Modelling ‘Optimal’ Constitutional Design for Government Structures

Sunil Khilnani, Vikram Raghavan and Arun K. Thiruvengadam

in Comparative Constitutionalism in South Asia

Published in print December 2012 | ISBN: 9780198081760
Published online January 2013 | e-ISBN: 9780199082360 | DOI:
Modelling ‘Optimal’ Constitutional Design for Government Structures

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This chapter addresses some foundational questions about constitutions and constitutionalism in South Asia. Constitution-makers everywhere are concerned with the best constitutional design; however, that ‘best’ consists in ‘shopping’ around available models and adapting these to their needs and aspirations. The author offers some normative, and history-laden, concerns regarding the eventual mix which is constrained by history interlaced with future-looking aspirations for transformation in each country. The author spells out elements of continuity with colonial constitutionalisms in SACs; compares the discourse of design with the experience of living under constitutions, which often manifests in the languages of constitutional nihilisms; and discusses how the new discourse called ‘constitutional economics’ assists any understanding of original (founding) constitutional choices and subsequent constitutional developments in the languages of economic rationality and rational choice theory. The author also discusses constitutionalism in terms of interestedness of four conflicted keywords: governance, development, justice, and human rights. The author concludes by suggesting that ‘optimal constitutional design’ (OCD) discourse needs to be fully canvassed in relation to the extant SACs since it still carries future prospects for a more empirically-based and comparatively-informed public discussion in different countries of South Asia.

Keywords: comparative constitutional law; South Asia; South Asian constitutions; constitutional nihilisms; optimal constitutional design; OCD discourse; Constitutional transformation

Chapter.  7709 words. 

Subjects: Constitutional and Administrative Law

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