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Book Reviews
Haider Ala Hamoudi. Negotiating in Civil
Conflict. Constitutional Construction and
Imperfect Bargaining in Iraq. University of
Chicago Press, 2013. 382 pages. $35.
ISBN: 9780226068824.
Zaid Al-Ali. The Struggle for Iraq’s Future.
How Corruption, Incompetence and
Sectarianism Have Undermined Democracy.
Yale University Press, 2014. 304 pages.
$35. ISBN: 9780300187267.
Within the same year we have been treated to
two terrific volumes on the political development of Iraq after the overthrow of Saddam
Hussein, written by two Iraqis who, as legal
advisors, have participated at different levels. Both works are exciting, well written and
argued, and full of new information. They are
especially valuable to me for their long views
on this development, coming nearly a decade
after I concluded my own study on Iraq more
or less after the ratification of the Constitution
in 2005.1 What is, however, astonishing is
that the two books seem to depict two alternative universes.
Zaid Al-Ali tells a story of almost continuous political crisis, caused not only by “corruption, incompetence and sectarianism” but
also by the failure of the constitution making
effort and the resulting constitution. For AlAli, the American war and occupation, and
especially the disastrous conduct of the latter,
1
Andrew Arato, Constitution Making Under
Occupation: The Politics of Imposed Revolution
in Iraq (2009). They also very much complement al-Istrabadi’s 2010 study: Feisal alIstrabadi, Islam and the State in Iraq. The Post
2003 Constitutions, in Constitutionalism in Islamic
Countries 607 (Rainer Grote & Tillman Roeder
eds., 2012).
I•CON (2014), Vol. 12 No. 3, 808–840
are at the root of a political and constitutional
failure that the externally imposed Iraqi elites
in charge did very little to rectify. In his presentation, the ethnic and sectarian divisions
of Iraq were at best intermediary causes, not
historically deep-seated, and they were greatly
exacerbated by the occupation’s policies.
Al-Ali’s narrative is well documented, paying equal attention to constitutional process,
administrative decisions, party politics, economic policy, and local struggles, both during
and after the formal American occupation.
Haider Ala Hamoudi tells a very different story. Without denying the dysfunction
of political and economic developments in
Iraq, he presents the constitution as the one
dimension in Iraq’s post occupation period
that has succeeded to an extent. While he
does regard the negotiations that have led to
the constitutional outcome as “imperfect,” he
sees a positive dimension here as well: namely
the adoption of an incremental method of
constitutional development, made possible
by these very imperfections. In his depiction, the imperfect process and its legitimacy
problems led to a “capacious” text allowing
for subsequent incremental development.
Hamoudi rarely disagrees with my own earlier critical reconstruction of the constitution
making process in an “externally imposed
revolution,”2 but he sees the very contradictions that I (among others) pointed to in the
constitutional outcome in a positive light. He
views the obviously imperfect constitution
as merely incomplete, and indeed preferable
to any non-contradictory product that could
have been achieved in 2005, or to the breakdown of the process altogether. Interestingly,
2
Haider Hamoudi, Arab Spring, Libyan Liberation,
and the Externally Imposed Democratic Revolution,
89(3) Denver U. L. Rev. 699 (2012).
Book Reviews
Hamoudi believes that the ethnic and ideological divisions of Iraq are far more ancient and
fundamental than does Al-Ali, and he argues
moreover that constitutional deferral has
helped to reduce the intensity of the divisions
between Sunni and Shi’a, as well as between
the religious and the secular.
