The Law and Legitimacy of Imposed Constitutions

Richard Albert, Xenophon Contiades, Alkmene Fotiadou

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781351038966
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Constitutions are often seen as the product of the free will of a people exercising their constituent power. This, however, is not always the case, particularly when it comes to 'imposed constitutions'. In recent years there has been renewed interest in the idea of imposition in constitutional design, but the literature does not yet provide a comprehensive resource to understand the meanings, causes and consequences of an imposed constitution.

This volume examines the theoretical and practical questions emerging from what scholars have described as an imposed constitution. A diverse group of contributors interrogates the theory, forms and applications of imposed constitutions with the aim of refining our understanding of this variation on constitution-making. Divided into three parts, this book first considers the conceptualization of imposed constitutions, suggesting definitions, or corrections to the definition, of what exactly an imposed constitution is. The contributors then go on to explore the various ways in which constitutions are, and can be, imposed. The collection concludes by considering imposed constitutions that are currently in place in a number of polities worldwide, problematizing the consequences their imposition has caused. Cases are drawn from a broad range of countries with examples at both the national and supranational level.

This book addresses some of the most important issues discussed in contemporary constitutional law: the relationship between constituent and constituted power, the source of constitutional legitimacy, the challenge of foreign and expert intervention and the role of comparative constitutional studies in constitution-making. The volume will be a valuable resource for those interested in the phenomenon of imposed constitutionalism as well as anyone interested in the current trends in the study of comparative constitutional law.

Part I

Theory

1 Imposed constitutions

Heteronomy and (un)amendability

Xenophon Contiades and Alkmene Fotiadou^*

Introduction

Do imposed constitutions exist ‘merely in the mind which contemplates them’?¹ In other words, is constitutional imposition an intangible notion able to provide a specific definition of what an imposed constitution is?

The paradox of ‘imposed constitutionalism’ is that although the argument that ‘the very concept of an ‘imposed’ constitution lacks explanatory or analytical value because it rests upon a false dichotomy between ‘imposed’ and ‘unimposed’ constitutions’² is appealing from a theoretical aspect, the concept of imposed constitutions is deeply imbedded in the history of countries that experienced the making of their constitution as a story of external imposition.³ To begin with, making the distinction between imposing a constitution and imposing constitutionalism is crucial for explaining the recent trend of theoretically deconstructing the concept of imposed constitutions, while at the same time the idea of imposed constitutions is central in the constitutional narratives of several countries. Imposed constitutions and imposed constitutionalism are not the same thing: The notion of the imposed constitution refers to the document whereas imposed constitutionalism refers to principles and values enshrined in the document.

This chapter aims to explore the notion of ‘imposed constitutions’ offering a synthetic approach of different and often competing approaches. It begins by analyzing the imposition continuum. Along the two ends of the imposition continuum (constitutional autonomy and constitutional heteronomy) lie principles and values that are considered to be sine qua non of constitutions, external expert advice, consultation and external involvement that may amount to constitution drafting. The second part probes whether there is such a thing as an uncorrectable birth defect which will inevitably tint future constitutional life. The third part traces different sources of constitutional legitimacy attempting to find the correlations between constitutional imposition, amendability and functionality. The fourth part explores the process of promoting and ‘selling’ a constitution to an audience, which it names constitutional marketing. To do so, it examines the construction of memory during the moment of constitutional enactment and the ways in which this memory impacts how a constitution is perceived in the case the memory of the constituent moment is a memory of imposition. The fifth part addresses the connection between constitutional imposition and constitutional change, arguing that imposition is better understood not by exploring constitution-making but by focusing on constitutional change and amendability. The conceptual lens of constitutional change shifts the focus to the way in which a constitution changes. In that sense, how an imposed constitution can change and how it has changed defines both the way a constitution operates and how it draws legitimacy.

As this chapter delineates the relation between imposed constitutions, constitutional functions and constitutional change, the question emerges of what is more important: the narrative of constituent power or the functionality of a constitution, and how the two interact. The distinction between imposing a constitution and imposing constitutionalism reaches beyond distinguishing the written document and the principles it enshrines. The ‘who, when, how and why’ questions have to be addressed to explain the distinction.

The constitutional imposition continuum

Constitutional imposition is a continuum, not a dichotomy. Constitutions exist along the continuum of imposition, whose poles are constitutional autonomy and constitutional heteronomy. Autonomy as the end of the imposition continuum refers to the collective awareness that ‘society has created its own laws’, an explicit knowledge of self-institution through rules also enabling future alteration.⁴ Heteronomy, regulation by another, is the other end of the continuum. Both, however, entail not only the act of enacting, but also a sense of awareness. Along this continuum lie, thus, not only actions but the perception of these actions as well.

Rules and standards exist along a continuum of discretion where standards may become more rule-like and rules can become more standard-like through application and exceptions.⁵ In a like manner, a heteronomous constitution may move along the continuum through formal and informal change, while autonomous constitutions may also be applied and interpreted in such ways as to lose, or be perceived as having lost, their autonomy.

