Group on constitution-making and constitutional change.

The International Association of Constitutional Law (IACL) convenes a Research Group for the study of constitution-making and constitutional change from a comparative aspect. The group assembles constitutional scholars interested in the wide variety of issues stemming from constitutional design making throughout the world. The group aims to explore the procedures used for the enactment of new constitutions and for formal constitutional amendment, as well as the substantive content of constitutional change, and to address issues of constitutional design.

Following the period between 1995 and 2003, where many new constitutions emerged, there is a new wave of constitution-making following the Arab Spring and the global financial crisis.  New challenges are set, ranging from new methods of democratic participation in constitution-making processes to the way in which transition to democracy is best achieved. The role of comparative approaches is revisited with regard to the importance of local culture in constitution-making, especially in setting up the basic rules of the polity.

The research of the group focuses on a set of issues entailing how deliberative bodies work, the role of evidence and evidence-based decision making tools, the role of experts and transnational influence, the use of new technology as consensus-building devises, how aged constitutions change, the influence exerted by the universalization of fundamental rights protection, what determines choice of constitutional provisions, post-conflict-settings, regime transitions, post-crises constitutional change, constitutional language and design of provisions, choices with regard to amending formulae, options regarding the choice of polity etc.

From the aspect of comparative constitutional theory different questions are equally crucial. Such questions entail the way in which differences between civil law and common law traditions affect modes of constitutional change, how volatility of the political system relates to constitution-making, the emergence of a tendency towards less complex amending processes, the interaction of the role of the people, the role of political elites and judges in constitutional change, procedural and material limits to constitutional amendments, unconstitutional constitutional amendments and judicial review of amendments.

Aiming thus to address constitution-making both at the level of constitutional theory and at the level of the practical aspects of constitution-writing, the group welcomes both constitutional scholars and constitutional designers.

Indicative Activities:

  • to monitor the development with regard to constitution-making and constitutional change in different countries and to set up a network for the exchange of information and analysis
  • to organize workshops in the countries where such developments take place and to participate in IACL conferences on those issues
  • to bring together, under the umbrella of the IACL, different institutions, networks and scholars who work on the issue
  • to benefit from the material presented to the aforementioned workshops and conferences to come up with the publication of reference volumes

Latest Posts

Swiss votations on November 29, 2020

by Markus Kern/Fabian Schmid.
On November 29, 2020, the Swiss electorate had to vote on two Popular Initiatives:

the Popular Initiative “For responsible businesses – protecting human rights and the environment” and

the Popular Initiative “For a ban on financing war material manufacturers”

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Votations in Switzerland on September 27, 2020

by Nora Camenisch-Ehinger and Markus Kern, University of Bern.
Due to a backlog caused by the Covid-19-epidemic, the Swiss electorate had five proposals on its plate on September 27, 2020. In most cantons and municipalities additional decisions had to be taken on cantonal or local issues. The turnout was comparatively high at around 59%, sign of the strong mobilization of the political questions at stake.

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Swiss votations on February 9, 2020

by Prof. Markus Kern / Fabian Schmid, University of Bern

On February 9, 2020, two proposals were up for decision by the Swiss electorate:
– the Popular Initiative claiming “more affordable homes” as well as
– a referendum concerning a ban on discrimination based on sexual orientation in criminal law
The Popular Initiative was rejected by 57.1% of the Swiss population and by all but 4½ of the cantons, whereas the amendment of criminal law was clearly accepted by a majority of 63.1% of the voters. Electoral turnout was at 41.7% resp. 40.9%.

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