Constitutional autochthony

In political science, constitutional autochthony is the process of asserting constitutional nationalism from an external legal or political power. The source of autochthony is the Greek word αὐτόχθων translated as springing from the land.[1] It usually means the assertion of not just the concept of autonomy, but also the concept that the constitution derives from their own native traditions.[2] The autochthony, or home grown nature of constitutions, give them authenticity and effectiveness.[3] It was important in the making and revising of the constitutions of Bangladesh, India,[4] Pakistan, Ghana,[5] South Africa, Sierra Leone,[6] Zambia[7] and many other members of the British Commonwealth.[8]

This proposition found doctrinal support in the influential theory propounded by the legal philosopher, Hans Kelsen, which had it that it was inconceivable for a legal system to split into two independent legal systems through a purely legal process. One of the implications of Kelsen’s theory was that the basic norm (German: Grundnorm) of the imperial predecessor’s Constitution would continue to be at the helm of the legal system of the newly liberated former colony despite the legal transfer of power, precisely because the transfer of power was recognised as 'legal' by the Constitution of the imperial predecessor.[4]

  1. ^ [1][dead link‍]
  2. ^ Wheare, Kenneth (1960). The Constitutional Structure of the Commonwealth. Oxford: Clarendon Press. pp. 89.
  3. ^ "Archived copy" (PDF). Archived from the original (PDF) on 2009-05-21. Retrieved 2009-11-30.{{cite web}}: CS1 maint: archived copy as title (link) page 7
  4. ^ a b "India's benign constitutional revolution". The Hindu. 2013-01-26. ISSN 0971-751X. Retrieved 2016-03-06.
  5. ^ Weare, Kenneth (1961). "Constitutional autochthony in Ghana". Journal of Commonwealth Political Studies, 1. pp. 41–55.
  6. ^ Thompson, Bankole (1986). "The Republican Constitution of 1971: The Quest for Constitutional Autochthony". The Constitutional History and Law of Sierra Leone (1961-1995). University Press of America. pp. 107–145. ISBN 978-0-7618-0473-4.
  7. ^ Anyangwe, Carlson (1997). Zambia Law Journal. Volume 29. pp. 1–32.
  8. ^ Robinson, Kenneth; Madden, Frederick (1963). "Constitutional autochthony and the transfer of power". Essays in Imperial Government Presented to Margery Perham. Oxford: Oxford University Press. pp. 249–288.