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

Richard Albert

University of Texas at Austin - School of Law; University of Toronto - Faculty of Law; Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law

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 Toronto - Faculty of Law ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada

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

Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law ( email )

P.O. Box 167
Herzliya, 46150
Israel

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

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