The Constitutionalization of Indigenous Group Rights, Traditional Political Institutions, and Customary Law

Abstract

Many constitutions of the world contain special provisions for indigenous communities, granting them particular rights and regulating their traditional political institutions and customary law. Building on rational theories of constitution-making, we employ a demand and supply framework to explain the constitutionalization of such provisions. To test our hypotheses, we code the presence of indigenous provisions in the current constitutions of 193 United Nations member states. We find full democracy and previous conflict to stimulate the inclusion of indigenous group rights but not of customary law and traditional institutions. Customary law and traditional institutions are more likely constitutionalized in countries with high ethnic fractionalization. Low levels of modernity affect particularly the constitutionalization of traditional political institutions, while low levels of development correlate with provisions on customary law. Former British colonies are more likely to constitutionalize customary law.