Societal culture and constitutions

Culture is a complex concept, on which there is a huge literature. The Concept Note for the Forum deliberately cast the definition widely, to cover a broad range of assumptions, influences and practices. Drawing on Roger Cotterrell, it identified four components of culture, which illustrate a possible range:

• Beliefs and ultimate values (deriving from, for example, religion or ideological commitment)
• Inherited traditions (including shared historical experience, legal system)
• Material factors (the impact of, for example, levels of economic development, geography)
• Emotional attachments or rejections (for example, strong feelings about identity).

These components were not intended to be definitive, but to provide a starting point for participants in thinking about the impact of culture on constitution building.

The Concept Note also anticipated some of the properties of culture, which make it such a challenging idea to explore. Culture may be deeply influential where it is engrained in the life of a community. It is neither static nor monolithic, however. It evolves naturally over time, in response to changing conditions. It may deliberately be shaped, for example, by new constitutional arrangements. In the current era of globalisation, cultural evolution may be more rapid than ever. What culture involves and whether or not change is required or has taken place may be contested within communities, presenting yet another dynamic for constitution building to take into account. Culture is not necessarily determinative of particular outcomes but is relevant in constitution building to the extent that it shapes the way in which people think about the issues and options at stake.

From the standpoint of constitution building, culture may be positive, negative or neutral. Many aspects of culture provide useful building blocks for a constitution building process or for the constitutional changes that are made. Where culture is the cause of deep division or violent conflict, however, this needs to be tackled in both the process and substance of constitution building, in order to build cohesive communities. Where culture is invoked to justify or excuse discriminatory or other practices inconsistent with international norms or sustainable peace, this needs to be tackled as well. These difficulties may be heightened if constitution building provides a catalyst for the revival of cultural claims, selectively drawing on history, religion or tradition.  The challenge for constitution building is to determine how the benefits of culture can be maximised and how any difficulties may be managed.

Three case studies were presented in support of this session's theme, from Tuvalu, Vietnam, and Thailand. The case studies explored the following questions:

• How does culture (values, tradition, material factors and emotional attachments) affect choices about constitution making process and the substance of constitutional change?
• Who makes claims to culture? How is culture used to further a constitution building project? Can the concept of culture be misused or abused in this context?
• How do concepts of culture intersect with other more specific identity issues such as religion, gender and socio‐economic status?
• Do aspects of culture provide points of constitutional continuity? If so, how?
• What impact does constitution building have on the evolution of culture within communities?

• In what ways is culture reflected in the substance of a Constitution, including constitutional text? What are the implications (both positive and negative) of this, for example for local ownership, national identity, constitutional interpretation? Where culture is not reflected in the substance of a Constitution, how do the two co‐exist?
• What are the implications of culture for (i) inclusive constitution building processes and (ii) the effectiveness of external assistance?

Case studies:

• Vietnam: Dr Bui Ngoc Son
• Thailand: Ms Eugénie Mérieau
• Tuvalu: Ms Eselealofa Apinelu