Constitution-making and transnational legal order (TLO)
Constitution-making as transnational legal ordering
In 2011, after decades of civil war, the Christian population of South Sudan voted in a referendum
to declare independence from predominately Muslim Sudan. The occasion was marked with the
adoption of a written constitution, which served to signal the country’s independence on the
international stage. The referendum was the product of international negotiations to end the civil
war. The drafting-process of the constitution involved outside actors, including the UN. When the
constitution came into effect, numerous advisers came in to help with the implementation. The
very idea of making a constitution was transnational.
The involvement of international actors has become increasingly intense. Every phase of the
constitutional process – the triggering of constitution-making; design of the constitution-making
procedures, drafting the text, adoption of the constitution, and implementation – involves
interaction between transnational actors and local parties.
The constitution-making process can be conceived of as an arena in which norm entrepreneurs in
multiple TLOs – such as over different types of rights – contest substantive norms. A constitution,
conventionally conceived as the embodiment of national values, is in fact a transnational legal
arena for contests over particular legal norms. The constitution-making process is an arena for
political and social struggle over the rules of the game.
Constitutional advice and transnational legal order
National constitutions have become one of the key components of a modern nation-state.
Constitutions are embedded in a transnational context. Modern constitutions emerged in the XVIII
century. This form, which crystallized with the adoption of revolutionary constitutions in the US,
Poland and France, spread transnationally. New nation states began to adopt constitutions as one
of their first acts in existence, mainly to signal to the international community that the government
is a legitimate one. Constitutions are often produced in situations of political uncertainty and under
great time pressures. The task is exacerbated by the fact that few constitutional drafters have any
experience in the field. Constitutions tend to adopt a common set of core institutions. All
constitutions have a separate section on a bill of rights, as well as sections on government, the
judiciary, the legislature, local government and accountability institutions. Drafters often pay
attention to the perceived demands of the international community. This leads drafters to adopt
norms embodied in other constitutions written around the same time.
A brief history of transnational constitutional advice
Constitutional advice has a long history in the modern period. Jean-Jacques Rousseau was called on
to advice constitution-making processes in Corsica and Poland in the late XVIII century. He was
prone to abstraction; hence he did not focus much on concrete institutions. He was unable to finish
his Plan for a constitution for Corsica before the French government took over the island. Rousseau
had a bit more influence in Poland, but the independent state could not stand due to its location
between the expanding empires of Prussia and Russia.
As more and more countries became independent in the XIX century, demand for advice grew, and
Western experts were well suited to provide it. Frank Goodnow, Columbia professor and the first
president of the American Political Science Association, was asked in 1912 to advice the Chinese
government on constitutional reform. As a comparative scholar, Goodnow knew better than to
simply promote American-style institutions for China. Systems of government, he argued, must be
governed by the history and political needs of the particular country. Goodnow proposed executive
power in the Chinese context, believing that the complexity of the country required strong central
authority. This view fit the interests of the warlord Yuan Shikai, who had taken over as president in
1914. Yuan adopted a new constitution that was heavily influenced by Goodnow’s draft. It included
several western-style concepts like equality and privacy, but also featured strongly centralized
power. Monarchy was consistent with Chinese tradition and resolved problems of executive
succession. Goodnow’s views fit perfectly with those of Yuan, who was hoping to eventually
establish himself as an emperor. However, he died before he could actually be enthroned, and
China’s long period of chaos continued for several more decades. Goodnow’s constitutional project
failed, and his work was marked by criticism over his endorsement of monarchy. He sought to tailor
his advice to local circumstances, but he was unaware of the uses to which it would be put.
Sir Ivor Jennings was a British academic and a star constitutional lawyer. He moved to Sri Lanka
and presided over the creation of the University of Peradeniya. Jennings confronted an educational
system in high colonial mode. He was shocked by the imperialist modes of education; thus, he
sought to develop education that would be locally useful in Sri Lanka. Constitutions are a bit like
educational systems – they need to include common elements with the rest of the world, but also
to be tailored to local conditions. Jennings became a key constitutional advisor for the Sri Lankans,
serving from 1942-8. His closest interlocutor was Senanayake, who eventually became the first
prime minister of Ceylon in 1947. With his knowledge of British political culture, Jennings would
prep Senanayake and other leaders as to how to make their case to the colonial office. The
Ceylonese wished for independence immediately, while the colonial authorities thought they were
still unfit for self-governance. Jennings sided with the locals. Senanayake’s political power of
,persuasion helped to convince the Colonial Office to support this view. Jennings was later involved
in constitution-making in other countries, such as Pakistan and Ghana.
