National Consensus of Talahara

Supreme Consensus of Talahara ⵜⵉⴼⴰⵇⴰⴽⵔⴰⴷ ⵏ'ⵜⴰⵍⴰⵀⴰⵔⴰ Tifaqakrad N'Talahara
Jurisdiction	Talahara
Created	May 9, 1841
Date effective	June 20, 1841
System	Directorial council republic
Branches	3
Chambers	Supreme Legislative Council Regional Legislative Councils (50) Communal Legislative Councils (1,250)
Executive	Executive Council
Judiciary	Supreme Judicial Council Regional Judicial Councils (50) Communal Judicial Councils (1,250)
First legislature	June 30, 1841
Amendments	4
Last amended	February 14, 2008
Commissioned by	Commune Council

The Supreme Consensus of Talahara (Takelat: ⵜⵉⴼⴰⵇⴰⴽⵔⴰⴷ ⵏ'ⵜⴰⵍⴰⵀⴰⵔⴰ; Tifaqakrad N'Talahara) is the constitution of the Communes of Talahara. Drafted over a period of three years between 1838 and 1841, the first two parts of the Supreme Consensus enshrined the rights and freedoms of all persons in Talahara, in addition to democratic and property rights. Part three of the Supreme Consensus was completed later in 1841 and codified the roles of the three branches of government and divisions of power between national, regional, and communal levels of government.

Both laws created by the Legislative Councils of Talahara and the executive functions of government must abide by the protections and limitations enshrined by the Supreme Consensus. Constitutional principles are also used alongside Talaharan customary legal principles to interpret laws.

The Supreme Consensus has been amended a total of four times. These amendments include the addition of the third part, electoral reform, and the addition of new rights and protections. Constitutional amendments require the passage of a provision by a two-thirds supermajority in the Supreme Legislative Council (34 of 50 members) and subsequent ratification by a two-thirds supermajority by the membership of the 1,250 Communal Legislative Councils in Talahara (8,334 of 12,500 members).

History of the Constitution

The drafting of the Supreme Consensus of Talahara represented the culmination of Talahara's legal history. The drafting committee drew inspiration from numerous sources, including traditional Talaharan laws and traditions, liberal legal principles, and socialist theory. The actual process of drafting the document was contentious, with major debates over the question of which influences were legitimate and functional for the new anarchist society and to what degree of importance each source ought to have.

Sources and values

The law of the Communes of Talahara developed from a long history of legal tradition which drew on numerous sources to develop a relatively complex code. In the early-modern era, the traditional legal system of Talahara was rapidly altered by liberal capitalist developments which, although rejected in theory by the central government, came to be adopted and pressed into usage by the growing merchant class. In turn, liberal capitalist legal theories instigated early socialist opposition, championed by theorists who rejected the liberal notion of individualistic equality in favour of social organization to develop a more equitable society. Talaharan socialists also drew inspiration from legal and social systems in Norumbia.

Pre-war law

Prior to the Talaharan Civil War, Talaharan law was derived from two main sources. The first source was the customary law of the Kel Aman and Kel Hadar clans. These customs informed and regulated social conduct and property relationships. The second source of law was the notion of natural law, which was promoted by the monarchs, including the Assembly of Chiefs. Talaharan interpretations of natural law described law and society as expressions of the natural order, distinct from the cultural importance of customary laws.

Talaharan scholars in discussion, c. 1755

Natural law encompassed royal edicts, laws that were effectively created or rescinded by a monarch. These proclamations were described as "discoveries" or "corrections", respectively. Modern sociologists have likened the distinctions between customary and natural law in Talahara as reflecting proto-symbolic interactionist and structural functionalist perspectives on the law. Ultimately, customary and natural laws were rejected as legitimate sources for the Supreme Consensus. However, customary and natural laws continue to inform non-legal traditions and social mores. Customary law also developed traditions that, while unwritten in the Supreme Consensus, have informed its interpretation in addition to concepts of fundamental justice.

