Clark B. Lombardi and Pasarlay Shamshad, Consociationalism vs. Incentivism in Divided Societies: A Question of Threshold Design or of Sequencing?, 9 Yonsei L.J. 77 (2018), https://digitalcommons.law.uw.edu/faculty-articles/920
Yonsei Law Journal
Constitutional design, Afghanistan, Divided societies, Islam, Consociationalist, Incentivist
Scholarship on constitutional design for post-conflict or divided societies focuses a great deal of attention on two issues: (1) the processes and timing by which constitutional rules should be established and (2) whether constitutions should reflect a consociationalist or incentivist approach to governance. Scholars are increasingly willing to entertain the possibility that constitutions drafted during period of transition from civil war or authoritarianism need not, and often should not, answer immediately all questions that constitutions tend to answer; however, they tend to assume that the question of whether constitutions should be consociationalist or incentivist is one that should not be deferred. And, as a practical matter, most constitutions make an initial choice between the two and seem to assume that the initial choice will be a permanent one. This article explores Afghanistan's constitutional history since the fall of the Taliban. It argues that Afghanistan's history sheds light on the strengths and weaknesses of consociationalism and incentivism and provides tantalizing evidence that, as in Afghanistan, people drafting democratic constitutions for a post-conflict or divided society should have prescribed a transition from one type of governance to the other During a period in which civil wars are raging in many continents and post-conflict constitutions will need to be drafted, the lessons of Afghanistan should prove enormously valuable.