Internally imposed constitutions

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’). As 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.