Autochthonous Constitutions

Peter Oliver

in R. Grote, F. Lachenmann, R, Wolfrum, eds, Max Planck Encyclopedia of Comparative Constitutional Law (Oxford University Press, 2017)

Abstract:

“Autochthony” refers to the fact that a constitution is, legally speaking, “home grown” or rooted in native soil. By this it is meant that the constitution owes its validity and authority to local legal factors, rather than to the fact of enactment by a foreign legal process. Autochthony was especially important to countries which achieved independence from the former British Empire.

According to a highly influential account, there were three possible criteria for constitutional autochthony . The first criterion turned on whether legal continuity with the external power had been broken in the enactment of the new constitution. A second, quite different criterion asked whether all processes for operating constitutional change were locally operated. A third, alternative criterion attempted to gauge whether the people, or possibly the courts, “regard the constitution as authoritative because of their own acceptance of it”.

Whether a country had truly achieved constitutional autochthony in either the first or the second sense, it was also possible to speak more figuratively of degrees of autochthony, in the third more figurative sense. For instance, even if a country achieved its independence by means of legal continuity, thereby missing out on autochthony in the first sense, it would still be possible to say that that country’s constitution contained autochthonous elements in that it was, say, drafted by local representatives, preceded by a preamble invoking local sources and amendable by the people voting in a referendum.

Preoccupation with constitutional autochthony emerged largely in response to certain dominant theoretical currents, associated in particular with the writings of A.V. Dicey and Hans Kelsen. Over time, the more inflexible elements of those theories were broken down, and constitutional observers came to believe that constitutional continuity and constitutional independence were not incompatible choices but instead simultaneously achievable. Accordingly, constitutional autochthony is not the controversial issue that it once was, though observers may continue to assess relative degrees of autochthony.

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About the Author:

Peter C. Oliver has built a national and international reputation for ground-breaking research into constitutional questions. His theoretical, comparative and historical approach has been applied to practical legal problems, such Commonwealth devolution, ever-closer European union, independence and secession.  His recent writing explores Canadian constitutional issues, particularly with regard to constitutional amendment, constitutional conventions and federalism. Much of Professor Oliver’s research focuses on shifting understandings of two central theoretical concepts: ‘sovereignty’ and ‘legal system’. His careful treatment of both concepts yields a theoretical account of fundamental legal transitions, one whose practical consequence is to explain how constitutional continuity can produce constitutional independence. Oliver’s work has been cited across the world, in leading publications in Australia, Canada, India, Israel, New Zealand, South Africa, the United Kingdom and the United States.

Click here to visit his Faculty web page.

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