Imposed Constitutions (constitutions octroyées)
- Constitutions and amendments — Monarchy
Published under the direction of the Max Planck Foundation for International Peace and the Rule of Law. General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.
Essential Features and Some Examples
1. The concept of the ‘imposed constitution’ seems simple and clear: A written constitution is imposed on a people without their full agreement. Strictly speaking, the ‘full agreement’ will require that a majority of the people expressly consent to a constitution through a formal procedure. However, at least some part of the people may acquiesce. Whether a constitution is imposed or not is a question of degree, not of kind. As a result, we can detect only family resemblances among constitutions usually called imposed ones.
2. Inherent in this concept of imposed constitution is the assumption that constituent power belongs to the people. Therefore, a constitution which the monarch concedes to his subjects (constitution octroyée) is also a kind of imposed constitution (see also monarchical constitutions). The French Charter of 1814 is a model case which influenced the conceded constitutions of Southern German states of 1818–1820, and indirectly the Constitution of the Empire of Japan of 1889. Britain accorded constitutions to its ‘well-behaved dominions’ (Australia, Canada, and New Zealand) when they were granted independence. These were also conceded constitutions, because peoples in the dominions were not regarded as inherent holders of constituent powers. Imposed constitutions are written constitutions, as it is difficult to impose a customary law on a populace. If a constitution is imposed, it is usually supposed that it lacks legitimacy because the people themselves, as the inherent holders of constituent power, should be able to establish their own constitution.
3. There are typical and atypical cases of imposed constitutions. While the Magna Carta (1215) was granted by John Lackland to his subjects, just a few months later he asked Pope Innocent III to quash the Charter on the ground that it had been extorted by force (Carpenter 395). In other words, the Charter was actually imposed by his barons on him, although formally it was conceded by him to his subjects. Innocent III duly dispatched his papal bull annulling the Charter.
4. A part of the people can also impose a constitution on the entire country. After the Civil War in the United States, the triumphant Republican Congress excluded representatives from the Southern states, and proposed that the Fourteenth Amendment should be ratified, which ten of the eleven Southern states rejected. Congress enacted a series of Reconstruction Acts in 1867, which divided the ten Southern states into five military districts and placed the Union Army in control of any further statehood (Ackerman 110). The commanding generals were authorized to call constitutional conventions (constituent assemblies), and Congress inspected whether newly enacted state constitutions were truly ‘republican’. Moreover, Southern representatives were admitted into Congress only after each state legislature ratified the Fourteenth Amendment. The United States imposed a constitution on the Japanese government in a similar manoeuvre approximately 80 years later.
5. Similarly, after World War II the Constitution of the Republic of China, enacted on 25 December 1946 and promulgated on 1 January 1947, was imposed on Taiwan by the Kuomintang government without any meaningful democratic participation from the people in Taiwan (Chang 121–124; Yeh 28–30). In the 1990s, with several rounds of constitutional revisions, Taiwanese people reconstructed their representation system, and Taiwan became a liberal democracy.
The French Charter of 1814
6. After Napoleon’s abdication in April 1814, Louis XVIII entered Paris on 3 May and nominated a commission to draft a Constitutional Charter on 18 May. The word ‘constitution’ was not adopted because it implied collaboration between the king and his people; the word ‘charter’ better communicated the idea that the document was freely conceded by the sovereign to his subjects (Laquièze 53).
7. The preamble of the Charter confirms that the foundation of the royal authority is divine providence and the historical rights of the house of Bourbon. The king retained the plenitude of political authority, and the Charter was the result of a totally free concession on his part. The King could modify or rescind the Charter at any time (Laquièze 66).
8. The king effectively monopolized state powers, and he alone held executive and judicial powers. With regards to legislative power, while the two houses of parliament collaborated in deliberating and voting on the contents of legislation, the king remained the dominant organ.
9. The Charter was the model for modern constitutional monarchies founded on the ‘monarchical principle’ (monarchisches Prinzip) (Schmitt 104). It pointed the way for the constitutions of the Southern German states enacted in 1818–1820. The German constitutions adopted the Charter’s distinction between the substance of state power pertaining to the prince and the exercise of this power in accordance with the provisions of the imposed constitution (Hummel 55).
