venerdì 10 febbraio 2017

Imposed Constitutions with Consent?


Richard Albert 
Boston College - Law School; Yale University - Law School; Universidad Externado de Colombia - Facultad de Derecho; University of Toronto - Faculty of Law; Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law

February 3, 2017

Boston College Law School Legal Studies Research Paper No. 434 

Abstract:      
Can a constitution be imposed with the consent of the peoples on which it is imposed? The conventional understanding of an imposed constitution — a constitution forced upon a people after war or conquest — rejects this possibility because the very nature of an imposed constitution denies that a community of peoples could divest itself of the power of self-determination associated with democratic constitution-making and -changing. Yet beyond contexts of war and conquest, we may consider constitutions to have been imposed also if they reflect some measure of heteronomy. Heteronomous constitutions are created, governed or adapted directly or indirectly by an external actor. This understanding of an imposed constitution accommodates both the conventional view of a constitution written or administered coercively by a victorious power for a vanquished state after war or conquest as well as those domestic constitutions born not of defeat but controlled in some way by an external actor exercising constitution-level decisionmaking authority. In this paper, I identify three categories of heteronomous constitutions imposed with consent — constitutions that are amended, adjudicated and interpreted by others — none quite the paradigmatic model of an indigenous constitution born of and governed by local actors but each one more a function of self-determined choice than a constitution imposed in war or conquest. Recognizing that a constitution can indeed be imposed with consent complicates our understanding of imposed constitutions and forces us to confront the reality that extraterritorial actors can sometimes be invited to occupy a central place in domestic constitutional law.



Keywords: Imposed Constitutions, Heteronomy, Japanese Constitution, Canadian Constitution, Commonwealth Caribbean, South African Constitution, Grenadian Constitution, Caribbean Court of Justice, Constitutional Amendment, Constitution-Making, Patriation, Colonialism, Global Constitutionalism

2 March, 2017 "Counter-terrorism: An Exchange of Ideas and Practices Between China and the EU", Scuola superiore "Sant'Anna", Pisa



Scuola Superiore Sant'Anna, Pisa
2 March 2017
Counter-terrorism: An Exchange of Ideas and Practices
Between China and the EU
Full programme here

15 February 2017, "Is EU Administrative Law Failing in Some of Its Crucial Tasks?", Scuola Sant'Anna, Pisa

STALS (Sant’Anna Legal Studies) seminars
Within the Jean Monnet Module
“Eur. Publ. ius- European Public Law-ius”
(Scuola Sant’Anna, Pisa)
15 February 2017

Edoardo Chiti
(Università della Tuscia)

Is EU Administrative Law Failing in Some of Its
Crucial Tasks?

Discussants
Marta Simoncini
(University of Antwerp- King’s College, London)
Emiliano Frediani
(Scuola Sant’Anna, Pisa)
Giuseppe Martinico
(Scuola Sant’Anna, Pisa)
15 February 2017

Full programme here

24 January 2017 (time: 11.00-13.00), "The application of the Charter of Fundamental Rights to national measures", Scuola Sant'Anna, Pisa

STALS (Sant’Anna Legal Studies) seminars
Within the Jean Monnet Module
“Eur. Publ. ius- European Public Law-ius”

Filippo Fontanelli
(University of Edinburgh)

The application of the Charter of Fundamental Rights to national measures

Full programme here

11 April 2017, 11.00-16.30, "Constitutional Homogeneity and Rule of Law in the European Union: An Interdisciplinary Dialogue"


STALS (Sant’Anna Legal Studies) seminars
Within the Jean Monnet Modules
“Eur. Publ. ius- European Public Law-ius” and “The EU’s Responses to the
Challenges of its Neighborhood”



Constitutional Homogeneity and Rule of Law in the European Union: An Interdisciplinary Dialogue

11 April 2017, 11.00-16.30
Scuola Sant'Anna, Pisa
Aula magna storica

Full programme here