How can we explain the divergence
between these two sophisticated and scholarly
authors? Most obviously it is a question of perspective. Though they are both legal scholars,
Al-Ali’s analysis is above all political, while
Hamoudi focuses mainly on the legal. Thus
Al-Ali demonstrates how little the constitution helped to solve the fundamental political
problems facing Iraqi society, whose ills have
become worse over time. In particular, he
shows the great gap between constitutional
forms and actual political practice. Even where
a previous problem is reduced in significance,
like the danger of forming wealthy regions
that would further impoverish the rest of the
country, he points out that this too has been
achieved in part by change of political influence (within the Shi’i elites) and in part by a
refusal to enforce the constitution by the government (facing new demands made by Sunni
majority provinces). For Hamoudi, this very
outcome represents a partial convergence of
Sunni and Shi’a perspectives, made possible
by the fact that the constitution left the matter open. Leaving aside the different political
judgments (and perhaps commitments?) of
the two authors, this example shows that a
truly complete analysis of constitutions must
combine political and legal perspectives.3 One
could thus argue that if the 2005 Constitution
had definitively resolved the procedures for the
establishment of regions in a clear, unambiguous legal text—in that particular moment—
it would have most likely led to the immediate
3
Such a two-sided perspective (Zweiseitenlehre)
was postulated by Georg Jellinek in his once
famous Allgemeine Staatslehre (3d ed. 1920). It
has been recently revived by Julian Arato here
in I•CON. See Julian Arato, Constitutionality
and Constitutionalism Beyond the State: Two
Perspectives on the Material Constitution of the
United Nations, 10 Int’l J. Const. L. 627 (2012).
809
formation of a Shi’a super-region and the
breakup of Iraq that many predicted.4 But one
could respond that, without the political development of both sides, the deferral of the question for later statutory regulation would not
have helped and could have greatly worsened
matters. The relevant statute in October 2006
only confirmed what the extreme regionalists
wanted in the Constitution itself. The fact that
the new statute was never used was a political
matter, and cannot be seen as a mere function
of a very short deferral of the decision in the
constitutional text.5
This example, in any case, does not resolve
the main divide between the two authors,
namely whether it is theoretically possible
for a constitutional project to succeed while
the relevant political community is in almost
constant crisis, and when state formation is
constantly in doubt. In a recent discussion
at NYU School of Law, Al-Ali’s answer was
clearly negative, and at that time his own take
on constitutional theory became very clear.6
According to him, in a country without a genuine past of constitutionalism, only a strictly
codified, entrenched, and enforced basic law
can be described as a workable constitution;
and he argues that Iraq has no such effective
constitution despite the existence of a formal
2005 document bearing the name. While
Al-Ali does not explicitly deny the empirical
possibility of “constitutions without con4
5
6
Peter Galbraith, The End of Iraq (2006).
Put in the text, according to Hamoudi (at 80,
174), as a result of a phone-call from President
Bush, that, as he recalls, I and many others have
described as pathetic and inconsequential. His
argument that the delay allowed the formation
of a more nationalist opinion among the Shi’a
is unconvincing given the shortness of time
involved. In fact, the delay did not affect the legislation in the least, confirming the impression
that the concession to the Sunni Iraqi Islamic
Party was meaningless. Shi’a public opinion, however, was never “federalist” whether
before, during, or after the negotiations. See alIstrabadi, supra note 1; Zaid Al-Ali, Constitutional
Legitimacy in Iraq, in Constitutionalism in Islamic
Countries, supra note 1, 635.
See also Al-Ali, supra note 1, 635 at 635
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I•CON 12 (2014), 808–840
stitutionalism,”7 he clearly rejects such an
option from a normative point of view. And,
of course, he has no difficulty at all in showing
the almost constant divergence of Iraqi political realities from the formal constitution.
Hamoudi’s idea of the constitution in general, and especially in a deeply divided society,
is different. Strongly influenced by Hanna
Lerner’s recent book,8 he believes that constitutions—especially successful ones in deeply
divided societies, but not only there—are better understood as open ended frameworks,
deferring and delaying fundamental decisions
by their unresolved elements and ambiguities. Thus where, for Al-Ali, a textual constitutional contradiction can only be proof that
the constitution cannot and is not even meant
to be applied, to Hamoudi, on the contrary,
ambivalence, ambiguities, and contradictions
open up the chance for later construction in
a positive direction. Unfortunately, the latter
neglects to say why opening up cannot equally
lead into authoritarian or destabilizing directions. And, indeed, according to Zaid Al-Ali
executive authoritarianism has been the main
contribution of the Iraqi Constitution so far.
One would be tempted to describe one view
as a civil lawyer’s picture of the constitution,
and the other as a common law perspective.
