the cambridge handbook on the material constitution

Despite a long and venerable tradition, the material constitution almost disappeared from consti-
tutional scholarship after the Second World War. Its marginalisation saw the rise of a normative and
legalistic style in constitutional law that neglected the role of social reality and political economy.
This collection not only retrieves the history and development of the concept of the material
constitution, but it tests its theoretical and practical relevance in the contemporary world. With essays
from a diverse range of contributors, the collection demonstrates that the material constitution speaks
to several pressing issues, from the significance of economic development in constitutional orders to
questions of constitutional identity. Offering original analyses supported by international case studies,
this book develops a new model of constitutional reality, one that informs our understanding of the
world in profound ways.

Marco Goldoni is Senior Lecturer in Legal Theory at Glasgow University. He is the author of The
Legacy of Pluralism (2020, with M. Croce) and The Materiality of the Legal Order (2022). He is joint
general editor of the journal Jurisprudence and co-editor of Law and Politics: Continental Perspectives
(Routledge).
Michael A. Wilkinson is Professor of Law at the London School of Economics and Political Science
(LSE). He is the author of Authoritarian Liberalism and the Transformation of Modern Europe (2021).
He has held visiting professorships at Cornell, Paris II, the National University of Singapore and Keio
University. His work has been translated into Portuguese, Italian, Spanish and Turkish.

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Published online by Cambridge University Press
 The Cambridge Handbook on the Material
Constitution

Edited by
MARCO GOLDONI
University of Glasgow

MICHAEL A. WILKINSON
London School of Economics and Political Science

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title: The Cambridge handbook on the material constitution / edited by Marco Goldoni, University of Glasgow;
Michael A. Wilkinson, London School of Economics and Political Science.
description: Cambridge, United Kingdom ; New York, NY : Cambridge University Press, 2022. | Series: Cambridge
law handbooks | Includes bibliographical references and index.
identifiers: lccn 2022029372 (print) | lccn 2022029373 (ebook) | isbn 9781316519462 (hardback) |
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 Contents

List of Contributors page ix

Introduction: The Return of the Material Constitution 1

Marco Goldoni and Michael A. Wilkinson

part i history

1 The Tradition of the Material Constitution in Western Marxism 25

Marco Goldoni and Michael A. Wilkinson

2 The Soul of the State: The Question of Constitutional Identity in Carl

Schmitt’s Verfassungslehre 45
Jens Meierhenrich

3 Laski’s Materialist Analysis of the British Constitution 64

Martin Loughlin

4 Rudolf Smend’s Legacy in German Constitutional Theory 76

Tim Wihl

5 The Constitution in the Material Sense According

to Costantino Mortati 89
Lucia Rubinelli

6 The Material Constitution of the Dual State 100

Lars Vinx

7 ‘A Certain Shadowy Totality’: In Search of the Material Constitution of the

United States 112
Rob Hunter

8 The Material Constitution in Greek Constitutional Thought 124

Nikolas Vagdoutis

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 vi Contents

9 The Constitution As Social Compromise: Hybrid Constitutionalisation and

the Legacy of Wolfgang Abendroth 136
Kolja Möller

10 ‘Self-Justifying Law of Constitutional Law’: The Material Constitution in

Rudolf Wiethölter’s Critical Systems Theory 150
Gunther Teubner

part ii challenges

11 The Material Constitution and Imperialism 171

Eva Nanopoulos

12 The Material Constitution of Federations 188

Signe Rehling Larsen

13 The Materialist Turn in Constitutional Thought 199

Emilios Christodoulidis

14 Three Registers of the Material Constitution 210

Neil Walker

15 What Matter(s)? A Processual View of the Material Constitution 223

Mariano Croce

16 The Material Constitution and the Rule of Recognition 233

Francesco Bilancia and Stefano Civitarese Matteucci

17 Constitutional Matter and Form: An Exploration of Constitutional Language 246

Denis Baranger

part iii analyses

18 A Material Understanding of Constitutional Changes: Revisiting

‘Constitutional Maintenance’ Doctrines 261
Graziella Romeo

19 The Material Constitution in Latin American Courts 275

Mariana Velasco-Rivera and Joel Colón-Ríos

20 A Materialist Analysis of the Indian Constitution 288

Sandipto Dasgupta

21 China’s Material Constitution 301

Ngoc Son Bui

22 The Material Constitution and Extractive Political Economy: Lessons

from Mongolia 313
Jennifer Lander

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 Contents vii

23 The Military in the Material Constitution of Turkey 325

Tarik Olcay

24 The Material Constitution of International Investment Law 335

Jessica Lawrence and Tom Flynn

25 The ‘Terrible’ Functional Constitution of the European Union: ‘Sound’

Money, Economic Freedom(s) and ‘Free’ Competition 351
Agustín José Menéndez

Index 367

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Published online by Cambridge University Press
 Contributors

Denis Baranger is Professor of Public Law at Paris 2 – Panthéon-Assas University and Director of
the Institut Michel Villey. He is co-editor of http://juspoliticum.com/la-revue and www
.droitphilosophie.com. He teaches and publishes in several fields: constitutional law, history of
ideas, jurisprudence. He has recently published Penser la Loi (Gallimard, 2018) and La consti-
tution: sources, interprétations, raisonnements (Dalloz, 2022). He has received several awards
(Prix François Furet, Grand Prix Charles Aubert de l’Académie des Sciences Morales et
Politiques) and is an honorary member of the Institut Universitaire de France.
Francesco Bilancia is Professor of Public Law and Deputy-Director of the Department of Legal
and Social Studies at the University of Chieti-Pescara (Italy). His research interests stretch from
public and constitutional law, theory of law, fundamental rights, market regulation and social
welfare law to EU law and the European integration process. Among his publications are La crisi
dell’ordinamento giuridico dello stato rappresentativo (Padua, 2000), I diritti fondamentali come
conquiste sovrastatali di civiltà. Il diritto di proprietà nella CEDU (Giappichelli, 2002; with
S. Civitarese Matteucci) and ‘The Material Constitutional Arrangement of the European
Union’, in M. Belov (ed.), Peace, Discontent and Constitutional Law: Challenges to
Constitutional Order and Democracy (Routledge, 2021).
Ngoc Son Bui is Associate Professor of Asian laws at the Faculty of Law, University of Oxford.
He works on comparative and constitutional law in Asia, with a focus on the socialist and
Confucian culture-influenced jurisdictions. He is the author of Constitutional Change in the
Contemporary Socialist World (Oxford University Press, 2020) and Confucian Constitutionalism
in East Asia (Routledge, 2016).
Emilios Christodoulidis holds the Chair of Jurisprudence at the University of Glasgow. He is
author of many articles on constitutional theory, democratic theory, critical legal theory and
transitional justice, as well as author of Law and Reflexive Politics (Springer, 1998) and, more
recently, The Redress of Law (Cambridge University Press, 2021). His work has appeared in
English, Greek, French, Japanese and Spanish. He is an editor of the series Critical Studies in
Jurisprudence (Routledge) and serves as a managing editor of the journal Law & Critique.
Stefano Civitarese Matteucci is Professor (chair) of Public Law in the Department of Legal and
Social Studies, University of Chieti-Pescara and Honorary Visiting Professor, 2021–2026, at York
Law School. His research interests range from constitutional law to theory of law, administrative

ix

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 x List of Contributors

law, social welfare law and EU law. Among his most recent publications are Social Rights in
Europe in an Age of Austerity (Critical Studies in Jurisprudence, Routledge, 2017) and ‘Public
Administration Algorithm Decision-Making and the Rule of Law’, European Public Law (2021).
Joel Colón-Ríos is Professor of Law at Victoria University of Wellington and Director of the
New Zealand Centre for Public Law. His areas of interest include constitutional theory and
comparative constitutional law. He has recently published Constituent Power and Law (Oxford
University Press, 2020).
Mariano Croce is Associate Professor of Political Philosophy at Sapienza University of Rome.
His research interests lie in the areas of institutionalism, legal pluralism and LGBTQI+ studies.
His books include The Legacy of Pluralism: The Continental Jurisprudence of Santi Romano,
Carl Schmitt, and Costantino Mortati (Stanford University Press, 2020, with Marco Goldoni)
and Carl Schmitt’s Institutional Theory: The Political Power of Normality (Cambridge University
Press, 2022, with Andrea Salvatore).
Sandipto Dasgupta is Assistant Professor of Politics at the New School for Social Research. He
is the author of the book Legalizing the Revolution: India and the Constitution of the Postcolony
(Cambridge University Press, forthcoming) along with several articles on the topic of decolonisa-
tion, postcolonial political thought and constitutional theory.
Tom Flynn is a lecturer at the School of Law, University of Essex. His research deals with
constitutionalism in the broadest sense, from the sub-national to the supra-national. His mono-
graph The Triangular Constitution was published by Hart in 2019, and his most recent article is
‘Constitutional Pluralism and Loyal Opposition’, International Journal of Constitutional
Law (2021).
Marco Goldoni is Senior Lecturer in Legal Theory at the School of Law, University of Glasgow.
Among his most recent publications are The Legacy of Pluralism (Stanford University Press,
2020, with M. Croce) and The Materiality of the Legal Order (Cambridge University Press,
2022). He is joint general editor of the journal Jurisprudence and co-editor of the Routledge series
Law and Politics.
Rob Hunter holds a PhD in politics from Princeton University. He has written on the critique of
political economy, state theory and constitutional theory. His recent publications include
‘Marx’s Critique and the Constitution of the Capitalist State’, in Paul O’Connell and Umut
Özsu (eds.), Research Handbook on Law and Marxism (Edward Elgar, 2021) and ‘Critical Legal
Studies and Marx’s Critique: A Reappraisal’, Yale Journal of Law and the Humanities (2021).
Jennifer Lander is Visiting Research Fellow in the School of Law at De Montfort University,
working at the intersection of constitutional theory and political economy. She is the author of
Transnational Law and State Transformation: The Case of Extractive Development in Mongolia
(Routledge, 2020).
Signe Rehling Larsen is Fellow by Examination in Law at Magdalen College. Signe’s research
is concerned with the study of constitutions in a theoretical, historical and comparative perspec-
tive. Recent publications are The Constitutional Theory of the Federation and the European
Union (Oxford University Press, 2021), ‘Varieties of Constitutionalism in the European Union’,
Modern Law Review (2021), and ‘European Public Law after Empires’, European Law
Open (2022).

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 List of Contributors xi

Jessica Lawrence is Senior Lecturer at the School of Law, University of Essex. Her research
focuses on international economic law and its impacts on human rights, environmental protec-
tion, and social norms. Her monograph Governmentality in EU External Trade and
Environment Policy: Between Rights and Market was published by Routledge in 2018, and co-
edited volume The Politics of European Legal Research: Behind the Method was released by
Edward Elgar in 2022.
Martin Loughlin is Professor of Public Law at the London School of Economics & Political
Science. His publications include The Idea of Public Law (Oxford University Press, 2003),
Foundations of Public Law (Oxford University Press, 2010), Political Jurisprudence (Oxford
University Press, 2017) and Against Constitutionalism (Harvard University Press, 2022). With
Jens Meierhenrich, he co-edited The Cambridge Companion to the Rule of Law (Cambridge
University Press, 2021).
Jens Meierhenrich is Professor of International Relations at the London School of Economics
and Political Science. He previously taught for a decade at Harvard University and is the author,
among other titles, of The Legacies of Law (Cambridge University Press, 2009) and The
Remnants of the Rechtsstaat (Oxford University Press, 2018). His edited collections include
The Oxford Handbook of Carl Schmitt (Oxford University Press, 2017) and The Cambridge
Companion to the Rule of Law (Cambridge University Press, 2021).
Agustín José Menéndez is Associate Professor of Political Philosophy at the Department of
Philosophy and Society, Universidad Complutense. He is the author of Justifying Taxes
(Springer, 2001), The Constitution’s Gift (Rowman & Littlefield, 2011, with J. E. Fossum) and
Challenging European Citizenship (Springer, 2020, with E. D. Olsen). He was Editor in Chief
of the European Law Journal and is now one of the managing editors of European Law Open.
Kolja Möller is Researcher at the Institute of Political Science, TU Dresden. His research
interests are constitutionalism, political theory, and populism studies. Recent publications
include ‘Transnational Populism in Context: The UN, the EU and Beyond’, in Paul Blokker
(ed.), Imagining Europe: Transnational Contestation and Civic Populism (Palgrave Macmillan,
2021) and ‘From Constituent to Destituent Power beyond the State’, Transnational Legal
Theory (2018).
Eva Nanopoulos is Senior Lecturer in Law at Queen Mary University of London. She is author
of the Juridification of Individual Sanctions and the Politics of EU Law (Hart, 2020), co-editor of
The Crisis Behind the Euro-Crisis (Cambridge University Press, 2019) and is currently working
on a new book project, Decolonizing Sanctions: A Legal History and Theory. More generally, she
is interested in critical approaches to the fields of international, EU and constitutional legal
theory and history.
Tarik Olcay is Lecturer in Law at the University of Dundee where he teaches UK public law
and comparative constitutional law. He holds a PhD from the University of Glasgow and his
main research interests lie generally in the fields of comparative constitutional law and consti-
tutional theory. His research particularly focusses on constitutional change, judiciary in illiberal
regimes and the relationship between peace-making and constitutional reform processes. His
research to date has been published in outlets including the International Journal
of Constitutional Law, Hastings Law Journal, European Constitutional Law Review and
Public Law.

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 xii List of Contributors

Graziella Romeo is Associate Professor of Comparative Constitutional Law at Bocconi

University in Milan, where she is the stream lead of the Bocconi Lab for European Studies.
She writes on constitutional theory, also from a comparative perspective. Her most recent
publications include ‘The Conceptualization of Constitutional Supremacy: Global Discourse
and Legal Tradition’, German Law Journal (2020), and (with P. Cavaliere) ‘From Poisons to
Antidotes: Algorithms as Democracy Boosters?’, European Journal of Risk Regulation (2022).
Lucia Rubinelli is Assistant Professor in Political Science at Yale University. Her research
interests lie in the history of nineteenth and twentieth century political ideas, with a special focus
on how democracy was theorised in debates about plebiscites and referenda in Europe. Her first
book was Constituent Power: A History (Cambridge University Press, 2020).
Gunther Teubner is Professor Emeritus of Private Law and Legal Sociology at Goethe-
University Frankfurt, and a former Otto Kahn Freund Professor at the London School of
Economics. He is a member of the British Academy, Accademia Nazionale dei Lincei, Italy
and Academia Europaea. Among his recent books are Three Liability Regimes for Artificial
Intelligence: Algorithmic Actants, Hybrids, Matrices (Hart, 2021), Critical Theory and Legal
Autopoiesis: The Case for Societal Constitutionalism (Manchester University Press, 2019) and
Constitutional Fragments: Societal Constitutionalism in the Globalization (Oxford University
Press, 2012).
Nikolas Vagdoutis is Postdoctoral Researcher at the University of Luxembourg (Department of
Law). He holds a PhD from the University of Glasgow and an LLM from the London School of
Economics (LSE). His research interests lie primarily in legal theory, political theory and public
and EU law (especially on the economic and monetary governance of the European Economic
and Monetary Union).
Mariana Velasco-Rivera is Lecturer at the School of Law and Criminology at Maynooth
University. Her research interests are in the field of public law, specifically, constitutional law,
comparative constitutional law and constitutional theory.
Lars Vinx is Associate Professor in the Faculty of Law at the University of Cambridge and a
governing body fellow at Hughes Hall. Before coming to Cambridge, Lars was a Max Weber
fellow at the European University Institute in Florence and then taught in the Department of
Philosophy at Bilkent University in Ankara. He received his PhD in philosophy from the
University of Toronto.
Neil Walker has been the Regius Professor of Public Law at the University of Edinburgh since
2008. He has written extensively on questions of subnational, national and transnational consti-
tutional theory. His recent work includes Sovereignty in Action (ed.) (Cambridge University
Press, 2019).
Tim Wihl is Professor (interim) of Public Law and Modern Legal History at Erfurt University,
Germany in 2022–23. Before that, he was a visiting professor of constitutional theory at
Humboldt University, Berlin. His publications include Aufhebungsrechte (Velbrueck, 2019).
Michael A. Wilkinson is Professor of Law at LSE. He has held visiting professorships at Cornell,
Paris II, the National University of Singapore and Keio University. He is the author of
Authoritarian Liberalism and the Transformation of Modern Europe (Oxford University Press,
2021). His work has been translated into Portuguese, Italian, Spanish and Turkish.

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 Introduction

The Return of the Material Constitution

Marco Goldoni and Michael A. Wilkinson

I.1 INFORMAL CONCEPTIONS OF THE CONSTITUTIONAL ORDER

The aim of this handbook is twofold: to introduce a concept – the material constitution – largely
neglected in anglophone constitutional studies, and to provide an extended analysis of its use
and application. Before we get going, a brief and abstract working definition can be offered. The
material constitution is the set of concrete ordering forces, namely political unity, bearing
institutions, social relations and fundamental political objectives, which make up the consti-
tutional order.1 In other words, it is the material that constitutes, and is constituted by, the formal
process of constitutional law and the relation between them.
Analysis of this concept is comprised in this handbook of three different types of inquiry:
historical reconstruction of the concept, criticism and specification of the concept, and contem-
porary applications in multiple legal and constitutional fields. These three focal points are
reflected in the structure of the volume and they respond to different needs.
First, given the neglect of the tradition of the material constitution in the anglophone world, it
is necessary to provide an historical reconstruction that tracks the most important theoretical
reflections on the concept and their development over time in various historical periods. As
might be imagined, the materiality that underlies this conception of the constitutional order can
be the object of quite different takes and Part I tries to capture that diversity and the richness
of conceptions.
Second, and in light of this diversity, the relevance of the notion for contemporary consti-
tutional studies has to be tested and subjected to critical analysis. Part II will present a number of
criticisms of the epistemic quality of the material constitution and associated methodology.
Finally, applications of what it means to understand constitutional issues from the perspective
of the material constitution are developed. This is the task of the third Part of the handbook,
where specific and concrete constitutional issues are addressed from the point of view of the
material constitution with a view to show the solidity and utility of the concept as an interpretive
device for grasping constitutional reality and its changes over time.
But before illustrating the main contributions of each part of the handbook, we have to answer
an obvious but pressing question: why do we need yet another conception of the constitution?
Don’t we have enough already? After all, in anglophone constitutional theory, there are already a

We acknowledge the support of the Modern Law Review’s Seminar Funding that made possible the international
workshop organised in May 2019 at the University of Glasgow, out of which this Handbook emerges.
1
See further M. Goldoni and M. Wilkinson, ‘The Material Constitution’ (2018) 81 Modern Law Review 567.

