Constitutional Engineering
DOI:
https://doi.org/10.35246/9s651y97Keywords:
Constitutional Engineering, Political Engineering, Constitutional Reform, Arend Lijphart, Giovanni SartoriAbstract
Constitutional engineering is an old concept, the result of a long accumulation of political and legal experiences.
The intellectual origins of the concept date back to the early 20th century, particularly with the work of Karl Popper (Austrian philosopher, 1902-1994), who spoke of social engineering (i.e., reforming society in a deliberate manner). However, the more explicit use of the term "constitutional engineering" began to emerge in the 1970s and 1980s and became firmly established after the end of the Cold War.
Since the mid-1990s, legal scholars have begun using the term to describe the selection of a system of government and the preference for one type over another, the design of the relationship between the branches of government, the relationship between the people and the state, the selection of the electoral system, and so on. Among the most prominent theorists in this field are Lijphart and Sartori, as will become clear throughout this research.
Currently, constitutions are no longer merely written texts but rather projects designed according to precise calculations. Constitutional engineering is the art and science of deliberately formulating and crafting constitutional rules to achieve specific political and legal objectives.
The Iraqi constitutional legislator adopted a consociational approach in the 2005 constitution, which led to the fragmentation of the country into mini-states. This is a structural problem requiring fundamental solutions, not superficial fixes. In other words, there is an urgent need to amend the constitution and restructure many of its principles.
The importance of this research stems from its focus on the most crucial stage in building a system of governance: the constitutional design phase. It examines how to design the system according to the culture and history of the society in which it is to be implemented, thus preventing what we call "the alienation of the system." The research also sheds light on restructuring the system to address the flaws in its foundation and design. This is precisely what Iraq needs.
The system was built and the constitution designed with limited democratic awareness at the time. Nearly two decades have passed since the constitutional establishment and design, and it is now time to reconsider the errors of its foundation and design, and to draft, create, and restructure a new constitution.
The importance of this research stems from the fact that it sheds light on the most crucial stage in building a system of governance — the stage of constitutional design — and on how to engineer the system in accordance with the culture and history of the society in which it is intended to operate, so that we do not face what may be termed the “alienation of the system.” The research also highlights the re-engineering of the system in order to avoid defects in its foundation and design. This is precisely what is needed in Iraq today. It is no exaggeration to say that the country has greatly delayed the process of re-engineering. It is illogical for a political system to be established and a constitution designed under conditions of limited democratic awareness, and under the influence of an occupying power and international decisions that legitimized it, only for the situation to remain unchanged for more than two decades without genuine attempts to reconsider the mistakes of the original foundation and design
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