Yet the matter cannot end there. Even in classical civil law countries like Germany and
France, everyone knows that constitutional
principles and values are open to construction and subsequent development. At issue is
not the open-endedness of constitutional texts
as such, but the specific nature of deferral, in
other words: what is deferred, how much, to
whom and by whose authority.
In one of Lerner’s two main cases, for
example, the first Israeli Knesset deferred the
drafting and enactment of the whole documentary constitution, by its own authority
7
8
Nathan Brown, Constitutions in a Nonconstitutional World (2002); Feisal al-Istrabadi, A
Constitution without Constitutionalism: Reflections
on Iraq’s Failed Constitutional Process, 87 Tex.
L. Rev. 455 (2009).
Hanna Lerner, Making Constitutions in Deeply
Divided Societies (2011).
and to other Knessets just like itself. Like Hamoudi after her she has stressed fundamental
disagreements concerning the nature of the
state as the reason, neglecting the obvious
interests of the executive power (in that case,
Ben Gurion) not to be bound or restricted by
constitutional rules enforceable in court. It
is that neglect, perhaps, that made the religious–secular divide appear then as fundamentally intractable as it later became. In
any case, the result in Israel was a paper-thin
constitution with at best extremely weak (and
relatively recent) entrenchment, and with a
structurally weak supreme court. The court
did have a few successes, but their viability
depended on the divisions of the Knesset produced by an ultra-proportional electoral law,
as well as public opinion behind some important decisions. The so-called Basic Laws have
always been extremely vulnerable to simple
legislative reversal, as well as alteration of the
jurisdiction of the judges by the legislature, as
has been repeatedly proposed by the right.
In India, Lerner’s other main case, constitution makers produced a massive, wellentrenched constitution, deferring only
22 clauses (according to Granville Austin’s
count) out of 368 (now 448).9 Not only was
a three-track amendment rule10 established
with higher levels of entrenchment applying
to most of the text, but the 1950 Constitution
established a very strong table of rights and
Granville Austin, The Indian Constitution.
Cornerstone of a Nation 256 (1966).
10
Track 1: simple majority of parliament in the
case of up to 22 clauses. Track 2: 2/3 majority
of each chamber. Track 3: 2/3 majority of each
chamber plus the majority of state legislatures.
See Austin, supra note 9, at 255 et seq.; see also
Sir Kenneth Wheare, Constitution Amendment: The
Nature and Scope of the Amending Process (Loc
Sabha Secretariat n.d.). The Basic Structure
doctrine has now in effect added a fourth track,
which implicitly suggests that certain types of
fundamental change are constitutional only
if they are made by reversion to the original
constituent power. Reference to the original
constituent power is now common among constitutional judges as distant geographically as
India and Turkey, Germany, and Colombia.
9
Book Reviews
expressly provided for constitutional review
by the Supreme Court. These provisions were
not left for later legislative construction. The
gap between the two supposedly incremental
models, those of Israel and India, is quite significant.
On first appearance, Iraq belongs to the
same category as India, since a detailed and
entrenched constitution was indeed produced
in 2005, and formally at least strong constitutional review was indeed provided for
(Hamoudi at 81–82).11 But we should take
care not to be taken in by superficial appearances. Hamoudi mentions several devices by
which things can be deferred, and notes that
all of them have been amply used in Iraq. Of
these, constitutional principles open to future
construction are unobjectionable, and I doubt
whether Al-Ali would wish to do without
them. Contradictions and ambiguities are
another, more problematic matter, as are even
more explicit deferrals to future legislative
majorities. Together, these methods indicate
the variety of agencies to whose later decisions present problems can be deferred: legislative majorities; the highest court with the
power of constitutional review; or the amending power.
As in the case of fundamental principles,
we assume in most countries today that it
is the job of constitutional or apex courts to
construe and construct constitutional meaning that is left open. The centrality of this
point was illustrated by the Egyptian Supreme
Court before the fall of Mubarak, largely
defanging the famous article 2 of the Sharia
clause by construction.12 In Iraq, the problem
was that the very existence of such a court,
the Supreme Federal Court, was itself left in
Prof. Istrabadi who shows this, correcting a
small mistake on my part based on the incorrect English text, realizes that the gain is compromised by the decision to include Islamic law
experts in the apex court. See al-Istrabadi, supra
note 1, at 618ff; 620ff.
