New 'Constitution Index' unveiled at conclusion of Constitutions programme

12 December 2011

The Social and Political Foundations of Constitutions programme reached its conclusion on 8th and 9th of December with a workshop that encompassed the constitution-making of the world's newest state, unprecedented use of social media in constitutional design, and the emergence of a 'constitution index' that could help shape future constiution-making in practice.

The culmination of this three-year programme of study came in the form of an innovative piece of research to identify so-called 'sham constitutions' by Professors David Law and Mila Versteeg, who have developed a 'constitution index' to measure how well nations uphold the civil, political, and socioeconomic rights they enshrine in their constitutions.

"By publicly naming and shaming countries with 'sham constitutions', they aim to promote compliance and acountability by facilitating civil mobilization in support of rights based constitutional commitments

By publicly naming and shaming those countries who most evidently have in place 'sham constitutions', they aim to promote compliance and acountability by facilitating civil mobilization in support of these rights-based constitutional commitments.

The workshop began with an examination of the developing constitution of South Sudan, the world's newest state following its secession from Sudan earlier this year, whose previous constitution was shown to be statistically the most 'shammy' of all. Professor Kevin Cope argued that the new consititution showed signs of 'soft coercion' or acculturation, as subtle pressure to adopt international norms resulted in the adoption of certain rights provisions. Despite this, the structural features of the constitutional settlement  allowed the government to withdraw power from the regions to a more centralized, executive model, resulting in a dichotomous constitution with negative implications for democracy.

The second session turned to the fascinating case study of Iceland, which, following the catastrophic effect of the financial crisis, conducted a radical constitution-making experiment, incorporating social media to effectively 'crowdsource' its constitution through a constitutional committee formed of 1000 randomly selected members of the public. Professor Anne Meuwese described how the innovative use of social media enabled the people to have a direct input in forming a constitution which exhibited several national traits, including strong protections for the natural enviorment and national sovereignty, as well as the right to unprecendented access to public information.

"Iceland, following the catastrophic effect of the financial crisis, conducted a radical constitution-making experiment, incorporating social media to effectively 'crowdsource' its constitution through a constitutional committee of 1000 randomly selected members of the public.

Israel's constitution-making process was brought into sharp contrast by Adam Shinar of Harvard University, who showed how, unlike Iceland, Israel underwent no such single, self-conscious constitution-making moment to arrive at its constitution. He characterized the gradual and ad-hoc process of developing a constitution through a series of laws enforced by strong judicial review as an 'accidental constitution'. The consequent political fragmentation of this process, in which the Supreme Court acted as an alternative site of power, delegitimized the Court in the eyes of the public.

Latin America provided the focus of the following two case studies, with Chile and Argentina both serving as examples in which significant constitutional change was much harder to achieve. In the case of Chile, Hugo Rojas Corral from Oxford described how, following a period of military rule and Pinochet's authoritarian regime, up to 15% of Chilean citizens would prefer authoritarian rule to the constitutional protection of civil rights, as long as economic development continues.

Similarly, in Argentina, the oligarchic republic of 1853-1930 brought about a period of constitutional stasis from 1930 until 1983, during which the military prevented the constitution from accommodating new social and political actors. Professor Miguel Schor argued that the historical memory of oligarchy had caused Argentinians to impose too many constitutional constraints on presidential power, and that constitutional roadblocks had prevented the government achieving many social and political goods. In so doing, he brought to light the twin purpose of constitutional design - to both constrain executive power, but also to enable governments to effectively represent the people they serve.

The papers presented as part of this programme will be published in two voumes by Cambridge and Oxford University Presses, and further lines of constitutional thought will be explored in events planned throughout 2012.