Cooking up a Constitution - Professor Tom Ginsburg

Professor Tom Ginsburg,

University of Chicago Law School and the Comparative Constitutions Project

www.constituteproject.org/

Suppose you have an important guest coming to dinner, who has asked you to cook a new dish that you had never tried before, say a lasagna or a chocolate cake. You don’t have a cookbook, and the guest is coming in an hour. What would you do? First, you would probably panic. But that won’t solve the problem. Second, you might call your mother or a friend for advice. But in the end you will have to cook the dish with your own hands. So you go to the kitchen and just get started.

This is the situation that many constitution-makers finds themselves in.  There are no recipe books for constitutions; and while there are a number of helpful resources available, in the end, the constitution must be written at home. Furthermore, most constitutions are written in a relatively short time, often with deadlines imposed by local politics or outsiders.  This can make the task very difficult, like cooking a complicated dinner with little time.

Sometimes constitution-makers make the mistake of thinking that they have to invent everything from scratch. This would be the equivalent of trying to bake the cake or lasagna without any ingredients from outside.  But even the best chef in the world usually doesn’t grow his own wheat and grind his own flour.  And the very idea of a lasagna or a cake, in some sense, comes from outside the house. 

Constitutions are not really very different. The idea of a constitution is an old one, and has become a definitional feature of modern states in the last century.  The different parts of constitutions—the provisions establishing a government, defining the courts, or setting out the rights of citizens—are found in almost every country, and form a kind of collective experience that a country can draw on in writing its own constitution. Instead of having to invent every idea from scratch, constitution-making is more like ordering a unique meal from a menu of choices.

Most constitution-making processes start with some basic model. It could be the constitution of another country, or perhaps an earlier constitution in the country’s history. This makes a lot of sense as a start. It is easier to take a text and modify it, rather than start from scratch.  But one can’t just borrow another text completely. One reason is that every country is different.  And even within a single country, different constitutions are product of different eras. If a country has just been through a war and a dictatorship, as Libya has, it might want a different text than if it has been undergoing a long period of stability.

Furthermore, ideas about what should go into constitutions change over time. In the 19th century, constitutions had fewer institutions and fewer rights of citizens. Constitutions written today, in contrast, tend to be more complicated and are more oriented toward human rights. 

As a model, the Libyan Constitution of 1951 is a good place to start.  But Libya in 1951 was pretty different from Libya today, and no one is proposing to go back to a monarchy. The Libyan text can be combined with parts of other models to produce something that is uniquely Libyan and up-to-date. Like the dinner, time is short and there will be lots of pressures in constitution-making, but looking at various models will help to save the day.