12
See the excellent presentation in Tamir Moustafa,
The Struggle for Constitutional Power 107–110,
166–167 (2007). See also Clark Lombardi,
Designing Islamic Constitutions, 11(3) Int’l
J. Const. L. 615 (2013).
11
811
great doubt by the constitutionally unresolved
requirements for creating it. To Hamoudi, this
too was a creative opening, since article 130
of the Constitution left all previous rules and
regulations in place, allowing the Court inherited from the Transitional Administrative Law
(TAL) (the interim constitution) to preserve
itself until the unlikely event that there could
be sufficient agreement of parliament (twothirds) to create the new court under the new
constitution (Hamoudi at 97, 188, and 259,
n.90).13 But as described by both Al-Ali and
Hamoudi, such an “inelegant” court, with its
pre-constitutionally regulated internal composition increasingly in doubt (Hamoudi at
188–189; Al-Ali at 132–133), is not likely
to be, and has not been in fact, in a position
to play a strong independent role in the construction of open-ended and ambiguous
principles.14 It “cannot occupy a new constitutional role very easily,” Hamoudi reluctantly
admits, and then cites the leaders of the largest party Iraqiya challenging the legitimacy of
the court.15 Thus the job of construction is left
to the government, or at best the parliamentary majority that would rarely expect to be
over-ruled by a court with weak legitimacy.
Only in the case of the rare conflicts between
Thus he corrects my mistaken prediction that a
Supreme Court with constitutional review powers could not be formed at all (Hamoudi at 259,
n.90).
14
If a new court is not formed, and it is not likely to
be, the old one may become increasingly weaker
with time. In his excellent article, Feisal alIstrabadi was more optimistic, pointing to a case
where the Court overruled a lifting of immunity by parliament of one of its deputies. See
al-Istrabadi, supra note 1, at 618–624. Highly
critical of the new constitution’s concessions to
the perspectives of the religious, including the
appointment of fiqh experts to the apex court, alIstrabadi did not evaluate the consequences of
the carry-over of the TAL’s Court into the post
2006 regime.
15
al-Istrabadi, supra note 1, at 188. He goes on to
say: “the Federal Supreme Court is self-evidently
vulnerable on both political and legal grounds,
and would be almost surely unwilling to challenge
Najaf on core areas of its concern” (id. at 189).
13
812
I•CON 12 (2014), 808–840
the executive and parliament could such a
court play an independent role.
Generally, in order to construct, or indeed to
change, the constitution, the ordinary political process seems to suffice in Iraq. Though
there is a formal amendment rule, in reality
informal change, Verfassungswandel tends to
entirely replace Verfassungsaenderung, with
all the resulting legitimacy problems.16 Since
informal change need not satisfy demanding
legitimation requirements, in Bruce Ackerman’s terms, monism replaces dualism. Hamoudi seems to discount the likely outcome of
this type of move tending to obliterate the
difference between constitutional and normal politics, allowing incumbents to produce
and change fundamental rules in a manner
always favorable to their political interests.
Such an empowering of future governments is, in any case, what happens when a
constitution-making body defers to a future
legislative assembly, in other words, when
constitutional development is left to subsequent statutory enactment—as in Israel, with
very ambiguous results for constitutionalism.
This was the case in India only in relation to
a few distinct areas of the constitution, and
however understandable deferral was in the
given context, even there the results were very
mixed. While the opening to the legislative
majority had good results in the area of the
linguistic readjustment of provincial boundaries,17 the refusal to constitutionally craft a
uniform personal code in the beginning has
been not only harmful to the rights of Muslim
Georg Jellinek, Verfassungsaenderung und
Verfassungswandlung (1906). There have been
no amendments to the Iraqi Constitution under
either the formal rule, art. 126, or art. 142
that was supposedly to replace it temporarily. Whether art. 126 is still in effect, since the
“amendments stipulated” in art. 142 (cl. 5) were
never “decided upon,” is itself a question. No
one seems to care very much.
