Making the 2004 Constitution of Afghanistan: A History and Analysis Through the Lens of Coordination and Deferral Theory
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My objective in this dissertation is to provide a theoretically informed history of Afghanistan’s many constitutions. While Afghanistan’s constitutional history has attracted considerable scholarly attention, it remains under-examined from a theoretical perspective. Building on insights from coordination theory and constitutional deferral theory, this dissertation attempts to tell a complete, nuanced, and theoretically-informed constitutional history of Afghanistan, as well as a history of the drafting and reception of the 2004 Constitution of Afghanistan. Through this analysis, it normatively judges Afghan constitutions by examining whether they coordinated the various disparate factions of this deeply divided country. This dissertation finds that the most successful Afghan constitutions deliberately left major issues unresolved when powerful stakeholders who could credibly threaten rebellion were unable to reach agreement. These constitutions created systems of government that, in the short-term, offered enough to all constitutional stakeholders to win their acceptance and the people’s acquiescence. In light of these findings, it argues that some of Afghanistan’s most successful and longest-lived constitutions have done no more than enable coordination, primarily because (1) the constitution-making processes brought major stakeholders around the negotiation table; (2) the text of constitutions deferred on foundationally divisive issues in a way that secured elite bargaining and stakeholder inclusion after the constitutional order was in place; and (3) the government did not exercise its power to interpret and implement vague constitutional questions in a way that offended major stakeholders who had the ability to threaten the constitutional order. This dissertation hypothesizes that in divided societies like Afghanistan, constitutional deferral (both explicit and implicit constitutional deferral) might help a constitution coordinate divisive factions effectively. Constitutional deferral does not attempt to answer all controversial foundational questions in a divided society. Instead, it leaves room for evolution and empowers the ordinary political institutions—the legislature and the judiciary—to resolve them in the future. Deferral prevents a zero sum game in constitutional negotiations. It provides hope to the losers, that they may eventually influence those institutions to answer the deferred questions in a way that secures their interests—a behavior that leads to constitutional coordination.
- Law