The Monarchical Principle in Germany
10. Among the constitutions of the Southern German states of 1818–1820, some were literally conceded by the princes to their subjects (eg, Bavaria, Baden), but others were agreed between the princes and their subjects (as was done in Württemberg). Reflecting compromises between the ancient orders and new liberal principles, these constitutions established the system of the bicameral Landtag (state assembly), composed of a house of privileged nobles and one of deputies indirectly elected by wealthy voters (bicameralism).
11. These constitutions were based on the idea that the prince alone monopolized the state’s power in its entirety, including constituent power (Böckenförde 91). The Constitution of Bavaria of 26 May 1818 clearly stated that ‘[t]he king is the head of state. He retains all the sovereign powers and exercises them in accordance with the provisions established by him in this constitution’. The constitution is regarded as a result of a voluntary concession on the part of the prince, even where its contents are negotiated with his subjects (Hummel 54). These constitutions denied the idea that the people as a whole could be represented in the assembly, because to do so was incompatible with the monarchical principle. Under this principle, the prince was the sole representative of the body politic, and united in his hands the ‘plenitude of the state power’ (Schmitt 104). Only the exercise of legislative power was shared between the sovereign and the Landtag particularly when new laws affected the liberties or property of the subjects. A constitution was regarded as a self-binding of princely power, and was not the foundation of but merely a limitation on the power. Competences not clearly attributed to some of the state organs were generally presumed to have pertained to the prince (Hummel 81).
12. However, contrary to the French Charter of 1814, in the Southern German states, it was recognized that a prince could not unilaterally revise a constitution, although he could veto any proposed revision which he regarded as inconvenient (Hummel 56). In this regard, the monarch no longer possessed the state but was merely an organ of the state as a legal person (Stolleis 66).
13. While the monarchical principle rapidly declined in France, its mother country, in Germany it was elevated to the status of an institutionally guaranteed principle, embodied in Art. 57 of the Final Act of Viennese Ministerial Conferences of 15 May 1820, which stipulated that:
Since the German Confederation, with the exception of the free cities, consists of sovereign princes, the entire authority of the state must, according to the basic concepts provided thereby, remain united within the head of state, and the sovereign can be required to permit the constitutionally guaranteed assembly of the estates of the land to participate only in the exercise of certain rights.
14. When the assembly represented by member states of the German Confederation regarded constitutional provisions of a member state as incompatible with the monarchical principle, the Confederation could demand the state rescind and repeal the provisions. Therefore, the principle constituted an exceptional constraint on the sovereign power of the prince (Hummel 71–72).
15. The monarchical principle, which was an unstable compromise between the princely sovereign power and the aspirations of the rising liberal bourgeoisie represented in the state assembly, remained the distinctive characteristic of German constitutionalism, different from both absolutism and the UK parliamentary system.
The Constitution of the Empire of Japan
16. After the Meiji Restoration of 1868, a popular movement to establish a national assembly rose up. In 1875 Emperor Mutsuhito issued a proclamation that a constitutional system should gradually be established, and in 1882 he ordered Hirobumi Ito to research constitutional systems in European countries. Ito visited various constitutional scholars, including Lorenz von Stein and Rudolf von Gneist, and after returning to Japan, the latter prepared a draft constitution with the help of Kowashi Inoue, Miyoji Ito, and Kentaro Kaneko. Karl Roesler, assisted them in his capacity as an official advisor to the cabinet. Although there was a strong opinion among the populace advocating a British-style parliamentary system, the draft constitution was based on the German constitutional system. The Constitution of the Empire of Japan was made public on 11 February 1889, with no participation on the part of the populace. It was a typical imposed constitution.
17. The preamble originally drafted by Roesler states that:
the rights of sovereignty of the state, We have inherited from Our ancestors, and We shall bequeath them to Our descendants. Neither We nor they shall in the future fail to wield them, in accordance with the provisions of the Constitution hereby granted.
18. Art. 4 states that:
[t]he Emperor is the head of state, combining in Himself the rights of sovereignty, and exercises them in accordance with the provisions of the present Constitution.