The period after WWII was one of American dominance in international affairs. This reflected
constitutional design. The immediate postwar period saw the writing of dozens of new constitutions
as former colonial empires broke up. The US played a role in some of these, but in other cases, the
political dominance of the US led some to avoid the American model. The drafters of the
Constitution of India, in particular, were intent on avoiding American approaches. Their decision to
opt for a parliamentary rather than presidential form of government and their commitment to using
the constitution for social transformation reflect this inclination. The drafters of India’s constitution
included British-trained lawyers; however, foreigners had at most indirect influence.
In most of Africa, the prevalent model was a negotiated constitutional exit managed by the British
and French colonial authorities. Throughout the Eastern European constitution-making exercises in
the 1990s, some American lawyers were highly sought after. One was Dick Howard, a professor at
the University of Virginia Law School who played a major role in drafting his state constitution in
1971. Howard travelled to Eastern Europe and worked on the constitutions of 10 countries.
In some cases, advisors bring their own political biases on national texts. For example, as Malaysia
was preparing for independence from Britain in 1956, British and Malaysian politicians agreed to
form a drafting commission for a new constitution. Headed by Sir Willian Reid, a distinguished
British jurist, the commission included no Malaysian. Malaysia is a complicated place, with a
majority of Muslim Malays but also substantial minorities of Chinese and Indian descent. The British
had established a system of economic privileges for the indigenous Malays. The challenge for the
commission was to reconcile these privileges with principles of equality, and it proposed that the
privileges be extended for 15 years. The drafters were trying to preserve a set of colonial
institutions. In recognition of the multi-ethnic nature of Malaysian society, the first draft of the
constitution did not mention an official religion. The Pakistani delegate, who had served as a
drafter on his own country’s constituent assembly, strongly insisted that Islam had to be the official
religion. Today, all ethnic Malays are defined as Muslim, and until recently could not convert out of
the religion.
The world’s leading constitutional drafter today is Professor Yash Ghai, a Kenyan of East Indian
origin who thought at the University of Hong Kong. This cosmopolitan background and deep
knowledge of ethnic diversity have rendered him the leading person in the field. He has taken an
interest in the constitutions of small developing countries, involving himself in Kenya, Papua New
Guinea, Nepal, Libia, Somalia, Fiji, and many others. Such countries were more open to outside
assistance, and Ghai has frequently been asked to chair drafting commissions in public
circumstances, which can be problematic. In 2012, Ghai travelled to Fiji, where strongman
Bainimarama sought to legitimate his rule with a transition to a new constitution. Ghai was
suggested to become involved in the drafting commission. The government made some
requirements, one of which was the need to grant immunity for the coup-makers in previous
governments. Things began to go south when Ghai sought to push in a democratic direction and to
appeal directly to the people over the government. This meant that he stepped out of the role of
being a mere advisor, to become a political actor in his own right. Ghai’s view has always been that
constitutions are written for the people and should be written on their behalf. The people, not the
government, are the client. The government saw Ghai’s Commission as merely advisory to the
government. It threatened Ghai with expulsion, and although the commission then took a lower
profile, things never got back on track. The commission managed to produce a document with
plenty of democratic protections, but it deviated from the instructions on immunity. It only offered
immunity for coup participants who took an oath renouncing their support of illegal regimes and
offered no immunity at all for those who had committed human right violations. The draft never
saw the light of the day. This was Ghai’s only experience with failure.
Toward transnational institutionalization
Transnational involvement in constitution-making has intensified since 1990 due to the end of the
Cold War and the beginning of a set of major remodeling of constitutions in many countries.
The Comprehensive Peace Agreement between Sudan and South Sudan in 2005 featured a bill of
rights reportedly drafted by an American legal advisor to the Intergovernmental Authority on
Development (IGAD), sponsored by the US State Department. IGAD is funded by outside countries,
and it served to facilitate the peace negotiations between the north and the south regions of
Sudan. The peace agreement led to a transitional constitution that still governs the young nation of
South Sudan today. The constitution was drafted with the assistance of multiple international
organizations. South Sudanese drafters had to spend a good deal of time coordinating with the
donors.