The next major legal-political theory to reach Talahara was liberalism. Talaharan liberalism emerged alongside industrialization and the rise of the merchant class which embraced this ideology. Liberalism posited that all humans were equal and should have the right to conduct themselves freely insofar as they do not impugn the rights of others. In Talahara, two different strains of liberalism emerged: one that saw a liberal world as a discovery of natural law and one that saw a liberal world as a human creation independent of the natural world.

Liberal theory developed two major concepts in Talaharan law, despite being rejected by the monarchs of the Third Talaharan Kingdom in principle. The first major concept was fundamental equality and the rejection of the social ordering of the clans in favour of universal opportunities and equality before the law for all peoples. The second major concept was freedom of contract which in turn developed into a concept of security of the person. Freedom of contract was promoted by merchants as a justification for rejecting the limited tariffs enforced by government, for overturning usufruct relationships in favour of wage labour, and for the power to bind any person to contracted obligations regardless of the socio-political order.

Socialist theory

Six Awasin elders, c. 1820

The 18th century school of Talaharan socialism developed from the anti-naturalist liberal school and the experiences of commoners under the imposition of contractual relationships and wage labour. As the anti-naturalists posited that universal equality and, essentially, human rights were not natural but rather constructed for the amelioration of the human condition, a large division of these theorists found the conditions of liberalism iniquitous. Exploitation under contracts and existing wealth disparities ultimately failed to emancipate the vast lower classes from poverty and squalor.

The concerned anti-naturalist academics found common group with political organizers in the lower classes. Together, these two groups founded the constitutional mutualist school of economic and political thought. This anarchistic ideology rejected exploitation under capitalism and the freedom of contract in favour of mechanisms of social organization and usufruct. In addition to founding the main social, legal, and political traditions of the Communes of Talahara, the constitutional mutualist school posited the necessity of legal constructions to ameliorate the human condition, paving the way for a written constitution.

In the early 19th century, Talaharan mutualists, including Mass Ziri Akli began to draw on the political and legal structures of Norumbian nations for inspiration, particularly in the Osawanon region. Many of these nations and confederations were exemplars for industrialized usufruct exchange and government by social consent. Despite this, Talaharan visitors to Norumbia criticized aspects of Osawanon society, including the retention of semi-hereditary roles in governance and justice. Nevertheless, the Norumbian journeys of Talaharan mutualists directly influenced the system of participatory council democracy codified in the Supreme Consensus.

Drafting process

In 1838, the Liberal Republicans were defeated in the Talaharan Civil War. The Commune Council, a representative and nebulous body that had acted as a forum for the various anarchist factions during the war, convened to declare victory on June 20 which was thereafter recognized as the official independence date of the Communes of Talahara. The June 20 convention led to the commissioning of a new constitution that would enshrine the rights and functioning of an equitable, socialist society. In furtherance of this goal, a committee of scholarly and experienced politicians and ideologues was commissioned with the drafting process and given a period of four years to complete the process of consulting, drafting, and receiving assent for a new constitution.

Mass Ziri Akli, ideologue and political leader, 1860

The drafting committee did not start from scratch, however, as numerous ideas and drafts of an ideal constitution had circulated among anarchist groups even before the war. The majority of the committee's work between 1838 and 1840 was in consulting and negotiating with various groups within the Communes of Talahara. Consensus on the subject of rights and freedoms formed Part I of what became known as the Supreme Consensus, which was effectively completed to the satisfaction of the Communes in February 1840.

The drafting of the democratic processes and property reform proved more contentious. The question of the necessity of an executive branch was also a concern. The initial theory was that the nested councils could assent to their own charters, with any regional or national representation serving merely as a forum for cooperative efforts and discussions. In the course of their consultations, however, the drafting committee had concluded that a unified structure and an independent executive, albeit heavily restrained, would be desirable for the sake of foreign relations and national security. This executive would take the form of ten representatives who were popularly elected independent of the nested councils, but their role remained undefined. These elements were ultimately incorporated into Part II of the Supreme Consensus which was completed in mid-1841. The Commune Council assented to the completed two-part document and called for elections on the third anniversary of their independence.

