Constitution‐writing in deeply divided societies: the incrementalist approach†

Abstract

ABSTRACT. The article addresses the puzzle of how societies still grappling over the common values and shared vision of their state draft a democratic constitution. It argues that an incrementalist approach to constitution‐making enabled such deeply divided societies to enact either a written constitution or function with a material constitution by deferring controversial choices regarding the foundational aspects of the polity to future political institutions. It demonstrates how various types of incrementalist constitutional strategies – such as avoidance of clear decisions, the use of ambivalent and vague legal language, or the inclusion of contrasting provisions in the constitution – were deployed in the constitutional drafting of three deeply divided societies: India, Ireland and Israel. By importing the existing ideational conflicts into their constitutions, and by deviating from the common perception of constitution‐making as a revolutionary moment, the framers in these three cases enabled their constitutions to reflect the divided identity of ‘the people’.