Similarly, the recent wave of constitution-making in the aftermath of the Arab Spring generated
demand for outside assistance. Only in Egypt were foreign organizations shut out. The Muslim
Brotherhood-dominated constituent assembly were hostile to Western states that had supported
the Mubarak regime. But ultimately, they were afraid of the message that international actors
might have delivered: to be more inclusive.
Speaking from above for those below: the United Nations and constitutions
, The end of the Cold War has seen the re-invigoration of the UN as a central actor in state building.
Frequently called on to help countries transition out of wars, the UN has set up missions in
countries as diverse as Kosovo, Somalia, Yemen, and others. The UN can play a role in encouraging
agreement among local factions that are often at the verge of violent conflict. The UN claims to
respect national ownership of sovereign processes and it emphasizes the role of public
participation. But the UN is bound by its charter to promote adherence to international human
rights and the rule of law. This produces tension between global standards and local cultural
norms.
Normative assessment: a qualified defense of advice
The ideal role of the constitutional advisor is to provide information to local decision-makers, who
will make the final choices about what institutions are appropriate for the local context. But
constitutional drafters bring their own perspectives, and this may sometimes affect the advice.
Constitutions are collective products, not written by single individuals. While outsiders have always
played an important role, the ultimate acts of adoption must be done by insiders with the requisite
political authority. However, the categories used in government tend to be similar across countries:
most countries will adopt a legislature and an executive headed by a president or prime minister,
most will promise their citizens' rights, and most will consider how the national government
interacts with those from lower levels. Once it is recognized that such institutions have already
been used in other countries, it would be irrational to ignore prior experience. The international
community can quickly bring a lot of relevant information, not to dictate choices but to help lay out
options for local drafters. Delegating the gathering of information can save the local drafters a lot
of effort.
Competition for constitutions
In a drafting situation, different actors are competing with each other to influence the final shape of
the constitutional document, just as local political forces compete for advantage in negotiating the
outcome. Each outside actor brings particular strengths and weaknesses. Whereas the UN brings
international legitimacy, bilateral donors bring greater speed. However, bilateral donors bring their
own national interests.
In Europe, the EU has played a role in constraining constitution making. The Venice Commission,
part of the Council of Europe, has played an active role in formulating advice to constitutional
reform efforts. It has expanded its role since allowing the extension of membership by countries
from outside the region. The Venice Commission has the advantage of an association with Europe.
The downside is that it is overwhelmingly composed of senior academics with no social science
expertise, and few have any experience drafting constitutions. The International Institute for
Democracy and Electoral Assistance (IDEA) also developed a specialized program in constitution-
making which focuses on resolving constitutional issues and tailored constitutional advice to
particular drafting situations.
Multiple organizations want to play a role in supporting constitution-making and take credit for the
final nation’s constitution. The claims of foreign individuals to have drafted particular documents
are particularly ironic in the case of Iraq. The Constitution of Iraq reflected a set of compromises
achieved without the participation of one of the major political forces of the country. The lack of a
complete political agreement led to the civil wat of 2005-9. Furthermore, the constitution is an
incomplete document. It postpones major issues – the federal system, the distribution of oil, the
nature of the upper house of parliament – to future laws which have never been passed. No one
would take credit for such a bad piece of work because it ought to be sued for malpractice.
Constitutions are always drafted in collective processes, involving various kinds of expertise. It
requires knowledge of international factors, including the different institutional options that have
been tried in foreign countries and their performance. It also requires local knowledge about what
is politically and culturally possible. Is constitution-making a transnational legal order?
There is very little law that governs the constitution-making process. Some norm entrepreneurs
have sought to assert that there is a right to public participation in the constitution-making
process. Yet no one would really question the idea that a constitution, made without participation
but universally recognized, was in fact a constitution. The international community would prefer a
constitution perfectly congruent with international norms to one that was highly defective but
adopted in a participatory fashion. The legal nature of constitutions means that the TLO definition
is satisfied on this point. Constitution-making as a field is highly fragmented. There is intense
competition in the process. For this reason, constitution-making is treated as a field in which other
TLOs engage.
A transnational actor on a dramatic stage – Sir Ivor Jennings and the manipulation of
Westminster style democracy in Pakistan
The Westminster model was the transnational trend after 1945 in constitution-making for much of
the world emerging from colonial rule. This regime type caused many crises that questioned the
wisdom of applying Westminster to these states. Jennings worked across Asia and Africa. It is
Pakistan, however, that sticks out as Jenning’s most controversial role where he effectively
defended a constitutional coup by the Governor General against the Constituent Assembly in 1954.
