Abstract
This paper begins by examining 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 first framed the rise of constitutional states were rooted in 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, often highly irregular conjunctures of military violence at this time. Moreover, it often triggered patterns of irregular military mobilization, in which, both inside and outside national societies, military violence was intensely societalized, distinctions between regular war and civil war were eroded, and classical forms of sovereign statehood were unsettled. The paper then examines how, in the period after 1945, many states began to direct their constitutional systems towards a revised concept of warfare and a revised understanding of military combatants, which governments used to manage propensities for violence within their own societies.
Through this period, many states acquired constitutional orders with features of an occupation constitution, formed through interaction between national constitutional law, international human rights law and international humanitarian law. Principles of an occupation constitution lie at the core of many modern constitutions.
Chris Thornhill is Professor in Law at the University of Manchester, UK. He has previously held professorial positions in different disciplines at Kings College London and Glasgow University and visiting Professorships in Chile, Germany and Brazil. He has published a number of books on Democratic Theory and the Sociology of Law, notably on the Sociology of Constitutions.