Out of the shadows: Illuminating the distinctiveness and exceptional use of interim constitutions

Abstract

Abstract Around the world, interim (temporary) constitutions are enacted as bridges to peace and democracy, expected to deliver fragile societies from conflict and authoritarian rule. Despite their growing use in recent years, their legal examination has to date largely been relegated to liminal spaces in existing bodies of scholarship, which variously conceive of them as constitutions, peace agreements, hybrid constitution-peace agreements, and procedural options in constitution- and peace-building efforts. Are these four understandings accurate and, if not, what do they miss? This article highlights all (proto-)interim constitutions enacted since 1789—more than 150 of them—as well as the historic events that prompted their enactment. It is argued that interim constitutions possess a combination of features that render them legally distinct from other constitutional instruments, as well as peace agreements. It is further demonstrated that interim constitutions are consistently enacted in the context of exceptional factual and legal circumstances, thereby disrupting ten assumptions in the state of the art regarding their purposes and optional use. It is concluded that understanding the legal distinctiveness and exceptional use of interim constitutions is essential for understanding what they are, why they are enacted, and whether they perform “successfully.”