17
Sujit Choudhry, Managing Linguistic Nationalism
Through Constitutional Design: Lessons from South
Asia, 7(4) Int’l J. Const. L. 577 (2009). See also
Austin, supra note 9, at 257; Granville Austin,
Working a Democratic Constitution: The Indian
Experience 155–156 (1999).
16
women,18 but has arguably contributed significantly to the success of the Hindu Right.
In the case of Iraq, Hamoudi stresses the one
positive example of region formation, where no
new regions were in fact formed and the integrity of the state was preserved, aside from its total
lack of power in Kurdistan based on facts on the
ground from before the 2003 war and occupation. Yet, does not Al-Ali have an important
point when he argues that today the blocking
of the formation of regions, though supported
by the majority, implies disregarding both the
constitution and the law, with deeply harmful effects for constitutionalism and the rule of
law? (Al-Ali at 142–144). Had no constitution
emerged in 2005, the fallback position would
have been the TAL which allowed only the formation of small regions, and even that required
participation by the central parliament. Had
the project of amendments from 2006 to 2009
reformed the constitution, the result very likely
would have been the same. Thus, today’s Sunni
demands could be legally denied under the TAL,
or under a constitutional reform, as against the
Constitution of 2005 and its enabling legislation, that require a more nationalist government
to accomplish its program through illegality.
Empirically speaking, the result would be the
same, but the normative consequences would
be very different. Hamoudi invites us to focus on
the empirical results of deferral, that were in any
case highly contingent, and to disregard the normative consequences.
Finally, we should not lose sight of the
amending power established by special rules
in almost all modern constitutions, including
India and Iraq if not Israel. If there has to be
deferral to legislation rather than interpretation, why not defer to the amending power
that would have the virtue of not being easily controllable by incumbents especially in
a multi-party setting? Hamoudi, who was
involved in one failed amending process from
2006 to 2009, seems to have become allergic
to that alternative. He claims that the amending process is too time-consuming and too
Neera Chandhoke, Individual and Group rights.
A View from India, in India’s Living Constitution
207 (Zoya Hasan et al. eds., 2005)
18
Book Reviews
costly. But does not that claim depend on the
structure of the amendment rule that could
be difficult or easy, monolithic or plural, and
can even be multi-tracked as in constitutions
from India to Canada and South Africa? Iraq
in 2005 in fact adopted a multi-leveled amendment rule (art. 126) that included three rules
in one—the first, a quasi-eternity clause
(regarding the powers of regions); the second
banning amendments for two terms (regarding rights and fundamental principles); and a
third requiring ratification by referenda. Such
a rule indeed opens up the terrain for informal
change by construction. It is true, the temporary rule Hamoudi and his colleagues operated
under (art. 142)—the supposed concession
to the Iraqi Islamic Party required to get the
constitution itself ratified in 2005—was yet
another entirely different rule. Its ratification
requirements were even more difficult, since
it retained the three province veto inherited
from the TAL. Assuming the two-thirds parliamentary majority, that potential veto made
the passing of any amendment on region
formation extremely unlikely especially since
parliament was allowed to pass and indeed
already passed the relevant legislation on this
question by simple majority. Why would that
majority become part of the 2/3 needed to pass
the amendment reversing a law that was then
exactly the law it wanted? If the Shi’ite-Kurdish dominated government and legislature
wanted to fulfill a promise made to the Sunni
Iraqi Islamic Party, why did they pass legislation confirming the constitutional provision
objected to by that party? 19
In the actual event, the parliament did not act
on the amendment proposal that the new committee, the Constitutional Review Committee in
fact very belatedly submitted in 2009. But the
reason by then was not that it had the law that
it wanted, but because the fundamental shift
in Shi’a leadership from the Islamic Supreme
Council of Iraq to the Da’wa, i.e., from those
desiring a Shi’a super-region to Iraqi nationalists. The latter, supported by general Shi’a
opinion, were not going to use either the constitutional provision or the enabling legislation to
form their region (Hamoudi at 2–4).