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 2 Marco Goldoni and Michael A. Wilkinson

number of conceptions, including informal ones, of the constitutional order, juxtaposed to the
standard view of the constitution as a rigid legal instrument codified in a document whose
interpretation is mostly left to a specialised body of legal officials.2 What is the difference
between the material constitution and these informal conceptions? And what is the epistemic
value of referring to the material constitution for constitutional studies?3
To speak of informal conceptions should not suggest a lack of interest in the juristic aspect of
constitutional law; rather, it is to identify the engine of constitutional development in political
and social vectors rather than formal legal (and primarily judicial) institutions. Three informal
conceptions of the constitutional order can be outlined here and distinguished from the material
constitution: the political constitution, the living constitution and the mixed constitution.
Though it is possible to track resemblances, none of these conceptions overlap fully with the
material constitution for reasons which we will explain. In identifying commonalities as well as
differences, we will also be able to gain insight into the nature of the material constitution itself.

I.1.1 The Political Constitution

Perhaps the most influential informal conception of the constitution, at least in Commonwealth
jurisdictions, is the ‘political constitution’. This expression usually signifies experiences of
Commonwealth countries (the UK, but also Australia and New Zealand) which do not have a
rigid legal constitution, but one that is ultimately based on the political system and the interplay
among political parties.4 As famously illustrated by John Griffith in his seminal article,5 the
political constitution is a flexible order in which all major constitutional questions are answered
politically. In Griffith’s piercing analysis, this means that constitutional issues are political
conflicts, sometimes masked in the guise of legal and judicial debates, but always ultimately
political in nature. Griffith’s notion retained a link with societal organisation and social conflict
and, as we shall see in Section I.1.3, it has echoes of a more ancient informal notion of
the constitution.
From the perspective of a normative or functionalist reading, a crucial tenet of constitutional
ordering is that the political constitution is an ordinary process whose flexibility is better suited
for democratic politics. When it works in a non-pathological way, the political constitution
provides a channel for staging social conflict across the most important societal cleavages. For
this reason, the notion was given a normative twist at the beginning of the twenty-first century,
offered as an argument to defend a political (rather than a legal) conception of democracy and
accountability.6 Ultimately, the political constitution is either an answer to the question of the
nature of the constitutional order (irrespective of whether constitutional questions should be
answered in a legal or political way) or a normative argument in support of the centrality of
parliamentary politics in maintaining the constitution.

2
For an in-depth statement in support of this conception, see A. Sajo and R. Uitz, The Constitution of Freedom: An
Introduction to Legal Constitutionalism (Oxford University Press, 2017).
3
In a passing reference, Martin Loughlin implies that informal conceptions share the same realist (as in, political
realism) assumptions: see M. Loughlin, Foundations of Public Law (Oxford University Press, 2010), 404.
4
The canonisation of this understanding of the political constitution is J. Griffith, ‘The Political Constitution’ (1979) 42
Modern Law Review 1. See, on more recent developments, S. Gardbaum, The New Commonwealth Model of
Constitutionalism (Cambridge University Press, 2013).
5
Griffith, ‘The Political Constitution’.
6
The obvious references are J. Waldron, Law and Disagreement (Oxford University Press, 1999); R. Bellamy, Political
Constitutionalism (Cambridge University Press, 2007) and G. Gee and G. Webber, ‘What Is the Political
Constitution?’ (2010) 30 Oxford Journal of Legal Studies 273.

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 Introduction: Return of the Material Constitution 3

I.1.2 The Living Constitution

A second alternative conception is instantiated in the notion of the ‘living constitution’. Though
this is a prominent notion in anglophone jurisdictions, it is also well known in other Western
constitutional traditions.7 The notion emerged as soon as constitutions became rigid and
codified. The living constitution represented from the beginning an answer to the issue of
ossification of constitutional structures and meaning in contexts where constitutional interpret-
ation would be subject to a degree of juridification and constitutional change would be overly
demanding. It is not surprising that the living constitution has been a recurrent theme in US
constitutional scholarship and judicial practice, understood as an alternative to the other
dominant methods of constitutional interpretation, namely textualism and originalism.8
According to the living constitution doctrine, the meaning of the constitution constantly
evolves in a way that remains at least partially independent from the formal translation of
constitutional change into explicit written norms. In most cases, the living constitution allows
legal officials to consider signals coming from society. In the case of US constitutionalism, these
signals are inputs sent by political parties, social movements, or other social groups concerning a
crucial but delimited and circumscribed topic (e.g., racial desegregation, women’s rights). The
living constitution allows legal institutions to ‘catch up’ with evolving social meanings of key
aspects of community life.

I.1.3 The Mixed Constitution

A third conception – less visible in contemporary debates – is the mixed constitution, which is
also the most ancient of the informal conceptions of the constitutional order. The mixed
constitution sees the constitutional order as a balance (albeit not necessarily a peaceful one)
among different social classes. Its most famous ancient theorists are Aristotle and Polybius,
formulating the idea of ‘mixed government’, and its most famous modern formulation belongs to
James Madison.9 But, strictly speaking, the mixed constitution is not a legal notion but an
ideal one.
In its ancient versions, the aim of the mixed constitution is to approximate a synthesis among
the major forms of government: monarchy, aristocracy and democracy. Its virtue is meant to lie
in the fact that, in achieving a balance of forces, the constitution avoids one of the forms
prevailing over the others. In this way, the mixed constitution would provide an economy of the
virtues intrinsic to each form of government while limiting the effect of their vices. As such, the
‘mixed constitution’ represents a harmonious form of constitutional order, but only on the
premodern assumption that various constitutional authorities and virtues, as well as powers and
vices, derive from particular groups or estates. Stripped of this assumption we are left with the
mere idea of the separation of powers, vague hopes around checks and balances, and the
uncertain legacy of the ‘fear of the majority’, as the various powers are merged into one sovereign
power in the modern constitutional imagination.

7
E.g., S. Bartole, Interpretazioni e trasformazioni della costituzione italiana (Il Mulino, 2004).
8
See B. Ackerman, ‘The Living Constitution’ (2007) 120 Harvard Law Review 1737. In more recent times, there have
been syncretic attempts at mixing the two approaches: J. Balkin, Living Originalism (Harvard University Press, 2011).
9
Federalist, no 40 and no 51 (which mentions Polybius). On the ‘mixed constitution’, see further A. Somek, The
Cosmopolitan Constitution (Oxford University Press, 2013), 76–77.

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 4 Marco Goldoni and Michael A. Wilkinson

I.1.4 The Material Constitution

The importance placed by the political constitution on the modern political system and its
organisation into political parties continues to resonate with many recent analyses of the material
constitution. The same can be said of the role of social movements in constitutional change.
The idea that constitutional change does not need to be an outcome of a formal process of
amendment is in fact common to all three informal conceptions.
But in the case of the political constitution, the autonomy of politics is the condition of the
formation and development of the constitutional order, and each profound societal change can
be registered as a fundamental constitutional change only if it passes through institutional
political channels. Though in the canon of the material constitution the centrality of the
political system is far from ignored, the relationship with societal organisation is foregrounded
and thematised in a distinct way.
There is a formalist remnant in all theories of the political constitution in the sense that they
postulate political action predominantly – or even exclusively – within the space of established
institutions.10 There is no room for politics outside of parliamentary or other institutionalised
forms. Ultimately, political representation is taken to be the alpha and the omega of legitimate
constitutional space. This entails that the material aspect of the constitutional order cannot be
seriously politicised; instead, it is bracketed or ignored. It also means that the concept of
constituent power, the generation of social power into constitutional power, cannot be theoret-
ically treated. The price to pay for the cordoning off of social relations from political activity is
rather high for constitutional studies. Political conflict is analysed only in the form of parlia-
mentary debate or in the relation between parliament and government. Political autonomy takes
a very thin form: it is a party-based political system, divorced from its relation to society, let alone
class interests and class relations.
There are other crucial elements of differentiation which justify the adoption of the material
constitution as a framing device for constitutional analysis. First, both the political and the living
constitution takes the question of political unity (its establishment and its material underpin-
nings) for granted. To put it in more straightforward terms: the approaches advocated by political
and living constitutionalists are uninterested in questioning the terms of the formation of
political unity. Living constitutionalism does not even register as a constitutional question until –
perhaps – secessionist movements become visible and electorally salient. This is not the case for
the notion of the material constitution as the conditions of formation and maintenance of
political unity are crucial for ordering purposes and the study of them essential for understand-
ing the constitution.
A second crucial question concerns the materiality of constitutional order. At best, the
political and living constitutions can build a bridge with societal formations by taking into
account the role of social movements as active and influential components of constitutional
interpretation.11 But the internal link between societal organisation and the constitutional order

10
Martin Loughlin rightly identifies in this version of the political constitution the swan song of a utilitarian tradition
which sees legislative law-making as a means for implementing policy objectives and achieving social outcomes: M.
Loughlin, ‘The Political Constitution Revisited’ (2019) 30 King’s Law Journal 5. Loughlin’s critique is also relevant
because it spots an essential missing feature in the analysis of the political constitution: the conditions which allow for
the emergence of the ‘political’ are left outside of the scope of analysis and for reasons that have to do with the way
politics is understood by Griffith and his heirs.
11
See, for example, the study of the impact of social movements on the interpretation of the US constitution by R. Siegel
and J. Balkin, ‘Principles, Practices, and Social Movements’ (2006) 154 University of Pennsylvania Law Review 827.

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 Introduction: Return of the Material Constitution 5

is not thematised by either of these informal approaches. The economic and social conditions
which enable a certain constitutional order are left invisible or at best mentioned as an aside. In
contrast, the material constitution offers an epistemic advantage compared to the political and
the living constitution: it thematises the law inherent to the organisation of a society’s political
economy and other fundamental social relations. In other words, from the viewpoint of these
two informal approaches, we could say that the nature of the relation between social organisa-
tion and constitutional order is not problematised for the understanding of the
modern constitution.
In avoiding the question of the ordering force of societal organisation, both political and living
constitutionalists elide the political aims of modern societies. As the fact of social and political
organisation is excised from the analysis, both informal conceptions end up, once again, in an
impasse about which institution represents the privileged site of constitutional development.
And because of the rather thin material understanding of the constitutional order, even this last
choice is presented in rather reductive terms: either the legislature or the judiciary.
The emergence of the material constitution is embedded in modern processes of social
differentiation and specialisation.12 This entails both a differentiation between those who govern
and those who are governed (which should not be limited to the establishment of the political
system), and a concrete political economy whose organisation requires the establishment of
modes and relations of production as well as the regulation and protection of the
market economy.
The regime represented by the material constitution is a network of differentiated and
conflictual elements which dominant subjects try to mould and steer toward the realisation of
fundamental political aims. The material constitution is, thus, dynamic and concrete. Concrete
because it is founded on the material conditions of social existence and reproduction. Dynamic
because in the formation, separation, and conflict between social classes the gravitational
aggregation of interests always leaves space for fundamental material change. In other words,
what makes the emergence of social differentiation possible has a direct impact on the
constitutional order.
Unlike the normative thrust of the mixed constitution, the material constitution does not
identify the balance of forces as a desirable state of things, necessarily conducive to virtuous
development.13 The enquiry inspired by the material constitution is not interested in purely
normative questions. Neither, however, is the constitutional order collapsed into political
economy; it contains the structuring forces that make solid what would otherwise melt into
the air of sheer social relations. The formation of the constitutional order is internal to that of
modern society, but of course these two poles do not entirely overlap.
In order to grasp this fully, it is necessary to track the different origins of the notion of the
material constitution and how they have evolved in various eras. This handbook documents an
historic arc that spans from the second half of the nineteenth century to current times. The
temporal starting point is far from arbitrary, the connection between Marx and materialist
philosophy is unquestionable. But it is only after the First World War, and especially during the
Interwar period, that the notion of the material constitution was developed in a systematic way.14

12
For a recent overview of the topic: E. Christodoulidis, The Differentiation and Autonomy of Law (Cambridge
University Press, 2022).
13
For an open plea in favour of a Machiavellian mixed constitution, see J. McCormick, Machiavellian Democracy
(Cambridge University Press, 2011).
14
For a detailed analysis, see M. Wilkinson, Authoritarian Liberalism and the Transformation of Modern Europe (Oxford
University Press, 2021).

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 6 Marco Goldoni and Michael A. Wilkinson

I.2 THE MATERIAL CONSTITUTION IN HISTORICAL PERSPECTIVE

The origins of the material constitution lie with Marx, Lassalle and the generation of classical
Marxist scholars who followed. ‘Origins’ here of course is only relative; there is no creatio ex
nihilo. Marx and Marxists were developing ideas of previous epochs and building on political
events, as represented by dates such as 1789 and 1848, as well as the philosophers that inspired
them, notably Rousseau and Hegel. As Marxism is a resolutely historical as well as materialist
philosophy, it would only be expected that, as history changes, with the gains and losses of
revolutionary class struggle, so too would Marxist conceptions of the material constitution. In
Chapter 1, we outline the origins as well as various transformations of the Marxist tradition as it
evolves, in ebbs and flows, across decisive periods. We track a trajectory that starts with Marx and
his focus on modes and relations of production, and is then transformed in sync with crucial
socio-economic and political changes: the Russian revolutions and First World War (Lenin and
Luxemburg), interwar turbulence and the rise of Fascism (Gramsci) and the emergence of a
new financialised political economy within the framework of supranational and global insti-
tutions (Balibar, Negri).
What is left of the Marxist material constitution? It is an open question. The main claim of
our chapter is that there is still a latent potential that is extremely useful for constitutional
analysis in the twenty-first century. But this can be appreciated only by abandoning a determinist
philosophy of history that underlies certain Marxisms and by retaining the intuition concerning
the centrality of class struggle and the dynamics of the market economy. In Chapter 13, Emilios
Christodoulidis adds an important qualification, suggesting that the relation between the insti-
tutional and the material levels cannot be treated in structural or functional terms. His
contribution addresses directly the question posed here and the answer is clear: a Marxist–
structuralist understanding of the material constitution cannot disentangle the institutional from
the material if it neglects the ‘gap’ or ‘slack’ between these domains. Christodoulidis suggests
redeeming an earlier Marx, more attentive to immanent critique which tracks constitutional
formation as a question (at the same time) of ordering and disruption. In Chapter 8, Nikolas
Vagoudtis presents another important and influential variation on contemporary Marxism as
embodied in the work of Greek Marxist theorist Nico Poulantzas. Vagdoutis highlights the
relevance for a theory of the material constitution of Poulantzas’ conception of the State as the
‘condensation of social forces’. Navigating a middle ground between structuralist and humanist
conceptions of the legal order, Vagoudtis puts the emphasis on Poulantzas’ understanding of the
State and its law as relatively autonomous.
The legacy of Marx will remain contested. But Marxism itself retained a significant if often
invisible influence even on non-Marxist theories, and perhaps especially on anti-Marxists
theorists, forced to contend with the power of Marx’s ideas in practice and the political
movements that sought to translate his legacy into concrete social change. This was so
especially of the writing of the early twentieth century, when reactionary conservatism
emerges with such force, partly in response to liberalism’s own confrontation with Marxism
and socialism. As the handbook illustrates, there are important historical and epistemic
reasons behind the development of the concept precisely in the interwar period: the discon-
nect between liberal constitutional orders and the changes affecting both the political and the
economic systems (from the extension of the franchise to the dramatic 1929 crisis) pushed
constitutional scholars to think about constitutional orders in more substantive terms, par-
ticularly as political parties organised and governed around a set of principles, values
and aims.

