A reader of this blog has recommended an interesting paper from the Harvard Law Review, entitled ‘Counterinsurgency and Constitutional Design’ [PDF]. As the title suggests, the paper looks at the inter-relationship between the political-military aspects of counterinsurgency campaigns and the process of constitutional design, and how each may be designed to reinforce the other.
The relevance of this line of inquiry has been well-demonstrated by the current campaigns in Afghanistan and Iraq, where in each case, a coalition of foreign powers has sought to simultaneously defeat an insurgency while seeking to create a viable, democratically-based national administration.
Few think of counterinsurgency as linked to constitutional design. Counterinsurgency is bottom-up; constitutional design is top-down. Counterinsurgency is military; constitutional design is political-legal. Counterinsurgency is temporary, transitional, and tactical, designed to stabilize society; constitutional systems come later and are permanent, constant, and normal. But the conflicts in Iraq and Afghanistan demonstrate the fallacy of these perceptions. Counterinsurgency and constitutional design took place simultaneously, they required high-level political agreement and ground-level acceptance, and they involved politics, law, and security. Iraq and Afghanistan demonstrate that these two enterprises are not different and disconnected, but rather intricately interconnected and complementary.
The paper begins by arguing that ‘counterinsurgency is a form of constitutional design’:
Most military personnel probably do not think of themselves as participating in the process of constitutional design, but counterinsurgency can actually be a form of constitutional design. First, constitutions are created through a process of bargaining by competing groups within society. As a powerful force within society, the counterinsurgent has influence over which groups participate in the constitution making process, and therefore over the ultimate constitutional bargain they strike. Second, counterinsurgency operations can reshape power dynamics and preferences within society. Constitution drafters may have to reconsider constitutional provisions because the ratifiers’ preferences have changed. Finally, because counterinsurgents seek to develop a stable, legitimate political and social order at the ground level, they shape the habits, processes, and institutions that enable the use of public power. Scholars consider these features the “informal constitution” of a country; counterinsurgents are thus unwitting constitutional designers.
The paper goes on to argue that ‘constitutional design can be a form of counterinsurgency’:
Counterinsurgency seeks to build a legitimate, stable set of political structures that channel power within a society; constitutions provide particular canals through which public power is legitimately channeled. It may be possible, then, to use the constitution as a tool to assist the counterinsurgent in building these political structures and channeling power within society.
With the increasing emphasis placed on the role of failing or failed states within the globalised international order, the likelihood that future counterinsurgency campaigns in which Western forces are involved will require the rebuilding of state capacity is high, and as such this line of inquiry would seem highly worthwhile.