Part III of the Supreme Consensus was initially not contemplated as a necessity by the Commune Council. Furthermore, industrialization and concerns regarding what developments the future might bring had pressured a significant portion of the population toward some semblance of a central authority. The question of an executive was considered by Part II of the Supreme Consensus but the actual role remained minimally understood within codified law. The drafting committee was effectively divided on the issue, with a large faction believing that the Executive Council needed only to be convened in states of emergency to act with power granted directly by the Supreme Legislative Council. The other main faction of the committee called for a permanent executive with specific mandates, functions, and checks.

The solution that both factions arrived at was to create the institution as a shell, allow for the first elections to proceed, and defer the solution to the newly elected councils to decide by process of amendment as described in Part II. The Supreme Legislative Council nominated a second drafting committee to draft Part III of the Supreme Consensus, effectively siding with the permanent executive faction with their mandate. Part III was completed by October 1841 and ratified by the Supreme Legislative Councils and the membership of the Communal Legislative Councils two months later.

Structure and content

Part I

Part I of the Supreme Consensus, commonly known as the Canon of Rights (Takelat: Qanun N'Ihuquqan; ⵇⴰⵏⵓⵏ ⵏ'ⵉⵀⵓⵇⵓⵇⴰⵏ), contains 55 sections on the rights and freedoms of Talaharans which are divided between five chapters. The first three chapters cover democratic, legal, and equality rights. These are typically referred to as "fundamental rights" and include rights to vote, the presumption of innocence before the law, the right to expression, and the prohibition of discrimination against minorities. The fourth chapter covers sections and subsections on bodily autonomy which were added by a constitutional amendment in the 1909 which abolished capital punishment and guaranteed the right to abortion. Chapter five covers social and industrial rights as well as usufruct rights.

Part II

Part II of the Supreme Consensus, commonly referred to as the Canon of Processes (Takelat: Qanun N'Išaɣalan; ⵇⴰⵏⵓⵏ ⵏ'ⵉⵛⴰⵖⴰⵍⴰⵏ), contains 71 sections divided among six chapters. The first five chapters govern the functioning of elections for the legislative councils, the Executive Council, and the levels of judicial councils. Chapter six outlines the processes for the establishment of property in common and the equitable distribution of personal property.

Part III

Part III of the Supreme Consensus, commonly referred to as the Canon of Governance (Takelat: Qanun N'Imaxazan; ⵇⴰⵏⵓⵏ ⵏ'ⵉⵎⴰⵅⴰⵣⴰⵏ), contains 115 sections explaining the jurisdiction of each branch and level of government. Each branch is afforded its own chapter for a total of three chapters. Part III establishes the supremacy of the communal councils, voluntary upward devolution, the portfolios of the executive, and the specific jurisdictions of each level of the judicial councils.

Interpretation

The process of interpreting the Supreme Consensus is governed by four main principles: societal adaptivity, consistency of textual purpose and application, social effect, and democratic primacy. Each of these three principles is informed by Talaharan customary law and implicit expressions of the socialist character of the document. Unlike many other jurisdictions, the constitutionality of legislation is rarely considered on the basis of legislative intent or purpose. In addition, the judiciary is supposed to act to interpret the applicability of legislation with regard to specific freedoms and protections, rather than to check legislative power altogether. As such, Talaharan lacks a concept of constitutional validity beyond issues of jurisdiction. The judiciary is only able to determine ultimate applicability.

The chambers of the Supreme Judicial Council since 2012

Societal adaptivity is a principle that reflects social and political changes wrought by time and new technologies. As a general principle, the interpretation of laws and the constitution should change in accordance with the demands and context of present society. As such, older laws and interpretations may no longer be applicable to the present if a considerable, tangible change has taken place in the intervening time. Societal adaptivity is limited to the extent that the socialist values of the Supreme Consensus must be preserved as a principle of legal consistency. As such, the development of capitalistic economic activities could never alter usufruct rights and obligations.

Consistency of textual purpose and application, often referred to simply as legal consistency, is derived from Talaharan customary law as a principle of fundamental justice. It holds that laws should be consistent in their application across different persons, groups, or times; equitable in their effects; and hold true to the written instruction of a law or constitutional provision. Legal consistency demands that laws of a similar form and written purpose should affect people in similar manners. For example, crimes of a certain nature cannot have wildly different punishments for minor variations. Legal consistency has also been interpreted to include proportionality, such that minor infractions can only incur minor sanctions.

