Francesco Romoli, Imaginary Towns


There are various attempts to draw a parallel between the crisis in and over Ukraine and the dissolution of Yugoslavia and more specifically with the constitutional set up of Bosnia and Herzegovina and the possible political outcome in Ukraine. These were or are artificial states, they were or are multi-ethnic, and history has not been on their side – are some of the reasons given to justify these comparisons. Perhaps a simple argument might be useful to see why these comparisons do not make sense.

Misguided geopolitics and artificial states

In fact, the only similarity between former Yugoslavia or Bosnia and Herzegovina (B&H) on one hand and Ukraine on the other is the role of Serbia and Russia respectively in the attempt at territorial extension and in the destruction of their neighbours, what can be called a misguided geopolitics. That of course is no different to many such attempts at territorial expansions.

As for internal reasons for constitutional failure or for constitution building, there are no useful similarities for Ukraine with the balkanisation of Yugoslavia, and, certainly, neither Yugoslavia, in all its incarnations, nor can B&H serve as a model for a constitutional settlement in Ukraine. For two reasons: first, because it is mistaken to believe that ethnic or other types of homogeneity is needed for countries to have constitutions (from the constitutional point of view, all states are artificial) and, second, because B&H does not have (as Yugoslavia did not too) a constitution in the proper sense of that word. In fact, constitutions are the way to deal with deep, comprehensive, and persistent differences and conflicts (Rawls 1971). The key requirement for constitution building is legitimacy, not social or any other homogeneity (Mueller 1996). I elaborate.

Content and procedure

There is the content of a constitution and the procedure of adoption. The content is about protecting individual and collective rights. The procedure has to be legitimate and legitimising. If the latter is not the case, the result are so-called façade constitutions (Max Weber’s Scheinconstitutionalismus, Weber, 1994, 1995). On the former, there are significant differences depending on the understanding of the meaning of rule of law (e.g. Hart, 2012, third edition). In general, legitimacy is constitutive of the rule of law at this basic level.

So, constitutions need to be adopted through a legitimate process, e.g. in a legislative assembly with, as a rule, qualified majority and they are often required to face a referendum (which also may have a qualified majority requirement; USA and UK are different, though not in the substance of the procedure, which has to be legitimate and legitimising).

Constitutions are often adopted to constrain (in earlier history) or rule out autocratic or other types of discretionary power (in post-totalitarian cases). So, taking two examples: Spanish and Yugoslav. In the case of post-Franco Spain, there were elections for the constitutional convention that drew up and adopted the constitution. In Yugoslavia, that did not happen (Gligorov, 1994). The experience of the post-Yugoslav states differs, though constitution-building process has been protracted in most cases.

However, no legitimacy, no constitution – would be the lessen one learns from these examples and experiences.

Constitutions and Peace Settlements

Bosnia and Herzegovina (B&H) stands out because its constitution-making process failed. What came out of the war and the interventions by the neighbouring countries was the internationally imposed constitution as part of the peace settlement. It neither was written by the representatives of the country nor was it put to a referendum or referenda. Legitimacy was not the aim and the content does not protect individual and collective rights.

The whole exercise was arguably in violation of international law and the UN Charter, except that it was approved by the Security Council. Otherwise, it would have presented an instance of foreign interference in the domestic affairs, which is the basic prohibition in the international law (except if the Security Council says otherwise as in this case). This exercise has left B&H without a constitution and even worse without a viable process of constitution building, which is arguably the main obstacle to political stability and economic development of that country.

This is not what can be either expected or recommended for Ukraine. In that respect, if comparisons are to be found in the post-Yugoslav states, it could be compared to Croatia. However, the differences are too large for Croatia to serve as a model for Ukraine. In any case, internationally imposed constitutions for Ukraine are not only undesirable, they are also infeasible.

Natural states and ethnic cleansing

Now, the common misunderstanding is that constitution building often fails, when it fails, because of the lack of ethnic homogeneity e.g. in Bosnia (and previously in Yugoslavia), which then leads to (or is supported by) a general idea (or prejudice) that only homogeneous communities, or societies, that is natural as opposed to artificial states, can have constitutions.

This is in fact inimical to the very idea of constitutionalism. Constitutions in the modern (from Magna Carta onwards) sense are in fact the way to deal with deep, comprehensive, and persistent differences and conflicts. And, not just social and political, but more often than not religious, ideological, ethnic, and moral. Therefore, it is not only what is written in the document that matters, as it does, but also whether legitimate representatives adopted it in a legitimate way, it is not only the content that matters, but the procedure of adoption too (e.g. Buchanan and Tullock, 1961).

If, however, a lessen is needed on why constitutions are instruments of pacification of inevitable social heterogeneity, e.g. an ethnic one, B&H indeed provides a good example (but those are abundant across the world and can be followed in real time so to speak) because if ethic homogeneity is a precondition, ethnic cleansing is needed. Indeed, current Bosnia and Herzegovina is the product of ethnic cleansing on a very large scale, which is the underlying reason why constitutionalism there has been failing, while muti-ethnic Bosnia (pre ethnic-cleansing one) could have been constitutionalised, with democratic legitimising process, save for foreign aggressions (from Serbia and Croatia). Of course, the legitimate, democratic, process of constitution making is still the most desirable and feasible political solution there.[1]

More important is that democratisation has proved to be a precondition for constitutionalism and the introduction of the rule of law as well as for social and economic reforms in European post-totalitarian transitions. So, they clearly exemplify the connection between legitimacy and constitutionalism. The experience in the post-Yugoslav states varies in this respect and lack of legitimacy contributes to the explanation why some of these countries have had difficulties with constitution building.

