the constitution-making process.

Interest-group pluralism will obviously be an important force. The concern for the common good may, if things turn out well, be embodied in the constitutional courts. Both interest groups and the courts may, however, be constrained by popular movements based on passionate feelings of revenge, envy or ethnic hatred.

At another level, we shall try to identify the relative importance of arguing and bargaining in the constitution- making process. The debate over the new constitutions may be closer to labor-management bargaining than to a rational discussion among impartial framers. The threat of secession, as currently wielded in Czechoslovakia, may preempt the process of deliberation. Some parties will try to mobilize the crowds to get their way, whereas others will turn abroad for support. In studying these pro cesses - from the Round Table Talks in 1989 up to the current constitutional debates - we shall constantly look back to the great eighteenth-century constitutional moments in Philadelphia and Paris.

The choice of a constitution may be shaped by the available models. Some countries look to their pre-Communist past, whereas others look to contemporary European constitutions, notably the German and French ones. Drawing on the work on Thomas Schelling, one could propose the working hypothesis that these precedents can serve as focal points to resolve conflicts. Such models and imitations are likely to prove especially important with respect to the establishment of the "machinery of government" - the relation between president, government, parliament, and the courts. There is a risk that some countries may adopt constitutions la carte - adopting elements from several models, without making sure that they can work effectively as a whole.

However, one should not underestimate the influence of the more recent, Communist past. In particular, it is likely that many countries will adopt a large number of positive rights - e.g. to employment or unemployment benefits (or both!) - that reflect the concern for a secure, guaranteed level of welfare that is an enduring legacy of Communism. There is also likely to be a pressure for positive rights that reflect a reaction to Communism, such as the right to a clean environment. Cass Sunstein's article in this issue takes up these questions more fully.

Quasi-Constitutional Questions

The notion of constitution will be interpreted broadly. In addition to the formal, written constitution there are a number of "quasi-constitutional issues" that may turn out to be of equal importance. Foremost among these are the role of the central bank and of the state broadcasting companies. The question is whether government will "bind itself" by adopting a hands-off policy with respect to these institutions, or whether the temptation to use them as policy tools will be too strong. The problem can be stated more generally. Will the new po-lit- ical systems be permeated by the "spirit of constitutionalism" in which basic political institutions are seen as a stable framework for policy rather than manipulable tools? More specifically, will the constitutions contain rigorous amendment procedures, by requiring qualified majorities or delays for constitutional changes? Will the electoral laws be part of the constitution, or will they be subject to manipulation by the government? Will the government make it impossible for itself to interfere with the judicial process, for instance by adopting a system of random assignment of judges to cases?

The international context of constitution-making will be a central theme. In addition to the role of foreign models we will consider the issue of foreign influence. In particular, we want to examine the role of international organizations such as the Council of Europe, the European Community or the International Monetary Fund in shaping the new constitutions. So far, this influence has mainly been felt with regard to the rights of ethnic and linguistic minorities, but as many of the countries in the region seek some kind of membership in the European Community it might be-come important across the board of con- stitutional issues.

The countries of Eastern Europe are facing problems of unprecedented magnitude. They must build a new civil society, to replace the atomized Communist order; a new political system, based on democracy, constitutionalism and human rights; and a new economic system, based on private property and freedom of contract. Many of them must also come to grips with ethnic problems that have been both suppressed and exacerbated by forty years of Communist rule.

At the same time they have to come to accounts with the past. Each task is difficult, and the interaction among them is unlikely to make the difficulties less severe, despite the claims of some optimistic observers. For the political players, this complexity can be a source of despair, and social scientists, as citizens, must share that feeling. As observers, however, we cannot help being intrigued, and even a bit delighted, at events that are unfolding.

At the conference that the Center organized in October (see the comments by Dieter Grimm and Michel Troper on p. 28), I remarked that for our East European colleagues it must have been somewhat unnerving, and perhaps insulting, to be treated as the object of some gigantic laboratory experiment. But, I added, I hoped they would agree that we are all engaged in the same pursuit, that of deepening our understanding of social and political transformation. One of the Bulgarian participants aptly replied, "One might ask the hounds and the hare whether they are part of a common pursuit." In the short run, some tension between these two perspectives - of the actors and the observers - is inevitable. We must assume, however, that in the long run better understanding will also make for better policies.

[Elster, Jon (1992), Making sense of constitution-making, East European Constitutional Review 1 (1):15-?]
[This text was transmitted to me, hence there are no page numbers and the italics/paragraphs may be distorted]

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