Legal theology in imposed constitutionalism

TY - CHAP

T1 - Legal theology in imposed constitutionalism

AU - Abat Ninet, Antoni

PY - 2018

Y1 - 2018

N2 - The focus of this paper is the question of legitimacy, and how can we consider legitimate an imposed constitution and the subsequent constitutional principles, practices and values that go hand-in-hand with the legal and political acculturation. Constitutional texts around the world are good examples of transposition and complicity of theological and juridical thoughts. For the purpose of this paper, imposed constitutions are political and legal norms of a state enacted and enforced without the free and full agreement of the Demos. Legal theology implies the application of religious phenomena, theories and concepts to achieve undisputed legal legitimacy. Imposed constitutions as rules imposed for salvation for those “Platonic Philosophes” who have seen the “light”, that known the episteme are paramount examples of legal and political theology. The paper has two main sections. The first one is devoted to a fictitious example, the failure of Rawls´ pretended state (Kazanistan) and how the international military intervention, transition to democracy and foreign imposed constitution fits with theological experiences of “apocalypses, the coming, redemption and expiation”. The second section discusses both the imposition of a constitution and constitutionalism. The examples that the drafters of the Kazanistan´s constitution analysed are “successful” imposed texts such as in Germany and Japan, where both constitutions were made by elites under the humiliating supervision of foreign occupiers, and more concretely, by military conquerors. “Unsuccessful” examples are those of Iraq, Timor, Somalia and Afghanistan, states or failed states unable to enforce laws and to use legitimate force over their populations. The comparative analysis aims to obtain valid inputs for the imposed constitutional text. On the theme of imposed constitutionalism, the paper reflects on; the inconsistency of the idealistic discourse that permeates a constitutional text; the inability of an imposed text to be enveloped by principles that reflect the nation’s fundamental concepts; and finally, the denaturalisation of the understanding of a constitution as the juridification of the People or Nation. Related to the topic of imposed constitutionalism, the paper focuses on the systemic inconsistencies that imposed constitutionalism generates, such as the unviability of the idea of an implicit constitutional text (invisible ink of the norm); the impossibility of “original” or “purposive” interpretations of the constitution, the impossibility to accommodate aspirational principles, the denial of the right of self-determination and other dysfunctionalities related to the interpretation of an imposed text.

AB - The focus of this paper is the question of legitimacy, and how can we consider legitimate an imposed constitution and the subsequent constitutional principles, practices and values that go hand-in-hand with the legal and political acculturation. Constitutional texts around the world are good examples of transposition and complicity of theological and juridical thoughts. For the purpose of this paper, imposed constitutions are political and legal norms of a state enacted and enforced without the free and full agreement of the Demos. Legal theology implies the application of religious phenomena, theories and concepts to achieve undisputed legal legitimacy. Imposed constitutions as rules imposed for salvation for those “Platonic Philosophes” who have seen the “light”, that known the episteme are paramount examples of legal and political theology. The paper has two main sections. The first one is devoted to a fictitious example, the failure of Rawls´ pretended state (Kazanistan) and how the international military intervention, transition to democracy and foreign imposed constitution fits with theological experiences of “apocalypses, the coming, redemption and expiation”. The second section discusses both the imposition of a constitution and constitutionalism. The examples that the drafters of the Kazanistan´s constitution analysed are “successful” imposed texts such as in Germany and Japan, where both constitutions were made by elites under the humiliating supervision of foreign occupiers, and more concretely, by military conquerors. “Unsuccessful” examples are those of Iraq, Timor, Somalia and Afghanistan, states or failed states unable to enforce laws and to use legitimate force over their populations. The comparative analysis aims to obtain valid inputs for the imposed constitutional text. On the theme of imposed constitutionalism, the paper reflects on; the inconsistency of the idealistic discourse that permeates a constitutional text; the inability of an imposed text to be enveloped by principles that reflect the nation’s fundamental concepts; and finally, the denaturalisation of the understanding of a constitution as the juridification of the People or Nation. Related to the topic of imposed constitutionalism, the paper focuses on the systemic inconsistencies that imposed constitutionalism generates, such as the unviability of the idea of an implicit constitutional text (invisible ink of the norm); the impossibility of “original” or “purposive” interpretations of the constitution, the impossibility to accommodate aspirational principles, the denial of the right of self-determination and other dysfunctionalities related to the interpretation of an imposed text.

UR - https://www.routledge.com/The-Law-and-Legitimacy-of-Imposed-Constitutions/Albert-Contiades-Fotiadou/p/book/9781138488984

M3 - Book chapter

SN - 9781138488984

T3 - Comparative Constitutional Change

SP - 82

EP - 100

BT - The Law and Legitimacy of Imposed Constitutions

A2 - Albert, Richard

A2 - Contiades, Xenophon

A2 - Fotiadou, Alkmene

PB - Routledge

ER -