The principle of social effect implies that laws should not be created or applied to persons solely as individuals, but that community and social impacts must be considered as well. Wherein an individual sanction could ultimately harm a community, the benefits of the sanction must thus be weighed against broader impacts. The principle of social effect has been cited frequently against sanctions such as incarceration or capital punishment. It was also one of the main reasons cited by the Supreme Legislative Council when prostitution was made illegal and it has also been cited by numerous Communal Legislative Councils that have banned other forms of sex work.

Democratic primacy is the final major principle of constitutional interpretation in the Communes of Talahara. Democratic primacy holds that the democratic process and the popular will must be paramount considerations in the interpretation of any law or part of the constitution. This is distinct from legislative intent as the democratic will for a provision is based on apparent favour for the text of the provision. While effectively the foremost principle of constitutional interpretation, democratic primacy can be displaced if there is significant concern regarding other principles of interpretation or if the democratic intent is directly contrary to a constitutional provision, as the Supreme Consensus stands as the supreme, democratic law in the Communes of Talahara.

Saving provision

The Supreme Consensus guarantees all aforementioned rights to all persons within the jurisdiction of the Communes of Talahara subject only to limits that are justifiable for the preservation of a democratic, equitable, free, and just socialist polity.

— § 55, Pt. I of the Supreme Consensus

The definition of "justifiable limits" was the cause of considerable consternation for Talaharan lawmakers and jurists in the early 20th century. In 1941, the Supreme Legislative Council passed Law 691.6.35, a provision defining "justifiable limits" as "measures which minimally impair the rights of Talaharans, are necessary for reasons of national defense, and effect the purpose of the Supreme Consensus". The effect of this law, which was not passed as a constitutional amendment, has been accepted as a legitimate expression of justifiable limits which have been defined by the democratic process. However, as it stands as a simple legislative provision, it could be revoked in the future leading to a possible crisis of interpretation. Two major camps have developed on this issue. One suggests that the present definition should be enshrined in the Supreme Consensus while the other believes that the current definition should be revoked and the matter should be defined by the Supreme Judicial Council, with possible revisions accommodating any necessary changes in accordance with the principle of societal adaptivity.

A secondary issue presented by Law 691.6.35 is that it specifies Talaharans as the only group whose rights are necessary to protect while the saving provision of the Supreme Consensus guarantees rights to all persons in Talaharan jurisdiction. In effect, this has created situations in which non-Talaharans in Talahara have not been granted the same protections as citizens, particularly regarding freedom of movement. Some advocates claim that revoking the existing definition would alleviate this issue, leaving only the original wording of the saving provision to guide the judiciary. Some lawmakers and jurists who are in favour of retaining Law 691.6.35 have instead argued that the wording should be revised to match the wording of the saving provision, while others are content to retain the status quo.

Challenges and amendments

In the more than 180 years since the drafting of the Supreme Consensus, numerous challenges and amendments have been made to the document. Four such amendments have been made, including the addition of Part III. Two of the three others led to alterations to electoral processes in the Communes of Talahara codified in Part II. The other provided specific protections for matters of bodily autonomy which were determined to not have been captured under the existing language of Part I.

Amendment of 1895

In 1895, the Communes of Talahara were faced with a constitutional crisis. The borders of communes and regional divisions had been determined over half a century prior according to traditional administrative divisions, clan claims, and the territory held by revolutionary organizations during the Talaharan Civil War. Demographic exchange and expansion across the Communes over five decades had led to significant population disparities between communes and regions. However, the size of the Legislative Councils and their composition remained constant between polities. As such, larger communes had far less representation in the upper legislatures compared to smaller communes.