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 Introduction: Return of the Material Constitution 7

I.2.1 The Transformation of the Material Constitution in the Interwar Era

The decline of the revolutionary socialism of the era of Lenin and Luxemburg, outlined in
Chapter 1, with ossification in the East and defeat in the West, did not mean the decline of the
material constitution per se. On the contrary, in significant respects, it gave it renewed impetus,
as scholars from other traditions picked up its conceptual toolkit. As the unitary fate of the
material constitution in terms of its connection with Marxism was splintered, certain new
commonalities with very different politics would thus emerge, partly due to the sense of
exhaustion of the energies of classical liberalism, after its domination in the nineteenth century.
To put it crudely, if revolutionary Marxism had failed, liberalism had not triumphed, leaving a
space for new constitutional ideas and politics to emerge.
For one thing, the hopes and fears of a parliamentary path to socialism remained alive with
the political representation of the working-class in conditions of parliamentary supremacy. How
concrete this prospect actually was may be debated, but there was a deep conservative political
and cultural concern over the fragility of established institutions in conditions of increasing
inequality and plurality. Thus, to add to the sense of transition after the First World War, of the
decline of prevailing structures of power, there was a growing sense of the inability of liberalism
to retain its constitutional hegemony. With the interwar writings of a range of constitutional
theorists, notably including Carl Schmitt, Hermann Heller, and Constantino Mortati, a distinct
kind of critique of liberal formalism begins to emerge, which doesn’t depend on Marx or the
prospect of revolutionary socialism.
Rather than tackle the Marxist critique of liberal political economy directly, these theorists,
whether conservative or social democratic, often proceeded by underscoring the cultural
brittleness of liberalism. In each case there was a critique, whether deep or shallow, of the
philosophical–political orientation of liberalism, but not necessarily of its economic assump-
tions. For the new philosophers of the conservative right, liberal philosophy and politics was
simply not up to the task of maintaining an order of private property rights against its socialist
opponents. For the new generation of social democrats such as Hermann Heller, the inequal-
ities resulting from a liberal economy would undermine institutions of liberal democracy itself.15
This transformation in the practice and grammar of the material constitution, fomented by a
concern with liberalism’s political weakness, thus assumes different forms. Material constitu-
tional analysis for those in the socialist tradition tends to remain concentrated around issues of
societal reproduction, material inequality and class conflict; for conservative scholars, around
issues of culture, collective identity and the potential collapse of the security guaranteed by
existing liberal institutions. As Vagdoutis further notes in his chapter on materialist thought in
Greek constitutionalism, the impact of German conservative scholars such as Rudolph Smend
and Carl Schmitt, who to some extent blended left and right critiques of liberal formalism,
extended far beyond central Europe. Their work had a profound influence on the social logic of
integration pursued by social democratic scholars in their attempt to go beyond classical liberal
individualism and remedy its weakness.
Yet as the pillars of the material constitution of liberalism come under more serious political
and economic pressure, domestically as well as in the context of contractionary effects of the
decline of European imperial powers, a very different set of alternatives to liberalism emerges
with the advent of fascism, namely of a material constitution constructed around ideas of racial

15
See H. Heller, Sovereignty [1927] (Oxford University Press, 2019).

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 8 Marco Goldoni and Michael A. Wilkinson

identity and a cult of violence. Although novel in important respects, this new movement
displays both continuities and discontinuities with the previous constitutional order.16
In this new era, Schmitt and Mortati become the standard-bearers for a distinct type of
material constitutional analysis and it is no surprise that they so deeply influence a range of
contributions to this volume, leaving a profound imprint on twentieth century constitutional
scholarship across the political spectrum and in a variety of sub-domains and jurisdictions. As
reflected by their scholarship, a new conservative liberalism gains ascendency as the bourgeoise
becomes unsure of its own position and of its capacity to maintain political domination. Law
itself is not enough to guarantee the material reproduction of the legal regime; in particular the
threat of strikes, expropriation of property, loss of asset value through hyperinflation and growing
power of trade unions all threaten to undermine the economic and political hegemony of the
bourgeoise bloc. As Karl Polanyi explains, this liberal turn to authoritarian structures of power in
an attempt to maintain order, against growing counter-movements in defence of society and the
increasing commodification of the uncommodifiable (labour, land and money), were wide-
spread in Europe and beyond.17
Mortati, like Schmitt, constructs a new version of the material constitution, not only against
Marxism but against liberal formalism and the perception of its insufficiently robust political
character. As Lucia Rubinelli outlines in Chapter 5, Mortati’s project is a reaction to positivism
and formalism, as well as the liberal–legalist attempts to separate law from politics. In Mortati’s
version the constitution is given concrete meaning and social stabilisation by dominant groups
in society and through the dominance of their political objectives, albeit not in any decisionistic
manner (as Schmitt had proclaimed). Instead, Mortati, like Heller, highlighted the significance
of the role of political parties in forging social and political unity over time, acting as ‘the
institutional arm of intermediate communities’. In the concrete situation of interwar Italy it was
for the fascist party to be the bearer of the fundamental political objectives of the bourgeoise
state, often with the support of liberals and centrists.

I.2.2 Weimar’s Material Schisms

The jurisprudence of Weimar Germany contributed in a significant way to the debate on the
material constitution. It is important here to exercise some degree of caution in explaining the
orientation of Weimar’s jurists, and in generalising from it, given the peculiarities of the situation
in Germany after First World War. Yet the influence of the Weimar experience, the schisms it
created on the left, as well as between left and right, and the meaning given to it by consti-
tutional theorists and political commentators in the post-war era, not only in Germany, but in
Europe and beyond, is undeniable.18
The Weimar republic was built on a constitutional compromise but the German working
class was now fully emancipated as a matter of universal suffrage and had a mass party to lead it
toward material social change, including, at least on some accounts, toward a socialist state
within the terms of the constitution itself. In the early stages of the Republic there were those on
the left, including notably a group of Weimar labour lawyers, who believed in the possibility of

16
See Wilkinson, Authoritarian Liberalism, ch. 1. Also I. Lander, Apprentice’s Sorcerer: Liberal Tradition and Fascism
(Haymarket Books, 2012).
17
K. Polanyi, The Great Transformation [1944] (Beacon Press, 2001).
18
See, e.g., U. Greenberg, Weimar’s Century: German Emigres and the Ideological Foundations of the Cold War
(Princeton University Press, 2015).

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 Introduction: Return of the Material Constitution 9

radical change through utilising the economic parts of the Weimar constitution.19 What was
clear was that social inequality had become a constitutional question, a question over the basic
rules governing the interrelation between state and society.
Conservative jurists such as Schmitt first turned to the resources offered by the Weimar
constitution to shore up the protection of the economically liberal parts of the constitutional
order. But it soon became clear that this would not suffice and a more authoritarian turn would
be necessary, first with the cabinets of authoritarian liberalism and then with the rise of National
socialism. Questions concerning the material constitution and its relationship with constitu-
tional form would quickly multiply.
In the mid-Weimar period, when Schmitt penned his major contribution to constitutional
theory, Verfassungslehre, his trick was to identify a substantive constitutional order that stood
over and above the formal text. This created a concrete difficulty, however, first because of the
vast array of provisions, liberal and social, that were covered in the Weimar constitution, and
second in the absence of any consensus over or support for the form of the Weimar state, its new
Republic still perceived as illegitimate by monarchists, as well as Communists. Politically
polarising issues became constitutional questions against a backdrop of increasing distrust toward
the Republic and little loyalty toward the background state.
Schmitt’s response was, in part, to bracket the question of state theory and collapse the idea of
the state into the constitution, as the ‘soul of the state’, providing its own unity and order. By this,
Schmitt did not mean the positive law of the constitution, but a constitutional identity. The
notion of constitutional identity, the big ‘C’ or Absolute Constitution, could then be raised
above the written text and defended by a decisionistic organ of power. In the immediate context,
this meant the use of Article 48 of the Weimar Constitution to rule by presidential diktat
and decree, which was later used from 1930–33 in a series of cabinets that bypassed
parliament entirely.
In Chapter 2, Jens Meierhenrich recounts Schmitt’s attempt to wrest material analysis away
from Marxism as a call for an ‘affective constitutionalism’. This was, in his view, inspired by the
phenomenological tradition as well as German historicism, which he traces back to Herder’s
eighteenth century ‘community of language’. In Meierhenrich’s reading, Schmitt’s material
constitution was pursued predominantly as a collective existentialist project pitted against liberal
technologies of rule. Although it eventually became a violent, militaristic and ethnically exclu-
sionary project built on racial identity, this was not intrinsic to its logic. Meierhenrich argues that
it would be more appropriate to describe Schmitt’s theory, as least in 1928 when he published
Verfassungslehre, as substituting nomos, rather than ethnos, for the concept of demos. In this way
Meierhenrich even suggests affinities with later work by critical legal scholars such as Robert
Cover and Marxist scholar Raymond Williams, for whom the material world was irreducibly
cultural as much as economic. Schmitt’s material constitutionalism, then, in Meierhenrich’s
view, was reactionary, but not (yet) racial, militant only in its opposition to the rise of machine
politics and to constitutional engineering, in defence of constitutional sentiment and
‘Volkish’ feeling.
National socialism had a profound impact on material constitutional theorising. Ernst
Fraenkel’s Dual State makes the case for a historical continuation of a residual normative
system in the private economy in combination with the dictatorial prerogative powers of the
Nazi regime. Yet, in Lars Vinx’s view, outlined in Chapter 6, this dual state, although presenting
some aspects of legal continuity with the Weimar constitution, could not be characterised as

19
See R. Dukes, The Labour Constitution (Oxford University Press, 2014).

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 10 Marco Goldoni and Michael A. Wilkinson

having a material constitution at all, at least in the normative sense employed by Vinx, who
suggests that Nazi Germany also failed to qualify as a state. Vinx argues that the attempt to rest
the Nazi regime on the foundations of a ‘concrete order’ (Schmitt’s third type of juristic thought
alongside normativism and decisionism) fails because there was no such pre-existing order; one
would inevitably have to be determined in an authoritarian fashion, undercutting the plurality of
the social order and inevitably returning to a decisionistic frame.
Whatever the correct view of the Nationalist Socialist transition, Schmitt’s work would
continue to resonate in and influence jurisdictions far and wide, particularly his view that
amendments to the constitution must not assail the ‘Constitution as a basic decision’. This
doctrine would be brought to fruition by many liberal scholars in the post-war period, often with
little understanding of its pedigree.
In Chapter 19, Velasco-Rivera and Colón-Ríos show how, in certain Latin American Courts,
the concept of the material constitution, lacking the certainty of ordinary legal rules, ‘can be
deployed by jurists to defend opposite positions about the limits of constitutional reform’. They
show that ‘judges have applied the concept of the material constitution in order to argue against
the doctrine of unconstitutional constitutional amendments’, quite contrary to Schmitt’s inten-
tion. In their view the older doctrine of the ‘historical constitution’, representing the ‘funda-
mental laws’ of the nation as a historical community, is the more robust concept in terms of
attempts to limit the amending power in favour of an established constitutional identity and
more generally in rejection of the notion of constituent power to radically change the consti-
tutional order. This gives it a more solid foundation, based on a doctrine derived from
eighteenth and nineteenth century Spanish jurisprudence. They also note its continuing
relevance, notably in Hungary, even though largely now replaced by the concept of the consti-
tution in the material sense.

I.2.3 From Legal Positivism to the Sociology of Law: The Institutionalists and Beyond
Outside the extraordinary turbulence of the Weimar republic, other comparable shifts in
constitutional approach if not in political temperature can be identified. Even in the context
of its more moderate simulacrum in the British constitutional scene, which faced its own crises
of authority after the First World War but didn’t witness anything like the degree of turmoil
experienced in continental Europe, there would be a turn away from the liberalism, positivism
and formalism that emerged out of the long nineteenth century.
In Chapter 3, Martin Loughlin argues that Harold Laski’s late materialist turn unfolds in
response to the interwar crisis of parliamentary democracy and the decline of liberal constitu-
tionalism. Laski eventually comes to view the state as a capitalist formation expressing class
relations in a rigidly deterministic manner; it was not from any belief in working class emanci-
pation but his realisation of the concrete nature of ruling class power that turns Laski toward
Marxism. With the end of the Victorian compromise, and capital ending its period of imperial
expansion, crisis was bound to follow. But it was not to result in any socialist solution. The
failure of the general strike of 1926, followed by the collapse of Labour party representation in the
General Election of 1931, had ‘shattered Laski’s belief in the parliamentary road to socialism’.
And he rejected the revolutionary road as leading ‘invariably to dictatorship’. The marriage
between democracy and capitalism had ended but there was no new alliance in sight, and Laski
ends, in Loughlin’s verdict on his last book published in 1950, in a mood of complacency over
the status of parliamentary government and a retreat ‘from any serious examination of the issues
confronting postwar society’.

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 Introduction: Return of the Material Constitution 11

Although Laski’s positions oscillated in response to the changing British political scene, there
was a clear and stable conceptual critique undergirding his work as a whole. Legal relations, as
well as the state itself, were, for Laski, an expression of class relations, not of the inner logic of a
normative system. This diagnosis was combined with a rejection of the dominant legal positiv-
ism of the period, which had been taken to its logical conclusion in Kelsen’s ‘pure theory of law’
and associated political relativism.20
The constitutional implications of the move away from positivism and formalism
were repeated elsewhere and among a range of scholars who didn’t share Laski’s
political trajectory, or Schmitt’s for that matter. The new materialist jurisprudence that
emerges in the early twentieth century, consolidated in the interwar period, constitutes a
broad church, encompassing French institutionalists such as Maurice Hauriou and Léon
Duguit (who was a significant influence on Laski), Austrian pluralists like Eugen Ehrlich,
the Italian constitutional theory of Santi Romano and socialist state thinkers such
as Heller.21
This type of sociological institutionalism had its cradle in Europe, but it reached, although in
variation, the United States as well, as documented by Rob Hunter in Chapter 7, on the doctrine
of the material constitution in the United States. Hunter discusses the limits of the contributions
of Charles Beard, Karl Llewellyn and Louis Hartz. In particular, he exposes the crude and
disappointing materialism of Beard, which cannot register crucial phenomena like racism in
constitution-making and, more predictably, of Hartz’s monochromatic account of the dominant
liberalism of the Founding Fathers. Llewellyn’s approach to the constitution, as Hunter shows,
although lacking a proper materialist basis and fetishing the juristic dimension, provides an
interesting variation on a material legal institutionalism by recognising the continuous repro-
duction of institutions through conflict and antagonism.

I.3 THE MATERIAL CONSTITUTION AT THE END OF HISTORY

In Giorgio Agamben’s evocative formulation, Schmitt had argued ‘without reservation’ for the
‘involvement of the jurist in the material constitution of [his] times’.22 But Schmitt also
perceived himself to be the ‘final representative’ of the jus publicum Europaeum, with the
material constitution of Europe’s long nineteenth century coming to an end in the sea of
concrete disorder and lawlessness. This, above all, is what Schmitt feared in the interwar
conjuncture. And it was a fate, he was convinced, that legal positivism and the technical turn
of liberal politics was impotent to defend against.
Schmitt may have been wrong about the ascendance of legal positivism, his own theory
ironically being later picked up, often without acknowledgement or even by those in rhetorical
opposition to it, to advance all manner of militant and authoritarian positions, notably around
the theme of constitutional identity. But he was to some extent correct about the second point,
the category of ‘the political’ eroded or lost (with some important exceptions) through the
dominance of behaviouralist, technical, empiricist and systems-theoretical analyses.

20
See the reconstruction of Kelsen’s proceduralist understanding offered in L. Vinx, ‘Hans Kelsen and the Material
Constitution of Democracy’ (2021) 11 Jurisprudence 466.
21
See further, M. Loughlin, Political Jurisprudence (Oxford University Press, 2017).
22
G. Agamben, ‘A Jurist Confronting Himself’, in J. Meierhenrich and O. Simons (eds.), The Oxford Handbook of Carl
Schmitt (Oxford University Press, 2017), 458.

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 12 Marco Goldoni and Michael A. Wilkinson

I.3.1 The Post-War Material Constitution

The new compromise represented by the New Deal and, slightly later, the rise of the Welfare
States across Western European countries, changed the material constitution in profound ways.
Roughly, with the rise of the new Fordist organisation of industrial production came a re-
organisation of the social security system and an increased involvement of the State in the
political economy. Inevitably, these changes would have an impact on the constitutional order
of a magnitude which would reverbarate across disciplines and domains.
Constitutional thought registered this change. Buoyed by the pervasiveness of the myth of
Weimar’s decline as a crisis of democracy, and a related counter-majoritarianism that found
support on both sides of the Atlantic, a re-energised liberalism would abandon Kelsenian
relativism and embrace its own form of Schmittian militancy. Laissez-faire was buried, and
liberalism was resurrected on a new, firmer foundation, ideologically due to the pronounced
anti-communism of Western intellectuals and institutions and, materially, due to the gradual
ascendance and eventual supremacy of US capitalism and its military–industrial and neo-
imperial complex.23
In terms of the broader post-war trajectory, two mutually reinforcing trends combine to de-
politicise the constitution: the symbiosis of European cultural conservatism with a new moralis-
tic liberalism, particularly as exported and re-imported in the links between German emigres
and American scholars, networks and institutions and a de-radicalisation of critical theory under
the guise of an ideological Europeanism, retreat from class politics and turn to identity,
discourse and culture.

I.3.2 A Symbiosis of Cultural Conservatism and Moralistic Liberalism

On the side of conservativism and liberalism, the anti-Marxist preoccupation of scholars in the
1920s could now count on the material and ideological support of the dominant global
superpower. As Udi Greenberg has recently documented, there was a mutual symbiosis between
West German and US academic, political and economic elites underpinned by a shared
hostility to Communism. ‘Ideas from Weimar’, Greenberg argues, ‘not only enabled democratic
revolutions’ in the post-war era; they also ‘constrained postwar democracy by their anti-com-
munism’.24 Claims to a new era of free political competition would be undercut by the rigid
constraining devices of post-war Europe, narrowing the range of possibilities in the consti-
tutional imagination, as well as the constitutional reality in the case of the Bonn republic and
its curtailing of political freedom to those considered ‘enemies’. The upshot was an unequivocal
rejection of Kelsen’s open relativism and embrace of a militant democracy, but recast as a
normative, formal liberal constitutionalism.
This new post-war liberalism would turn to judicial guarantees of fundamental rights and
dignity and a robust ideological anti-positivism rather than look to presidentialism or dictatorship
as a means of constitutional defence as it had in the interwar period.25 And in terms of consti-
tutional scholarship it would pivot away from institutionalism and positivism, presenting itself in
the moralistic tones of normative discourse and even natural law. With the eclipse of the demos,

23
See L. Panitch and S. Gindin, The Making of Global Capitalism (Verso, 2013).
24
Greenberg, Weimar’s Century, 17.
25
This post-war turn is closely associated with both US and West German post-war constitutional discourse. See M.
Hailbronner, Tradition and Transformations: The Rise of German Constitutionalism (Oxford University Press, 2015)
and on the synergies between them, J. Bomhoff, Balancing Constitutional Rights (Cambridge University Press, 2013).

