The Law and Legitimacy of Imposed Constitutions最新文献

{"title":"Imposed constitutions and romantic constitutions","authors":"David S. Law","doi":"10.4324/9781351038980-3","DOIUrl":"https://doi.org/10.4324/9781351038980-3","url":null,"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.","PeriodicalId":196337,"journal":{"name":"The Law and Legitimacy of Imposed Constitutions","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-05-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129418352","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Internally imposed constitutions","authors":"Yaniv Roznai","doi":"10.4324/9781351038980-4","DOIUrl":"https://doi.org/10.4324/9781351038980-4","url":null,"abstract":"This Chapter seeks to challenge the ‘imposed constitutionalism’ debate by providing a critical view of the objections toward ‘externally imposed constitutions’. Whereas constitutional literature has so far focused on constitutions that were imposed from outsiders such as occupying powers, strictly speaking, there is nothing necessarily foreign or external that characterizes the notion of imposed constitutions. While some constitutions were externally imposed, for instance after armed conflicts by the victorious parties or under occupation, all constitutions are internally imposed or at the very least have some elements of imposition. Thus, the basic argument of this chapter is that there are many ways and degrees of impositions and all constitutions can be considered as imposed to some extent, i.e. have some characteristics of imposition. If this is the case, then the objections to externally imposed constitutions are overrated. When considering imposed constitutionalism, one has to consider the degree of imposition in addition to the source of imposition (external/internal). After reviewing the common external element in imposed constitutionalism debate, the Chapter provides a typology of internally imposed constitutions. It analyzes four types of internally imposed constitutions: ‘Old’ constitutions by which past generations impose the constitution on current and future generations (‘Generational Imposition’); constitution-making processes in which the majority imposes upon a minority its values (‘Majoritarian Imposition’); constitution-making processes that are elite-driven in which an elite group imposes the constitution upon the rest (‘Elite Imposition’); and a constitution-making process that is judicially driven (‘Judicially Imposed’). \u0000As both external and internal sources of constitutions carry elements of imposition, this Chapter calls for a shift in focus. Instead of focusing exclusively on the source of the imposition, it is more useful to ask ourselves which factors should weigh in when evaluating constitutional imposition. For example, we must consider the extent or degree of the imposition, and not only at the time of the promulgation or adoption of the constitution but in light of the constitutional mechanisms that can hinder or facilitate constitutional change and adaptation. In other words, imposed constitutionalism is a matter of degree not of a kind. We need to extend our focus to the extent to which constitutional norms are binding upon us, to what extent these correspond with society’s values, and to what extent can the people amend and reform the constitution in a self-conscious manner if so they wish.","PeriodicalId":196337,"journal":{"name":"The Law and Legitimacy of Imposed Constitutions","volume":"23 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-03-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132725375","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}