The extraordinary political and constitutional changes of the last several years form the backdrop to this collection of essays. Originally prepared for presentation and consideration at a series of international conferences organized by The American Council of Learned Societies, the twenty-five essays in this volume reflect the underlying premises of the project's planners, "to see constitutionalism, not just as a formal state structure, but also as a dynamic process" that lies at "the crossroads of law and society, culture and history, economics and politics." (p. xvi) It was also consciously designed to deemphasize the all too familiar practice of focusing on the American example as the yardstick for assessing the nature and scope of constitutional transformation. Reflective of this intent, only two of the book's contributors are American.
While surely the most dramatic recent constitutional transitions have occurred in Europe, the former Soviet Union, and South Africa, the majority of the essays, in addressing common concerns about constitutionalism, concentrate on Africa, Latin America, and South Asia. There is a section devoted to "Constitutional Conundrums in Europe," but it is overshadowed by preceding sections on "Transitions," "Human Rights," "Pluralism and Nationalism," and "Institutional Arrangements," that deal predominantly with constitutional challenges in the developing world. Having said that, I hasten to add that this volume conveys the unmistakable sense that some of the distinctions often made between developing and developed polities in connection with issues of constitutional transformation, should be seen to be less sharply drawn and definitive in the new post-Cold War environment. For example, the vexing set of constitutional dilemmas posed by the intensity and ferocity of tribal loyalties, always at least dormant in much of the developed world, now resembles in importance and priority the situation of third world nations that are attempting to forge a constitutional future. Insofar, then, as the reader's interests are mainly concerned with what is happening, say, in Eastern Europe, engagement with the issues emphasized in this book will certainly not be misplaced.
If there is a common thread to these essays, it is what the editors refer to as "the ambiguous relationship of constitutionalism to democracy." (p. xviii) They wonder, as many have previously, whether constitutionalism is "bound by the cultural-political values of western liberal capitalism." (p. xviii) Familiar though it may be, their question cannot be relegated to the category of tired old refrain, its particular timeliness now apparent to any knowledgeable person with eyes to see. This is made clear in Walter Murphy's introductory essay, in which he usefully considers the strain between constitutional theory and democratic theory, a tension that for all the heat it generates, can still be construed as a debate occurring within the family. Murphy's defensible claim is that both of these theories accept the centrality of human dignity, which suggests that there is a broad range of possible regimes that should be considered genuinely constitutional. As long as power is exercised and limited in a manner that in the end comports with human dignity, constitutionalism may be said to prevail.
But as we are reminded in a very stimulating essay by H.W.O. OkothOgendo, there are "constitutions without constitutionalism," (p. 65) an observation endorsed in a subsequent essay by Atilio A. Boron with respect to Latin America. As introduced by Okoth-Ogendo, this formulation applies to certain African polities where the constitution serves mainly to demonstrate the sovereignty of the state, but where no particular heed is paid to democratic or libertarian sensibilities. This theme is amplified in the South Asian context by Radhika Coomeraswamy, who lucidly explains the importance of the ideology of constitutionalism to authoritarian regimes. Perhaps the most intriguing question raised by this volume is
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whether the same appellation should not also be applied to those constitutions that purport to be democratic, but do not conform to liberal democratic notions of constitutionalism. How broad, in other words, SHOULD the range of genuinely constitutional regimes be? Or put another way, how much latitude is appropriate in assessing the relationship between constitutional arrangements and human dignity?
Two familiar sets of circumstances provide the main testing ground for illumination of this question. The first focuses on questions of economic development and the issue of whether political and civil rights should be privileged in a constitutional order. Several authors question the appropriateness of the western model for developing countries. By "western" they mean that it is "bourgeois" and "liberal" (Mahmood Mamdani, Eboe Hutchful, p. 184), that "constitutionalism is largely a middle class project" (Daniel S. Lev, p. 152). While there is very little new here, the arguments put forward in these chapters are worth revisiting, if for no other reason than that they force one to confront what turns out to be largely a false dichotomy, namely that negative and positive liberties pose a real choice as far as strategies for constitutional development are concerned. Elsewhere, for example, Amartya Sen, has made a powerful case for the constitutive importance of political rights by demonstrating that the conflict between civil rights and economic performance, often presumed in constitutional analyses like the ones adverted to above, rests on dubious empirical grounds. If there is a connection between human dignity and individual rights, his work suggests that constitution makers should not short-change the latter because of misapprehensions about anticipated sacrifices of social well-being. This is not to say that liberal constitutionalism guarantees social justice, and Sen for one worries about the needs of distinct and particularist minorities in regimes that are structured along the lines of western-style democracy. This brings us to the second and most promising arena for constitutional analysis featured in this collection: the possibilities for a multicultural constitutionalism that is more than a little equivocal in its commitment to traditional liberal principles of constitutional governance. These possibilities encompass a substantial range, from a rather weak constitutional acknowledgment of group rights to an endorsement of communal autonomy that is so robust that it encourages secession as a solution to problems of injustice. The latter position is forcefully articulated in an essay by Abdullahi AnNa'im that identifies constitutionalism with "self-determination." (p. 122) This constitutionalism is committed "to the preservation and enhancement of the life, liberty, and dignity of every person, individually AND IN ASSOCIATION WITH OTHERS." (emphasis added, p.106 ) Thus at its core constitutionalism should be understood as aspiring to achieve an appropriate balance between individual and associational rights. The nation-state should not stand in the way of national self-identity; hence the constitutional solution must entail a framework for the full expression of the various distinctive cultural identities that are included within the larger polity. The solution must also be adapted to the unique circumstances of a given social system, and in this regard An-
Na'im expresses a theme common to several of the essays in the volume, what might be called the non-transferability of constitutionalism. Coomaraswamy, for example, uses the term "indigenous constitutionalism" (p. 170) to convey a sense of how liberal democratic values require transformation within a context of cultural nationalism. A moment's reflection on Yugoslavia should deter any reasonable person from succumbing too quickly to the enticements of constitutional cultural pluralism. That said, I consider it a great virtue of this book that it encourages us to consider the phenomenon of illiberal constitutionalism, or at least a constitutionalism that involves a genuine mix of universalistic and particularistic principles that do not conform to the expectations of those whose experience has been shaped by the theory and practice of liberal politics. Indeed, the most important challenge in contemporary
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constitutional theory is to generate imaginative conceptual responses to the emergence of a revitalized primordialism that threatens the most minimal standards of human dignity. Whatever the flaws in the somewhat tentative efforts included in this collection, taken together they represent a valuable preliminary contribution towards that end. One final note. The unusually high number of "typos" in this book is egregious. Oxford University Press should be embarrassed to release such a woefully edited product.