19. It is clear that the monarchical principle was adapted from the German system and faithfully respected.
20. While the Emperor exercised legislative power with the collaboration of the Imperial Diet (Art. 5), he convened, closed and adjourned the Imperial Diet, and had the power to dissolve the House of Deputies (Art. 7). He sanctioned laws and ordered them to be executed (Art. 6), and issued orders to implement laws, and to maintain the public order and peace (Art. 9). The Emperor nominated and dismissed ministers, who were responsible to him alone (Art. 55). The Constitution meticulously reproduced the French and German model of limited monarchy. The official commentary on the constitution, Kenpo Gige, made public in 1889 in the name of Hirobumi Ito, but mainly written by Kowashi Inoue, states in the commentary on Art. 4, that the ‘substance of sovereignty is retained by the Emperor, but it is exercised in accordance with the provisions of the constitution’. The monarchical principle, (referred to in Japan as the principle of ‘imperial sovereignty’) was maintained until 1945, when Japan accepted the Potsdam Declaration and surrendered to the allied nations.
The Constitution of Japan
21. The Constitution of Japan of 1946 was imposed by the occupying forces on the Japanese government after the Second World War (for the facts surrounding its adoption, see Hasebe (2003) 224–26; Hahm and Kim 130–54). After the war, the Japanese government was placed under the authority of General Douglas MacArthur, then the Supreme Commander for the Allied Powers. At the beginning of the occupation, the Japanese government maintained that despite the surrender, the basic legal form of the state, the monarchical principle, was still intact, and that there was no need to revise the Constitution of the Empire of Japan (the Meiji Constitution).
22. However, MacArthur repeatedly urged that the Constitution be revised as a crucial step towards implementing the terms of Japan’s surrender as stipulated in the Potsdam Declaration. The government reacted by establishing a committee, chaired by Joji Matsumoto, to consider the need for amending the Meiji Constitution. After several months of deliberation, the Matsumoto Committee produced a draft proposal, the conservative contents of which were regarded as unresponsive to the international climate of hostility towards the imperial regime. Accordingly, under orders from MacArthur, the General Headquarters of the Supreme Commander (GHQ) produced its own version of a draft constitution and urged the Japanese government to revise the Meiji Constitution on the basis of this document. The GHQ draft was drawn up in two weeks, and delivered to representatives of the Japanese government on 13 February 1946.
23. Although stunned by the unexpected presentation of the GHQ draft, the Japanese government finally agreed to amend the Constitution on the basis of this document. The amendment process adhered strictly to the procedure stipulated under the Meiji Constitution: the draft proposal by the government, which drew heavily on the American draft, was first presented to the House of Deputies, then reviewed by the House of Peers. Finally, with the consent of the Privy Council, the Constitution of Japan was promulgated by the Emperor on 3 November 1946, as an amendment to the Meiji Constitution.
24. The reaction of constitutional scholars to the new Constitution was overwhelmingly favourable. Toshiyoshi Miyazawa, who was a key member of the conservative Matsumoto committee, admitted later that upon reading the GHQ draft, he was filled with joy and became its fervent supporter. Prior to reading the GHQ draft, Japanese scholars could not imagine that their country might adopt such a liberal and democratic constitution. The resulting constitutional bill of rights is quite similar to those standard in Western constitutions. Equipped with an American-style judicial review system (Art. 81), post-war Japan was reborn as a normal constitutional democracy.
25. Although this constitution was indeed imposed upon the government, it is not true that it was imposed against the will of the Japanese people. One of the reasons that the Japanese government agreed to amend the Meiji Constitution on the basis of the GHQ draft was that GHQ threatened to make its draft public if the government refused to do so. If the Constitution of Japan was null and void because it had been imposed, the Japanese people would have to continue living under the Meiji Constitution, which had itself been imposed upon them by Emperor Mutsuhito. In short, the contention that the Constitution of Japan is void because it was forced upon the Japanese people is untenable.
26. There still remains one theoretical difficulty in explaining the validity of the new constitution: can we say that this constitution is valid as an amendment of the old constitution? The amendment procedure stipulated in the Meiji Constitution was strictly adhered to when the new constitution was established, but is it possible to coherently establish a new constitution (based on the principle of → popular sovereignty) as an amendment to the old constitution (based on the monarchical principle)?
