Constitution-making has changed dramatically in recent decades. Compared with constitutional processes in earlier eras, we observe the increasing role of the international community in constitution making, often as part of a broader intervention into a conflict, and increasing penetration of international norms into national contexts. There has also been a trend toward public participation in the process of constitution-making. In addition, constitution making is now iterated over time, with multiple rounds of decision making and bargaining.This chapter draws on the framework of Jon Elster to frame the seven case studies in the volume, drawing toegether themes and trends.

As detailed throughout this volume, assessing the performance of a constitution is a complex and subjective task, and perhaps even an impossible one. Problems include determining the objectives against which performance is to be measured, what can be positively and negatively attributed to the constitution, and what the counter-factual in any given case might be. We focus here on one aspect of constitutional implementation which is crucial to nearly all constitutional stories, and an issue which we often observe as a key practical challenge which does not receive the attention it deserves – that of constitutional transitional provisions (“transitional provisions”).

Transitional provisions provide a series of directions through which the new constitutional regime is established, and the old order is phased out. During this state of “interregnum” between one constitutional order (or in some cases, a lack thereof) and the new order, transitional provisions must cover a series of issues including, inter alia, the establishment of new institutions and reform of continuing institutions; continuity of law and the status of the current law on the books, transitional justice processes and the timing and procedures for the first elections.

The argument that more attention should be paid to the performance of transitional provisions is threefold. Firstly, as mentioned by Ginsburg and Huq in the introductory chapter, transitional provisions provide a “threshold bundle of steps” set forth by a constitution in the process of institutional development. As they rightly observe, these steps are generally methodologically simple to measure, and cannot only reveal how well implementation is progressing, but might also reveal where blockages might lie, and afford an opportunity to address such obstacles.

Secondly, without the establishment of the fundamental building blocks of the new constitutional order, the performance of the constitution in terms of fulfilling its own goals and objectives is immediately subject to question. Cracks in the foundations will more often than not lead to significant challenges in constructing the new house.