Permissive and Unpermissive Constitution Making

Abstract

The article explores the long-term consequences of permissive constitutional arrangements, drawing on a comparative study of Israel, India and Sri Lanka. In all three countries, constitutional drafters at the foundational stage adopted permissive arrangements that avoided controversial decisions on conflicted identity-related issues. In all three cases, three to six decades after independence, the permissive constitutional approach was replaced by more decisive formal constitutional principles. Such unpermissive constitution making was meant to limit the range of options available for future legislation or constitutional interpretation by courts, and preferred nationalist, religious and ethnocentric identity. This article seeks to investigate why such developments occurred in the three countries, and what can be learned from them about the durability and normative advantages of permissive constitutional arrangements. Empirical analysis of the long-term consequences of permissive arrangements illustrates the limited durability that appeared to characterize some of these arrangements. The present assessment also reveals how in some cases, the main ideational conflict at the heart of the constitutional debates has shifted over the years. Nevertheless, the central argument put forth by this article is that, despite ongoing challenges, permissive constitutional arrangements should still be regarded as a valuable constitutional tool for advancing political compromise and facilitating stable democratic institutions. The analysis demonstrates the crucial role permissive constitutions may have as a political tool designed to circumvent violent conflicts and as an analytical tool, thereby offering insight into current constitutional conflicts over ideational issues.