Constitution-making as transnational legal ordering
In 2011, after decades of civil war, the Christian population of South Sudan voted in a referendum
to declare independence from predominately Muslim Sudan. The occasion was marked with the
adoption of a written constitution, which served to signal the country’s independence on the
international stage. The referendum was the product of international negotiations to end the civil
war. The drafting-process of the constitution involved outside actors, including the UN. When the
constitution came into effect, numerous advisers came in to help with the implementation. The
very idea of making a constitution was transnational.
The involvement of international actors has become increasingly intense. Every phase of the
constitutional process – the triggering of constitution-making; design of the constitution-making
procedures, drafting the text, adoption of the constitution, and implementation – involves
interaction between transnational actors and local parties.
The constitution-making process can be conceived of as an arena in which norm entrepreneurs in
multiple TLOs – such as over different types of rights – contest substantive norms. A constitution,
conventionally conceived as the embodiment of national values, is in fact a transnational legal
arena for contests over particular legal norms. The constitution-making process is an arena for
political and social struggle over the rules of the game.
Constitutional advice and transnational legal order
National constitutions have become one of the key components of a modern nation-state.
Constitutions are embedded in a transnational context. Modern constitutions emerged in the XVIII
century. This form, which crystallized with the adoption of revolutionary constitutions in the US,
Poland and France, spread transnationally. New nation states began to adopt constitutions as one
of their first acts in existence, mainly to signal to the international community that the government
is a legitimate one. Constitutions are often produced in situations of political uncertainty and under
great time pressures. The task is exacerbated by the fact that few constitutional drafters have any
experience in the field. Constitutions tend to adopt a common set of core institutions. All
constitutions have a separate section on a bill of rights, as well as sections on government, the
judiciary, the legislature, local government and accountability institutions. Drafters often pay
attention to the perceived demands of the international community. This leads drafters to adopt
norms embodied in other constitutions written around the same time.
A brief history of transnational constitutional advice
Constitutional advice has a long history in the modern period. Jean-Jacques Rousseau was called on
to advice constitution-making processes in Corsica and Poland in the late XVIII century. He was
prone to abstraction; hence he did not focus much on concrete institutions. He was unable to finish
his Plan for a constitution for Corsica before the French government took over the island. Rousseau
had a bit more influence in Poland, but the independent state could not stand due to its location
between the expanding empires of Prussia and Russia.
As more and more countries became independent in the XIX century, demand for advice grew, and
Western experts were well suited to provide it. Frank Goodnow, Columbia professor and the first
president of the American Political Science Association, was asked in 1912 to advice the Chinese
government on constitutional reform. As a comparative scholar, Goodnow knew better than to
simply promote American-style institutions for China. Systems of government, he argued, must be
governed by the history and political needs of the particular country. Goodnow proposed executive
power in the Chinese context, believing that the complexity of the country required strong central
authority. This view fit the interests of the warlord Yuan Shikai, who had taken over as president in
1914. Yuan adopted a new constitution that was heavily influenced by Goodnow’s draft. It included
several western-style concepts like equality and privacy, but also featured strongly centralized
power. Monarchy was consistent with Chinese tradition and resolved problems of executive
succession. Goodnow’s views fit perfectly with those of Yuan, who was hoping to eventually
establish himself as an emperor. However, he died before he could actually be enthroned, and
China’s long period of chaos continued for several more decades. Goodnow’s constitutional project
failed, and his work was marked by criticism over his endorsement of monarchy. He sought to tailor
his advice to local circumstances, but he was unaware of the uses to which it would be put.
Sir Ivor Jennings was a British academic and a star constitutional lawyer. He moved to Sri Lanka
and presided over the creation of the University of Peradeniya. Jennings confronted an educational
system in high colonial mode. He was shocked by the imperialist modes of education; thus, he
sought to develop education that would be locally useful in Sri Lanka. Constitutions are a bit like
educational systems – they need to include common elements with the rest of the world, but also
to be tailored to local conditions. Jennings became a key constitutional advisor for the Sri Lankans,
serving from 1942-8. His closest interlocutor was Senanayake, who eventually became the first
prime minister of Ceylon in 1947. With his knowledge of British political culture, Jennings would
prep Senanayake and other leaders as to how to make their case to the colonial office. The
Ceylonese wished for independence immediately, while the colonial authorities thought they were
still unfit for self-governance. Jennings sided with the locals. Senanayake’s political power of
,persuasion helped to convince the Colonial Office to support this view. Jennings was later involved
in constitution-making in other countries, such as Pakistan and Ghana.
