This book is part of a rescue operation: an attempt to redeem the still redeemable. The treasure it seeks to save lies not in the eighteenth century, or even in 1956, but in the recent history of democratic transformation. This treasure is about to be buried—who knows for how long—because of the perverse but revolutionary attempt of the Bush government to impose political democracy through military force and to use democratization as the ideological arm of a neoimperial project to establish a new type of control over the Islamic Middle East. That project is collapsing, but it threatens to bury worldwide projects for democracy and democratization under its rubble.
My concern here is for a dramatic new method of democratic constitution making, one that I call “postsovereign,” in the sense that first, the constituent power is not embodied in a single organ or instance with the plenitude of power, and second, that all organs participating in constitutional politics are brought under legal rules. This method, whose roots go back to the American Revolution and some experiments in more recent French history (1945–1946), was revived in Spain in the 1970s, practiced in central Europe during the years of regime change (1989–1990), and perfected in the Republic of South Africa in the 1990s. It is still practiced in Nepal in the present decade, but with few outside that country noticing.1 Its key characteristics are a two-stage process of constitution making (with free elections in between) and an interim constitution. The basic idea involves applying constitutionalism to both the result and the democratic process of constitution making. This method is the democratic alternative to revolutionary constitution making, which all too easily can step over the threshold to dictatorship. This method of constitution making was the one reluctantly adopted in Iraq by the country’s American rulers, and unfortunately the idea could very well be entirely compromised by that adoption. Already in Latin America, in the Andean republics, the alternative of revolutionary-populist sovereign constitution making has reappeared, and after Iraq it will offer itself, despite its already authoritarian processes and predictably authoritarian outcomes, as the better, more radical, and indeed more democratic alternative. People may very well forget the South African example, instead remembering Iraq when interim constitutions and bound constitutional assemblies are raised as political and legal options.
Of course, perhaps the constitution-making process will be entirely disregarded in the case of Iraq, since matters such as state destruction, insurrection, and civil war currently and rightly occupy everyone’s attention. Were Iraq an isolated, unique case that could never happen again, this might be possible. There is indeed little attention paid to Iraq in, for instance, Nepal, where the democratic transformation is indigenous (although some lessons could have been learned even here: for example, the desirability of avoiding co-opted transitional legislatures and the need to be extremely cautious with identity politics based on ethnicity). But the role of the United States in Iraq and the disasters it has caused make it unlikely that any aspect of this sad history will be forgotten. Remembered, it will likely be only as a series of cautionary tales, and the constitutional aspect will be one of these tales.
There have been recent “democratic” interventions and occupations along with an external role in constitution making before Iraq, in Bosnia, Cambodia, East Timor, and Afghanistan. None of the results have been very good, and the populist theories of participation that guided the international community that advised the constitution makers in these cases were also not very helpful. They opened the door almost without exception to executive dominance of the process. Yet most likely all of them will be remembered as preferable to what will be seen as the American approach typified by Iraq.
In my view, strangely enough, the method adopted in Iraq, born not of an American plan but of the conflict between the occupiers and the movement led by the Grand Ayatollah Sistani (if we forget the pathological aspects due to the persistence of imposition and exclusion throughout) was quite superior to what was implemented elsewhere during other occupations, including that of Japan (if not Germany). Yet because of what has happened in Iraq, future international efforts during military occupations are likely to avoid the specific instruments and policies used in that country. The story of Iraqi constitution making will not be forgotten, but it will be relegated to a dark chapter in the collective memory. At a time when there is a dramatic need to rethink the legal problems of when and how international interventions are permissible—and what to do during occupations after such interventions—forgetting or excluding some of the most important options available in constitution making is bound to have very negative consequences.
This book will focus primarily on constitution making in Iraq, in the context of both theoretical and comparative research. The theoretical focus of chapter 1 will be the problem of the state, distinguishing between revolution and liberation and between revolution and state destruction. Here I will compare Iraq to other efforts by the United States to impose constitutional revolutions from the outside, especially in Japan and Germany. The second chapter will focus on versions of what I see as the dominant contemporary paradigm of constitution making, and I consider from a theoretical point of view the special problems of the adoption of this method in Iraq. The third chapter, centered on Iraq entirely, discusses the political conditions of adopting this model. The penultimate and final chapters reconstruct in detail the making of the interim and “permanent” constitutions, respectively.
