Chapter Six - World Law and Occupation Constitutions

Summary

This chapter assesses the legal foundations that supported the shift away from militarized constitutions after 1945 and argues that constitution making in different imperial domains (metropolitan and colonial) had crucial significance in this regard. On one hand, it shows how military constitutionalism persisted in many regions after World War II. Yet it explains how after 1945 some constitutions were built on premises that combined national law and international law (human rights law and humanitarian law), and these norms were galvanized to form a more reliable basis for democratic constitutionalism. The chapter proposes a theory of world law to explain this, stating that democracy was consolidated after 1945 as governments conferred more secure legal form on rights first obtained through military bargains. This was achieved through the use of international law to separate constitutional rights from militarism. The chapter examines cases in Germany, Japan, Kenya, Algeria and South Africa to identify these processes. It also discusses other cases, especially in post-1958 South America, where these processes were not effected.