19
813
This story of futility does not reveal much
about the potentials of a differently constructed amendment rule and amendment
process. In a new, supposedly capacious and
incremental constitution, one could have produced a very different and more flexible multitrack amendment rule to deal with the issue,20
and not the bizarre, ambiguous structure
allowing the use of simple legislative majority
and an inflexible amendment rule for the solution of the very same question. In any case,
Hamoudi’s explicit discounting of deferral
to the amending power is based on the given
rules in Iraq, and should not be presented as
a general preference in new constitutions for
deferral to the ordinary legislative process.
Let us for the moment assume that a capacious constitution was produced, one open
to construction, incremental development,
knowing how much and what to defer and
to whom. Does the way we first adopted such
a constitution matter at all? Hamoudi, who
considers the Iraqi method of constitution
making imperfect because of Sunni exclusion,
seems to answer in the negative. We know
this because he has indicated that the Egyptian Constitution produced in 2012 under
Mr. Morsi’s presidency, despite the disastrous
and exclusionary process first initiated by
the Supreme Command of the Armed Forces
(SCAF), and later controlled by the Muslim
Brotherhood’s assembly majorities (first in
parliament, and then in the two “constituent” assemblies) was capacious enough to
allow the settling of fundamental division
over the question of Islam in the state (Hamoudi at 226–228). As we now all must realize,
the character of the process in this case very
much seems to have mattered, and was indeed
used to delegitimate, and then annul and
replace, the constitution associated, rightly or
wrongly, with Brotherhood imposition. Would
a more inclusive process have saved this new
constitution—one involving negotiations concerning an interim constitution, and the rules
for making the final one rather than their
Andrew Arato, Multi-track Constitutionalism
Beyond Carl Schmitt 18(3) Constellations 324
(2011).
20
814
I•CON 12 (2014), 808–840
imposition from above? We will never know
for sure, but the Tunisian example seems to
show that where there are negotiations concerning the initial rules of the democratic
transition, the first electoral consequences are
likely to be more inclusive, and the constitutional outcome more consensual.21
We should also pose to Al-Ali the question
of whether or not process matters. His argument seems to have a deterministic cast, even
if in the end he tries to say that there are now
possible perspectives for future development
in Iraq. It is not at all obvious on what he bases
this sudden optimism. Equally important for
comparative analysis is the question whether
a better, much more inclusive process producing the TAL, and the rules for the election of
the constitutional assembly could have made
a difference in the pattern so far. Not only
Tunisia, but also the contrast between Colombia and Venezuela indicates that it does matter
how things unfold at the very beginning.22 But
neither Tunisia nor Colombia were countries
occupied by a foreign power, one that destabilized the state, and constructed initial political
participation, as in the case of the Iraqi Governing Council whose incumbents managed
to stay in the key political positions throughout the process of constitution making. The
Alfred Stepan, Tunisia’s Transitions and the Twin
Tolerations, 23(2) J. Democracy 89 (2012). He
focuses on the inclusive 150 (or 155)-member Ben Achour Commission, established by
co-option, which negotiated the interim rules
in Tunisia for the election of the Constituent
Assembly. Of course, there are too many other
differences to reliably ascertain the reasons
for the Tunisian–Egyptian difference, such as
the respective strength of Salafi movements
and the military, both much stronger in Egypt.
But the electoral rule mattered, both its highly
proportional nature, and the requirement for
male–female alternation on all electoral lists,
guaranteeing equal representation for women.
22
Renata Segura & Ana María Bejarano, ¡Ni
una asamblea sin nosostros! Exclusion, Inclusion
and the Politics of Constitution‐Making in the
Andes, 11(2) Constellations 217 (2004) and
David Landau, Constitution Making Gone Wrong,
64 Ala. L. Rev. 923 (2013).
21
United States and especially the Coalition
Provisional Authority have indeed much to
answer for during the process of making the
interim constitution—even if both the process
and the result also bear the marks of several
other actors, the Shi’ite clergy and even more
the leaders of the main Kurdish parties.