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 Introduction: Return of the Material Constitution 13

and the erosion of sovereignty, state theory itself largely disappeared into normative
constitutionalism.26
As Tim Wihl notes in Chapter 4, the conservative cultural–materialist turn in interwar Europe
constituted a broad alliance, ranged not only against socialism but against positivism as a legal
and constitutional method. In the post-war era, not only Schmitt but other conservative scholars
such as Rudolf Smend would be rehabilitated as a new legal constitutionalism emerged. Smend
belonged to the cohort of conservative scholars who had feared the dominance of the left over
‘bourgeois’ forces in the interwar era, drawing on various humanist and organicist currents of
thought to bolster the judiciary as a ‘state power with a mandate to do justice’, meaning to
defend property rights against mass democracy. The post-war legacy of Smend would be clearly
pronounced in the German Constitutional Court’s Lüth decision, articulating an ‘objective
value order’, allowing the ‘application of fundamental rights in far-reaching abstraction from
their textual formulation’.
This new form of judicial interpretivism would attract liberals and social democrats as well as
conservatives. In Wihl’s account, German constitutional lawyer Konrad Hesse, continuing the
integrationist logic but turning Smend upside down, sought an ultimate ‘unity of the consti-
tutional and legal order’, eliminating contradictions and contrasts, and replacing a statist theory
of integration with a functional sociological rationality, now with an individualist inflection.
A parallel trajectory affected a certain reception of the material constitution elsewhere in
Europe. Graziella Romeo, in Chapter 18, on the doctrines of constitutional maintenance,
investigates the legacy of Mortati’s conception of the material constitution by looking at two
post-authoritarian experiences with written codified texts: Italy and Portugal. In both cases, the
more general question of the gap between the material constitution and the written text acquired
growing importance in a manner proportional to the temporal distance from the redaction of the
original text. Romeo helpfully identifies the importance of the material constitution during the
original enactment and its role in following constitutional developments. The constitutional
discourse, by both political actors and academics, has often focussed, in Italy and Portugal, on
the need of updating the formal constitution in order to make it congruent with the material
constitution. Romeo’s insight is important for the study of the material constitution in noting
that absorption of the material constitution into the written document is based on a profound
misunderstanding of the relation between the material and the formal. The latter is one of the
manifestations of the original material constitution, but not the exclusive one. Indeed, the
normativity of the material constitution is more foundational and, therefore, there is no logical
need to constantly update the (as she calls it) master-text.

I.3.3 The Post-War Inflection of the Material Constitution in Western Marxism

The project of radical social transformation via political action and revolution, so central to the
classical Marxist account, is effectively abandoned in post-war Europe. What emerges instead is
support for constitutionalism itself, systems of checks and balances, increased veto points, and
institutional fragmentation, in an attempt to stabilise liberal democracy. This is materially
propped up through class compromises and an oscillating welfarism (expanding in times of
growth and contracting through periods of austerity). Critical theory largely acquiesces in this

26
See K. Son, The Eclipse of the Demos: The Cold War and the Crisis of Democracy before Neoliberalism (University of
Kansas Press, 2020).

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 14 Marco Goldoni and Michael A. Wilkinson

great moderation, accommodating a de-politicisation of basic social goods and objectives, based
on its own fear of democratic instability.
As Kolja Möller outlines in Chapter 9, there was initially some hope among socialists that
the new West German constitution could represent a class compromise and even ‘balance of
class forces’, recalling the earlier Austrian–Marxist theorist Otto Bauer, who had argued that
neither the bourgeoisie nor the proletariat could dominate the state. He focuses on German
Marxist theoretician (and tutor of Jürgen Habermas) Wolfgang Abendroth, who had been
active in Weimar debates first as a member of the Kommunistiche Partei Deutschlands
(KPD), and then KPO (the Communist Party Opposition which tried to initiate broad
coalitions between social democrats, communists and the trade-unions). Abendroth initially
pushed for a social reading of the Bonn constitution. But in terms of his theoretical
contribution, he is notable in maintaining the notion of constituent power, not only to
correct constituted powers and, thereby, to conserve the social compromise; he also hinted
‘at the possibility of an encompassing social transformation’. Möller identifies some latent
possibilities in this conceptualisation, in light of social struggles of the 1970s, particularly in
the subaltern forces and anti-colonial movements. But constituent power ultimately takes up
a normative and systemic role, representing the self-constitution of society rather than a
radical political dynamic of rupture.
In any case, as Möller notes, Abendroth was soon marginalised by the conservative academy.
And in terms of his diagnosis of material struggle as a concrete phenomenon, Abendroth
elsewhere documents in detail the post-war weakening and fragmentation of the working class,
and the parties meant to represent them, right across the continent. In the mid-1950s, the
German SPD (Sozialdemokratische Partei Deutschlands) became, in Abendroth’s view, ‘an
instrument for consolidating the influence of the ruling class on the workers’ and in most
European countries, by the 1960s, social democracy had given up the notion of representing
class interests and abandoned the idea of social ownership.27 This, Abendroth notes, would be
reinforced through the European project; whereas the integration of Europe enabled increasing
connections between large transnational corporations, the interests and organisation of workers
could not be so easily upscaled.
Ideologically, what was left of Marxian materialism was also disarmed in the move away
from political economy, and toward philosophy and culture, and then toward a wider
consensus around liberal values as underpinning the constitutional paradigm. In
Chapter 14, Neil Walker identifies the constitution’s own ‘meta-political values’, which
‘as the constitutional state consolidated over the late 19th and 20th century’ can be
summarised as the ‘trinity’ of ‘democracy, human rights and the rule of law’. This holy
trinity of values is defended at a high degree of abstraction, often without reference even to
the formal aspects of economic organisation that are codified through constitutional texts,
treaty law and extended through their judicial interpretation. In Walker’s recounting, this
stems from a traditional ‘indifference’ of constitutional authority toward economic power,
enabling it to ‘accommodate any sort of economic model, whether or not capitalist’.28
There was no need, therefore, for any ‘explicit reference to the “e” word in the consti-
tutional text’.

27
W. Abendroth, Short History of the European Working Class (Verso, 1972), 151.
28
Citing G. Gerapetritis, New Economic Constitutionalism in Europe (Hart, 2019), 6.

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 Introduction: Return of the Material Constitution 15

I.4 THE END OF THE END OF HISTORY AND THE RETURN OF THE
MATERIAL CONSTITUTION

The left-liberal forgetting of the material constitution, however, can be re-historicised and de-
naturalised in a way which not only provides explanatory power, but opens up the possibility for
exploring possible alternatives. Prominent in recent scholarship is the way the ‘holy trinity’ of
democracy, human rights and the rule of law, and its detachment from material developments,
far from conventional, is in fact highly constructed.
Key here is a huge array of scholarship that began to deconstruct the decades of neoliberalism
beginning in the 1970s, prominent among which is the work of Marxist geographer, David
Harvey.29 It would then appear that the neoliberal transition, symbolised by the award of the
Nobel Prize in 1976 to Milton Friedman, and intellectually spearheaded by a second generation
of Chicago-influenced thinkers, was pushed by a combination of concrete political and material
forces. Neoliberalism incorporated an added ‘myth’, of economics occurring outside the control
of national governments, or at least many among them. As such, it emphasised that the capacity
for control was always already constrained by the conditions of the world market.30 But this sense
of a loss of control accompanied a number of significant constitutional changes, specifically the
turn to ‘external’ constraints. This would be a feature of the ‘new constitutionalism’ emerging in
the 1990s, introduced by international relations scholars who followed the lead of Antonio
Gramsci.31
Deconstruction of liberal constitutional ideology also returned to the fore. The impact of
Cold War liberalism, American legalism and multiple waves of juridification, as well as the turn
to human rights as a surrogate for socialism was famously said to represent the ‘last utopia’ of a
defeated left in the 1970s.32 This turn to abstract values enabled a liberal-left to achieve a wide
degree of ideological consensus, cemented in various ways by the hegemony of the French anti-
totalitarian turn in the wake of the bicentenary of the French revolution, and the transformation
of German critical theory in the hands of Jürgen Habermas and his followers.
In Chapter 10, Gunther Teubner interrogates one of the few authors who did not follow the
path toward an immaterial critical theory: Rudolf Wiethölter. Unsatisfied with the communi-
cative turn of critical constitutional theory, Wiethölter thematised the material constitution by
placing political economy at the forefront of his concerns, but he did so in a highly original and
idiosyncratic way. His main source of inspiration is system theory and he develops his consti-
tutional analysis in a critical dialogue with Luhmann. Wiethölter theorises the radical autonomy
of law (and not the relative autonomy typical of sociological or Gramscian conceptions of the
material constitution) but gives it a peculiar spin. As all social sub-systems, if the autonomy of the
system (and law is no exception) does not maintain a solid connection with society, it degener-
ates into a pathology. His prescription is for the law itself to ‘actively see new, resilient ties back to
society precisely because it has gained such a high degree of autonomy’. However, Wiethölter
does not suggest resolving the pathologies of social differentiation by reconstructing an integra-
tion of systems via the State or any other functional equivalent. Instead, Teubner recounts
Wiethölter’s kind of material constitutional pluralism: no comprehensive constitution for

29
See, e.g., D. Harvey, A Brief History of Neoliberalism (Oxford University Press, 2005).
30
For a powerful counter-narrative, see W. Streeck, Buying Time: The Delayed Crisis of Democratic Capitalism (Verso,
2014).
31
S. Gill and C. Cutler, New Constitutionalism and World Order (Cambridge University Press, 2014).
32
S. Moyn, Last Utopia (Harvard University Press, 2012).

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 16 Marco Goldoni and Michael A. Wilkinson

society, but a multitude of constitutional sites each with its own material constitution connected
to social needs.
Wiethölter’s vision of the material constitution was not typical. At that point in time, that is,
after the collapse of the Soviet Union and the supposed ‘end of history’, the material constitution
disappeared almost entirely from mainstream scholarship, the dominance of the TINA narrative
(There Is No Alternative to neoliberalism) rendering it superfluous in many analyses. Perhaps,
however, in reality it was the suppression of political autonomy, its ‘hollowing out’ through
decades of democratic disconnect that had merely facilitated the appearance of a seamless trinity
of values. The role of international and supranational structures of power in this formation was
becoming more evident and, when the euro crisis struck, ever more conspicuous.
In Chapter 25, Agustin Menéndez illustrates how the formation of the material constitution of
the EU – especially post-Maastricht – is based on a different trinity of fundamental principles:
free competition, fundamental freedoms and sound money. His analysis shows precisely how
social relations, and an institutional division of labour between centre and periphery and
between supranational and national levels, coalesce in pursuit of the primary value of the
European Union: the protection of private property qua economic wealth. The impact of these
operations on the Welfare State is conspicuous and Menéndez identifies in it a specific consti-
tutional function of external constraint. Therefore, the material constitution of the EU tends to
become autonomous by pursuing its own fundamental political goals but in the process is
transformative of the domestic constitution of the member States. This chapter, together with
those dedicated to the federation (Chapter 12) and the empire (Chapter 11), reminds us that the
material constitution is not tied to the State form as a matter of conceptual necessity. On the
contrary, material analysis reveals the contingency of state formation in the inter-state system.
Political unity can take other constitutional forms.

I.4.1 The Material Constitution beyond Europe

As Europe was stabilised after the Second World War, partly under the auspices of US power,
analysis of the material constitution would be displaced to new contexts, notably Latin America,
China and India, partly due to the destabilising external effects of that very same power. Indeed,
for those interested in the analysis of the material constitution there is much to learn by
observing non-European cases. As the original conception of the material constitution was
deeply tied to European modernity, the different developments taken by other jurisdictions
through decolonisation and processes of staggered modernisation show the limits of a Euro-
centric understanding of the concept.
As Sandipto Dasgupta notes in Chapter 20, the tradition of the material constitution stands as
critique of the assumption of a ‘globally shared mode of organising social-political formations’,
an assumption which ‘erases the socio-historical specificity of the postcolonial transitional
moment’. Dasgupta also notes that this was not merely accidental, but an aspect of the ‘formal,
normative view of constitutions’ pushed by Cold War intellectual movements and unipolar
economic globalisation.
The example of India, although unique in many ways, brought to independence by the
‘largest mass movement of its kinds anywhere in the world’, represents one of the projects of
state-led transformation in the periphery that pushed against global constitutionalism,
attempting to respond to the social question in an underdeveloped and highly unequal society
by re-establishing sovereignty over property and autonomy from global capital. The capitalist
class in India, due to its historic weakness, had to share power with other dominant classes,

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 Introduction: Return of the Material Constitution 17

notably the rural landowners and professional elites, who were significant in possessing the skill
in managing the state and administering the constitution, adopting a functionalist view of
public law.
However, the ordering principles of the post-colonial regime were eventually delinked from
the anticolonial struggle with the government administration using the ‘very same bureaucracy,
police and army that was used to suppress the anticolonial movement’. Over time, with the
Indian elite facing a crisis of hegemony, parliament in decline and planning subdued as the
Third World became liberalised, lawyers and judges would come to supplant administrators, and
the rule of law and its institutional expression came to play a more prominent role in the
constitutional life of the nation. As Dasgupta concludes, this can best be understood as a change
in the material constitution: ‘lawyers replacing administrators as the custodian of the
Constitution was not just a change in style – from functionalist to legal. It was the result of a
major change in the social basis of the transformational project, and hence by extension, the
Constitution.’ This would also face reaction, often conducted in ‘extra-legal terms’ and ‘extra-
constitutional’ terms, as the social question remained ‘the central issue of Indian political life’,
and one which the formal constitution would be powerless to address.
Animated by this insight about the role of decolonising processes and relations between centre
and periphery, Part III contains other non-European ‘case studies’. In Chapter 21, Ngoc Son Bui
distils the ordering factors of the Chinese constitutional order. The bearing subject here is the
party-State, that is, the Communist party and its organisation, which cannot be fully disentan-
gled from State apparatuses. Son shows that the material constitution of China is based on this
interpenetration of a monoparty political system that is deeply involved in all State structures.
This is a crucial difference with the role of the political system in Western States, which is by
now more based on the construction of electoral consent. The Chinese Communist Party
musters the political energy for carrying forward the fundamental political objectives of the
Chinese state. According to Son, the main objectives of the constitutional order are economic
development and socialist politics. The combination of these elements allows Son to identify the
material constitution of China as one of a ‘socialist developmental state’: the governing activity
of the Chinese Communist party is directed toward the synthesis of economic development and
the main features of a socialist constitution. Moreover, the framework of the material consti-
tution provides an instrument for assessing the role of the 1982 written constitution, which Son
notes is not a sham document, but an integral part of the constitutional order, performing
important functions. Among these, Son emphasises the formalisation of the fundamental
objectives and the clarification of the structure and operations of the party-State.33
Tarik Olcay, in Chapter 23, on the role of the military in the material constitution of Turkey,
offers an attentive analysis of how a concrete force within the Turkish constitutional order has
acted both as a constituent and a protecting factor on several occasions. The advantage of the
framework of the material constitution here is to be able to track the constitutional role of an
institution, in this case the army, that does not occupy a central position in written constitutional
documents, yet does shape the constitutional order in decisive ways. Olcay’s claim is
basically that it is impossible to understand the dynamics of the Turkish constitutional order
without focusing on its army. The dividends of this analysis are illustrated by Olcay with simple
efficacy: through an overview of the 1962 and 1982 constitutions, the ongoing authority and

33
Son has extended the frame of the material constitution to comparative studies in other Asian countries in: Ngoc Son
Bui, Constitutional Change in the Contemporary Socialist World (Oxford University Press, 2020).

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 18 Marco Goldoni and Michael A. Wilkinson

crucial constitutional potestas of the army are tracked and their essential part in the
constitution illustrated.
At the beginning of Part II, in Chapter 11, Eva Nanopoulos introduces a largely neglected
topic in the debate on the material constitution: imperialism and its function in the formation of
modern constitutional orders. Nanopoulos’ starting point is the recognition that modern domes-
tic constitutional orders were always shaped in relation to non-European contexts. The chapter
takes up two paradigmatic cases: the constitutions of imperial Britain and France. Nanopoulos
maintains that the imperial ambitions of both countries were an ordering force of their own
material constitution. The organisation of labour and property in the colonies would not only
deeply shape the colonies’ legal orders; they would have a feedback effect on their domestic
constitutions. Pitching the analysis at the level of the material ordering of imperialism allows
Nanopoulos to identify important differences in the nature of the constitutional order (for
example, the French move from an imperial constitution in 1795 to a colonial constitution in
1799), where constitutional dualism triggers a differentiated set of arrangements for France and
its colonies. But the analysis of imperialism’s impact on domestic constitutions is not limited to
historical reconstruction. Nanopoulos lays down a research programme for decolonising consti-
tutional law which uncovers how contemporary forms of imperialism, without resorting to
coercive and violent expropriation or occupation, still mould the material constitution. Racial
capitalist imperialism, organisation of the value chain and global financialisation are at the
forefront of a decolonising approach to the material constitution.
In Chapter 22, on the constitutional transformation of Mongolia, Jennifer Lander sheds light
on the material factors that have shaped its constitutional order over the last 30 years. Of great
relevance for a reappraisal of the material constitution in the twenty-first century is the recon-
struction of the coupling between the decision to transform the political economy of Mongolia
into an extractivist one and the network of transnational norms and rules that the constitutional
order of Mongolia had to adapt to in pursuing that objective. The chapter identifies in those
objectives – recentring the economy around mining with, crucially, an opening to international
investors – the main constitutional conflict and how it has unfolded. This history tracks a
profound constitutional change without constitutional formalisation: looking at the
Mongolian constitutional order without considering the principles of its political economy
and the international actors involved would miss a foundational aspect of constitutional reality.
The constitutional role of the political economy (in this case, international political
economy) occupies centre stage in Chapter 24, by Jessica Lawrence and Tom Flynn, on the
material constitution of international investment law (IIL). Lawrence and Flynn push the
analysis toward the idea that specific subsystems of transnational law might have their own
material constitution, though perhaps still dependent, for their existence, on state-based material
constitutions. They find particularly frustrating that, despite large criticism of the field, the
majority of proposals for reform address (or tweak with) procedures and changes to the formal
constitutional rules, but do not engage with the substantial social relations that ground inter-
national investment law. In an insightful overview, Lawrence and Flynn recognise the constitu-
tionalist discourse that has been used in IIL during the last years, but they note that it is more of a
distraction. They then illustrate the main tenets of the material constitution of IIL: A political
unity which is organised around an international space of circulation of capitals, the capacity of
pursuing transnational political objectives and a set of subjects – investors – whose interests are
driven by entrenching the security of their investments through modification of national consti-
tutional and ordinary law. As well as analysis this also gives the authors an entry point for
articulating a strategy for transformation of transnational regimes.

