A Constitution of the People and How to Achieve It: What Bosnia and Britain Can Learn From Each Other

by Aarif Abraham, Soeren Keil (Editor), Jelena Dzankic (Editor)

Overview

Britain does not have a written constitution. It has rather, over centuries, developed a set of miscellaneous conventions, rules, and norms that govern political behavior. By contrast, Bosnia’s constitution was written, quite literally, overnight in a military hanger in Dayton, USA, to conclude a devastating war. By most standards it does not work and is seen to have merely frozen a conflict and all development with it. What might these seemingly unrelated countries be able to teach each other? Britain, racked by recent crises from Brexit to national separatism, may be able to avert long-term political conflict by understanding the pitfalls of writing rigid constitutional rules without popular participation or the cultivation of good political culture. Bosnia, in turn, may be able to thaw its frozen conflict by subjecting parts of its written constitution to amendment, with civic involvement, on a fixed and regular basis; a ’revolving constitution’ to replicate some of that flexibility inherent in the British system. A book not just about Bosnia and Britain; a standard may be set for other plural, multi-ethnic polities to follow.

Product Details

ISBN-13:	9783838275161
Publisher:	ibidem
Publication date:	05/31/2021
Series:	Balkan Politics and Society , #7
Sold by:	Libreka GmbH
Format:	eBook
Pages:	380
File size:	2 MB

About the Author

Aarif Abraham is a barrister specialising in public international law, international criminal law and human rights. He is the founder of Accountability Unit and is regularly instructed by United Nations bodies. Aarif advises policy makers, parliamentarians and practitioners widely on constitutional issues as well as foreign policy matters.

Table of Contents

Acknowledgments 9

Foreword 11

Introduction 15

1 "A text about a text": constitutions of Britain and Bosnia 37

1.1 Searching for the soul of a state 37

1.2 Overview of the British constitution 44

1.3 Overview of the Bosnian constitution 53

1.4 Comparative constitutional histories 59

2 "Look a shoot is sprouting": measuring culture 93

2.1 Political culture in theory 96

2.2 Political culture in practice 103

2.3 Political culture applied to Bosnia and Britain 107

2.4 Problem of political apathy 117

3 "Going back to whence I sprang": assessing apathy 127

3.1 A-systemic orientations 128

3.2 Anti-systemic orientations 131

3.3 Absence of interpersonal trust 135

3.4 Institutions as an explanation 140

4 "We've still not found a cure": constitutional rules 153

4.1 Constitutional choice and change 153

4.2 Recurrent crisis and rarefied reform in Bosnia 158

4.3 Rising strain amidst weak reform in Britain 175

4.4 Reform dilemmas and deadlock 194

5 "We need to uncover lost paths": modelling change 213

5.1 Modelling intransigence 213

5.2 Modelling the failure of reform 230

5.3 Modelling successful evolution in the short run 235

5.4 Modelling future co-operation and participation 239

6 "A text about hope": lessons from Bosnia and Britain 257

6.1 Debate, deliberation and participation 257

6.2 Lessons for Bosnia and post-conflict societies 260

6.3 Lessons for Britain and pre-conflict societies 270

6.4 Pathways out of constitutional quagmires 293

Beyond Law, Prescriptions and Conclusions 319

Afterword 333

Appendices 339

Glossary 351

References 353

Editorial Reviews

The publication of Aarif Abraham’s book, in these troubled days, could not be more timely as we witness authoritarian regimes ignoring or rewriting their codified constitutions by obliterating the rule of law on which they purport to be based. Since 1945, we have been marching towards the promise of a rules-based world order premised on equality, liberty, and justice. Now, however, and in the particular context of the coronavirus pandemic, we clearly see that we were wrong. Abraham meticulously and cogently demonstrates that constitutions, or their interpretation, can be very far removed from the interests of the people—of men but particularly women. (Women, we should remember, had no say at Dayton.) Political elites may proclaim re-written constitutions in their people’s name but more often than not the citizens are more a hindrance than a help. Abraham persuasively argues that authoritarians can and do manipulate poorly designed institutions—we are seeing this all over the world. An ideal constitution ultimately defends the individual against the power and machinery of the State. Abraham discusses ways to make constitutions better reflect the interests and desires of citizens. Abraham also shows there is something worth preserving in the British constitution; a flexibility and adaptability lacking in other constitutions. But the holy grail is ensuring we allow everyone—without fear or hindrance—to articulate that which they have at stake in the future; the dispossessed, marginalised and disenfranchised and particularly the women and minorities who have been written out of constitutions for too long. I strongly commend anyone who cares, and have concerns, about the rules-based world order to think through the very important questions posed by this book. It matters to all of us, particularly now.

Margaret Owen OBE

Who would have thought that Britain and Bosnia might learn from each other’s constitution? In this fascinating book, Aarif Abraham examines the flexibility of Britain’s much heralded unwritten constitution, and while acknowledging its unique evolution questions whether it remains an 'exemplary model'. Bosnia’s written constitution is anything but organic: it is neither the work of popular will nor popular imagination. It might yet be a roadblock to permanent peace in that troubled country. But Mr Abraham’s clever idea of a 'revolving constitution' for Bosnia might just hit the legal, cultural, and political sweet spot.

