Nullius Imperium

Comparative constitutional theory has a rich vocabulary for how states are designed — presidential or parliamentary, federal or unitary, rights-based or institutional — but a thin one for whether a state was legitimately founded at all, for the peoples it governs. This paper names the missing category. Nullius imperium — the presumption of an absence of government — is the political analogue of terra nullius. Where the latter fiction licensed the appropriation of customary land by denying prior ownership, the former licensed the appropriation of customary authority by denying prior governance: it treated the polities of Melanesia as politically blank, and so as requiring no treaty, no negotiation, and no settlement. We argue that this presumption was constitutive of the colonial state in the British Solomon Islands and was inherited intact by its post-colonial successor, producing not underdevelopment but a specific and diagnosable constitutional defect — a political order founded without the consent of the political formations it governs. We argue further that this defect is reversible, and that its reversal — Indigenous Constitutionalism — names an outstanding backlog of constitutional settlements. The concept generalises beyond Melanesia to any post-colonial order founded on the same fiction; that generalisation is set out here as a research programme, not a settled result.

Read the full article to explore Nullius Imperium, the constitutional legacy of denying Indigenous governance, and the emerging framework of Indigenous Constitutionalism in Melanesia.

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