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Constitution Making Under Occupation

Constitution Making Under Occupation: The Politics of Imposed Revolution in Iraq

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    Constitution Making Under Occupation
    Book Description:

    The attempt in 2004 to draft an interim constitution in Iraq and the effort to enact a permanent one in 2005 were unintended outcomes of the American occupation, which first sought to impose a constitution by its agents. This two-stage constitution-making paradigm, implemented in a wholly unplanned move by the Iraqis and their American sponsors, formed a kind of compromise between the populist-democratic project of Shi'ite clerics and America's external interference.

    As long as it was used in a coherent and legitimate way, the method held promise. Unfortunately, the logic of external imposition and political exclusion compromised the negotiations. Andrew Arato is the first person to record this historic process and analyze its special problems. He compares the drafting of the Iraqi constitution to similar, externally imposed constitutional revolutions by the United States, especially in Japan and Germany, and identifies the political missteps that contributed to problems of learning and legitimacy.

    Instead of claiming that the right model of constitution making would have maintained stability in Iraq, Arato focuses on the fragile opportunity for democratization that was strengthened only slightly by the methods used to draft a constitution. Arato contends that this event would have benefited greatly from an overall framework of internationalization, and he argues that a better set of guidelines (rather than the obsolete Hague and Geneva regulations) should be followed in the future. With access to an extensive body of literature, Arato highlights the difficulty of exporting democracy to a country that opposes all such foreign designs and fundamentally disagrees on matters of political identity.

    eISBN: 978-0-231-51243-5
    Subjects: History, Law, Political Science

Table of Contents

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  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Preface
    (pp. vii-xvi)
  4. 1 The Externally Imposed Revolution and Its Destruction of the Iraqi State
    (pp. 1-58)

    It is now commonly conceded that the United States, led on the ideological level by “neoconservative” intellectuals, tried to initiate and almost certainly failed to sustain a radical revolutionary project to remake the Islamic Middle East. Without reducing the cause of the war in Iraq to this one ideologically driven factor, few serious people would dare to deny that it was among its causes as well as part of its meaning. At the same time, the invasion of Iraq, the overthrow of its dictatorship, the occupation of the country for however long a period, and the initiation of a process...

  5. 2 Postsovereign Constitution Making: The New Paradigm (and Iraq)
    (pp. 59-98)

    When in my first article on Iraq I began to play with the idea of recommending the paradigm of constitution making drawn from central Europe and South Africa, I must admit that I did so with the gravest of selfdoubts.¹ The model I will discuss in this chapter was one developed for indigenous, postrevolutionary transformations involving legal continuity. Iraq had an externally imposed, revolutionary rupture involving a complete break in legality. To accommodate this difference, my theoretical slight of hand, perhaps not even entirely clear to me, was to treat the Americans as the “Russians” and their Iraqi clients as...

  6. 3 Sistani Versus Bremer: The Emergence of the Two-Stage Model in Iraq
    (pp. 99-134)

    The model of constitution making used in Iraq was initially planned by no one; it was the result of the clash of major political forces. Thus it could be said to incorporate a compromise. Yet while there were important negotiations and even international mediation, ultimately the formula for the process and a good part of the contents of the Transitional Administrative Law were imposed by the occupying authority. However, there were two distinct dimensions to this imposition. The clash with the forces led by the Grand Ayatollah Sistani led to the compromise formula of a two-stage transition imposed (rather than...

  7. 4 Imposition and Bargaining in the Making of the Interim Constitution
    (pp. 135-204)

    In this chapter,¹ I will argue that at the heart of the interim constitution, the product of the first stage of Iraq’s constitution-making process, was a state bargain. This idea is a clarification, not an abandonment, of my earlier stress on imposed constitution making, which others who once disagreed with me have since made their own.² The bargaining in question was highly exclusionary, more so than even political participation in occupied Iraq, and the exclusion was imposed. The results of the bargain would never have survived the various levels of negotiation and could not have been ultimately insulated by a...

  8. 5 The Making of the “Permanent” Constitution
    (pp. 205-250)

    In light of subsequent history, there are striking and surprising differences of opinion concerning the “permanent” Iraqi constitution (ratified in October 2005) and how it was made. While some analysts (the Crisis Group)² consider the process and its result disastrous, others (Peter Galbraith)³ find both to be much superior to what took place and was achieved in the case of the American-imposed Transitional Administrative Law. I tend to agree with the former view, and I share its advocates’ concern that a constitution in several important respects worse than the TAL was eventually achieved. But I continue to think that the...

  9. Conclusion
    (pp. 251-264)

    Writing this on February 7, 2008, almost nine months after finishing the sixth and final chapter, very little has changed with respect to Iraq’s constitutional conundrum. Finally, although many months too late and therefore technically in violation of the 2005 constitution, a Constitutional Review Committee was created. And if it ever submits amendments to the National Assembly, that too will be too late, in terms of the initial six-month deadline tied to initial government formation, which occurred in early 2006! Since no one cares about these legal niceties, it is much more important to point out that the likelihood of...

  10. Notes
    (pp. 265-346)
  11. Index
    (pp. 347-360)