27. Miyazawa proposed the following explanation: when the Japanese government accepted the Potsdam Declaration in August 1945, which demanded the implementation of popular sovereignty, the basic legal foundation of the Japanese constitutional system was revolutionized, and the monarchical principle was abandoned. The basis of the Meiji Constitution itself then shifted to popular sovereignty. This fundamentally transformed constitution could work as a foundation to support the legal validity of the new constitution, which could then be validated as an amendment to the transformed former constitution. This thesis, called the August Revolution thesis, is the dominant view used to explain the validity of the Constitution of Japan (cf Hasebe 1997; Hahm and Kim 145–57).
The Constitution of the Federal Republic of Germany
28. In accordance with the London 6-Power Conference in 1948, the three western military governors in Germany recommended to the Minister Presidents of the western German states that a free, democratic, and federal constitution should be enacted. A parliamentary council (Parlamentarischer Rat), elected by state parliaments was established to develop a new Basic Law.
29. It is disputable whether the Constitution of the Federal Republic of Germany should be characterized as a kind of imposed constitution at all. Although it was drafted and adopted under the occupation of the Allied Powers, contrary to the case of Japan, a first draft was produced by a conference of German experts at the palace of Herrenchiemsee, which formed the basis of the work of the parliamentary council. While the Allies intervened and demanded legislative and financial decentralization, a compromise was finally agreed upon. The Parliamentary Council approved the Basic Law (Grundgesetz) on 8 May 1949. The Basic Law was then ratified by the re-established parliaments of more than two-thirds (ten out of eleven, Bavaria objecting) of the states (Länder), and took effect on 23 May 1949. Helmut Steinberger, a former Justice of the Constitutional Court, says, ‘allied intervention did not succeed in branding the Basic Law with the stain of an instrument imposed [oktroyiert] by the occupying powers’ (Steinberger 33; cf Currie 8–10).
30. The parliamentary council called its piece of work not the Verfassung but Grundgesetz, because it was presumed to be provisional and should ‘cease to apply when a constitution freely adopted by the German people takes effect’ (Basic Law, Art. 146). However, when the unity of Germany was achieved in 1990, a new constitution was not created. The new Länder which had formed on the territory of the former German Democratic Republic (GDR) acceded to the Federal Republic and the Basic Law pursuant to its Art. 23.
The ‘Well-Behaved Dominions’ of the British Empire
31. In the ‘well-behaved dominions’ of the British Empire—Australia, Canada, and New Zealand—constitutional independence was ostensibly achieved by means of acts of the UK Parliament (Oliver 1). In the case of Canada, the Canada Act 1982, enacted by the British Parliament (though some may say that the Statute of Westminster 1931 should be cited instead), states in its preamble that:
Whereas Canada has requested and consented to the enactment of an Act of the Parliament of the United Kingdom to give effect to the provisions hereafter set forth and the Senate and the House of Commons of Canada in Parliament assembled have submitted an address to Her Majesty requesting that her Majesty may graciously be pleased to cause a Bill to be laid before the Parliament of the United Kingdom for that purpose.
32. Art. 1 of the Act stipulates that: ‘The Constitution Act 1982 set out in Schedule B to this Act is hereby enacted for and shall have the force of law in Canada’, and Art. 2 provides that: ‘No Act of Parliament of the United Kingdom passed after the Constitution Act 1982 comes into force shall extend to Canada as part of its law’. If we take the words of the preamble at face value, the Constitution Act 1982 was not imposed on Canada, rather, Canada itself solicited it—in which case, can we still characterize it as an imposed constitution, if it was legislated by the UK Parliament as a superior legal organ for Canada?
33. This is a theoretical difficulty similar to that affecting the monarchical principle: can the authority of the UK Parliament substantiate the constitutional independence of Canada? If it can, does the UK Parliament then retain superior authority over Canada, and the ability to retract Canada’s legal independence? If the UK Parliament cannot retract Canada’s legal independence, then its authority cannot be the foundation of Canada’s legal system.
34. It is pertinent to follow the lead of HLA Hart here, and search for the rule of recognition accepted and used as a matter of fact by public officials in Canada, instead of tracing an apparent legal pedigree of ‘validating purport’ of constitutional independence (cf Hart 319–21). As for the question of whether the UK Parliament can still legislate for Canada, Canadian courts would clearly answer ‘no’.
