Working Paper 192

Constitution-Making as a Tool for State-Building? Insights from an ethnographic analysis of the Libyan constitution-making process

Felix-Anselm van Lier

Department 'Law & Anthropology'

Year of publication

Number of pages

Working Paper 192

Constitution-making plays an increasingly important role for conflict resolution and state-building. Both scholars and practitioners assume that legal procedures and standards of constitution-making can provide useful structures for resolving potentially violent political contest and debate, and thereby contribute to reconciliation and consensus finding. This paper revisits these assumptions by offering an empirical perspective on the Libyan constitution-making process.

After a synopsis of current approaches to constitution-making, this paper turns to a detailed description of the Libyan constitution-making process. It provides an overview of the actors engaged in the constitution-making process and the ways in which law, including constitutional law-making, is actually used and put to work in a post-conflict scenario. In Libya, the constitution-making process did not bring the desired security and stability, but instead was marked by the same socio-political rifts that dominated Libya’s overall transition. The final constitutional draft is highly contested and is unlikely to serve as the basis for a new Libyan state.

While acknowledging that each constitution-making process needs to be understood in its own terms, the conclusion reassesses the role that constitution-making may play in post-conflict scenarios more broadly. The Libyan constitution-making process shows that when societal conflict is great and the political landscape is deeply divided, a constitution-making process is unlikely to serve as a catalyst for peace or national unity. On the contrary, given the importance attributed to the constitution for the long-term distribution of political power, constitution-making risks becoming a high-stakes arena of political conflict. This paper highlights the pitfalls of seeking constitutional settlement in post-conflict environments and casts doubt on the technocratic vision that states can be built in a rational and orderly fashion.

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