Saturday, 10 March 2012

Procedure as Substantive Constitutional Law

“Procedure is the great part of law’s substance and the day-by-day means determined, or often are the ends of political action.  The paradox of conservative revolution is really no more than a recipe for success in which adherence to orderly procedure is an important ingredient.” 
W.W. Abbott, William & Mary Quarterly, vol. 20, p. 170 (1963)

Procedure is what differentiates law from politics.  It is the prescribed parliamentarian process of deliberation, discussion, debate, and voting on a majoritarian, usually representative, basis and subsequent publication that renders policy legally binding.

The same can be said for a constitution.  When a constitution is new, it is normally created extra-legally, or in contradiction to the current legal regime it is attempting to replace, and thus process becomes paramount in giving the text a legitimacy that cannot be derived from law.  Process becomes the surrogate for legality.

For Libya and hopefully Syria, as they make plans to create a constitution, they should look to designing a constitutional procedure almost as carefully as they design the substance of their constitution and political institutions.  Insofar as it involves a super-majority of the people at important inflection points, prescribes open and fair processes or elections for selection of constitutional authors or framers, and ensures the inclusion of widely-respected individuals in addition to regulating the day-to-day rules that guide and facilitate fair discussion, process is substance.

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