35. The case of Australia is slightly different. In 1986, the Parliaments of the Commonwealth of Australia and the United Kingdom enacted almost identical acts coming into effect simultaneously, both of which eliminated the possibilities for the UK to legislate with effect in Australia. Both acts state that:
No act of the Parliament of the United Kingdom passed after the commencement of this Act shall extend, or be deemed to extend, to the Commonwealth, to a State or to a Territory as part of the law of the Commonwealth, of the State or of the Territory.
36. The two legislatures enacted these identical acts in order to suppress the uncertainty about which Parliament had the authority to do that. However, sooner or later it should be decided which act is the foundation of the Australian legal system. The Australian High Court in 2003 stated that ‘[Australian] constitutional norms, whatever ... their historical origins, are now to be traced to Australian sources’ (Attorney-General (WA) v Marquet (2003) 570–71 (Austl); Saunders 29–30).
37. As these cases show, the rule of recognition in a given society may change dramatically; before Canada’s (or Australia’s) independence, local courts confirmed the legislative authority of the UK Parliament over the country. However, the idea that the UK Parliament abdicated its sovereignty over Canada (or Australia) cannot cogently explain this termination of legislating power, because it suffers from the same vicious self-reference as the monarchical principle.
38. It should be noted that Alf Ross, who pointed out that the logic of such a voluntary self-binding is contaminated with vicious self-reference, himself ultimately recognized the possibility that a seemingly supreme legislature (L) can restrict or abdicate some part of its competence, merely on the presupposition that L is actually not the supreme organ and is accorded its competence by another even higher authority, which orders inferior organs to obey L until its subsequent legislature (L1) is nominated, and then orders them to obey L1 until the next legislature (L2) is nominated, and so on (Ross 21 et seq; cf Oliver 296). L1’s competence may be restricted compared to that of L under this condition.
39. However, in this presentation, we should rather admit that the attempt to entail the validity of constitutional independence from a superior authority has failed. The point of legal entailment—legal syllogism—is to persuade people that a given legal conclusion is valid without stepping into its moral justifiability. If we need such an extremely artificial and implausible superior norm for the legal entailment, we should instead directly rely on the substantive justifiability of constitutional independence.
40. The concept of the imposed constitution is predicated on the theory of the constituent power of the people that legitimizes the constitution. However, there are several reasons why the concept of constituent power might be considered unnecessary to justify or legitimate a constitution (Hasebe 2009). First, one could argue that the idea that an assemblage of individuals not yet constituted as a people—because the constitution is not yet established—can establish a constitution as an autonomous agent can be seen as being oxymoronic (Kelsen 261). Even if we imagine the existence of a concrete population before the making of a constitution, ‘[i]t is meaningless to speak about popular government apart from some sort of legal framework which enables the electorate to have a coherent will’ (Holmes 167). Second, the fact that a majority of a people at a certain time consented to a constitution, does not mean that the said constitution will always remain legitimate. If such consent is the basis for obeying the constitution, then only those who actually participated in its enactment process and approved it should be constrained to obey it.
41. I would like to challenge the concept of constituent power even further. There could be a deeper reason why the concept of constituent power is dispensable. Russel Hardin points out that because the basic function of a constitution is to co-ordinate interactions in society, what is essential is not the agreement of the people but their acquiescence to the constitution. Contrary to a contract, a constitution is backed not by external sanctions, but by the difficulty of re-co-ordinating on an alternative arrangement (Hardin 82–140). Joseph Raz argues that constitutions are inherently self-validating. ‘They are valid just because they are there, enshrined in the practice of their countries’ (Raz 173). According to Raz, a constitution is legitimate as long as it is effectively working as a constitution, and remains ‘within the boundaries set by moral principles’. It does not derive its authority from the authority of its authors. Therefore, ‘there is no need to worry about the source of their [constitutions’] authority ... The constitution of a country is a legitimate constitution because it is the constitution it has’ (Raz 198). If Hardin and Raz are right, then the concept of constituent power is dispensable, and along with it the pertinence of the concept of the imposed constitution would be lost. We do not need to worry about the question of who should be the members of the constituent people, either. Consequently, I would like to conclude that how a constitution was made, or in whose name, is not so relevant to its legitimacy. The questions to be asked are: Is it working, and is it within the boundaries set by moral principles?
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