In his path-breaking book, Constitutional Identity, Gary Jacobsohn not only elucidates the role of constitutional identities but also envisions the coexistence of “seemingly irreconcilable visions of national identity” within a constitutional order. The resulting disharmony he argues is critical to the development of constitutional identities. This chapter asks whether the continued existence and even incorporation of forms of governance that explicitly contradict the founding values of a constitution are simply disharmonic or do they pose a direct threat to the continued existence of a constitutional order? If the latter, we might ask whether differentiating between those social and constitutional elements that are simply disharmonic, and thus productive elements of a constitutional order, and those that might pose a fundamental threat to the constitutional order, might not produce a more sustainable constitutionalism. In sub-Saharan Africa “traditional authority” exists in many forms, including through institutional recognition in many constitutions whose founding values include democracy and human rights. While there is debate over both the nature of democracy and the content of human rights in Africa, the assumption in this chapter is that traditional authorities, represent either a disharmonic element within or an existential threat to democratic and liberal constitutions.

This chapter explores the ways that the concept of a “disharmonic constitution” provides a useful analytic lens for the comparative study of constitution making in religiously divided societies. We consider constitutional design strategies that enable and allow for disharmonies – including choices to include ambiguity and even contradiction within a constitutional text, as well as to defer certain questions for incremental resolution through ordinary politics rather than textual entrenchment. These strategies demonstrate the utility and even centrality of dissonances in interpreting the “unfinished symphony” that is constitutional identity. In the chapter, we explore these themes by considering constitutional design in the Turkish and Israeli cases. We highlight the ways in which the concept of “disharmonic constitutionalism” and the significance of dissonance in constitutional design point towards a toolkit of options for religiously divided societies that seek to draft constitutions that manage rather than resolve underlying tensions over questions of constitutional identity. We share with Jacobsohn an appreciation for constitutionalism as an expression of contingent and local identities, negotiated across historical processes of contestation and meaning-making with more of an evolutionary than a revolutionary character, even in countries that may undergo moments of sharp political rupture, reversal or transformation.