Since the end of the Cold War, constitution-making has become a central element of post- conflict reconstruction, and state- and peace-building, more generally. Both scholars and practitioners assume that legal procedures and standards of constitution-making provide structures for resolving potentially violent political contest and debate, and thereby contribute to reconciliation and consensus finding. It is hoped that such processes will amplify commonality and strengthen democracy in a state. However, constitution-making processes in politically unstable countries often do not bring about the desired stability and security. As scholarly research in constitution-making has remained largely normative, there is still little detailed knowledge about why this is the case.
My presentation describes the role that constitution-making played in post-revolutionary Libya, building on an in-depth empirical analysis of the Libyan constitution-making process from 2014 to 2018. I describe the actors who were engaged in the constitution-making process and the ways in which the law, including constitutional law-making, is actually used and put to work in a post-conflict scenario. By analysing the Libyan process in this way, I highlight the open, provisional, and dynamic dimensions to constitution-making, and thereby contribute to an empirical understanding of these processes.
The Libyan example indicates that when societal conflict is high and the political landscape deeply divided, a constitution-making process is unlikely to solve conflicts through a redistribution of power or resources or the elaboration of a unitary vision for a state. On the contrary, since the idea of a constitution is to establish a high-level legal framework, constitution-making risks becoming a high-stakes arena of political conflict. This is what happened in Libya, developing into what I call legal politics. Understanding the dynamics of legal politics raises questions about the assumptions of those who advocate constitution-making in post-conflict situations and casts doubt on the technocratic vision that states can be built in a rational and orderly fashion.