The Law and Legitimacy of Imposed Constitutions 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, suggest- ing 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 conse- quences 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 vol- ume 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. Richard Albert, William Stamps Farish Professor of Law, The University of Texas at Austin; Co-Editor, Routledge Series on Comparative Constitutional Change; Book Reviews Editor, American Journal of Comparative Law. Xenophon Contiades, Professor of Public Law, Panteion University; Managing Director of the Centre for European Constitutional Law, Athens, Greece; Co-Editor, Routledge Series on Comparative Constitutional Change. Alkmene Fotiadou, Research Fellow, Centre for European Constitutional Law; Co-Editor, Routledge Series on Comparative Constitutional Change. Comparative Constitutional Change Comparative Constitutional Change has developed into a distinct field of constitutional law. It encompasses the study of constitutions through the way they change and covers a wide scope of topics and methodologies. Books in this series include work on developments in the functions of the constitution, the organiza- tion of powers and the protection of rights, as well as research that focuses on for- mal amendment rules and the relation between constituent and constituted power. The series includes comparative approaches along with books that focus on sin- gle jurisdictions, and brings together research monographs and edited collections which allow the expression of different schools of thought. While the focus is pri- marily on law, where relevant the series may also include political science, historical, philosophical and empirical approaches that explore constitutional change. Series editors: Xenophon Contiades is Professor of Public Law, Panteion University, Athens, Greece and Managing Director, Centre for European Constitutional Law, Athens, Greece. Thomas Fleiner is Emeritus Professor of Law at the University of Fribourg, Switzerland. Alkmene Fotiadou is Research Associate at the Centre for European Constitutional Law, Athens. Richard Albert is William Stamps Farish Professor of Law at the University of Texas at Austin. Also in the series: New Challenges to Constitutional Adjudication in Europe A Comparative Perspective Edited by Zoltá n Szente and Fruzsina Gá rdos-Orosz Participatory Constitutional Change The People as Amenders of the Constitution Edited by Xenophon Contiades and Alkmene Fotiadou For more information about this series, please visit: www.routledge.com/ Comparative-Constitutional-Change/book-series/COMPCONST The Law and Legitimacy of Imposed Constitutions Edited by Richard Albert, Xenophon Contiades and Alkmene Fotiadou First published 2019 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 52 Vanderbilt Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2019 selection and editorial matter, Richard Albert, Xenophon Contiades and Alkmene Fotiadou; individual chapters, the contributors The right of Richard Albert, Xenophon Contiades and Alkmene Fotiadou to be identified as the authors of the editorial material, and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data A catalog record has been requested for this book ISBN: 978-1-138-48898-4 (hbk) ISBN: 978-1-351-03898-0 (ebk) Typeset in Galliard by Deanta Global Publishing Services, Chennai, India Contents Contributors vii Introduction: Imposition in making and changing constitutions 1 RICHARD ALBERT, XENOPHON CONTIADES AND ALKMENE FOTIADOU PART I Theory 13 1 Imposed constitutions: Heteronomy and (un)amendability 15 XENOPHON CONTIADES AND ALKMENE FOTIADOU 2 Imposed constitutions and romantic constitutions 34 DAVID S. LAW 3 Internally imposed constitutions 58 YANIV ROZNAI 4 Legal theology in imposed constitutionalism 82 ANTONI ABAT I NINET PART II Forms 101 5 Constitutions imposed with consent? 103 RICHARD ALBERT 6 Are ‘octroyed constitutions’ of the 19th century to be considered as imposed constitutions? 120 JÖRG GERKRATH vi Contents 7 Inter-venire, sed ubi ire?: ‘Imposed’ constitutions, the ‘will’ of ‘the people’, and the eye of the beholder 140 ZORAN OKLOPCIC PART III Applications 173 8 On the priority that Publius gives to national security in constitutional design: Reflections on the longevity of Article 9 of the Japanese Constitution 175 SANFORD LEVINSON 9 The constituent power of the ‘imposed’ Constitution of Japan: An amalgam of internationalised revolutionary power and nationalist devolutionary power 189 YOTA NEGISHI 10 The legitimacy of internationally imposed constitution-making in the context of state building 208 MANON BONNET 11 A post-national legal order: Does the European Union have an imposed constitution? 