Rights In Divided Societies

This collection examines the role and value of rights in divided and post-conflict societies, approaching the subject from a comparative and theoretical perspective. Societies emerging from violent conflict often opt for a bill of rights as part of a wider package of constitutional reform. Where conflict is fuelled by longstanding ethno-national divisions, these divisions are often addressed through group-differentiated rights. Recent constitutional settlements have highlighted the difficulties in drafting a bill of rights in divided/post-conflict societies, where the aim of promoting unity is frequently in tension with the need to accommodate difference. In such cases, a bill of rights might be a rallying point around which both minorities and the majority can articulate a common vision for a shared society. Conversely, a bill of rights might provide merely another venue in which to play out familiar conflicts, further dividing an already divided society. The central questions that animate the collection are: (1) Can constitutional rights provide a basis for unity and a common 'human rights culture' in divided societies? If so, how? (2) To what extent should divided societies opt for a universalistic package of rights protections, or should the rights be tailored to the specific circumstances of a divided society, providing for special group-sensitive protections for minorities? (3) Is a divided society more or less likely to adopt a bill of rights? (4) How does the judiciary figure in the management or resolution of ethno-national conflict? (5) What are the general theoretical and philosophical issues at stake in a rights-based approach to the management or resolution of ethno-national divisions or other conflicts?

This collection examines the role and value of domestic rights instruments in divided and post-conflict societies, approaching the subject from a comparative and theoretical perspective.

"As nations struggling to heal wounds of civil war and atrocity turn toward the model of reconciliation, Reconciliation in Divided Societies takes a systematic look at the political dimensions of this international phenomenon. . . . The book shows us how this transformation happens so that we can all gain a better understanding of how, and why, reconciliation really works. It is an almost indispensable tool for those who want to engage in reconciliation"—from the foreword by Archbishop Emeritus Desmond Tutu As societies emerge from oppression, war, or genocide, their most important task is to create a civil society strong and stable enough to support democratic governance. More and more conflict-torn countries throughout the world are promoting reconciliation as central to their new social order as they move toward peace and stability. Scores of truth and reconciliation commissions are helping bring people together and heal the wounds of deeply divided societies. Since the South African transition, countries as diverse as Timor Leste, Sierra Leone, Fiji, Morocco, and Peru have placed reconciliation at the center of their reconstruction and development programs. Other efforts to promote reconciliation—including trials and governmental programs—are also becoming more prominent in transitional times. But until now there has been no real effort to understand exactly what reconciliation could mean in these different situations. What does true reconciliation entail? How can it be achieved? How can its achievement be assessed? This book digs beneath the surface to answer these questions and explain what the concepts of truth, justice, forgiveness, and reconciliation really involve in societies that are recovering from internecine strife. Looking to the future as much as to the past, Erin Daly and Jeremy Sarkin maintain that reconciliation requires fundamental political and economic reform along with personal healing if it is to be effective in establishing lasting peace and stability. Reconciliation, they argue, is best thought of as a means for transformation. It is the engine that enables victims to become survivors and divided societies to transform themselves into communities where people work together to raise children and live productive, hopeful lives. Reconciliation in Divided Societies shows us how this transformation happens so that we can all gain a better understanding of how and why reconciliation is actually accomplished.

All societies contain ethnic divisions. Traditionally, education has acted to promote social integration, but with the acknowledgement of diversity do we know which system best promotes positive inter-community relations? Education in Divided Societies examines the experience of a range of systems, including those which provide common schools and those which place minorities in separate schools. The book argues that structures do not guarantee outcomes and that processes of dialogue and interconnected social systems provide the route to the future.

With its emphasis on emerging and cutting-edge debates in the study of comparative constitutional law and politics, its suitability for both research and teaching use, and its distinguished and diverse cast of contributors, this handbook is a must-have for scholars and instructors alike. This versatile volume combines the depth and rigor of a scholarly reference work with features for teaching in law and social science courses. Its interdisciplinary case-study approach provides political and historical as well as legal context: each modular chapter offers an overview of a topic and a jurisdiction, followed by a case study that simultaneously contextualizes both. Its forward-looking and highly diverse selection of topics and jurisdictions fills gaps in the literature on the Global South as well as the West. A timely section on challenges to liberal constitutional democracy addresses pressing concerns about democratic backsliding and illiberal and/or authoritarian regimes.

How should constitutional design respond to the opportunities and challenges raised by ethnic, linguistic, religious, and cultural differences, and do so in ways that promote democracy, social justice, peace and stability? This is one of the most difficult questions facing societies in the world today. There are two schools of thought on how to answer this question. Under the heading of accommodation, some have argued for the need to recognize, institutionalize and empower differences. There are a range of constitutional instruments available to achieve this goal, such as multinational federalism and administrative decentralization, legal pluralism (e.g. religious personal law), other forms of non-territorial minority rights (e.g. minority language and religious education rights), consociationalism, affirmative action, legislative quotas, etc. But others have countered that such practices may entrench, perpetuate and exacerbate the very divisions they are designed to manage. They propose a range of alternative strategies that fall under the rubric of integration that will blur, transcend and cross-cut differences. Such strategies include bills of rights enshrining universal human rights enforced by judicial review, policies of disestablishment (religious and ethnocultural), federalism and electoral systems designed specifically to include members of different groups within the same political unit and to disperse members of the same group across different units, are some examples. In this volume, leading scholars of constitutional law, comparative politics and political theory address the debate at a conceptual level, as well as through numerous country case-studies, through an interdisciplinary lens, but with a legal and institutional focus.

"Harel-Shalev's study is outstanding. Finally, a cogent and intelligent analysis of the myriad ways deeply divided societies maintain and negotiate democratic practices. This book will prove to be essential reading for anyone interested in the topics of identity politics, public policy, and democracy."---Rebecca Kook, Ben Gurion University --

This edited volume examines the form and operation of intergovernmental relations in divided societies. Using eight country case studies, it explores the interplay between politicised ethno-cultural diversity and intergovernmental relations (IGR) in countries where the distinctive identity of at least one subnational unit is acknowledged in a form of territorial autonomy. The book examines whether and how the distinctive identity of particular subnational units and the attending competing constitutional visions shape the dynamics of IGR. The goal here is not simply to determine whether intergovernmental interactions in such societies are less cordial and more conflictual than in other societies. Such interaction in any society could be strained as a result of disagreement over specific policy objectives. The question is whether the distinctive identity of particular subnational units and the attending competing constitutional visions themselves have been a primary source of intergovernmental tension. The book also examines the impact of identity politics on institutions and instruments of IGR, determining whether the ethno-cultural divide and the tension it creates have the tendency to affect the type of institutions and instruments employed in IGR. It is also about the relevance and effectiveness of institutions and instruments of IGR in acknowledging and accommodating the distinctive identities and specific demands of subnational units, thereby contributing to the peaceful management of divided societies.