Constitutions Imposed with Consent?

Forthcoming in The Law and Legitimacy of Imposed Constitutions, Richard Albert, Xenophon Contiades and Alkmene Fotiadou eds.

Boston College Law School Legal Studies Research Paper No. 434

15 Pages Posted: 4 Feb 2017 Last revised: 20 Apr 2018

See all articles by Richard Albert

Richard Albert

University of Texas at Austin - School of Law; University of Texas at Austin - Department of Government; Universidad de Especialidades Espíritu Santo; Université Paris II - Panthéon-Assas; Universidad Externado de Colombia - Facultad de Derecho; São Paulo Law School of Fundação Getulio Vargas FGV DIREITO SP; Reichman University - Interdisciplinary Center (IDC) Herzliyah - Harry Radziner School of Law; University of Toronto - Faculty of Law; University of Ottawa - Faculty of Law; Airlangga University; Yale University; Maharashtra National Law University Mumbai

Date Written: February 3, 2017

Abstract

Can a constitution be imposed with the consent of the peoples on which it is imposed? The conventional understanding of an imposed constitution — a constitution forced upon a people after war or conquest — rejects this possibility because the very nature of an imposed constitution denies that a community of peoples could divest itself of the power of self-determination associated with democratic constitution-making and -changing. Yet beyond contexts of war and conquest, we may consider constitutions to have been imposed also if they reflect some measure of heteronomy. Heteronomous constitutions are created, governed or adapted directly or indirectly by an external actor. This understanding of an imposed constitution accommodates both the conventional view of a constitution written or administered coercively by a victorious power for a vanquished state after war or conquest as well as those domestic constitutions born not of defeat but controlled in some way by an external actor exercising constitution-level decisionmaking authority. In this paper, I identify three categories of heteronomous constitutions imposed with consent — constitutions that are amended, adjudicated and interpreted by others — none quite the paradigmatic model of an indigenous constitution born of and governed by local actors but each one more a function of self-determined choice than a constitution imposed in war or conquest. Recognizing that a constitution can indeed be imposed with consent complicates our understanding of imposed constitutions and forces us to confront the reality that extraterritorial actors can sometimes be invited to occupy a central place in domestic constitutional law.

Keywords: Imposed Constitutions, Heteronomy, Japanese Constitution, Canadian Constitution, Commonwealth Caribbean, South African Constitution, Grenadian Constitution, Caribbean Court of Justice, Constitutional Amendment, Constitution-Making, Patriation, Colonialism, Global Constitutionalism

Suggested Citation

Albert, Richard, Constitutions Imposed with Consent? (February 3, 2017). Forthcoming in The Law and Legitimacy of Imposed Constitutions, Richard Albert, Xenophon Contiades and Alkmene Fotiadou eds., Boston College Law School Legal Studies Research Paper No. 434, Available at SSRN: https://ssrn.com/abstract=2911180 or http://dx.doi.org/10.2139/ssrn.2911180

Richard Albert (Contact Author)

University of Texas at Austin - School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States
512.213.1113 (Phone)

HOME PAGE: http://law.utexas.edu/faculty/richard-albert

University of Texas at Austin - Department of Government ( email )

College of Liberal Arts
1 University Station A1800
Austin, TX 78712
United States

Universidad de Especialidades Espíritu Santo ( email )

Facultad de Derecho
Av. Samborondón 5
Samborondón, 092301
Ecuador

HOME PAGE: http://uees.edu.ec/postgrado/postgrado-derecho

Université Paris II - Panthéon-Assas ( email )

12 place du Pantheon
Paris cedex 06, 75231
France

Universidad Externado de Colombia - Facultad de Derecho

Calle 12 # 1-17 este
Calle 12 0 83
Bogota D.C, Cundinamarca 3456
Colombia

HOME PAGE: http://www.uexternado.edu.co/derecho

São Paulo Law School of Fundação Getulio Vargas FGV DIREITO SP

R. Rocha, 233, Bela Vista
São Paulo, 01330-000
Brazil

HOME PAGE: http://direitosp.fgv.br

Reichman University - Interdisciplinary Center (IDC) Herzliyah - Harry Radziner School of Law ( email )

P.O. Box 167
Herzliya, 46150
Israel

HOME PAGE: http://www.idc.ac.il/en/schools/law/pages/home.aspx

University of Toronto - Faculty of Law ( email )

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Toronto, Ontario M5S 2C5
Canada

HOME PAGE: http://www.law.utoronto.ca

University of Ottawa - Faculty of Law ( email )

57 Louis Pasteur Street
Ottawa, Ontario K1N 6N5
Canada

HOME PAGE: http://commonlaw.uottawa.ca

Airlangga University

Dharmawangsa Dalam Selatan
Surabaya, East Java 60286
Indonesia

HOME PAGE: http://www.unair.ac.id

Yale University

493 College St
New Haven, CT CT 06520
United States

Maharashtra National Law University Mumbai ( email )

2nd Floor, CETTM MTNL Building, Technology Street
Hiranandani Gardens, Powai, Mumbai 400076
Maharashtra
India

HOME PAGE: http://mnlumumbai.edu.in/vaf.php

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