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 Introduction: Return of the Material Constitution 19

I.4.2 The Material Constitution in the Twenty-First Century: Theoretical Challenges

With the return of the material constitution in contemporary constitutional discourse, many
theoretical issues (new and old) remain to be addressed.
To begin, one might wonder whether the material constitution does actually preclude legal
positivism, as our historical narrative implies. If the material aspect is taken to signify merely the
laws of law-making (written or unwritten, codified or uncodified), that is, the ‘positive norms
which regulate the creation of legal norms’, then perhaps not. But legal positivism assumes
precisely what material analysis problematises, namely the material construction, maintenance
or breakdown of political authority. In that way, the material constitution shares a great deal with
political jurisprudence,34 albeit casting a more sceptical eye on the symbolic representation of
power central to that tradition and foregrounding the material dynamic of constitutional order
and disorder. For that reason, the sociology of law may provide a helpful bridge between
political jurisprudence and the material constitution, explaining the links between the symbolic
and the material.
In Chapter 16, Francesco Bilancia and Stefano Civitarese Matteucci bracket this question,
and take the positivisation of the constitution seriously, by presenting a conception of the
material constitution as a Hartian rule of recognition, ‘rooted in common sense and ordinary
language’, specifically linking it to a normative belief in the open procedures of a delibera-
tive democracy. But as they note, this holds only under certain normative conditions,
requiring a high degree of convergence around democratic procedure, the absence of
specific substantive political goals, and the absence of polarising social or
political movements.
Another crucial issue that will have to be re-articulated by a contemporary theory of the
material constitution, argues Denis Baranger in Chapter 17, is the relation between ‘matter’ and
form. Baranger’s chapter puts forward a criticism of the way the interwar theorists of the material
constitution assumed as a starting point a stark distinction between two constitutional levels.
Baranger warns that the return of the concept in the twenty-first century might introduce more
confusion than clarity. In his view, the articulation of the two levels is ontologically controversial
and does not have any added value. His proposal is basically to abandon the distinction
between formal and material in favour of an honest and for him more accurate dyad: legal
and political. The dynamic element of the material constitution is reconnected to a political
dynamic while the legal dimension is tied to the unavoidable truth that law always has to take up
a formal aspect.
Following the same line of criticism, in Chapter 15, Mariano Croce insists on the necessity to
move away from a substantive conception of the material constitution, that is, to shift from
structure to process. Croce’s argument is that the material constitution was treated, in the
twentieth century, as a shortcut for ‘social order’. This exposed the notion to two devastating
shortcomings: first, the determination of the concept was left to a regressio ad infinitum as no one
could define what society is; second, no explanation of how the material constitution would
mould the legal form was offered. In a move that goes beyond the two classic understandings of
the material constitution (as structure and as constitutional identity), Croce maintains that it is
still useful to use the framework of the material constitution, but only if it is conceived as a

34
Loughlin, Political Jurisprudence.

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 20 Marco Goldoni and Michael A. Wilkinson

process, and not as a substance made of specific norms, values or principles. This entails
conceiving the legal order as a set of organisational practices that take place within every social
group. There is an inherent pluralism in this latter conception of the material constitution.
Indeed, to illustrate the point, Croce contrasts this process-based view with Schmitt’s theory of
the concrete order35 and concludes that the latter cannot function anymore as a blueprint for
understanding the material constitution.
Another crucial question for future investigations into the material constitution is the study of
forms of political unity that go beyond the State and the empire. In Chapter 12, dedicated to this
question, Signe Larsen broaches the notion of federation as a form of political unity from the
perspective of the material constitution. The starting point of her chapter is that the federation is
not a species of the genus ‘State’, but it is an altogether different political form. The material
constitution of the federation diverges from the State primarily because it has a double telos that
is the distinctive mark of its constitutional life. Federations pursue two types of fundamental
goals: preserving the existence of the member States and pursuing its own autonomous goals
(usually related to welfare and/or warfare). The peculiar trait of the federations’ material consti-
tution is that a tension lies at its core and, instead of being resolved by a dominant political force
or state, it has to be managed (often through a balance of powers). This is an important insight
for scholars of the material constitution: the sense of unity and the clarity of the fundamental
goals may in this case be lacking. Larsen’s chapter is an invitation to examine other forms of
political unity and to even question whether, in conditions of contemporary political economy,
the unity necessary for maintaining a material constitution can be political at all.

I.5 CONCLUSION

It is possible to see three different lines of interpretation across the chapters of this Handbook.
They identify the most frequent conceptions of the material constitution: (1) the material
constitution as the set of material conditions of production and reproduction of the social order
(the materialist conception); (2) the material constitution as the law of law-making (the positivist
conception) and (3) the material constitution as the constellation of principles and values that
ground the constitutional order (the institutionalist conception). In many jurisdictions post-
Second World War the latter version became dominant; it became formalised as a discourse
around value-based constitutional orders and, more recently, as constitutional identity. Although
this is still the predominant version of the material constitution (though it is not formalised in
these terms), the relation with the social order has been developed in thin ways and the discourse
around it has often been pitched in fully-fledged normative tones.
However, as occurred during the interwar period, the currently hegemonic normative model
of the constitutional order is losing explanatory strength because context makes it no longer
tenable. Is this a misplaced conclusion? After all, ideal normative constitutional theory starts
from first principles and only then moves to non-ideal theory.36 Indeed, our claim is not that
normative constitutional theory is by itself irrelevant or useless. Rather, it is not the way to attain
constitutional knowledge and understanding. As the widened gap between normative consti-
tutional theory and a constitutional reality is increasingly shaped by one crisis after the other, the

35
Croce investigates Schmitt’s institutionalist turn at length with Andrea Salvatore in A. Salvatore and M. Croce, Carl
Schmitt’s Institutional Theory (Cambridge University Press, 2022).
36
The classic two-step move is exemplified by J. Rawls, A Theory of Justice (Harvard University Press, 1971).

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 Introduction: Return of the Material Constitution 21

tendency is to merely moralise constitutional phenomena, as is the case with much recent
analyses of populism.37
There is, to be sure, much work that remains to be done in developing a conception of the
material constitution. In that respect, this Handbook does not intend to advance an exhaustive
analysis. It offers an overview of the history of the concept, the state of affairs of the current
debate and a series of case studies. We hope that it provides fertile ground for further study.

37
For an exception, see recently M. Tushnet and B. Bugaric, Power to the People: Constitutionalism in the Age of
Populism (Oxford University Press, 2022).

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 part i

History

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 1

The Tradition of the Material Constitution in Western Marxism

Marco Goldoni and Michael A. Wilkinson

1.1 INTRODUCTION

In this chapter, we provide an overview of Marxist contributions to the concept of the material
constitution. Marx was the first philosopher to place the political economy of modern
production at the core of his analysis of the social order. Although he did not formally
articulate the idea of the material constitution, his thought remains indispensable to a
materialist constitutional theory. This chapter covers several key episodes of Marxist contribu-
tion to the material constitution following multiple waves of materialist thought since Marx.
But it cannot be anything close to exhaustive and will focus on the tradition of
Western Marxism.
The chapter traces the historical arc of Marxist influence, beginning with its origins in the
work of Marx and Lassalle (Section 1.2), continuing to a peak in the revolutionary era of Lenin
and Luxembourg, followed by a swift turn to reformism in the interwar period (Section 1.3). It
then examines an important exception to this decline in the work of Gramsci and his concept of
hegemony (Section 1.4). After the Second World War, ‘post-Marxist’ critical theory detaches
itself from political practice and working-class struggle, and leaves aside material analysis,
particularly under the auspices of the Frankfurt school (Section 1.5). The chapter then examines
two exceptions to the recent marginalisation of the materialist canon in the work of Balibar
(Section 1.6) and Negri (Section 1.7). We conclude by arguing that this diminution of influence
is regrettable as there remains much to learn from the Marxist tradition for understanding the
material constitution of the twenty-first century.

1.2 ORIGINS OF THE MATERIAL CONSTITUTION: MARX AND LASSALLE

In the history of constitutional and political ideas, there is no common agreement on the first
formulation of the material constitution, which might be said to date as far back as Aristotle’s
Politeia. But it is undisputable that the origins of a modern materialist understanding of political
society can be traced to the work of Karl Marx. To avoid any misunderstanding, Marx did not
directly use the term ‘material constitution’. And Marx’s discussion of constitutional questions is
often marginal or a pretext to address other issues, such as social and political emancipation.
More generally, Marx’s approach to constitutions is epitomised by his famous comment on
Hegel’s doctrine of the State (in what was his first lengthy work, although published only
posthumously) that constitutions are riddled by contradictions and the only way to solve those

25

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 26 Marco Goldoni and Michael A. Wilkinson

is by resorting to a purely democratic form of government.1 Only by redefining popular power in

terms of constitutive power (a permanent constituent activity) is it possible to avoid the consti-
tutional fetishism of liberal thought, that elevates the constitution above the people as an
external constraint on their power.2
It is in fact, for Marx, the specialisation of the political constitution that sets up the main
contradiction afflicting modern constitutionalism.3 This is at the centre of On The Jewish
Question, where the displacement of social emancipation by the political constitution and the
rights of man plays a pivotal role in his critique of the limits of modern liberalism and
republicanism.4
Although Marx’s early writings contain only an embryonic vision of the material constitution,
clearer outlines can be found in a number of later works on the critique of political economy. In
these more mature works, Marx presents two crucial insights. First is the materialist understand-
ing of capitalism, reflected in the core idea that capital is a social relation which shapes
productive activities by organising the forces and relations of production. A crucial text is the
Preface to the Critique of Political Economy, where Marx famously notes that ‘the mode of
production of material life conditions the general process of social, political and intellectual life.
It is not the consciousness of men that determines their existence, but their social existence that
determines their consciousness’.5 Accordingly, production is a fundamental social activity
through which labour (as the essence of the human being and the process through which
man transforms nature) comes to be organised and transformed into a commodity and it is the
organisation of the mode of production that drives historical development. Law is portrayed as a
result of such development, as if it were a mere reflection of the underlying dynamics of the
productive process.
According to this classical Marxist view, private property and other legal institutions (e.g., the
modern family) are thus seen as reflexes determined by underlying structures of production. The
German Ideology may be read as representative, with Marx directly attacking a certain way of
understanding the law as the product of an act of pure will, which he denounces as ‘the legal
illusion’, and which raises suspicion of any purely positivist conception of the constitutional
order. In a nutshell, this background reveals the material constitution as a structure embedded in
the modern division of labour typical of capitalist relations. In this economy, the written
constitution can play one of only two roles: either it consolidates the underlying capitalist
relations as instruments for harnessing wage labour to the command of capital or it serves an
ideological function by providing a veneer of legitimacy to an otherwise exploitative structure.
Be that as it may, the fundamental lesson is the following: society forms around productive
structures whose point is to organise the relation between man and nature.
This last observation allows us to introduce the second fundamental insight offered by Marx.
Once the connection between social reality and the formal constitution is questioned, a
methodological issue arises. As Marx is concerned with the scientific status of his analysis, he

1
If one had to point to a ‘constitutional model’ which Marx looked to with favour, it would probably be the short-lived
experience of the Paris Commune, as eulogised in Civil War in France. On this point, see, from the perspective of
constitutional law, N. Sultany, ‘Marx and Critical Constitutional Theory’, in P. O’Connell and U. Özsu (eds.),
Research Handbook on Marxism and Law (Edward Elgar, 2021), 235–39.
2
S. Kouvelakis, Philosophy and Revolution (Verso, 2018), 297.
3
For an exploration of these contradictions, see R. Hunter, ‘Marx’s Critique and the Constitution of the Capitalist State’,
in P. O’Connell and U. Özsu (eds.), Research Handbook on Marxism and Law (Edward Elgar, 2021), 190–217.
4
A similar issue affects Hegel’s separation between political and civil society, as remarked in K. Marx, ‘Critique of
Hegel’s Philosophy of Right’, in Early Writings (Penguin, 1991), 72–74.
5
K. Marx, Capital, vol. 1 (Penguin, 1991), 426.

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 Material Constitution Tradition in Western Marxism 27

believes it is necessary to present a methodology that allows the observer to grasp the structural
components of reality without being distracted by the sparkling lights of ideology or the
deceptive objectivity of the legal form. Again, the constitutional observer can benefit: the reality
of the constitutional order is not exhausted by the legal form; it should be sought first and
foremost in the political economy of modern capitalism, coupled with a secondary interest in
constitutional appearances.
In the third volume of Capital, this methodology is summarised: ‘But all science would be
superfluous if the outward appearance and the essence of things directly coincided’.6 This
statement sums up in an elegant way both how Marx addresses the relation between the material
and the phenomenal (matter and appearance) and how he tries to overcome Hegel’s idealist
approach to the historical development of the constitution. The distinction between reality and
appearance is a precondition for having proper science, constitutional science included. This
critique highlights Hegel’s mystification of the equivalence between being and thought, the real
and the rational, which entails a double inversion. At one level, being is reduced to thought and
so what is concrete is denied autonomous reality. At another level, reason becomes an absolute
and self-sufficient reality.7 Hegel’s ‘mystical’ approach to reality fundamentally denies its mater-
ial existence or makes it invisible. Marx’s approach invites a reversal of the order of the consti-
tutive factors of reality, paving the way for a materialist understanding of the constitution.
The second major mystification concerns Hegel’s idealised concept of the State. This is
important because the State provides the form of political unity and annexes the functions of
creating legal entitlements and effective protection. While, according to Hegel, the State is an
achievement as much as it is a synthesis of ethics (Sittlichkeit) and morality beyond civil society,
that is, a rational expression of the Spirit, Marx (whose conception of the State remained
notoriously underdeveloped) takes it to be a complex field whose formation and growth are
intimately linked to the development of the capitalist economy. Although later described as the
political agent of the bourgeoisie, Marx’s concept of the State hints at its constitutive role in both
allowing capitalism to flourish and in serving as an internal limit to certain forms of accumula-
tion.8 At this stage, one could track the first sketch of the material constitution in the condensa-
tion of capitalist relations within the political unity of the State form. The State and its political
regimes are described as concrete forms whose functions are driven by capitalist development
and whose status can be defined, at most, as relatively autonomous.9
With these intuitions, we can begin to discern a constellation of ordering factors that hint at a
rudimentary notion of the material constitution: a set of forces and relations of production
organised around a division of labour (understood as wage labour)10 and the conditions for class
struggle in the development of the constitutional order, tracking the conflict between capital and
labour. Two underdeveloped propositions can be offered: the mode of production defines basic
aspects of societal organisation and political agency exists not in the political system, but in the
class struggle itself.

6
K. Marx, Capital, vol. 3 (Penguin, 1991), 897.
7
Commenting on §279 of the Philosophy of Right, Marx notes: ‘Hegel makes the predicates, the objects, autonomous,
but he does this by separating them from their real autonomy, viz, their subject. The real subject subsequently appears
as a result whereas the correct approach would be to start with the real subject and then consider its objectification.’
Marx, ‘Critique of Hegel’s Philosophy of Right’, 78.
8
For a classic analysis, see B. Jessop, The State (Polity, 2015).
9
N. Poulantzas, State, Power, Socialism (Verso, 2013), 82ff; cf. C. Tomlins, ‘How Autonomous Is Law?’ (2007) 3 Annual
Review of Law and Social Science 45.
10
Marx’s major focus on wage labour is a constant element of critique from feminist materialism: see, e.g., S. Federici,
Caliban and the Witch (Penguin, 2021); C. Delphy, ‘A Materialist Feminism Is Possible’ (1980) 4 Feminist Review 79.

