A Constitution of the People and How to Achieve It - Aarif Abraham

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is constitutional change without considering the preferences of the people doomed to fail?

       Should political culture (both civic and political values) be given equal, if not more, attention as proposals for reform of constitutional rules?

      This book aims to provide those answers and an opportunity to re-evaluate Britain’s current uncodified constitution. In doing so, it provides some insight as to a possible transparent, inclusive, participatory pathway around current impediments. It posits a recurring but controversial question: is Britain’s historical unwritten arrangement really worth defending? Any such defence, if it is to occur, would be made through a re-development of core political and civic virtues through greater political interaction between political elites and the people. Reliance simply on written rules, duties and responsibilities is not enough. Some form of social entrenchment of human rights (if not legal and political) is clearly necessary to allow the unrestricted cultivation of good political culture. Game theory and behavioural economics suggest that, where the conditions are right, the British model, with certain adaptations, could be favourable to better constitution-making. The British model may make less confrontational a process by avoiding any ‘constitutional moment’. It allows, not unlike a ‘revolving constitution’, inter-temporal bargains to lessen the ‘winner-takes-all’ effects of a new or amended constitution. It also encourages an active constitutional culture to develop across generations so that new generations may feel that they have something at stake and a genuine solidarity and fraternity with others who decide the new rules.

      Britain though may need a way to reset the terms of its political arrangement. A one-off constitutional covenant leading to a constitutional convention to deliberate on key constitutional problems may provide a truly participatory and deliberative constitutional statute to renew, reinvigorate and revitalise political relationships. Such a constitutional statute could ensure that Parliament, the Government as well as the devolved administrations benefit from greater popular legitimacy rather than suffer collective malaise, disdain and apathy.

      The book is organised as follows. Chapter 1 provides an overview of what a constitution is and the debate that surrounds its nature. An outline is provided of the British unwritten or uncodified constitution: its operation, its historical origins, and the recent trends challenging its unwritten status. The Chapter also provides an outline of the Bosnian constitution: its creation, the hopes of its drafters, its imposition, and the practical reality of its operation. It explains why comparing these two particular States is important and what we might hope to gain by questioning their design and amendment processes. It emphasises that no particular constitution is paradigmatic. An unwritten one is not necessarily superior to a written one. The process of creation or change, however, necessarily entails a consideration of political culture and history.

      Chapter 2 introduces theoretical ideas about political culture, what it is and how it can be measured. It explains falls in political participation in Bosnia and Britain and the variables that can help explain why people are (or can become) apathetic in a given constitutional structure. In particular, the Chapter looks at how people form views that are not conducive to democratic engagement, as well as views that are hostile to a democratic form of government. The sub-chapters define concepts such as ‘political culture’, ‘political apathy’, ‘political participation’, and proposes a working model for analysis. The Chapter presents the findings of quantitative research (see Appendix A) in respect of political apathy in Britain and Bosnia, with Croatia as a reference point.

      Chapter 3 presents the detailed findings of quantitative research in respect of political culture in Bosnia. The Chapter, in particular, considers whether a ‘poor’ political culture (defined in Chapter 2) is the main variable explaining Bosnia’s political problems or whether there are more persuasive explanations such as institutional failure stemming from foundational constitutional structures. The Chapter roots the questions of constitutional design and amendment in the context of the real political culture of the Bosnian people and sets out why the failure to consider this culture may be helping to perpetuate conflict and simply freeze violent conflict. If Britain and Bosnia have pro-democratic political cultures, the question is posed as to what they may learn from one another in terms of their design and amendment processes.

      Chapter 4 sets out the literature and theoretical principles of institutional design and amendment. It explains why changing formal rules when the underlying beliefs or values of societies remain rigidly opposed will result in failed institutions; and why a failure to change the formal institutions when belief systems are conducive to change imperils those institutions. The sub-chapters set out the three major proposals that have been made to date to reform the Bosnian constitution and the reasons for their failure. The sub-chapters will contrast that experience with the outlier case of the unwritten constitution in Britain and various reforms made to it (with a focus on those made since 1997). The sub-chapters focus on Brexit, Scottish and Northern Irish secessionism, and the unlawful constitutional practices of recent British governments. They interrogate whether it is the existing unwritten constitution (which creates a system of representative parliamentary democracy) that is the source of these crises or, rather, the by-passing of existing constitutional conventions, rules, and institutions. In the one (Britain) it poses the question of whether abandonment of its traditional unwritten constitution is the problem and in the other (Bosnia) it asks whether the foundational moment of the imposed constitution is the source of all the problems. In essence, what can one State learn from the other as calls for reform ring loud?

      Chapter 5 draws on the literature in the fields of game theory and behavioural economics to model the impasse in Bosnia in light of the practical operation of Britain’s flexible constitutional arrangements. It uses game theory to present how ethno-nationalist political elites play a ‘zero-sum’ game in the current Bosnian institutions. Suggestions are made as to how they may be incentivised to give-up their strong ethno-nationalistic decision-making in the current system by introducing a third and critical actor: the people. The Chapter then suggests a solution to the impasse in Bosnia: a revolving constitution.

      Chapter 6 develops the practical lessons for two disparate constitutional reform debates—that in Britain where codification is being increasingly talked about, and that in Bosnia where any hope of reform is marred by the actions of ethno-nationalist elite spoilers who benefit greatly from the current constitutional status quo. The Chapter sets out the mechanics of how a revolving constitution for Bosnia might operate and the careful calibration that is required to ensure safeguards for minority groups, human rights and stability. The Chapter also looks at how Britain may address current and future constitutional crises that clearly require redress. A model for greater deliberation and participation of the public is proposed which is in true keeping with British political culture and tradition.

      The concluding remarks suggest how best to characterise a constitution and draws together the wide scholarship consulted in writing this book. The remarks identify the main lessons learned in comparing Bosnian and British constitution-making and design; some practical policy suggestions are provided on possible reform of the British and Bosnian constitutions. General lessons are drawn from the comparison made between Bosnia and Britain for both post-conflict and pre-conflict States.

      Technical Methodology

      This book makes use of two research methods to answer the primary research questions: (a) quantitative research to understand political culture, political apathy and political division in Bosnia and Britain; and (b) the use of rational choice models (game theory and veto player theory) and behavioural economics (prospect theory) to analyse the behaviour of political elites and the people (together ‘players’) in the current constitutional framework.

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