The Rise of the Occupation Constitution

Abstract

This chapter examines antinomies in the construction of political sovereignty expressed in constitutional law and international law in the state-building processes of the nineteenth century. It argues that the legal orders that framed early constitutional states reflected a limited understanding of war, in which warfare was perceived, in narrow legal terms, as a simple sovereign function. This concept of war obscured the actual conjunctures of military violence at this time, and it often triggered patterns of irregular military mobilization, in which classical forms of sovereign statehood were unsettled. This chapter then considers how, after 1945, many states began to organize their sovereignty more effectively. They did so by directing their constitutional systems towards a revised concept of warfare, acquiring features of an occupation constitution. The occupation constitution, fusing national constitutional law, international human rights law, and international humanitarian law, is central to many modern constitutions.