Nevertheless, after the elections of 2005,
under new management in Iraq, the American authorities did indeed recognize their
mistake, and became for a moment the
strongest partisans for the inclusion of Sunni
Arab and Iraqi nationalists. Would it have
mattered if they succeeded? Very possibly,
but arguably they could not have succeeded
because of the problem of sequencing. Had
Sunni inclusion been tried before the making
of the interim constitution, as Sergio de Mello
recommended as early as 2003, it might have
worked. Adding representatives of excluded
groups when the relevant negotiating figures
were all included by co-option would have
kept all those present on the same level. After
elections, even under very unfortunate rules
that dramatically skewed representation to
the detriment of provinces with civil war conditions, the situation was different. Now duly
elected Shi’ite and Kurdish representatives
had to share power with Sunni politicians
who were co-opted on American insistence.
That they were later excluded is not at all surprising, especially given the contradictions of
the American position insisting on both Sunni
inclusion and adherence to narrow time limits, as Al-Ali rightly points out and he is hardly
the first to do so (Al-Ali at 86–87). That honor
belongs to Sheikh Humam Hamoudi, the
chair of the Constitutional Committee (and
the expanded Commission) in 2005. Process
arguably does matter, but so does sequence
and the amount of time allotted to a process.
Or, in other words, a multi-stage process, such
as the one actually used in Iraq, could have
helped, but only if used in an inclusive and
fully pluralistic manner, if a proper sequence
of multiple stages was maintained, and sufficient time was provided for all the stages.
These two important books invite us to try
to assess what has been learned from Iraq, and
now it may be worthwhile to consider Iraq’s
Book Reviews
constitutional process together with those of
more recent revolutions. Looking at Iraq and
Egypt together, there are at the very least important negative lessons to be learnt. First, elections
should not come too soon, and certainly not
before a framework for truly competitive elections is fully and inclusively negotiated. In Egypt,
there were no negotiations, and elections came
too soon. In Iraq elections did come arguably
at the right time, but without inclusive negotiations. As a result, in both countries, it turned
out to be impossible to arrange more inclusion
by cooptation, after elections did take place. Second, we learn in both countries that the making
of a constitution should follow an adequate and
therefore relatively long time frame. Third, more
positively, a focus on time and sequence may
cast in a different light the matter of supposedly
uncompromisable and non-negotiable divisions
that are said to require an incremental procedure
and constitutional deferral. We should indeed
ask whether Hamoudi is right that in a deeply
divided society there are some matters in principle not open to compromise, and therefore only
incremental constitution making, with a capacious constitutional text involving both ambiguity and deferral can succeed. But even if matters
were absolutely closed to negotiation and compromise, why would deferral help? It could be
that matters that appear initially intractable are
not, or will not remain so, if actors are allowed to
develop, internally and in their mutual relations.
It may be that Al-Ali’s impulse is right—that
given sufficient time during, rather than after
the making of the final constitution, matters
that appear uncompromisable, like the territorial structure of the state, as well as religion and
state relations could also be successfully negotiated so that each side gets at least its second best.
Paradoxically then, the idea of using time
productively can speak for both positions. We
can significantly extend the time for making
the final constitution, argues Al-Ali, and use
time effectively to make the compromises we
may very well be capable of making.23 We
will not know how much can in fact be com Such was even more explicitly the position of alIstrabadi, supra note 7, that is positively cited in
this context by Al-Ali, supra note 5, at 660.
23
815
promised if sufficient time were available. Or
we can make the final constitution relatively
quickly, give it a very capacious structure,
and use the time thereafter to incrementally
improve it. That is the position of Haider Ala
Hamoudi.