It is not my thesis that the right model of constitution making would have very likely saved the day. Instead, my argument presupposes (even if I only argue this formally in the last chapter) that the window of opportunity for democratization in Iraq was very small to begin with, and it was only slightly widened by the method of constitution making that was adopted. The illegal war itself, its thoroughgoing and only slightly disguised unilateralism, and the state destruction that followed all helped to keep the window narrow, but they did not shut it completely. Was it right to try to open this window in the first place? I have always been ambivalent about this question, but from the point of view of the Iraqis, it undoubtedly was right. Thus it was not wrong for people such as Noah Feldman and Larry Diamond to join such an effort, though they were incredibly naïve to think that it could be successful given this administration’s ideology, motivations, and abysmal ignorance. It was even more right for various UN teams to try to intervene, and for a brief period I informally advised a high-level member of the most important of them, the team led by L. Brahimi. But here it was I who was naïve in thinking that the United Nations had sufficient instruments (or the right approach) to influence in the right direction an American policy already in considerable trouble.
From the American and international point of view, the question does arise whether all such efforts at forcing open a “window” of democratization are futile attempts to redeem the unredeemable. This question can even be asked about my book, which catalogues a variety of serious errors beyond the war and the invasion itself. Would it not have been better to write a single deterministic sentence about the whole sorry episode, simply stating that after an illegal and immoral war nothing can go right?
I don’t think this particular book is open to this objection. Let me therefore say here in the preface that if a powerful country attempts something like what the United States has attempted in Iraq, the opportunity for successful regime change in general and constitution making in particular will be very small. The chances of failure will be much higher. The first lesson is: don’t invade or occupy when you are the aggressor. (The United States did, and was.) If you have fully justifiable reasons to invade, get full international support. (The United States didn’t, and didn’t.) If, for some reason, through no fault of your own, you could not succeed at your goals of regime change or the imposition of a democratic government, hand over the occupied country to international authority and withdraw as soon as possible. (It was the fault of the United States, and it didn’t.) If you did not hand the country over to international authority, then include all possible social forces in the country in political bargaining, defer to them, and then withdraw. (The United States didn’t, and didn’t.) And so on. This type of advice can be generalized as: abandon neoimperial policies in favor of internationalist ones, treat small countries and their political forces as partners, and change yourself from what you have been and been seen as for a long time (especially outside of Europe) into something quite different. With respect to Iraq, the advice is: if you adopt a method of constitution making linked to democratic and constitutionalist norms, follow the implications of those norms. Otherwise you are bound to fail. Again, the United States would have to seriously change in order to be able to follow that advice, and had it so changed, it would not have invaded a foreign country without just cause.
It is true that I focus on specific errors that could have been avoided: not having more troops, disbanding the Iraqi army, excluding nationalists from the bargaining process, holding bilateral negotiations with the Kurds only, and numerous others. But many of these errors were parts of the opportunity structure created by the invasion itself, and even if they were not predetermined, they were difficult to avoid. For an aggressive war mendaciously justified at home, one could not take too many troops and risk too many American lives. An aggressive war made the United States an enemy of Arab and even Iraqi nationalism, and thus the Iraqi army was a danger and the special relationship with Kurds preprogrammed. Moreover, even if these mistakes had not been made, their alternatives could also have been serious mistakes: too many American troops could have created even greater resentment, sooner; the Iraqi army could have become a serious part of conflicts with Shi’ites and Kurds; the bargaining process could have broken down if the Arabs and Kurds met face to face on the most contentious issues; and so on. We know what the errors were, but we don’t know if the alternatives would have been errors or not. Within a neoimperial rather than internationalist policy, however, they probably would have been.