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 28 Marco Goldoni and Michael A. Wilkinson

Marx’s intimations on the material constitution can thus be developed in two directions. One
is toward a strict economic structuralism, in which the economy determines the laws of consti-
tutional development. In the twentieth century, a version of structuralism was expounded in the
most sophisticated and systematic way by Louis Althusser.11 Objective conditions of capitalist
development theoretically determine the structure of the material constitution (the ‘social
formation’) in its totality, even if only ‘in the last instance’, and provide the conditions for
overcoming the same capitalist constitution. A different direction for Marx’s materialist under-
standing of the social order is taken by insisting on a genuine political element in class struggle
and on the potential strategic role played by political, institutional and constitutional means.12 In
this direction, the notion of constituent power as revolutionary activity is crucial.
In both versions, social relations are shaped by the struggle between capital and labour. In
both versions, the material constitution qualifies as the ‘real constitution’, meaning either as the
basic structure of societal organisation or as the fundamental conflict around which political
society develops. The constitutional order is more than a system of rules; it is moulded in a
fundamental way by the organisation of relations and modes of production. The particular
concrete organisation of the terms of the capitalist relation results in the various
material constitutions of modern capitalist States. However, the juridical status of the material
constitution remains ambiguous and the added value of this notion for constitutional analysis
is unclear.
To pursue this, we can turn to another nineteenth century socialist figure, Ferdinand Lassalle,
who did not fully share Marx’s approach to capitalism. In two famous and seminal conferences
given in 1862 (five years before the publication of the first volume of Das Kapital), Lassalle
introduced a distinction between the ‘real constitution’ – basically a synonym for the essentials of
societal organisation – and the written constitution (sometimes pejoratively defined as a ‘piece of
paper’). Lassalle postulated that the former would completely determine the latter.13 More
specifically, Lassalle implies an equivalence between the constitutional text and norms but
denies that they are part of social reality. To the question ‘what is the nature of the constitution?’,
Lassalle replied with the following definition: ‘a constitution is the fundamental law proclaimed
in a country which disciplines the organization of public rights in that nation’.14 This is because,
fundamentally, Lassalle thought that ‘constitutional questions are not primordially legal ques-
tions, but a matter of relations of force’. By stating that the constitution is the fundamental law of
the country, Lassalle assumed that it has higher value than ordinary law. The basis of the legal
order has to be found in the material organisation of society, that is, ‘always and exclusively in
the real effective relations among social forces in a given society’. What remains unclear is
whether the real constitution, that is, the organisation of the dominant forces within a society, is
also a juridical constitution or only a deeply entrenched state of affairs.
Lassalle adopts an imperativist conception of law: legal norms are enforceable commands.
This conception of the law makes the relation between the real constitution and the written
constitution ambiguous. It is not clear how the written constitution becomes only a cover or a

11
L. Althusser, É. Balibar, R. Establet, P. Macherey and J. Rancière, Reading Capital (Verso, 2016).
12
See, further, E. Meiksins Wood, Democracy against Capitalism: Renewing Historical Materialism (Cambridge
University Press, 1995).
13
For a similar type of constitutional analysis, see Engels’ comments on the British Constitution: The Position of
England. The British Constitution, in K. Marx and F. Engels, Articles on Britain (Progress Publishers, 1975), 32–58.
14
F. Lassalle, ‘On the Essence of Constitutions’ (1942) 3 Fourth International 25 (all the quotes are available at: www
.marxists.org/history/etol/newspape/fi/vol03/no01/lassalle.htm, last accessed 19 July 2022).

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 Material Constitution Tradition in Western Marxism 29

patina for the social organisation of economic power. In fact, it seems that the real constitution
becomes law only when codified in written form and with the introduction of explicit
sanctions: ‘these actual relations of force are put down on paper, are given written form, and
after they have been thus put down, they are no longer simply actual relations of force but have
now become laws, judicial institutions, and whoever opposes them is punished’ (original
emphasis). Under this description, the formal constitution represents the juridification of the
‘real’ relations of power or, in the most trivial sense, the registration or codification of the
real constitution.
Lassalle is adamant in stating that the formal constitution is stable and lasting ‘only when it
corresponds [. . .] to the real constitution, that is, to the real relations among social forces’. When
this is not the case, what one is observing is just a sham constitution. When there is a gap
between the material and the written constitution, then the latter is simply the ideological mask
covering the underlying relationships of power or, at best, providing a veneer of legitimacy. In
other words, Lassalle maintains that the social order of production is already shaped pre-
politically and pre-constitutionally. At most, the formal constitution operates as part of the
justificatory ideological apparatus of the dominant social forces.
The limit of such a rigid materialism is that it reduces the legal order to an effect of other
social processes, that is, the legal order remains in an external relation to societal organisation.
Relations of production are put at the centre of the analysis, but how those relations came to take
up those particular modes and forms of production is left unaddressed. Representing the relation
between political economy and the formal constitution in this way prevents a fuller understand-
ing of the normative underpinning of the hegemony of dominant forces.
This reductionist materialism suggests, at the epistemic level, that there is an apparent reality
and a deeper one, not immediately visible, but structurally essential. The task for the consti-
tutional observer is to avoid the superficial and retrieve the undergirding structural reality, which
is what really matters. Marx’s and Lassalle’s versions of the material constitution identify the
latter as essentially located in a dedicated sphere, that of modern political economy with its
patterns and motives of social organisation. The value of this intuition should not be underesti-
mated. Social power, as generated by capitalism’s determination of economic activity, is
conveyed through legal channels with the aim of strengthening the stability of the social order.
But from the perspective of constitutional theory, what is problematic about this intuition is the
driving distinction between what is structural (or fundamental) and what is epiphenomenal or
supra-structural. Although to different degrees, Marx and Lassalle identify in political economy
not only the source of the constitutional order, but the genesis of the social bond (based on
domination and exploitation). Almost all institutions of the constitutional order are presented as
emanations of political economy, or at least compatible with the rising capitalist legal order.
Law, religion, science and, politics are supra-structural.
Economic structuralism obscures other fundamental aspects of society such as political and
legal institutions, collective symbols, cultural reality and the experience of political action. Even
from within materialist philosophy, discontent with a reductionist representation of the status
and role of each system in societal formation grows during the twentieth century. In particular,
the representation of the status of culture (and its role in shaping constitutional imagination) as
an ideological construction is judged to be excessively reductive if explained in economically
causal terms. These concerns would be addressed, in the interwar era, by Antonio Gramsci. But
first it is necessary to look at a second generation of Marxist thinkers who, in the years around
First World War and the Russian revolution, expanded the analysis of the material constitution
of capitalism in revolutionary political directions.

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 30 Marco Goldoni and Michael A. Wilkinson

1.3 THE REVOLUTIONARY GENERATION AND ITS DEMISE: LENIN,

LUXEMBOURG AND THE TURN TO SOCIAL DEMOCRATIC REFORMISM

In the Marxist tradition, the fortune of the generation of Marxist scholars after Marx and Lassalle
was a unity of theory and practice that Marx and Engels had not been able to enjoy due to their
distance from national organisations of the working class. Under the direction of Vladimir
Lenin, classical Marxism, until then lacking a clear political theory and strategy, would develop
in synergy with the revolutionary actions of the Russian masses, from the first Russian revolution
of 1905 through to the overthrow of the regime of Tsarist absolutism in 1917. This epochal
meeting of constituent power with Lenin’s revolutionary practice showed both the promise and
the limits of a classical Marxist approach to the material constitution.
The council experience of the Soviets in the first revolution of 1905 (with antecedents in
earlier Russian proletarian movements) had presented the direct self-organisation of the working
class in the revolutionary struggle, targeting the Russian imperial regime with a series of indus-
trial, political and military strikes.15 The events of 1905, transforming a ‘dormant Russia into a
Russia of revolutionary proletariat and a revolutionary people’ were, in Lenin’s view, bourgeoise-
democratic in aim but proletarian in method, principally the use of the mass strike.16 This was
essential preparation for the October revolution of 1917. In the previous year in exile in
Switzerland, in ‘State and Revolution’, Lenin had set out his Marxist theory of the state as an
organ of class rule and class oppression. The bourgeoise state needed to be overthrown by a
worker’s revolution, establishing the transitionary ‘dictatorship of the proletariat’, a worker’s state
which would then ‘wither away’ as material conditions were transformed.17
Yet the relationship between the self-organising power of the soviets and the ultimate direc-
tion of the Bolshevik party that Lenin had founded was ambiguous. Lenin saw the soviets as a
necessary and spontaneous product of class struggle and class consciousness and even as an
‘embryo’ of a future worker’s government,18 but ultimately as insufficient for organising and
fighting a revolutionary insurrection in the concrete conditions of Russia in 1918. For that to
succeed, new organs of revolutionary struggle against the bourgeoise would have to arise, since
the soviets were in danger of becoming co-opted or outmoded. Lenin’s Bolshevik strategy after
the assumption of dual power in the first phase of the Russian Revolution in February 1917 was to
insist on ‘a decisive struggle against the real holders of power’,19 re-establishing the correct
relation between the soviets and the revolutionary class through organised leadership. The
successful dictatorship of the proletariat required a professional revolutionary outfit to organise
class autonomy, and an avant-garde party to ensure the conquest of state power and the success
of the proletarian movements. Given the increasingly hostile international context, strong
centralised control would be necessary to defend the revolutionary gains of 1917.20

15
Negri identifies in the council tradition simultaneously the directive organs of the revolutionary struggle, the
representative of the interests of the working class in the structure of bourgeois power, and the class organised in
state power: A. Negri, Insurgencies (University of Minnesota Press, 2006), 267.
16
V. Lenin, ‘Lecture on the 1905 Revolution’, available at: www.marxists.org/archive/lenin/works/1917/jan/09.htm, last
accessed 19 July 2022.
17
V. Lenin, The State and Revolution, available at: www.marxists.org/archive/lenin/works/1917/staterev/, last accessed
19 July 2022.
18
Lenin, describing the Petrograd Soviet of Worker’s Deputies, ‘first letter from afar’, available at: www.marxists.org/
archive/lenin/works/1917/lfafar/index.htm, last accessed 19 July 2022.
19
V. Lenin, ‘On Slogans’, available at: www.marxists.org/archive/lenin/works/1917/jul/15.htm, last accessed 19 July 2022.
20
A. Callinicos, S. Kouvelakis and L. Pradella (eds.), Routledge Handbook of Marxism and Post-Marxism (Routledge,
2021), 9.

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 Material Constitution Tradition in Western Marxism 31

Over the course of a few years after the events of October 1917, amidst imperial aggression and
civil war, Lenin’s practical focus changed from a geographic extension of the revolution,
particularly in Germany, to the defence of the Soviet Union itself. The soviets, from constituting
‘the organs of proletarian dictatorship’ would end up as an organ of the state administration, first
and foremost with the task of organising social production and increasing productivity.21 Despite
or because of Lenin’s equivocation on the role of the soviets, the party would end as the sole
bearer of constituent power, displacing the radical mass movements of collective self-
organisation.22
After the death of Lenin, Marxism–Leninism would be transformed into a state ideology,
economic and political power consolidated and concentrated in the centralised bureaucracy of
the Communist Party of the Soviet Union under Joseph Stalin. The material constitutional
dynamic of the soviets and their collective self-organisation would end, Leninism in retrospect
‘blocking for half a century any development or renewal of the extraordinary revolutionary
experience embodied in Lenin’s theoretical work’,23 although it would continue to resonate in
the context of national liberation movements against the colonisation of the developing world.24
The Russian example was of a revolutionary experience that occurred in conditions of relative
backwardness compared with the nineteenth century hubs of imperialist capital expansion in
Western Europe, both in terms of objective economic development and subjective working-class
consciousness. Lenin’s analysis and methods could not be straightforwardly applied in the very
different constitutional settings of Central and Western Europe. There, Rosa Luxemburg,
attached to the Polish and then German workers’ movements, took a related but distinct route,
advocating the self-emancipation of the working class under the auspices of the revolutionary
councils that had followed those in Tsarist Russia. In the soviets, Luxemburg had seen ‘the real
embodiment of Marxism among the masses’.25 This led her to depart from what she perceived as
excessive centralism in Leninism, even before its mutation under Stalin. For Luxemburg the
elimination of democratic spontaneity was fatal to the ultimate goal of socialism.26
Luxemburg also strenuously rejected the social democratic reformism that was coming to
dominate parties across Europe, specifically denouncing the German SPD after its support for
the War in 1914. Her opposition included a rejection of the constitutive assembly convened after
the November revolution in Germany in 1918. There could, in her view, be no negotiated
transition to socialism achieved through the compromises between capital and labour that might
occur within the framework of the bourgeois state. Instead, it would be necessary to harness the
radical, creative energies of the masses through the development of a democratic proletarian
class consciousness, based on immediate collective action.

21
Negri, Insurgencies, 290. Negri concludes that ‘the compromise of the soviet and the party is a compromise between
living labour and a perspective of a new originary accumulation, which should result in the determination of the
conditions of communism’.
22
An alternative to Lenin’s and the Bolshevik’s centralised conception of the bearing subject of the communist material
constitution – the party – was offered by Alexander Bogdanov, an eclectic intellectual and political figure whose
philosophy was heavily criticised by Lenin in his Materialism and Empiriocriticism (1909). Lenin accused Bogdanov of
idealism because of the emphasis put on the importance of an autonomous proletarian culture which – according to
Lenin – would imply that reality exists only in the mind of the people. Bogdanov proposed a relational conception of
social reality and was strongly opposed to the idea of a political avantgarde. On Bogdanov’s theory of physics (strictly
related to his conception of the social order) see, most recently, C. Rovelli, Heligoland (Allen Lane, 2021), 80–84.
23
V. Gerratana, cited in Callinicos et al. (eds.), Handbook of Marxism, 10.
24
See Chapter 11, by Nanopoulos.
25
Negri, Insurgencies, 280.
26
See P. Hudis, ‘Rosa Luxemburg’, in A. Callinicos, S. Kouvelakis and L. Pradella (eds.), Routledge Handbook of
Marxism and Post-Marxism (Routledge, 2021), 75–85.

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 32 Marco Goldoni and Michael A. Wilkinson

In Luxemburg’s materialism, social reform from the top-down was not, and could not be, up
to the task of creating a democratic socialist society, not least due to the violence with which the
capitalist class would defend its material position. What was required was social and political
constitutional change from the bottom-up, through spontaneous revolutionary activity and mass
strikes. This task would be performed by worker’s councils exercising radical constituent power.
Radical democratic socialism would advance by adding new autonomous institutions in a
transitional constitutional structure, which would then compete for authority with the insti-
tutions of liberal bourgeoise rule.
Interpreting Luxemburg through a constitutional theory lens and reconnecting it with
Machiavelli’s early modern republicanism, Camila Vergara has recently argued that
Luxemburg’s work offers a plebeian materialist strand of thought, which ‘embraces conflict as
productive of liberty, and sees the institutionalisation of popular power as a necessary condition
for emancipation’.27 Vergara even renews the links between Luxemburg and Hannah Arendt,
who, inspired by Luxemburg, had also seen the council systems to represent an instantiation of
political freedom as action, a political structure neglected (in Arendt’s view) by Marxism in its
obsession with the ‘social question’.28
As a matter of historical record, however, Luxemburg’s hopes for a spontaneous democratic
socialism would be destroyed, the Spartacist uprising ruthlessly crushed and Luxemburg and her
co-founder Karl Liebknecht murdered by the Freikorps, under the direction of the social
democratic government led by Friedrich Ebert. The worker’s council system that promised
much in the early interwar conjuncture was rendered ineffective by the end of the 1920s and the
German social democratic party and the trade unions had turned into centralised bureaucratic
structures pursing economistic strategies in attempts to de-politicise conflicts between labour
and capital.29 Right across Europe, the prospects for revolutionary socialism or a Bolshevik style-
takeover were becoming limited or non-existent in the radically different circumstances faced by
the left in comparison with Russia. The prospect of a radical democratic exercise of constituent
power to overturn the bourgeoise order of the ‘long nineteenth century’ was receding.
The First World War had proven fateful for any international unity in the cause of social
democracy, with the insurgent classes themselves divided due to the scissions created by the war.
‘1914’ had parted the ranks of Marxist theory in Europe ‘as radically as it split the working-class
movement itself’, rapidly destroying the Second International (of socialist and labour parties).30
After the end of the First World War, socialist uprisings would either be defeated, as in Germany
and Italy, or assume reformist postures, seen off by the strength of the capitalist state in Western
and Central Europe and the willingness of liberals and social democrats to turn to authoritarian
means to frustrate material change.
Belief in the gradual reform of the state on the basis of the constitutional compromise and an
‘equilibrium of class strengths’ would become a dominant position, represented by Eduard
Bernstein’s ‘evolutionary path to socialism’ as well as the work of Austro-Marxists Karl Renner
and Otto Bauer.31 Bernstein in particular had a ‘decisive influence’ on the SPD.32 Some in the

27
C. Vergara, Systemic Corruption (Princeton University Press, 2020), 169.
28
Ibid., ch. 7.
29
R. Dukes, The Labour Constitution (Oxford University Press, 2014).
30
P. Anderson, Considerations on Western Marxism (Verso, 1979), 13.
31
See, e.g., O. Bauer, ‘The Equilibrium of Class Strengths’, in M. Blum and W. Smaldone (eds.), Austro-Marxism: The
Ideology of Unity: Austro-Marxist Theory and Strategy [1924] (Brill, 2015), vol. I., 323–33.
32
See P. Gay, The Dilemma of Democratic Socialism: Eduard Bernstein’s Challenge to Marx [1952], 2nd ed. (Collier
Books, 1970), 252.

