A couple years ago, my co-authors and I published an examination of constitutions drafted under foreign Occupation. We wanted to ask whether constitutions drafted under such circumstances differ in quality and endurance from other constitutions (the answers were generally not). But we also identified a theoretical problem with such constitutions. In general, one feature of constitutional success is that they be “self-enforcing”, meaning that it is in the interests of those powerful groups that live under it to maintain it. The risk of foreign occupation is that the constitutions will be externally enforced: while this might seem to be a good thing, external enforcmenet might induce local actors to act strategically in ways the actually undermine the constitution.
It seems to me that this describes the current situation in Iraq, still without a government several months after the election. Major pieces of legislation have not been passed. The continuing presence of the Americans (notwithstanding the sort of-almost-partial withdrawal earlier this month) means that the risks of political failure are reduced. This has allowed Iraqi politicians to play a game of chicken, in which each side refuses to back down in favor of the other, undermining the very functioning of the constitution as a basis for political life. Even if no agreement is reached, there are limits to the damage that either side will suffer—Iran will not invade, Kurdistan will not secede, and civil war will not erupt.
At the time it was drafted, Professor Nathan Brown argued that no constitution was better than this one; but perhaps the problem are not the particular institutional choices in Iraq so much as the structural circumstances of its drafting.
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