This article considers the relationship between constitutions and political settlements and locates the special issue articles within this wider discussion. The article points to the apparently paradoxical connection between disillusionment with internationalised state-building techniques on one hand, and increased international faith in constitution-making as a state-building tool on the other. Using understandings of the relationship of the constitution to political settlement which draws on conventional constitutional theory, it argues that the current context of negotiated transitions requires constitution-making to be approached with an eye to the distinctive dilemmas of statecraft that pertain in contemporary transitions. The most central dilemma concerns how power-balances between political/military elites can be broadened to ensure the constitution’s capacity to fulfil its normative role in restraining power and delivering broader social inclusion. The pieces which make up this special issue draw together development and legal discourses. This article suggests how constitutional theory provides a resource for those seeking to promote constitutionalism as a tool for reaching political settlements capable of resolving conflict. It also argues that those who seek to rely on constitutions for conflict resolution need to understand this enterprise as just as political and fraught as all other institution-building efforts.

Recent years have seen considerably more attention being given to constitution-making as a field of deliberate study and practice, particularly with regard to the challenges and opportunities posed by constitution-making in conflict-affected states. A consequence of this work has been a more explicit recognition of the interconnectedness of peace processes and constitutional processes as mechanisms of political settlement. Within this context, this article argues for the more deliberate use of interim constitutions as a peacebuilding mechanism with potential to be effective in highly divided contexts in grounding a more inclusive and sustainable political settlement. This article argues that while interim constitutions are indeed commonly found in conflict-affected contexts, their use appears ad hoc and their design poorly conceived. The article reflects upon the potential strengths and weaknesses offered by interim constitutions in fragile and conflict-affected states. Reflecting on both the existing scholarship and the author’s own practical field experience, the article concludes that if a more modest and realistic approach to what constitution-making can achieve in fragile and conflict-affected states is coupled with more attention to design, interim constitutions can provide space and time to undertake more comprehensive discussions regarding the longer-term settlements.

The literature on entrenchment as a means to achieve constitutional endurance has grown in recent years, as has the scholarship on unamendable provisions as a mechanism intended to safeguard the constitutional project. However, little attention has been paid to the promise and limits of eternity clauses in transitional settings. Their appeal in this context is great. In an effort to safeguard hard-fought agreements, drafters often declare unamendable what they consider the fundamentals to the political deal: the number of presidential term limits, the commitment to human rights and to democracy, the form of the state (whether republican or monarchical), the territorial integrity of the state, the territorial division of power, secularism or the official religion. This article explores the distinctive role and problems posed by eternity clauses in transitional constitution-building, as guarantees of the pre-constitutional political settlement in such fragile periods. The article also compares unamendability to other techniques of constitution-making in uncertain times, such as sunset clauses, deferring hard choices and other forms of constitutional incrementalism.

Can courts really ‘build’ democracy in a state emerging from undemocratic rule? In contemporary thought, courts are perceived as central components in any political settlement aimed at achieving a functioning democratic order in a previously authoritarian state (this piece, unlike others in the special collection, does not specifically address post-conflict contexts). The past four decades have witnessed an increasing tendency in post-authoritarian states to place significant faith in courts as guardians of the new democratic dispensation – a trend replicated in contemporary democracy-building projects (e.g. Tunisia). Constitutional courts (including supreme courts) are expected not only to breathe life into the paper promises of the democratic constitutional text, but also, increasingly, to guard and build democracy itself by policing political adherence to emerging transnational norms of democratic governance. Outside the state, regional human rights courts have also been cast as democracy-builders, acting as a support, backup mechanism, and even surrogate for domestic courts. Yet, despite this ‘court obsession’, our understanding of courts as democracy-builders remains critically underdeveloped. This article argues that while it has been assumed that courts have a central role to play in democracy-building, this assumption is based on rather slim evidence and undermined by yawning gaps in existing research.

The current debate measuring the trade-offs between democracy and judicial review is unable to analyse the influence of courts in post-conflict states. However, a court with authority over constitutional review is commonplace in new constitutions, including those that have been drafted (or revised) as part of a political settlement. This article suggests that judicial institutions are as important as political institutions in sustaining a political settlement. As this article sets out, the parties to a peace process are required to make numerous compromises to negotiate new (or revised) institutional arrangements. Several cases are considered which illustrate how domestic constitutional courts were asked to mediate between tensions inside the political settlement. In all of the examples, the courts interpreted peace to be the most important constitutional value, or the primary purpose of the constitution. The judiciary played a role in maintaining the constitutional link to the elite pacts of the peace agreement, while acknowledging that the link should not preserve elite pacts permanently or without limit. The article argues, first, that these cases constitute evidence of an emergent global ‘peace jurisprudence’ based on purposive interpretation and a principle of proportionality that protects the foundations of the political settlement, and, second, questions the extent to which international courts are willing or able to adopt this jurisprudence.