CSOs in Constitution-Making: A Comparative Study of Ireland and Israel

• In Event: Language Policy, State Building, and Social Cohesion

Abstract

This paper develops a novel theoretical model to explain the role of civil society organizations (CSOs) in constitution-making processes. Previous research has overlooked the role of CSOs in constitution-making, focusing mainly on the role of elites or the citizenry. Debates have arisen among scholars regarding the preferable forum tasked with drafting the constitution, the authority of High Courts, the implications of public participation, and the involvement of international bodies (e.g., UN agencies). Moreover, CSOs are often viewed as part of the general public, leading to the oversight of their role as standalone actors in constitution-making processes. Consequently, our understanding of the role CSOs play in constitution-making remains inadequate. How are CSOs involved in constitution-making processes, and what shapes the nature of their involvement?

I propose an innovative perspective aimed at redefining our understanding of the role played by CSOs in constitution-making. This viewpoint recognizes CSOs as distinct entities, separate from the general public. CSOs are, therefore, cast as actors with autonomous agendas that they actively strive to promote. Challenging notions ingrained in liberal concepts of civil society, I assert that CSOs have the capacity to pursue a spectrum of agendas, ranging from conservative to exclusionary, or even outright illiberal objectives. Rooted in the recognition of constitution-making as an inherently political process, this perspective anticipates that diverse CSOs, driven by various and contrasting agendas, will strive to partake in said processes in order to exert influence over their outcomes.

From this theoretical vantage point, I employ a comparative analysis of CSOs who were involved in constitution-making processes in two case studies: Israel and Ireland. I examine two noteworthy processes in each case: In the Israeli one, I look into the 2018 Nation-State Law and the recent 2023 constitutional reforms that sought to overhaul the judiciary; and in the Irish case, I investigate the same-sex marriage and abortion referendums, which took place in 2015 and 2018, respectively. Despite their differences, Israel and Ireland share some similarities that make their comparison applicable. For example, both countries were subjected to British rule, which left its heritage in the shape of a parliamentary system of government and a common law judicial system. Moreover, both societies are still grappling with common values and a shared vision of the polity.

I use process tracing to analyze how various political and institutional factors, such as formal procedures of the constitutional process and the electoral system in each country, shaped CSOs’ role in said constitutional processes. To this end, I use an extensive array of qualitative sources, including documents generated by CSOs, internal documents from the constituent assemblies, minute transcripts of committee meetings, media articles, and written submissions from the public. I also conducted semi-structured interviews with CSOs members, politicians, and public officials who held pivotal roles in the constitutional processes under study.

This paper contributes to the comparative constitution-making literature by providing a systematic and rigorous examination of the hitherto neglected role of CSOs in constitution-making processes. By delving into the dynamics inherent in constitution-making, it advances our theoretical understanding, not only of CSOs' involvement but also of broader democratic processes. Beyond its theoretical contributions, this paper has practical implications for key stakeholders. Future constitution writers, decision-makers, activists, and the general public stand to benefit from the insights offered. The findings may enhance their understanding of the optimal design of constitution-making processes and provide guidance for fostering inclusive, participatory, and more democratic processes.

Author

• ‪Or Asher‬‏, Tel Aviv University