PUBLISHED:November 11, 2016

Horowitz focuses on constitutional design for divided societies in Yale's 2016 Castle Lectures

Donald Horowitz, the James B. Duke Emeritus Professor of Law and Political Science, delivered Yale University’s 2016 Castle Lectures in Ethics, Politics and Economics, in late September.

Horowitz titled the series of three lectures “Constitutional Design for Severely Divided Societies: Many Architects, Few Buildings,” framing them around issues he is developing for a book forthcoming from Yale University Press. Horowitz has advised on constitutional design and process in a number of countries. Too often, he said, institutions to reduce conflict are not adopted in countries experiencing considerable conflict between ethnic or religious groups.

The first lecture, titled “Prescriptions without Politics,” offered examples of societies that face polarization, such as Sri Lanka, which has a 75 percent majority Sinhalese population with small Tamil and Muslim minorities, and Rwanda and Burundi, which have histories of genocide against minorities, as well as the unsuccessful recommendations for constitutional design that have been put forward. Those “prescriptions” are of two general types, Horowitz said: for an extensive regime of minority guarantees, usually referred to as “consociational democracy” or to push politicians to the moderate center, his preferred approach, typically labeled the “centripetal” approach.

In his second lecture, titled “The Difficult Politics of Institutional Adoption,” Horowitz specified the obstacles to adopting either of these prescriptions in constitutional processes.  Any given country may get locked into historical experiences, he said, where memories of an institutional failure or past promises of certain systems of government drive negotiations. “I call these historical experiences ‘aversive’ and ‘attractive,’” he said. “They can repel ideas or attract ideas in an almost magnetic way, or bias parties to negotiations one way or another. There is also a recurrent bias toward familiarity — that is, toward adopting institutions with which the drafters have had some experience — and those biases are generally dysfunctional, because what a given country needs isn’t necessarily what it knows about. It’s best to explore what various other countries have managed to do despite their problems,” but there is typically a deficit of cross-national knowledge of this kind.

Having highlighted problems in constitutional design in his first two lectures, Horowitz outlined some positive approaches to and some hazards in the process in the third, titled “Constitutional Process: A Fraught Experience.” While a “good” process is generally considered to be one that is inclusive, elected, and makes room for deliberation and negotiation, he said, it can hold inherent pitfalls. “The more inclusive the process is, the less likely consensus is,” he said. He described Indonesia’s experience with a constitutional redesign in the early 2000s as relatively successful, because it was based on consensus developed during a lengthy, unhurried period of negotiation and consultation.  In contrast, more recently Nepal had “a very poor process where the majority forced something on the minority,” and violence erupted.  The Indonesian process was the subject of Horowitz’s 2013 book, Constitutional Change and Democracy in Indonesia.

Horowitz’s forthcoming book will expand his examination of the problems inherent in constitutional design in severely divided societies, including such issues as the evolution of federalism and challenges to enforcement of ethnically conciliatory commitments in countries where the rule of law is weak.