227 GRAHAM BUTLER 12 Texts in a time of imposition: Lessons from two imposed constitutions in Africa 243 JAMES FOWKES Index 263 Contributors Richard Albert, William Stamps Farish Professor of Law, The University of Texas at Austin Manon Bonnet, PhD candidate in Public Law, Aix-Marseille Univ, Université de Toulon, Univ. Pau & Pays Adour, CNRS, DICE, ILF, Aix-en-Provence, France Graham Butler, Associate Professor of Law, Aarhus University Xenophon Contiades, Professor of Public Law, Panteion University and Managing Director of the Centre for European Constitutional Law, Athens, Greece Alkmene Fotiadou, Research Fellow, Centre for European Constitutional Law James Fowkes, Professor of Foreign and International Law, Westfä lisches Wilhelms-Universitä t Mü nster Jö rg Gerkrath, Professor of Public and European Law, University of Luxembourg David S. Law, Charles Nagel Chair of Constitutional Law and Political Science, Washington University in Saint Louis; Sir Y.K. Pao Chair in Public Law, University of Hong Kong Sanford Levinson, W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law, The University of Texas Law School; Professor of Government, The University of Texas at Austin Yota Negishi, Assistant Professor, Seinan Gakuin University Antoni Abat i Ninet, Professor of Law, University of Copenhagen Zoran Oklopcic, Associate Professor of Law and Legal Studies, Carleton University Yaniv Roznai, Senior Lecturer in Law, The Radzyner Law School, Interdisci- plinary Center Herzliya (IDC) Introduction Imposition in making and changing constitutions Richard Albert*, Xenophon Contiades† and Alkmene Fotiadou‡ In our popular imagination, constitutions are celebrated as the product of the free will of a people exercising their sovereign power. It is taken for granted that modern constitutions are rooted in the consent of the governed, that they reflect a stable settlement among the people and that, as John Locke once wrote, they are the ultimate expression of the voluntary judgment of the people to ‘enter into society to make one people, one body politic, under one supreme government’.1 The most famous phrase in any constitution in the history of the world—‘We the People’, the preambular words that open the door to the United States Constitution—only reinforces this view. And yet it is the rare constitution that springs directly in design and ratifi- cation from the considered judgment of the people themselves. Iceland came close in its failed but fascinating effort to crowdsource its new constitution in 2013.2 Constitutions are more often the product of elite negotiations with no authentic representativeness. They may alternatively be held up as the result of mediated choices made on behalf of or in the name of the people, whether or not the people have in fact been consulted in a meaningful way. It is true, however, that constitutions are increasingly requiring some form of public approval before coming into force.3 Some constitutions can be described as ‘imposed’. Precisely what is meant by imposition, however, can vary. Interrogating what imposition means is one principal purpose of this volume bringing together scholars to probe the law and * William Stamps Farish Professor of Law, The University of Texas at Austin. † Professor of Public Law, Panteion University of Social and Political Sciences. ‡ Research Fellow, Centre for European Constitutional Law. 1 John Locke, Second Treatise of Government (Indianapolis: Hackett Publishing Co, CB MacPherson ed 1980), at 47–48 (§ 89). 2 Hé lè ne Landemore, ‘The Icelandic Experience Challenges the View that Constitutional Process Must be Exclusionary and Secretive’, Democratic Audit UK, July 23, 2014, online: http: //www .demo crati caudi t.com /2014 /07/2 3/the -icel andic -expe rienc e-challeng es-the- vie w-tha t-con stitu tiona l-pro cess- must- be-ex clusi onary -and- secre tive. 3 See Tom Ginsburg, Zachary Elkins & Justin Blount, ‘Does the Process of Constitution- Making Matter?’ (2009) 55 Annual Review of Law and Social Science 23 at 57.