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 Material Constitution Tradition in Western Marxism 33

German socialist camp would commit to the promise of economic democracy and the role of
workers councils, which was given constitutional recognition in the Weimar Republic.33 But it
was a revisionist and reformist tradition, assuming socialism to be the ‘legitimate heir’ to the
liberal order, that socialist state theorists such as Hermann Heller continued in the German
public law academy.34
The German social democratic position of constitutional compromise proved to be politically
disastrous, as economic democracy was marginalised and even the parliamentary route to
socialism was abandoned in the strategy of toleration of authoritarian liberalism for fear of the
greater evils of National Socialism.35 In an intriguing compare and contrast of Heller and the
British socialist academic and activist Harold Laski, Franz Neumann insisted that Heller (to his
detriment) had rejected the Marxist theory of the state; he rejected the position that the state was,
in an important sense, a ‘class state’ or, put differently, a capitalist state.36 As a result, Heller failed
to transcend the liberal view, which saw the state as standing above or apart from the interests of
civil society and the social relations pertaining to the economy. Heller’s aim was to construct
(and reconstruct) the state as precisely such a unity in contradistinction to the conflict that
characterised civil society, as a structure independent of the class struggle. Heller saw the
difficulties of maintaining this unity in a society riddled by social inequality but retained faith
in a state that was in principle neutral and autonomous. Like Hegel before him, Heller saw
inequality and class conflict as merely an irritant rather than as constitutive of the modern
capitalist state and one that could be managed by a sufficiently enlightened ruling class.
Neumann adds, dismissively, that ‘in Heller’s book one can read on every page the German
idealistic philosophy which constitutes its origins’.37
Neumann argued that Heller in effect worked backwards from his rejection of the Marxist
utopia of the withering away of the state. Since, in Heller’s view, the Marxist theory erroneously
supposes the possibility (even inevitability) of the classless society-to-come, it must also be in
error to suppose the current political society to be essentially defined by class forces, and the state
to be determined by class rule. Neumann refutes Heller’s ‘radical anti-Marxist conclusions’ in
the obvious way: ‘even if one is convinced that a classless society is an unrealisable objective, this
does not contradict the Marxist analysis of the class nature of the actual state’.38 Marxism without
utopia might lead to a deeply pessimistic position, but not necessarily to a false one.

1.4 KEEPING THE FLAME ALIVE: GRAMSCI AND THE CONCEPT

OF HEGEMONY

Even within the confines of ‘Western Marxism’, interwar Marxist theory lost any unity of theory
and practice that it had in the era of the birth of organised socialist parties after Lassalle. In
conjunction with the isolation of the USSR and its turn under Stalin to the active suppression of
revolutionary thought and practice by a harsh bureaucratic apparatus, the fertile seeds of Marxist

33
Dukes, Labour Constitution, 40.
34
The SPD grew out of the Socialist Worker’s Party of Germany, established when Lassalle, Bebel, Liebknecht and
others came together at Gotha in 1875, but soon banned under Bismarck’s anti-socialist laws until 1890 (and later
splitting with the Independent Socialists in 1917). On Heller’s relation with the tradition of Lassalle, see H. Heller,
‘The Nature and Structure of the State’ (1996) 18 Cardozo Law Review 1139 (translated by David Dyzenhaus).
35
M. Wilkinson, Authoritarian Liberalism and the Transformation of Modern Europe (Oxford University Press, 2021).
36
F. Neumann, ‘On the Marxist Theory of the State’, in K. Tribe (ed.), Social Democracy and the Rule of Law (Allen &
Unwin, 1987), ch. 4.
37
Ibid., 76.
38
Ibid.

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 34 Marco Goldoni and Michael A. Wilkinson

praxis were scattered or buried. The era of the classical tradition of Marx and Engels, Lenin and
Luxembourg, had come to an end, and with it the exclusively Marxist cast of the material
constitution. It would be for new political and social forces to cultivate the material constitution,
including conservative and anti-Marxist forces.39
The interwar period signalled the beginning of a transformative period for the material
constitution and the gradual abandonment of Marxian materialism as its philosophical point
of departure. There were, however, exceptions, and one stands out for the scope and originality
of its contribution, the work of Antonio Gramsci. Once again, it should be highlighted that
Gramsci offered no straightforward formulation of the material constitution. Yet, Gramsci’s work
contains an indispensable toolkit, which extends beyond the productive dimension of social
organisation. In fact, for obvious contextual reasons, Gramsci – while writing in prison – was
observing a set of problems very similar to the legal institutionalists of the interwar era.40 But in
contrast, Gramsci would firmly ground his interpretation in a materialist base and would not be
attracted by notions of the autonomy of the political.
Gramsci considered economic processes a necessary starting point but not sufficient for
understanding the formation of society and put more emphasis (compared to previous
Marxists) on the importance of political organisation and especially culture, in its political
and popular dimensions. Although he did not leave behind any systematic writing on legal
orders, he considered law as more than a mere epiphenomenon of the productive structure. And
his idea of a struggle for hegemony as a necessary staple of the material constitution makes it an
essential reference point.41
A starting point for understanding Gramsci’s contribution to the theory of the material
constitution is his re-visitation of the relation between State and civil society which is driven
by the recognition of the rise of the integral State (lo Stato integrale). As such, the integral State
provides a more nuanced definition of political unity (and the role of the political party) than
advanced by Lenin. The integral State that Gramsci envisages is not the outcome of the
suppression of diversity, but the articulation and homogenisation of differences in a manner
that is conducive to a specific capitalist form of the productive process. In other words, the
integral State is for Gramsci the form in which contemporary modes of productive organisation
achieve and maintain political unity. The interest for a theory of the material constitution is
Gramsci’s rejection of the idea that the State and its constitutional order are exogenous and
simply applied ‘over’ a structure of production. As we shall see, Gramsci postulates (in a way that
speaks directly to the theorists of the material constitution) the socialisation of the political and
the legal system.
The formation of the integral State certainly entails repression, but this is far from exhaustive
of the State–civil society nexus. To understand what is at stake in the relation between State and
civil society it is better to start by tracking the function of differentiation. Societal differentiation
and the specification of which class manages which function are fundamental dynamics of civil
society, and they already contain seeds of statehood. In this respect, the political order emerges
out of civil society, although it always remains embedded in it. But this means that social

39
In particular, Carl Schmitt.
40
On this, see the following pages and Chapter 2, by Meierhenrich on Schmitt, Chapter 4, by Wihl on Smend and
Chapter 5, by Rubinelli on Mortati.
41
For a recent reconstruction of Gramsci’s ideas about law, see P. Ciocchini and S. Khoury, ‘Thinking in a Gramscian
Way: Reflections on Gramsci and Law’, in O’Connell and U. Osuz (eds.), Research Handbook on Law and Marxism
(Edward Elgar, 2021), 139–55. See also D. Litowitz, ‘Gramsci, Hegemony and the Law’ (2000) 2 Brigham Young
University Law Review 515.

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 Material Constitution Tradition in Western Marxism 35

differentiation makes it impossible for the political and the legal system to become full expres-
sions of society. Tracking of the formation of the integral State allows Gramsci to identify a space
for hegemony, possibly the core concept of Gramsci’s philosophy and one of the most important
insights offered by his analysis.
The State as political unity is defined as ‘political society + civil society, in other words
hegemony protected by the armour of coercion’.42 While Gramsci acknowledges that coercion is
still a fundamental component of the modern State, the complexity of modern society means
that cultural hegemony has to be generated for the concretisation of political unity. This is
possible only if a certain social group musters enough political and cultural strength to be able to
integrate societal energies into a political order by acting as a leader: ‘A social group can, and
indeed must, already exercise “leadership” before winning governmental power (this indeed is
one of the principal conditions for the winning of such power); it subsequently becomes
dominant when it exercises power, but even if it holds it firmly in its grasp, it must continue
to “lead” as well’.43
In contrast to Lassalle, Gramsci understands that, in order to forge a material constitution, a
leading social group cannot simply resort to oppression and coercion; it also has to inculcate
particular values and beliefs. This is a well-rounded integrative strategy: the material constitution
is organised not only through force and coercion, but also through intellectual hegemony.
Gramsci maintains that it is impossible to eradicate social conflict from the polity; hegemonic
forces are thus called to manage it by considering not only their social interests, but those of the
wider society. Hence, the material constitution that is shaped by hegemonic forces is always a
precarious achievement and needs to be constantly maintained, primarily by persuasion and
negotiation among conflicting interests.
Unsurprisingly, the question of political organisation is one of the most pressing concerns for
Gramsci. Although the organisation of fragments of civil society can be the outcome of
spontaneous initiative, there is always a reminder of distribution of roles and the creation of a
leading group that cannot be obtained in a fully ‘horizontal’ way. It is at this level that Gramsci
thematises the importance of a ‘new Prince’ as a dynamic factor of unification, and the political
party is indicated as the subject with the task of coordinating and leading the social groups to
maintain political unity. Gramsci did not believe in the purely spontaneous formation of
political subjects: an element of verticality is unavoidable in any political and social organisa-
tion. For the formation of a material constitution, Gramsci believes that a ‘historical bloc’ has to
be formed (by a political subject),44 as the first cell which contains the instructions for the
development of the social order. But even the historical bloc (the groups whose interests can
converge and produce a political alliance) does not aggregate spontaneously around its funda-
mental interests, as the latter might need to be composed and recomposed in a political
formula.45
We are now in a position to see that hegemony and the figure of the ‘dominant political party’
are, according to Gramsci, intrinsic elements of the new material constitution of the twentieth
century. Along with institutionalists such as Mortati, the political party is seen as the bearer of

42
A. Gramsci, Quaderni dal carcere (Einaudi, 2014), 263.
43
A. Gramsci, Selections from the Prison Notebooks (International Publishers, 1971), 57–58.
44
See the still relevant analysis by L. Paggi, Antonio Gramsci e il moderno principe (Editori Riuniti, 1970), 125ff.
45
It should be noted that it is not clear whether the concept of historical bloc is descriptive of the main bearer of the
material constitution, or it is a strategic notion. In the latter sense, a historical bloc would be formed in the struggle for
achieving hegemony. For this interpretation, see P. Sotiris, ‘Gramsci and the Challenges for the Left: The Historical
Bloc as a Strategic Concept’ (2018) 82 Science and Society 94, 95.

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 36 Marco Goldoni and Michael A. Wilkinson

the material constitution as it is the only modern entity capable of uniting different social
components while keeping them differentiated in the emerging mass society. The political party
is the concrete force which takes up the role of Machiavelli’s prince, but it has the daunting task
of producing order materially from below and symbolically from above. According to Gramsci,
mass society has to find within itself its own ordering principle. In order to achieve its integrative
functions, the political party ought to become a ‘total party’ while avoiding ossification in a
pernicious bureaucratic centralism where it would have only ‘functions of propaganda and
police’.46
Differentiation and hierarchy remain distinctive but necessary moments in the articulation of
the material constitution of mass society. Law is an important aspect of this and its function runs
parallel to that of hegemony, addressing a similar problem: how can the masses be persuaded to
adopt the values and beliefs of the dominant class? As already noted, the legal order is for
Gramsci a human artifice which does not lie outside of social organisation and is ultimately
linked to political and social will. The role of law is, thus, ambiguous but functional to the
formation and maintenance of the material constitution. The ‘juridical question’ is for Gramsci
one of assimilation of the entire society to its most advanced fraction:
it is a problem of education of the masses, of their ‘adaptation’ in accordance with the
requirements of the goal to be achieved. This is precisely the function of law in the State in
society; through ‘law’ the State renders the ruling group ‘homogenous’, and tends to create a
social conformism which is useful to the ruling group’s line of development.47

Accordingly, the legal order assumes a double task. It operates at the level of coercion in the
sphere of positive law, which is associated with ‘order’ and ‘violence’. But the legal order also
operates as a pedagogical tool, nudging ‘education’ and ‘conformism’. Although Gramsci notes
that the ethical dimension of the ‘legal question’ pertains more to civil society than the
government,48 it is undeniable that positive legal norms as approved by State apparatuses
perform a formative task as well. It is coherent with this approach that Gramsci, in another
passage, talks of the law as a hegemonic instrument for the selection of certain customs and
attitudes, and the elimination of others. The main parallel may be with the school system as a
producer of homogeneity. Gramsci thus offers an original variation on the material constitution,
one which not only indicates the political party as the main actor, but which identifies in the
struggle for political and cultural hegemony a crucial factor of constitutional ordering.

1.5 POST-WAR EUROPE, POST-MARXISM

The effect of the interwar economic, political and constitutional crises of the 1920s and early
1930s had been a deep demoralisation of the left, particularly in Germany. There had been a
tremendous diachronic shift in the interwar era from the high optimism about the prospect of
progressive social change in the aftermath of the First World War, with the arrival of universal
suffrage, working class consciousness and political parties connected to the social masses, to the

46
Gramsci, Quaderni dal carcere, Notebook 17, vol. III, 1939. Notoriously, Gramsci advocated a form of democratic
centralism where the political party maintain an opening toward social energies (‘the real movement’) by maintaining,
as already noted, a dynamic of ‘push from below, command from above’: Gramsci, Quaderni dal carcere, Notebook 13,
vol. III, 1634.
47
Gramsci, Selections from the Prison Notebooks, 195.
48
Gramsci notes that ‘[t]he general activity of law (which is wider than purely State and governmental activity and also
includes the activity involved in directing civil society [. . .]) serves to understand the ethical problem better’:
Selections from the Prison Notebooks, 195.

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 Material Constitution Tradition in Western Marxism 37

terrible darkness of the 1930s, with the failure of parliamentary democracy, growth of violent
fascism in the West, and the brutal rule of Stalin in the East.
The generation of Marxist thought that takes root in the interwar conjuncture would be
deeply pessimistic. As Perry Anderson notes, all the most significant works of ‘Western Marxism’
in the period between the mid-1920s and 1968 – from Lukacs to Gramsci, Adorno to Sartre –
were the product of political failure, of the defeat of working-class struggle or of socialism.49
With the Stalinisation of the Soviet Union, and the discipline exercised by Communist parties
and their dogmatic orthodoxy, the choice for Marxist intellectuals and workers was often either
to remain party members and renounce intellectual independence, or leave and risk losing
connection with the class struggle. ‘The consequence of this impasse’ Anderson notes, ‘was to be
the studied silence of Western Marxism in those areas most central to the classical traditions of
historical materialism: scrutiny of the economic laws of motion of capitalism as a mode of
production, analysis of the political machinery of the bourgeois state, strategy of the class struggle
necessary to overthrow it’.50 And, we can add, of the material constitution of society and its
relationship with formal constitutional norms.
Critical theory after the Second World War would become structurally divorced from
political practice and working-class struggle, particularly under the auspices of the Frankfurt
school. The post-Marxist turn of the Frankfurt school would generally abandon material consti-
tutional analysis, and particularly the issue of class relations and the political objectives of the
state. Neumann himself would turn to the significance of political freedom and a diagnostics of
its contemporary loss before his untimely death in 1954. His associate, Ernst Fraenkel would
undertake normative work on democratic pluralism on his return from the United States to the
Federal Republic of Germany.51 Along with many of its leading thinkers, the transfer of
Frankfurt school theorists to the United States in 1934 had not only wrenched it from
European movements of socialism and parties of social democracy but also then installed it in
a place with no discernible Marxist tradition, and in fact one which was to become actively
hostile to those suspected of sympathising with Marxism in the heat of post-war MacCarthyism.
The Frankfurt school brand of post-Marxism turned to philosophy, cultural analyses and
increasingly specialised disciplines, often indebted more to Freud than to Marx.52
The post-war de-politicisation of the left would also have a profound impact, with leading
scholars not only pursuing class collaborationist projects in Germany and urging a pragmatic
politics of compromise on the SPD, but also helping to conduct the anti-Soviet international
strategy of the United States.53 In the post-war fate of Marxism and critical theory there were thus
deeper continuities with the interwar schisms on the left, particularly in the anti-Communist
stance of the social democrats, captured by Hilferding’s claim on the eve of National Socialist
takeover that the primary fight of the SPD was against communism.
In a significant inflection of material constitutional thought, a new moralistic direction in
social democracy took root, building on Heller’s ethical notion of the sozial Rechtsstaat.
Fraenkel, for example, urged workers to unite with the bourgeoisie in pursuit of a ‘rational

49
Anderson, Considerations, 42–43.
50
Ibid.
51
For a recent reassessment of Fraenkel’s legacy, see W. Scheuermann, ‘Recalling and/or Repressing German Marxism?
The case of Ernst Fraenkel’ (2021) 18 Modern Intellectual History 1.
52
For an overview, see A. Honneth, ‘A Social Pathology of Reason: The Intellectual Legacy of Critical Theory’, in F.
Rush (ed.), The Cambridge Companion to Critical Theory (Cambridge University Press, 2004), 336–61.
53
U. Greenberg, The Weimar Century (Princeton University Press, 2014), 78.

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 38 Marco Goldoni and Michael A. Wilkinson

natural law’ and to leave behind notions of ‘power relations’ and ‘class interests’.54 This reflected
a broader phenomenon, namely a turn by social democrats to the courts to defend social
equality and workers’ rights, foreshadowing the ‘social rights’ discourse that would dominate
among later generations of constitutional scholars. Social democratic conceptions of democracy
were designed, in line with other elitist scholars and emigres such as Carl Joachim Friedrich, if,
by different means, ‘to foster consensus about state institutions’.55
There was, to be sure, a brief resurgence of the radical left toward the end of the Second
World War, buoyed by its key part in the Resistance movements, the prestige acquired by the
Soviet Union and its Red Army in its victories over Hitler’s armies, and the reuniting of social
democracy and Communism in broad coalitions and united fronts in the fight against the
violence of fascism and national socialism.56 This briefly opened up a space for new democratic
forms of communism and solidarity to flourish, a ‘rare moment of European history – the
moment of antifascist unity – whose opportunities compared with 1917–18’.57 The upshot of this
moment would be a brief ‘wave of communisation’,58 but the opportunities for radical trans-
formation this created would be generally squandered.
Socialist renewal did have a significant impact on post-war political society, legitimising the
pursuit of comprehensive welfare states, reduction of unemployment, and rational planning
through the involvement of left forces in constituent assemblies, notably in post-war Italy. But in
conjunction with a fairly rapid pivot to cold war anti-communism on the socialist left, com-
munist parties themselves would soon disavow any revolutionary constituent ambitions. With
the dismantling of Resistance groups, the potential of dual power exercised by Resistance
committees was abandoned, backing governments of broad national unity. The Italian
Communist Party (PCI) soon settled into the ‘centre ground of postwar Italian culture’,59 its
prospects anyway dimmed by the US threat to withdraw Marshall aid if it were successfully
elected to government. Togliatti’s turn had already moved the PCI to the centre, disbanding and
disarming the local Resistance, and enabling the path to the historic compromise of the 1970s.
Marxism’s classical focus on class conflict would also be displaced from political and consti-
tutional enquiry. In practice, the political element of class struggle declined with the quietening
of the working class of Europe, even though they were the ‘incontrovertible social victims of the
war’.60 The language of class struggle was thus disappearing not only from intellectual discourse
but from party politics, subdued by the security of the bureaucratic ‘iron cage’ and a paternalistic
elite-led system. The founding period of post-war resettlement was characterised by a growing
de-politicisation of state–society relations: a combination of class compromise, the de-
radicalisation of the trade union movement and the rise of the national corporatist state.
Both the unions and the social democrats across Europe (as well eventually as the communist
parties) would attach their flag to the mast of European integration and its modernising agenda.
In some ways, this too would be a continuation of interwar strategies of economism, de-

54
Ibid., 83.
55
Ibid., 88.
56
See G. Eley, Forging Democracy (Oxford University Press, 2002), 287–91.
57
Ibid., 288.
58
Particularly in Eastern and Central Europe, with Communist parties becoming leading national forces in Yugoslavia,
Albania, Greece, and Czechoslovakia, major electoral players in France and Italy and even making significant gains in
the Benelux countries and Scandinavia, along with a renewal of socialist parties in France, Belgium and
the Netherlands.
59
Eley, Forging Democracy, 293.
60
M. Conway, ‘Democracy in Postwar Europe: The Triumph of a Political Model’ (2002) 32 European History
Quarterly 76.