The notion of ‘another’, which is crucial in the perception of the imposition continuum, also varies in degrees. The crucial distinction appears to be the one between the ‘who’ and the ‘what’. According to Blound, Elkins and Ginsburg, ‘international constraints on constitution-making can range in their intensity and degree of “coordination” ranging from borrowing to imposition’.⁶ Constitutional borrowing and even the involvement of external experts may be the decision of internal constitution makers. Even in case it results from the need to abide by international standards of constitution-making, self-discipline in the exercise of constituent power differs from full-fledged imposition. From that aspect, it might fall into the category of imposition with consent,⁷ in which case the question is whether such consent differentiates the way in which the constitution is perceived.

In case, however, imposition suggests a heterochthonous constitution,⁸ it is crucial to distinguish between an external actor who plays a major part in writing and enacting a constitution, as opposed to external influencers who play a less succinct role. The balance between fact and emotion may determine the placement of a constitution along the imposition continuum.

The question which emerges by placing constitutions along the imposition continuum is whether imposition is so fluid as to render all constitutions imposed to a certain degree and in that sense imposition becomes self-nullified and empty of meaning. If everything is imposed, nothing is truly imposed.

Yaniv Roznai’s analysis pins down four types of internal imposition: generational imposition, majoritarian imposition, elite imposition and judicial imposition.⁹ The constitution-making act always entails a certain degree of imposition as it is meant to bind not only the bearers of constituent power but also others, not only in time present but also in time future. This may indicate two things. Firstly, that internal imposition does not impact constitutional legitimacy to the extent that external imposition does. In that sense, the degree of imposition correlates with the degree of legitimacy loss.

Secondly, imposition (both internal and external) depends on the degree of constitutional rigidity: not only who makes, but also who can change, a constitution matters. Institutional rigidities put in place primarily by formal amendment rules interacting with factual rigidities determine how difficult it is to change constitutions.¹⁰ The degree which something is imposed on someone depends on their ability to alter it. The capacity to change the constitution may negate imposition, or rather remedy its legitimacy flaw. As Rosalind Dixon and Adrienne Stone explain, amendment procedures by providing an ‘ongoing popular ­participation’, ‘confer legitimacy not only on changes to the Constitution’ but ‘also to the ­status quo’.¹¹

Uncorrectable constitutional birth defects

The dark side of the strong symbolic meaning flowing from the constituent power imagery is that it allows infinitely attributing present-time problems to flaws in the past exercise of constituent powers.

Imposition is a memory which is often subject to restructuring, and can be brought back and influence the present at any moment, especially stressful ones. Recent examples are illuminating. During the turmoil in Spain with regard to the possibility of Catalonian secession, the blame game targeted the Constitution. It has been argued that “Historically, the Spanish constitution of 1978 is a product of a transition to democracy and, far from being the result of a deliberation of free and equal citizens, it was negotiated in the shadow of a possible return of Francoist forces, and in particular the possibility of a military coup (a very real threat, as the actual coup d’état in 1981 demonstrated)….A document which, at the time, was accepted by many merely for fear of the alternatives, does not have a particularly strong claim to authority four decades later.”¹² The constitutional emphasis on the unity of Spain and the weak status of the autonomous regions are thus attributed to the faulty constituent moment background. Although the Spanish Constitution is characterized by a high level of rigidity, this analysis is somewhat disquieting. During the financial crisis, a fast-track procedure which took only thirty-two days from the submission of the proposal was used to enshrine the balanced budget rule in the Constitution.¹³ The amendment took place through a fast-track procedure set out in art 166 of the Constitution and was allowed to happen because both dominant parliamentary groups co-operated in the proposal for this amendment. Both parties had requested that the amendment be processed by the emergency procedure and approved in a single reading.

So, the notoriously stringent amending formula allowed even a fast-track process of constitutional change as far as strong consensus existed. A constitutional response to the challenge of the financial crisis, using the symbolic force of the constitution, was possible. How and why then can the Constitution of Spain still be revisited as a product of transition accepted through some sort of psychological coercion and thus be ill-suited to control the secessionist crisis? Why does there appear to be a presumption of irrelevance due to a tainted constituent moment despite the prescribed, and applied when deemed necessary, possibility of constitutional change?

The example of Iceland is even more puzzling. Iceland attracted remarkable attention due to an innovative, experimental participatory process of crowdsourcing constitution-writing. The experiment did not succeed in producing a constitution and yet it triggered a novel debate about alternative ways of constitutional design. The requirement of constitutional reform appeared strong because the Constitution still had the ‘flavour’ of an imposed constitution despite important amendments ...

Table of contents

• Cover
• Half-Title
• Series
• Title
• Copyright
• Contents
• Contributors
• Introduction: Imposition in making and changing constitutions
• PART I Theory
• PART II Forms
• PART III Applications
• Index