But then why not bring the two positions
together, and advocate a third one, namely,
the model from Spain and South Africa,
involving the making of two constitutions, an
interim capacious one, achieved by a pluralistic, inclusive process of negotiation, and the
other, a more complete one, by a freely elected
but non sovereign constitutional assembly
that is given sufficient but not unlimited time
to do its job.24 Such an arrangement makes
learning possible in between the two constitutions, rather than exclusively during or
after the making of the final one. Not having
an interim agreement means that we have to
learn in the context of revolutionary provisionality, when power rather than law, fact
rather than legal authority decides. The lesson that one learns under such a setting is
to not take law, including constitutional law
seriously. The function of genuinely nego-
In Iraq, there was indeed a two-stage constitution-making process, but neither stage involved
adequate inclusion of the relevant parties. Thus
here, the multi-stage model would require the
making of a third constitution, involving more
inclusion and relative consensus or principled
compromise. This is in effect the concluding
argument of Zaid Al-Ali, converging with the
perspective of al-Istrabadi. In my earlier view,
the opportunity was there in the amending
process Hamoudi participated in 2006–2009,
and I still think that the failure of this was more
significant than he allows. I do not have the text
of the amendments agreed upon in committee
that he unfortunately does not detail in any
way. The blog Niqash/Legislation identified the
key issues, even if regarding the amendment
rule mistakenly. While the 2/3 three-province
veto is not part of art. 126, it would have been
very useful to amend this cumbersome article
in any case. See Sarmad al-’Ubaydi, Intractable
Positions on the Constitution, niqash/legislation (Sept. 23, 2009), http://www.niqash.org/
articles/?id=2015&lang=en.
24
816
I•CON 12 (2014), 808–840
tiated, rather than imposed and therefore
legitimate interim constitutions, especially
with strict rules for final constitution making, is to allow learning to take place under
constitutional rules that block the way to
renewed dictatorship. Putting the learning
after the making of the final constitution on
the other hand means to obliterate the line
between constitutional and normal politics,
to the detriment of constitutionalism and
the advantage of incumbents whoever they
may be.
A final constitution, though it will inevitably be interpreted and constructed, must
settle some fundamental matters if it is to be
a constitution in the full formal sense, or a
constitutionalist constitution in the material
sense. One can defer matters and learn under
a constitution only if some of the most important matters are settled. One cannot learn
when there is no structure, with everything
perpetually open. Yes, it may be necessary
to leave some issues, beyond constitutional
principles and values, open for future construction. Yet, the most important thing to
be settled is the identity of those who will be
able to construct all fundamental matters,
including what is deferred. Informal change
can never be fully excluded, nor should it be
even if it should hold a hierarchically lower
position than either constitutional review or
constitutional amendment. Because of such a
hierarchy of the modalities of change, the formal rule(s) of change and the entity charged
with enforcing it against “unconstitutional
law” remain the most important things to
settle whatever else is left open to future interpretation and construction. Only then can
one begin to speak of “constitutions with constitutionalism.”
Andrew Arato
New School for Social Research
Email: [email protected]
doi:10.1093/icon/mou034
Michael Herz & Peter Molnar, eds.
The Content and Context of Hate
Speech: Rethinking Regulation and
Responses. Cambridge University Press,
2012. 544 pages. $47 (pbk). ISBN:
9780521138369.
The title of the book under review, The Content
and Context of Hate Speech: Rethinking Regulation and Responses, is well chosen for the collection of essays assembled by Michael Herz,
Professor of Law at Cardozo Law School in
New York, and Peter Molnar, Senior Research
Fellow at Central European University in
Budapest. To the extent that this can be done
in a few words, it encapsulates an important
part of the debate over what to do about hate
speech. The essays reflect a broad consensus
that hate speech is one of the afflictions of our
era and that there is a need to counter it. The
issue that divides the scholars who contributed to this volume is when it should be legally
prohibited. In most of the world, the decisive
factor is the content of hate speech. On the
other hand, in the United States, the critical
question is the context in which hate speech
takes place.
The American approach reflects a system
of constitutional rights in which the core
value is liberty and in which the rights set
forth in the First Amendment, especially freedom of speech, are of central significance in
embodying the concept of liberty. Americans
prize freedom of speech as an essential aspect
of who they are as human beings; as a necessary component of democracy; and also
as the means to protect all other rights as it
ensures that they may speak out when any
right is threatened. There are few countries,
if any, where the protection of freedom of
speech is as extensive and as robust as in the
United States. Although Americans generally
agree that hate speech is loathsome, it is nevertheless legally protected in public discourse
except when it involves incitement of lawless
action in circumstances in which it is likely to
produce such action.1 That is, incitement of
1
See Brandenburg v. Ohio, 395 U.S. 444 (1969).