Democracy First (and Path Dependency)

So, if Ukrainian constitution-building is to be compared to some particular other case, the Spanish one would be a good example not the Yugoslav one or that of B&H. But, of course, there are quite significant number of countries with short duration and multi-ethnic population that have managed the legitimate process of constitution-making. Any post-totalitarian state that managed a legitimate process of constitution building would be a good model.

It would of course make sense to look at the constitutional history of Ukraine, Poland, Lithuania, Sweden, Soviet Union, and Russia among others because constitutional history establishes path-dependency in a rather strong sense. In the Yugoslav case, there is a history of failed or façade constitutions. Primarily because the process of legitimisation of the country failed during its whole history (from 1918 to 1991, Gligorov, 1994)). That, however, is not the case in Ukraine, which is why democratic constitution-making is still the preferred recommendation.


When it comes to the degree of centralisation or decentralisation, i.e. of federalism, that depends on the agreement that could be achieved in the constitutional convention or in the parliament. Most people who give advice in these respect (e.g. Meyerson, 2006) attempt to predict the optimal distribution of internal sovereignty in order to achieve certain desirable goals, whether those are public goods or public services. It is a mistake, however, to believe that those will provide legitimacy and stability and thus sustain the constitutional arrangement. Legitimacy is the input, not the output of the process of constitution building.

Of course, there are various ways to secure legitimacy, but in the case of putting-up a constitution, those boil down to representative republicanism or democracy. Representatives need to be elected to write the document, which then needs to be adopted by the population (referendum). Indeed, in the case of post-social transitions, democracy was the requirement both for constitution-making and the reform process. But, in general, this is the canonical case for constitutionalism and for systemic reforms.

In addition, the process of legitimate federalisation and even dissolution of a state is the same as that of adopting a constitution. Because that is the preferred way to achieve a secession which satisfies the requirements that it will not change the distribution of rights in an unfavourable manner for one or the other minorities, of one type or another, that are bound to exist in the seceding states.


The model for Ukraine is the one that was successfully used in post-totalitarian transitions: democratic legitimacy and constitutional consensus. The Yugoslav and B&H examples are both not applicable and undesirable to follow.


J. Buchanan, G. Tullock (1962), The Calculus of Consent: Logical Foundations of Constitutional Democracy. The University of Michigan Press.

V. Gligorov (1994), Why Do Countries Break Up? The Case of Yugoslavia. Acta universitatis upsaliensis.

V. Gligorov (1997), “Benjamin Constant and Carl Schmitt Go to Russia”, Constitutional Political Economy 8: 271-282.

H. Hart (2012, third edition), The Concept of Law. Oxford University Press.

R. Meyerson (2006), “Federalism and incentives for success of democracy,” Quarterly Journal of Political Science 1: 3-23.

D, Mueller (1996), Constitutional Democracy. Oxford University Press.

J. Rawls (1971), A Theory of Justice. Harvard University Press.

M. Weber (1995), The Russian Revolutions. Ithaca, NY: Cornell University Press.

M. Weber (1994), Political Writings. Cambridge University Press.

Pešč, 24.07.2014.


  1. Theoretically, the fallacy of artificial states is the assumption that one can solve the problem of gerrymandering. It is, however, a corollary of the Arrow Theorem that this is impossible. The point initially taken by Rawls (1971). Clearly, that applies to Ukraine in particular – so there is just no other but the non-B&H process that can be used as a model. Obviously, if sufficient force is applied from outside, as was the case in B&H, the process of democratic legitimisation and constitution building will fail. But not because of ethnic heterogeneity. By the way, the preamble of the Russia 1993 constitution starts with, “We the Multi-ethnic People of Russia.” See Gligorov (1997).

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Vladimir Gligorov (Beograd, 24. septembar 1945 – Beč, 27. oktobar 2022), ekonomista i politikolog. Magistrirao je 1973. u Beogradu, doktorirao 1977. na Kolumbiji u Njujorku. Radio je na Fakultetu političkih nauka i u Institutu ekonomskih nauka u Beogradu, a od 1994. u Bečkom institutu za međunarodne ekonomske studije (wiiw). Ekspert za pitanja tranzicije balkanskih ekonomija. Jedan od 13 osnivača Demokratske stranke 1989. Autor ekonomskog programa Liberalno-demokratske partije (LDP). Njegov otac je bio prvi predsednik Republike Makedonije, Kiro Gligorov. Bio je stalni saradnik Oksford analitike, pisao za Vol strit žurnal i imao redovne kolumne u više medija u jugoistočnoj Evropi. U poslednje dve decenije Vladimir Gligorov je na Peščaniku objavio 1.086 postova, od čega dve knjige ( Talog za koju je dobio nagradu „Desimir Tošić“ za najbolju publicističku knjigu 2010. i Zašto se zemlje raspadaju) i preko 600 tekstova pisanih za nas. Blizu 50 puta je učestvovao u našim radio i video emisijama. Bibliografija