Bridging Comparative Politics and Comparative Constitutional Law

“Bridging Comparative Politics and Comparative Constitutional Law: Constitutional Design for Divided Societies” in S. Choudhry, ed., Constitutional Design for Divided Societies: Integration or Accommodation? (Oxford: Oxford University Press, 2008) 3-40.

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How should political communities respond to the opportunities and challenges raised by ethnic, linguistic, religious, and cultural differences, and, through these responses, thereby promote democracy, social justice, peace, and stability? This is one of the most difficult and important issues of contemporary politics. I term these cases, collectively, “divided societies.” As a category of political and constitutional analysis, this term does not refer to just those societies that are ethnically, linguistically, religiously, or culturally diverse. What particularly identifies a divided society is that these differences are politically salient—that is, they are persistent markers of political identity as well as bases for political mobilization. Political claims are refracted through the lens of identity, and, thus, political conflict can become synonymous with conflict among ethnocultural groups. How divided societies cope with these challenges is of the highest practical importance. Although comparative experience must figure centrally in constitutional politics, particularly when it comes to framing constitutional settlements, comparative constitutional law as a scholarly discipline has largely been missing in action. To be relevant to the other pressing problems of modern constitutionalism, comparative constitutional law must expand its intellectual agenda