My contention is finally that the constitution-making method too would have greatly benefited from an overall framework of internationalization, and it was the neoimperial modality of imposition that produced its pathological transformation. Thus here too the issue is not to improve this or that aspect but to change the overall modality. Conversely, I believe that international legal regulation of constitution-making processes should not only learn from the Iraqi experience but positively use it to generate a better set of guidelines for the future, a set that would serve us better than either the rather obsolete Hague and Geneva regulations (regarding this area of legal and constitutional change) or other more recent precedents with better international frameworks but more problematic constitutional methodologies. All that went wrong in the Iraqi process indicates what should be done differently, and with keeping such possible improvements in mind, it may be worthwhile to assess the applicability of the postsovereign method in an occupied country where the goal is the recovery of democratic autonomy and the establishment of the rule of law as soon as is feasible.
There are several debts I would like to somehow make good. I thank the U.S. Institute of Peace for including me in a multiyear USIP/UNDP workshop in Washington D.C., in the area of constitution making, and especially its organizers Neil Kritz and Louis Aucoin. I learned a lot from our joint work, which will soon appear in book form. At this workshop I was especially fortunate to have met Jamal Benomar, who has done much to introduce me to the intricacies of Iraqi constitution making. With respect to advice on Iraq, I have learned an incredible amount (though never enough, of course) from Juan Cole’s Web site Informed Comment (www.juancole.com), and he was gracious enough to open it to many of my guest editorials. Similarly generous with his comments and information was Nathan Brown, one of the best experts on this topic and on Middle Eastern constitutions in general.
As to general theoretical matters, the influence of three people stand out: János Kis in Hungary, Ulrich Preuss in Germany, and Bruce Ackerman in the United States. While none of them would accept responsibility for my views, I at least have learned a great deal (again, never enough) from their writings and from discussions with them. Both this book and my attempt to educate myself in constitutional theory would have been impossible without the stimulation and intellectual substance I have found in their works at various stages of my development.
I am grateful to all who have invited me to conferences and seminars dealing with this and related topics, especially Said Arjomand (who has since then been very generous with his advice) at Onati, Spain; Jeremy Waldron at Columbia; Ruti Teitel at New York Law School; Benedict Kingsbury at NYU’s School of Law; Kim Scheppele at the University of Pennsylvania; Christian Barry and Paige Arthur at the Carnegie Council (twice); Alain Touraine and Pierre Rosanvallon at EHESS; Riva Kastoryanou and Renaud Dehousse at Sciences Po, both in Paris; Hubertus Buchstein, Tine Stein, and Ulrich Preuss in Berlin (twice); Carla Pasquinelli in Naples; Rainer Forst in Frankfurt; and Hartmut Rosa in Augsburg.
At the New School for Social Research, I am very grateful to my students in the various seminars and lecture courses on constitutional politics, Iraq, sovereignty, and constituent power, who have helped me with more problems than I can detail here, and the same goes for the North American and African students in the masters seminars I held in Cape Town in January 2006, who gave me such a hard time with the concept of “liberation.” At the New School, my great discussion partner has been Andreas Kalyvas, with whom I rarely agree completely, but we have the most interesting exchanges in and out of class. Several discussions with Nehal Bhuta and Nida Alahmad (now at the University of Toronto) have been incredibly interesting and fruitful for my development, and of course the book documents Bhuta’s influence at several points. Recently, a seminar discussion with S. Chaudhry, with whom I had many converging ideas, has been very helpful in clarifying what the ultimate juridical questions are in divided societies. Finally, I thank the two anonymous but highly sophisticated initial reviewers at Columbia University Press, whose suggestions, however radical, I followed in just about everything, not because I had to but because they were so obviously right.
Closer to home, my debates and discussions with two people, Jean Cohen and Julian Arato, have been amazing and very fruitful. There used to be two discussion partners here; now we are three, and the two of them have left their mark on this book and on so much else. The book is dedicated to them and to my daughter Rachel and grandson Sam, with love and admiration as always. I truly hope that Julian and Sam will be able to live in a world largely free of the consequences of what was done in Iraq in their name.