Hon. Dr Brett Mason

The war in Bosnia and Herzegovina has been over for a quarter of a century, yet the country has failed to reach its true potential. The Dayton Constitution has proven to be a straitjacket, destroying all initiatives for accountability, functionality, and civic solidarity while entrenching a multi-headed hydra of governments in which party loyalties and perceived identity are all that matters. Abraham’s book does an impressive job at explaining the constitutional underpinnings of the current stasis, while at the same time offering a thoughtful way forward if the interests of citizens—not political parties—is finally made paramount. The lessons of Bosnia and Herzegovina, properly learned and addressed, could benefit not only to its citizens, but citizens of other countries who are experiencing what happens when democratic systems and norms break down.

Dr Valery Perry

Bosnia and Britain appear not to have much in common, but Abraham’s book convincingly elucidates a common truth; if societies want justice and democracy, they must develop inclusive constitutions and cultivate their peoples’ political culture. The promise of peace is not a distant hope but a present task of ascertaining, accepting and aligning peoples’ regard for justice and democracy with the preferences of elites and institutions that represent them. Bosnia’s codified constitution, which was hastily imposed—without a popular mandate—may incentivise political and ethno-national conflict. Bosnia was not allowed to evolve to the democratic settlement wished for by its people. Britain, by contrast, has an uncodified constitution which evolved over centuries, but piecemeal and partisan ‘reform’ or codification is neither inclusive nor fair; to its nations or its people. Abraham’s book helps us to rethink and re-evaluate what we take for granted: our democratic political culture. On the road to reform, we ought to take heed and understand that changing the rules of the game is not enough. We must ascertain that we are able and willing to adhere to them and that means consulting all of our people for a just and fair social contract—written or unwritten.

Baroness Helena Kennedy QC

Bosnia and Britain appear not to have much in common, but Abraham’s book convincingly elucidates a common truth; if societies want justice and democracy, they must develop inclusive constitutions and cultivate their peoples’ political culture. The promise of peace is not a distant hope but a present task of ascertaining, accepting and aligning peoples’ regard for justice and democracy with the preferences of elites and institutions that represent them. Bosnia’s codified constitution, which was hastily imposed—without a popular mandate—may incentivise political and ethno-national conflict. Bosnia was not allowed to evolve to the democratic settlement wished for by its people. Britain, by contrast, has an uncodified constitution which evolved over centuries, but piecemeal and partisan ‘reform’ or codification is neither inclusive nor fair; to its nations or its people. Abraham’s book helps us to rethink and re-evaluate what we take for granted: our democratic political culture. On the road to reform, we ought to take heed and understand that changing the rules of the game is not enough. We must ascertain that we are able and willing to adhere to them and that means consulting all of our people for a just and fair social contract—written or unwritten.

The war in Bosnia and Herzegovina has been over for a quarter of a century, yet the country has failed to reach its true potential. The Dayton Constitution has proven to be a straitjacket, destroying all initiatives for accountability, functionality, and civic solidarity while entrenching a multi-headed hydra of governments in which party loyalties and perceived identity are all that matters. Abraham’s book does an impressive job at explaining the constitutional underpinnings of the current stasis, while at the same time offering a thoughtful way forward if the interests of citizens—not political parties—is finally made paramount. The lessons of Bosnia and Herzegovina, properly learned and addressed, could benefit not only to its citizens, but citizens of other countries who are experiencing what happens when democratic systems and norms break down.

Who would have thought that Britain and Bosnia might learn from each other’s constitution? In this fascinating book, Aarif Abraham examines the flexibility of Britain’s much heralded unwritten constitution, and while acknowledging its unique evolution questions whether it remains an 'exemplary model'. Bosnia’s written constitution is anything but organic: it is neither the work of popular will nor popular imagination. It might yet be a roadblock to permanent peace in that troubled country. But Mr Abraham’s clever idea of a 'revolving constitution' for Bosnia might just hit the legal, cultural, and political sweet spot.

The publication of Aarif Abraham’s book, in these troubled days, could not be more timely as we witness authoritarian regimes ignoring or rewriting their codified constitutions by obliterating the rule of law on which they purport to be based. Since 1945, we have been marching towards the promise of a rules-based world order premised on equality, liberty, and justice. Now, however, and in the particular context of the coronavirus pandemic, we clearly see that we were wrong. Abraham meticulously and cogently demonstrates that constitutions, or their interpretation, can be very far removed from the interests of the people—of men but particularly women. (Women, we should remember, had no say at Dayton.) Political elites may proclaim re-written constitutions in their people’s name but more often than not the citizens are more a hindrance than a help. Abraham persuasively argues that authoritarians can and do manipulate poorly designed institutions—we are seeing this all over the world. An ideal constitution ultimately defends the individual against the power and machinery of the State. Abraham discusses ways to make constitutions better reflect the interests and desires of citizens. Abraham also shows there is something worth preserving in the British constitution; a flexibility and adaptability lacking in other constitutions. But the holy grail is ensuring we allow everyone—without fear or hindrance—to articulate that which they have at stake in the future; the dispossessed, marginalised and disenfranchised and particularly the women and minorities who have been written out of constitutions for too long. I strongly commend anyone who cares, and have concerns, about the rules-based world order to think through the very important questions posed by this book. It matters to all of us, particularly now.

From the Publisher