Imposed Constitutions and Romantic Constitutions

The Law and Legitimacy of Imposed Constitutions (Albert, Contiades & Fotiadou eds., Routledge 2018 Forthcoming)

Washington University in St. Louis Legal Studies Research Paper No. 18-05-01

University of Hong Kong Faculty of Law Research Paper No. 2019/002

24 Pages Posted: 26 May 2018 Last revised: 13 Feb 2019

See all articles by David S. Law

David S. Law

The University of Hong Kong - Faculty of Law; University of California, Irvine School of Law

Date Written: May 24, 2018

Abstract

The concept of an “imposed constitution” implies a false dichotomy between “imposed” and “unimposed” constitutions. Constitution-making routinely implicates multiple authors, constituencies, and narratives in a process that is part negotiation, part dialectic, and part coercion. This multiplicity of participants and processes renders the distinction between “imposed” and “unimposed” constitutions highly arbitrary. On the one hand, even an ostensibly imposed constitution can reflect a considerable measure of local input and influence. On the other hand, elements of imposition and alienation are arguably endemic to all constitutions, regardless of how or where they are authored. The result is a concept that is incoherent and unstable. The problem is not simply that scholars cannot agree on a definition, or that there are competing definitions, but rather that the concept cannot be defined and applied in a logical and consistent manner.

The function performed by the concept is not analytical or descriptive, but rhetorical. The “imposed constitution” label is a standard trope of delegitimating narratives: it is employed as part of a narrative about why a particular constitution is undeserving of acceptance, affinity, or allegiance. To condemn a constitution by casting aspersions upon its parentage is to employ, in a literal sense, a constitutional slur. The “imposed constitution” label possesses this pejorative power by dint of an inarticulate, widely shared, and descriptively inaccurate romanticization of what constitutions are and how they are created. But the reality is that the complex politics surrounding constitution-making cannot be reduced to a simple dichotomy between “imposed” and “unimposed” constitutions.

For descriptive or analytical as opposed to rhetorical purposes, the distinction that needs to be drawn is not between “imposed” and “unimposed” constitutions, but rather between constitutions that benefit from a romanticizing narrative and those that do not. Some of the stories that we tell about constitutions are flattering; others are not. When the narrative surrounding the origins or character of a constitution does not fit our idealized notions of how constitutions are supposed to be made or what they are supposed to do, the result might be called an “unromantic constitution”. Conversely, when the prevailing narrative depicts the constitution as local and consensual in origin and character, the result might be called a “romantic constitution.” These narratives tend to be reductive, if not also unrealistic. But the point of constitutional narrative—whether of the romanticizing or delegitimating variety—is myth-making and political persuasion, not descriptive accuracy.

Keywords: imposed constitution, romantic constitution, romanticized constitution, constitutional narrative, Japan, Taiwan, China, Malaysia, Norway, Civil War, autochthonous, constitutional autochthony, citizenship, liberal theory

JEL Classification: K00

Suggested Citation

Law, David S., Imposed Constitutions and Romantic Constitutions (May 24, 2018). The Law and Legitimacy of Imposed Constitutions (Albert, Contiades & Fotiadou eds., Routledge 2018 Forthcoming); Washington University in St. Louis Legal Studies Research Paper No. 18-05-01; University of Hong Kong Faculty of Law Research Paper No. 2019/002. Available at SSRN: https://ssrn.com/abstract=3184157

David S. Law (Contact Author)

The University of Hong Kong - Faculty of Law ( email )

Pokfulam Road
Hong Kong, Hong Kong
China

HOME PAGE: http://www.davidlaw.ca

University of California, Irvine School of Law ( email )

401 E. Peltason Dr.
Ste. 1000
Irvine, CA 92697-1000
United States

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