Tom Ginsburg, Aziz Huq

What Can Constitutions Do?: The Afghan Case

How can we evaluate a new constitution’s success?

A decade after Afghanistan adopted a new constitution, instability and conflict threatened to create election fraud and voter suppression, political gridlock, and lack of a democratic mandate for its newly elected leader. This reality prompted constitutional expert Tom Ginsburg to consider what tools scholars and historians could use to judge the success or failure of such documents. Such concepts and measures would aid in the design of new constitutions and inform decisions about when to abandon those that are ineffective. Ginsburg rejects national-level economic statistics, such as GDP or the balance of payments, as adequate measures for assessing a constitution’s success. The same is true of a country’s geopolitical successes and failures. All these are the result not only of constitutional rules, but also of many other factors. On their own, they are not reliable proxies for judging a nation’s basic law. Instead, Ginsburg proposes four midrange goals whose achievement arguably can be attributed to the constitution itself rather than exogenous circumstances. Constitutions can be assessed by the extent to which they: 1) generate legitimacy for the state; 2) channel political conflict through formal institutions rather than violence; 3) limit the agency costs of government; and 4) facilitate the production of public goods.

Journal of Democracy (2014)

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