The period after WWII was one of American dominance in international affairs. This reflected
constitutional design. The immediate postwar period saw the writing of dozens of new constitutions
as former colonial empires broke up. The US played a role in some of these, but in other cases, the
political dominance of the US led some to avoid the American model. The drafters of the
Constitution of India, in particular, were intent on avoiding American approaches. Their decision to
opt for a parliamentary rather than presidential form of government and their commitment to using
the constitution for social transformation reflect this inclination. The drafters of India’s constitution
included British-trained lawyers; however, foreigners had at most indirect influence.
In most of Africa, the prevalent model was a negotiated constitutional exit managed by the British
and French colonial authorities. Throughout the Eastern European constitution-making exercises in
the 1990s, some American lawyers were highly sought after. One was Dick Howard, a professor at
the University of Virginia Law School who played a major role in drafting his state constitution in
1971. Howard travelled to Eastern Europe and worked on the constitutions of 10 countries.
In some cases, advisors bring their own political biases on national texts. For example, as Malaysia
was preparing for independence from Britain in 1956, British and Malaysian politicians agreed to
form a drafting commission for a new constitution. Headed by Sir Willian Reid, a distinguished
British jurist, the commission included no Malaysian. Malaysia is a complicated place, with a
majority of Muslim Malays but also substantial minorities of Chinese and Indian descent. The British
had established a system of economic privileges for the indigenous Malays. The challenge for the
commission was to reconcile these privileges with principles of equality, and it proposed that the
privileges be extended for 15 years. The drafters were trying to preserve a set of colonial
institutions. In recognition of the multi-ethnic nature of Malaysian society, the first draft of the
constitution did not mention an official religion. The Pakistani delegate, who had served as a
drafter on his own country’s constituent assembly, strongly insisted that Islam had to be the official
religion. Today, all ethnic Malays are defined as Muslim, and until recently could not convert out of
the religion.
The world’s leading constitutional drafter today is Professor Yash Ghai, a Kenyan of East Indian
origin who thought at the University of Hong Kong. This cosmopolitan background and deep
knowledge of ethnic diversity have rendered him the leading person in the field. He has taken an
interest in the constitutions of small developing countries, involving himself in Kenya, Papua New
Guinea, Nepal, Libia, Somalia, Fiji, and many others. Such countries were more open to outside
assistance, and Ghai has frequently been asked to chair drafting commissions in public
circumstances, which can be problematic. In 2012, Ghai travelled to Fiji, where strongman
Bainimarama sought to legitimate his rule with a transition to a new constitution. Ghai was
suggested to become involved in the drafting commission. The government made some
requirements, one of which was the need to grant immunity for the coup-makers in previous
governments. Things began to go south when Ghai sought to push in a democratic direction and to
appeal directly to the people over the government. This meant that he stepped out of the role of
being a mere advisor, to become a political actor in his own right. Ghai’s view has always been that
constitutions are written for the people and should be written on their behalf. The people, not the
government, are the client. The government saw Ghai’s Commission as merely advisory to the
government. It threatened Ghai with expulsion, and although the commission then took a lower
profile, things never got back on track. The commission managed to produce a document with
plenty of democratic protections, but it deviated from the instructions on immunity. It only offered
immunity for coup participants who took an oath renouncing their support of illegal regimes and
offered no immunity at all for those who had committed human right violations. The draft never
saw the light of the day. This was Ghai’s only experience with failure.
Toward transnational institutionalization
Transnational involvement in constitution-making has intensified since 1990 due to the end of the
Cold War and the beginning of a set of major remodeling of constitutions in many countries.
The Comprehensive Peace Agreement between Sudan and South Sudan in 2005 featured a bill of
rights reportedly drafted by an American legal advisor to the Intergovernmental Authority on
Development (IGAD), sponsored by the US State Department. IGAD is funded by outside countries,
and it served to facilitate the peace negotiations between the north and the south regions of
Sudan. The peace agreement led to a transitional constitution that still governs the young nation of
South Sudan today. The constitution was drafted with the assistance of multiple international
organizations. South Sudanese drafters had to spend a good deal of time coordinating with the
donors.