This issue led to a legal challenge originating in the Commune of Mestaɣanim which claimed that the lack of a representation clause in Part II of the Supreme Consensus was, in itself, contrary to constitutional values. The challenge was opposed by judicial representatives from many of the smaller communes who argued that representation between communes was unnecessary as the communes themselves effectively conducted themselves as countries between countries, united in a forum to facilitate cooperation and economic exchange. The Supreme Judicial Council dismissed the Commune of Mestaɣanim's complaint in early 1895, but this decision provoked an outcry across Talahara. For the next six months, the discourse on representation shifted to a question of whether Talahara constituted a union of communes or a single nation.

The agitation provoked the largest number of recalled representatives outside of a general election in the Communes's history. By the end of the year, the Supreme Legislative Council and the Communal Legislative Councils had drafted and passed Law X645.5 The new law amended Part II of the Supreme Consensus to abolish the borders of existing communes and regions, instead agglomerating regions based on population, such that communes had equal weight in regional and national councils. The law also lowered the voting age from 22 to 18 and introduced instant runoff voting; both of which were long-debated issues prior to the 1895 crisis.

Amendment of 1910

The second constitutional amendment to the Supreme Consensus was passed in the Spring of 1909, with the effect of enshrining the right to individual bodily autonomy and thereby legalizing abortion in any medically practical circumstance as well as formally abolishing capital punishment. As a principle of Talaharan customary law, the abortion of an embryo or a fetus prior to the quickening (as early as 15 weeks or as late as 20 weeks) carried no sanction. With pharmaceutical advancements in safer abortifacients, the Union of Physicians and Surgeons recommended the medically administration of abortions to ensure the health and safety of patients. The Union's practice standards abided by the traditional limit of aborting pre-quickening pregnancies, but the legal status of post-quickening abortions was undefined by statute in any commune.

In 1904, a woman obtained an abortion from a doctor in Weskera approximately 22 weeks into her pregnancy. Both the woman and the doctor had their identities sealed due to the sensitivity of the matter. News of the procedure leaked to the public and a criminal investigation was launched, culminating in the indictment of both the woman and the doctor. None of the facts of the case were disputed and the doctor insistent that they and other medical professionals had frequently prescribed abortifacients for patients who were pregnant for as long as 24 weeks. The case ultimately turned on the question of whether abortion beyond quickening was illegal under Talaharan customary law or if the Supreme Consensus guaranteed the right for patients to choose.

The Weskeran officers who brought the case forward had two major arguments. Firstly, in the absence of contrary constitutional or legislative indications, the customary laws of the Kel Aman and Kel Hadar could stand as legitimate criminal laws. Secondly, the law on pregnancy must be regarded under the constitutional principle of social effect, meaning that pregnancy cannot be understood as an individualistic process before the law.

Advocates and support groups for the woman and the doctor alleged that, with no guarantee that custom abides by the socialist values of the Supreme Consensus, direct criminal provisions could not be drawn from customary law, especially where sanctions would be serious. Secondly, the application of the principle of social effect was misplaced as there was no identifiable social group that would be impacted aside from the mother and the fetus. Pro-choice legal advocates also emphasized the guarantee of equality rights, noting that, even assuming the living status of a fetus, placing a special obligation on women alone to sustain another life would be iniquitous. This was contrasted by a historical lack of any similar obligation for able-bodied men to sustain life, such as through blood transfusions or teeth or tissue donations.

The initial 1904 case was further complicated when it became entwined with a broader debate on the capacity of the state to impose upon the people. The execution of a murderer in 1905, a rare sanction even at the time, provoked some discussion on whether the state ought to have the right to impose conditions the bodily integrity of a person. Anti-execution advocates argued that the state should not have such power and pro-choice advocates similarly argued that the state had no right to impose an obligation on a person to subject their bodies to a fundamentally onerous condition for an extended period of time, especially considering the real risks that pregnancy and childbirth could carry.

In 1909, the Supreme Judicial Council deadlocked five-to-five on the case and deferred the matter to the Supreme Legislative Council. In response, the Legislative Council began deliberations in earnest and began drafting a legislative solution which, after over a year of discussions and considerable representative turnover, resulted in the passing of Law X660.6 to amend the Supreme Consensus, adding a guarantee of bodily integrity and bodily autonomy to the Canon of Rights.

See also

• Executive Council
• Supreme Legislative Council