Monthly Archives: February 2011

Many multinational companies and financial institutions have adopted corporate social responsibility programs, often relying on the implementation of international voluntary initiatives. This article describes two such mechanisms. The first, the Equator Principles, provides guidance to financial institutions involved in project finance. The second, the Organization for Economic Cooperation and Development’s Guidelines for Multinational Enterprises, helps governments to encourage businesses to be socially and environmentally responsible. This article suggests means by which voluntary initiatives can be implemented to benefit both the wider community and companies themselves. It also suggests ways of overcoming shortcomings resulting from the lack of access to formal legal sanctions when implementing voluntary initiatives. Continue reading →

The twentieth century has seen a fundamental shift in the ways in which constitutions are understood. By the middle of the twentieth century, a new sort of constitutionalism emerged, rejecting the idea of the legitimacy of every form of political self-constitution. The central assumptions of this new constitutionalism were grounded in the belief that not all constitutions were legitimate, and that legitimate constitutions shared a number of universal common characteristics. These common characteristics were both procedural (against arbitrary use of state power) and substantive (limiting the sorts of policy choices states could make in constituting its government and exercising governance power). These procedural and substantive norms were, in turn, an articulation of a “higher law” of the community of nations, reflecting a global communal consensus evidenced in common practice or international agreements. The authority and legitimacy of this global secular transnational constitutionalism has not gone unchallenged. On the one hand, state power traditionalists reject the notion of extra-national normative constraints on constitution making. On the other hand, there has been an intensification of challenges from universalists of different schools, from natural law theorists to pluralist constitutionalists. Among the most potent of these groups have been religious transnational constitutionalists who have argued that one or another of the current crop of universalist religions ought to serve as the foundation of normative disciplining of constitution making. But do these movements represent constitutionalism? If they do, then what are their characteristics?

This article examines these questions from the context of the most developed form of theocratic transnational constitutionalism—that of Islam. The object will be to examine the great variation of Islamic and Islamic-influenced constitutions to see if these represent the emergence of a constitutionalism with characteristics that can be clearly articulated, if it is possible within this system to distinguish between legitimate and illegitimate constitutions, and if there are characteristics of this constitutionalism that clearly distinguish it from secular transnational constitutionalism. Part I critically reviews the main currents of twenty-first century notions of constitutionalism and focuses on theocracy as a principle of governance. Part II suggests the possibility of fusing the legitimating structures of modern constitutionalism with the substantive framework of theocracy to produce a possible set of characteristics that would mark a legitimate Islamic constitutionalism, distinguishing Islamic constitutions from Islamic constitutionalism. Part III then applies this understanding of theocratic constitutionalism to the constitutional “families” of religious constitutions in which Islamic law has become part of the structural architecture of the constitution itself, suggesting points of convergence and divergence with the values and norms of secular transnational constitutionalism. Continue reading →

The world is full of boundaries. Whatever their nature, boundaries provide the conditions for communal or individual identity and agency, and they make collective action possible. That very capacity to define and contain, however, allows boundaries to “close off possibilities of being that might otherwise flourish.” Paradoxically, boundaries “both foster and inhibit freedom.” This article explores how one particular boundary—ethnicity—has served both as an important source of identity and a cause of deep fracture in societies that this article calls “severely fractured.” The purpose of the article is to explore what institutional structures and processes might be appropriate to respond to the challenges that severely fractured societies face. After examining the two well-known approaches—consociation and integration—that have dominated studies of, and prescriptions for, severely fractured societies, the article concludes that each unwisely underemphasizes one or another of the two necessary conditions for long-term stability in these societies: institutions that are both highly inclusive and have the capacity to foster interethnic dialogue. The article then outlines and defends a version of deliberative democracy that it argues responds to the needs of inclusion (pluralism) and the cultivation of interethnic dialogue. A well-structured deliberative process in the context of a highly inclusive institutional environment has the best prospect of transforming the hard parameters of ethnic identity into the soft parameters of diversity that this article argues will lead to a more sustainable form of pluralistic solidarity. Continue reading →