Similarly, the recent wave of constitution-making in the aftermath of the Arab Spring generated
demand for outside assistance. Only in Egypt were foreign organizations shut out. The Muslim
Brotherhood-dominated constituent assembly were hostile to Western states that had supported
the Mubarak regime. But ultimately, they were afraid of the message that international actors
might have delivered: to be more inclusive.
Speaking from above for those below: the United Nations and constitutions
, The end of the Cold War has seen the re-invigoration of the UN as a central actor in state building.
Frequently called on to help countries transition out of wars, the UN has set up missions in
countries as diverse as Kosovo, Somalia, Yemen, and others. The UN can play a role in encouraging
agreement among local factions that are often at the verge of violent conflict. The UN claims to
respect national ownership of sovereign processes and it emphasizes the role of public
participation. But the UN is bound by its charter to promote adherence to international human
rights and the rule of law. This produces tension between global standards and local cultural
norms.
Normative assessment: a qualified defense of advice
The ideal role of the constitutional advisor is to provide information to local decision-makers, who
will make the final choices about what institutions are appropriate for the local context. But
constitutional drafters bring their own perspectives, and this may sometimes affect the advice.
Constitutions are collective products, not written by single individuals. While outsiders have always
played an important role, the ultimate acts of adoption must be done by insiders with the requisite
political authority. However, the categories used in government tend to be similar across countries:
most countries will adopt a legislature and an executive headed by a president or prime minister,
most will promise their citizens' rights, and most will consider how the national government
interacts with those from lower levels. Once it is recognized that such institutions have already
been used in other countries, it would be irrational to ignore prior experience. The international
community can quickly bring a lot of relevant information, not to dictate choices but to help lay out
options for local drafters. Delegating the gathering of information can save the local drafters a lot
of effort.
Competition for constitutions
In a drafting situation, different actors are competing with each other to influence the final shape of
the constitutional document, just as local political forces compete for advantage in negotiating the
outcome. Each outside actor brings particular strengths and weaknesses. Whereas the UN brings
international legitimacy, bilateral donors bring greater speed. However, bilateral donors bring their
own national interests.
In Europe, the EU has played a role in constraining constitution making. The Venice Commission,
part of the Council of Europe, has played an active role in formulating advice to constitutional
reform efforts. It has expanded its role since allowing the extension of membership by countries
from outside the region. The Venice Commission has the advantage of an association with Europe.
The downside is that it is overwhelmingly composed of senior academics with no social science
expertise, and few have any experience drafting constitutions. The International Institute for
Democracy and Electoral Assistance (IDEA) also developed a specialized program in constitution-
making which focuses on resolving constitutional issues and tailored constitutional advice to
particular drafting situations.
Multiple organizations want to play a role in supporting constitution-making and take credit for the
final nation’s constitution. The claims of foreign individuals to have drafted particular documents
are particularly ironic in the case of Iraq. The Constitution of Iraq reflected a set of compromises
achieved without the participation of one of the major political forces of the country. The lack of a
complete political agreement led to the civil wat of 2005-9. Furthermore, the constitution is an
incomplete document. It postpones major issues – the federal system, the distribution of oil, the
nature of the upper house of parliament – to future laws which have never been passed. No one
would take credit for such a bad piece of work because it ought to be sued for malpractice.
Constitutions are always drafted in collective processes, involving various kinds of expertise. It
requires knowledge of international factors, including the different institutional options that have
been tried in foreign countries and their performance. It also requires local knowledge about what
is politically and culturally possible. Is constitution-making a transnational legal order?
There is very little law that governs the constitution-making process. Some norm entrepreneurs
have sought to assert that there is a right to public participation in the constitution-making
process. Yet no one would really question the idea that a constitution, made without participation
but universally recognized, was in fact a constitution. The international community would prefer a
constitution perfectly congruent with international norms to one that was highly defective but
adopted in a participatory fashion. The legal nature of constitutions means that the TLO definition
is satisfied on this point. Constitution-making as a field is highly fragmented. There is intense
competition in the process. For this reason, constitution-making is treated as a field in which other
TLOs engage.
A transnational actor on a dramatic stage – Sir Ivor Jennings and the manipulation of
Westminster style democracy in Pakistan
The Westminster model was the transnational trend after 1945 in constitution-making for much of
the world emerging from colonial rule. This regime type caused many crises that questioned the
wisdom of applying Westminster to these states. Jennings worked across Asia and Africa. It is
Pakistan, however, that sticks out as Jenning’s most controversial role where he effectively
defended a constitutional coup by the Governor General against the Constituent Assembly in 1954.
