Professor Mallat delivered the Third Annual Herbert L. Bernstein Memorial Lecture in Comparative Law in 2004 and this article is based on his remarks. The article is included in the inaugural volume of CICLOPs that collects the first six Bernstein lectures. Strong moments in constitution-making often result from traumas; the breakthroughs by the European Union and constitutional achievements by both Iraq and Afghanistan stand as modern examples. The traumas of Europe, Afghanistan, and Iraq have been typified by violent conflict over the past century, including two World Wars, the Cold War, and the ‘war on terrorism’. Efforts and successes at constructing 21st Century constitutions can largely be seen as a response to these 20th Century traumas. Looking beyond the black-letter law of the European, Afghani, and Iraqi constitutions, emerging patterns in constitution making are to be found, including the recent international drive behind constitutions and the classical Montesquieuian separation of powers. Though these are two major driving forces in constitutional design, three ‘acid tests’ are not only heavily considered in the creation of these constitutions, but they are also heavily determinative in the success of any given constitution: religion, federalism, and, most importantly, the presidency. By analyzing these considerations and the acid tests in the context of the European Union, Iraq, and Afghanistan, their overwhelming importance and the difficulties in negotiating each within varied political climates becomes apparent. The hope is that these attempts and successes at constitutional design can serve as examples for other regions suffering from intense and prolonged violent turmoil, such as the successful resolution of the Northern Ireland problem or the as yet resolved Arab-Israeli conflict concerning Palestine. Further, these shifts in constitutional design over the past century act as signposts, pointing in the direction of change as the process and needs of constitutional design evolves from old concerns of self-contained internal affairs to a new modern concern of internationalism and, eventually, to a state of depoliticisation of constitutions.
Chibli Mallat, Constitutions for the 21st Century: Emerging Patterns-The EU, Iraq, Afghanistan…, 1 Center for International & Comparative Law Occasional Papers 41-62 (2009)