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 Material Constitution Tradition in Western Marxism 39

politicisation and consensus-seeking as well as strongly supported in the symbiosis between

European and US intellectuals. The turn to modernisation and liberalisation which reflected
‘one of the major thrusts of American policy’ would be strongly supported by the French socialist
party (SFIO) as well as the German SPD, whose programme, announced at Bad Godesberg in
1959, offered a renunciation of Marxist class struggle, an embrace of Christian ethics and
acceptance of free market principles and the EEC. It reflected a more general revisionism of
social democratic parties across Europe, with the discarding of working-class allegiance, and
dilution of any commitment to revolutionary anti-capitalism. The factors considered as central
to the moderation of the post-war settlement – the circumstances of global economic growth,
and relative equalising of conditions between capital and labour – were conducive to a
deradicalised left.
Reinforcing the tendency of conservatism to reinvent itself as a hardened form of Cold War
liberalism was the tendency of critical theorists to turn away from material issues and into
discourse theory and identity politics. The constitutional fetishism that begins in the Bonn
Republic becomes more generally hegemonic in Europe, particularly through the process of
European integration. Constitutional patriotism and ideological Europeanism become substi-
tutes for any projects of social emancipation. By 1989, the standard bearer of what is left of the
Frankfurt school of critical theory has declared the era of revolution over, the only avenue left to
tame capitalism from within, Jurgen Habermas leading the turn away from material analysis in
his twin magnus opi, Theory of Communicative Action and Between Facts and Norms. By that
stage, the socialist and communist parties of Europe had embraced their own de-radicalisation
and Europeanisation. The revolutionary era was decisively over. But the gap between political
elites and the populations, aggravated through constitutionalist projects of an international
and supranational type, were about to gain more traction even as history had been declared at
an end.

1.6 THE FRENCH EXCEPTION?

One strand of contemporary heirs of the materialist tradition in France were theorists of le
politique and of disagreement and dissensus such as Jacques Rancière. This initially appeared
distant from the discourse ethics and rational consensus of Habermasian philosophy. But much
of Rancière’s own analysis remained at the level of a counter-discourse, uncomfortable with the
aesthetics of modern liberal consensus-politics but lacking the resources to tackle its materiality –
its political economy, social relations and political teleology. In this respect it shared the tone
and temperament, as well as normative and methodological assumptions of Frankfurt school
post-Marxism.61 Although Rancière identified politics as a process with a reflexive quality and
not as an outcome,62 his celebration of the theatrical quality of political action risked emphasis-
ing in a rather sterile way the performative nature of dissensus, putting a premium over its
symbolic and linguistic achievements at the expense of the material context of its staging.
From a materialist perspective, the problem affecting this kind of post-Marxist analysis is
typical of a ‘political jurisprudence’, which, as Loughlin argues (in the course of defending it),
emphasises symbolic over material power, and prioritises abstract over concrete reasoning. In
that respect, its contemporary theorists of note are philosophers such as Claude Lefort, Marcel

61
S. Kouvelakis, ‘The Crisis of Marxism and the Post-Marxist Moment’, in A. Callinicos, S. Kouvelakis and L. Pradella
(eds.), Routledge Handbook of Marxism and Post-Marxism (Routledge, 2021), 337–50.
62
J. Rancière, Aux bords du politique (Folio, 2004), ch. 1.

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 40 Marco Goldoni and Michael A. Wilkinson

Gauchet and Pierre Rosanvallon.63 Lefort insists on the ‘empty place of power’ as the symbolic
feature of the democratic state, which, from a materialist perspective, is sheer illusion as an
analysis of the modern state or meer utopianism if a projection of a future shorn of revolutionary
intent. In this French revival of political jurisprudence, the symbolic order of the state is
structured through abstract principles of ‘sovereignty, equality and rights’; these principles of
droit politique ‘fulfil the role of maintaining unity while containing social tensions’.64 This
not only leaves behind political economy and class struggle; it can also appear apologetic
of liberal expert governance as a legitimate constraint on parliamentary majoritarianism.65 It is
thus no coincidence, for example, that these theorists of le politique pay little regard to the
material constraints on political sovereignty in the concrete context of the evolving
European Union.
Etienne Balibar, a student of French Marxist philosopher Louis Althusser, is something of an
exception, maintaining a closer connection with materialist philosophy and the classical Marxist
tradition. Balibar neatly captured the necessary relation between the political and the material
realms, highlighting the materiality of modern political action by noting that the truth of politics
‘is to be sought not in its own self-consciousness or its constituent activity, but in the relationship
it maintains with conditions and objects which form its “material”, and constitute it as a material
activity’.66 This echoes the famous insight of Marx, that ‘human beings make their own history,
but they do not make it as they please; they do not make it under self-selected circumstances, but
under circumstances existing already, given and transmitted from the past’.67 Material condi-
tions and relations are thus both constituted by politics and constitutive of politics, a dynamic
that is intrinsic to constitutional ordering.
Balibar’s concept of ‘equaliberty’ presents the autonomy of the political as a material struggle,
not merely – or not even primarily for – secularisation, but for equality, set against the pre-
modern fusion of political and economic power.68 This immediately illuminates the path of
modern constitutional development in contrast to the theorists of le politique who present it as a
symbolic rupture from a theological worldview. It enables a foregrounding of the continuous, if
uneven, struggle for equality, including over universal suffrage, industrial rights, women’s
movements, workers’ movements, and – broadening the horizon – anti-colonial movements.
Close attention to the evolving relationship between politics and the economy as a concrete
and dynamic phenomenon also brought Balibar closer than his peers to the material and
constitutional implications of European integration. Surveying the Union at the beginning of
the new millennium he argued that the ‘impasse’ of sovereignty in Europe referred ‘to the
absolute blockage of the question of “the people” understood . . . as demos or constituent
political power’.69 The absence of ‘the people’ in Europe, he continued, was not only ‘symbolic’;
there was an absence of any of ‘real control’ over the constitutional order that was imposed on
their behalf. His diagnosis, accordingly, was nothing less than ‘the disappearance of the dialectic
of constituent and constituted power . . . [which] goes beyond the ‘bureaucratisation’ and

63
M. Loughlin, Political Jurisprudence (Oxford University Press, 2017) 104–7.
64
Ibid., 106.
65
As, for example, in Pierre Rosanvallon’s suggestion that the supposed impartiality of independent technocratic
institutions could be equated with new conceptions of democratic legitimacy, see Pierre Rosanvallon, Democratic
Legitimacy: Impartiality, Reflexivity, Proximity (Princeton University Press, 2011).
66
É. Balibar, Politics and the Other Scene (Verso, 2002), 10–11.
67
From Marx’s, The Eighteenth Brumaire of Louis Napoleon, available at: www.marxists.org/archive/marx/works/1852/
18th-brumaire/, last accessed 19 July 2022.
68
É. Balibar, Equaliberty: Political Essays (Duke University Press, 2014).
69
É. Balibar, We, the People of Europe: Reflections on Transnational Citizenship (Princeton University Press, 2004), 157.

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 Material Constitution Tradition in Western Marxism 41

‘professionalisation’ of politics, and the ‘political apathy of the masses’. It implied, Balibar
lamented, ‘the return to a technical, reglementary status of the law’.70
It was at this point in time (that is, during the first decade of this century) that Balibar retrieved
the notion of the material constitution as an essential device for understanding the political
regime of the European Union. Elaborating on some traits of the Marxist conception, he
defined the material constitution as the codification of fundamental political practices under-
stood in terms of a substantive (i.e., not formal) organisation of powers (political and eco-
nomic).71 The material constitution would serve the purpose of grasping the logic of
differentiation within EU law: in the absence of a proper normative and written constitution,
Balibar stated that the EU had a material constitution which comprised not only certain EU
institutions and national governments, but also provisions whose formal status is not consti-
tutional, such as (his example) the Schengen agreement.72 If differentiation is consolidated
through political practices, then sufficient political unity is obtained to stabilise a machine with
certain political objectives.
This diagnosis would be sharpened in the Euro crisis phase. Balibar had by then described the
Treaty of Maastricht as having put an end to the long European ‘civil war’ between economic
liberalism and social democracy that took place across the twentieth century. It signalled the
decisive triumph of economic liberalism and even the complete victory of capitalism in the
constitutional ordering of Europe. Reflecting on the (re-) birth of the EU at the Treaty of
Maastricht, he noted how extraordinary it was to set its liberal political–economic goals into
explicit, detailed and rigid constitutional guarantees, meaning that
for the first time in this part of the world a principle of political economy deriving from a specific
ideological discourse (namely neo-liberal deregulation and unrestricted competition, believed to
produce ‘optimal allocation of resources’ and spontaneously ‘just’ redistribution) was presented
as the sovereign rule which all member states ought to implement in their national policies
under close surveillance of the federal (or quasi-federal) organs of the Union.73

As the Euro-crisis progressed, Balibar identified a potential ‘revolution from above’, a trans-
formation of Europe by the leaders of dominant nations ‘and the Brussels and Frankfurt
technostructure’ using the language of ‘necessity’.74 Invented by Bismarck in the nineteenth
century, the notion of a revolution from above designated ‘a change to the structure of the
material constitution’ on the part of the ruling classes, altering the ‘balance of power between
society and state, economics and politics’. Balibar speculated that this process was underway with
the European Union’s ‘neutralisation’ of parliamentary democracy, and its institutionalisation of
budgetary and fiscal controls, all pushed forward ‘in the name of neo-liberal orthodoxy’.
Although these changes had been germinating for some time, they were for the first time being
demanded as part of a new configuration of political power.75
In the new configurations of rule, constraints on democratic self-determination were not
predominantly ‘constitutional’ in the orthodox sense of the term but were relayed by global
capital markets and credit rating agencies, which, along with banks that were considered ‘too big

70
Ibid., 169.
71
See É. Balibar, Cittadinanza (Bollati Boringhieri, 2012), 80–81.
72
É. Balibar, ‘Europe as Borderland’ (2009) 27 Environment and Planning 190, 202.
73
É. Balibar, ‘The Rise and Fall of the European Union: Temporalities and Teleologies’ (2014) 21 Constellations 202.
74
É. Balibar, ‘Europe’s revolution from above’, The Guardian (23 November 2011). Available at: www.theguardian.com/
commentisfree/2011/nov/23/europe-revolution-from-above, last accessed 25 September 2020.
75
Ibid. See, in a different context but in analogous manner, S. Wolin, Politics and Vision: Continuity and Innovation in
Western Political Thought (Princeton University Press, 2004), 605.

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 42 Marco Goldoni and Michael A. Wilkinson

to fail’, had become constitutional actors for material purposes. These material constraints would
then be formally entrenched at the EU level through the provisions of the Fiscal Compact and
the European Stability Mechanism, and reinforced by political actors as well as interpretations
of the European Court in its rulings on the programmes of the European Central Bank.76
Marxian material analysis had returned in line with political constitutional events but the focus
of Balibar’s analysis remained ‘top-down’.

1.7 THE AUTONOMIST VIEW: ANTONIO NEGRI

Another notable exception to the decline of the Marxist material constitution is represented by
Antonio Negri, especially in his works from the 1970s.77 Negri openly recognises the intellectual
debt to legal institutionalism and especially the constitutional theories of Carl Schmitt and
Costantino Mortati, whose notions of the material constitution are embedded in social reality
and capable of making sense of the unity of the constitutional order. But Negri’s materialist
philosophy allows him to circumvent the existentialist (Schmitt) or sociological (Mortati)
underpinning of their versions of the material constitution. Negri considers their emphasis on
the sovereign or the dominant political force to ultimately betray a circularity that impedes
grasping the dynamics of the material constitution.
In a nutshell, the problem with Schmitt and Mortati is their postulation that the material
constitution is a fundamental political fact supported by the dominant political force and their
simultaneous assumption that the dominant political force is the only one capable of moulding
the material constitution. In terms of constitutional science, the risk is not only to fall prey to a
form of circular reasoning, but also to a vulgar version of relativism. Whoever manages to impose
its will on the fundamental objectives of the polity is the sovereign or the dominant political
force. Negri’s original contribution lies in the philosophical methodology that allows him to read
the development of a capitalist political economy as an ontology of labour. Against a dialectical
conception of materialism (still inspired by the looming presence of Hegel), Negri postulates
that it is labour (and living labour more specifically) that ‘makes’ capital as a social relation. In
other words, labour is the essential component of the capitalist social relation and capital is
parasitical on that relation. Famously, on the basis of this assumption, Negri inaugurated the
intellectually fertile workerist approach.78 Labour is described as an autonomous force and the
basis of any political economy. Labour is the substance of productive processes and, for this
reason, is constitutive in its relationship with capital. The importance of this move is recognition
of the political capacity and agency of labour movements including the potential autonomy of
non-wage-based labour.
Against a formalist reading of the constitutional order, Negri recognises that there are two
engines driving the development of the constitution: the organisation of the productive process
and the conflictual dynamic which lies at the core of the capitalist social relation (i.e., class
struggle). Only a Marxist–materialist conception of the material constitution allows us to grasp
the constitutional relevance of these intuitions. With an incisive but rather abstract turn of
phrase, the material constitution is defined by Negri as ‘the level of political agreement of the

76
See Chapter 25, by Agustin Menéndez.
77
Negri discusses the notion of the material constitution at length in the following publications: A. Negri, Il lavoro nella
costituzione [1977] (Verona, 2009), 12–16; A. Negri, ‘Toward a Critique of the Material Constitution’, in Books for
Burning (Verso, 2005), 180–220.
78
Cf. S. Wright, Storming Heaven (Pluto Press, 2017).

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 Material Constitution Tradition in Western Marxism 43

regime that establishes the tendency toward unity of the constitutional project’.79 This captures
the most salient aspects of the constitutional order as a necessary component of a capitalist
political economy: (1) a tendency toward political unity of the constitutional order; (2) the
purposive character of the constitutional order (‘project’) as it strives toward the realisation of its
potential, which is latent in the idea of tendency;80 (3) the layered composition of class which
affects both the capitalist and the working class, and the evolution of the composition in a way
which directly affects the formation of the material constitution and (4) the resort to command
by capital, which is not only exercised by forcing workers into a state of necessity, but also with
the coercion and management exercised by the State. While capital command is driven by the
law of value, labour’s political activity is inspired by what Negri defines as self-valorisation, that
is, the struggle for supplanting the needs and values imposed upon workers by capitalist
command with self-determined needs and values.
From an epistemic perspective, Negri’s view is productive for understanding the material
constitution. It avoids a strict form of economism as it allows for a certain slack between capital’s
capacity of command and the political autonomy of labour. It makes social classes the subjective
bearers of the material constitution without providing a static account of their composition. In
this way, the classic ruling relation – the governing and the governed classes – which is at the
centre of political jurisprudence, is reframed in terms of commanding and resisting classes. It
also identifies class struggle as the driver of the constitution’s material development: it is an
antagonistic process of valorisation that determines the material constitution, based upon the
primacy of production as the key organising moment of social reality. For this reason, Negri
adopts an ontological approach not only to the notion of labour, but also to politics. But –
crucially – it is an ontology of labour that makes sense of class struggle and of the engine of
constitutional development. By postulating that labour is ontologically autonomous and inde-
pendent from capital, Negri suggests that political autonomy is not an abstract objective to be
pursued, but is embedded in the ontological condition of labour.
As insightful and powerful as this is,81 the risk of an ontological approach is to elide consti-
tutional reality in terms of the objective dimension of power relations. Moreover, it under-
estimates capital’s capacity for political initiative by reducing its activities to processes of real
subsumption and technological reorganisation. In more recent iterations of his theory, Negri has
pushed his concept of labour further, to the point of covering almost every aspect of society. This
expansion tracks a long trajectory which is described as a move from, first, the professional
worker to, second, the mass worker and, finally, the socialised worker. With the latter instanti-
ation, a new class composition emerges as a result of the restructuring and decentralisation of
production. The new class composition, based on the communication and sociability made

79
Negri, ‘Toward a Critique of the Material Constitution’, 187 (original emphasis). More recently, Negri and Hardt will
define the material constitution as the ‘continuous formation and reformation of the composition of social classes’: M.
Hardt and A. Negri, Empire (Harvard University Press, 2000), v.
80
Tendency is a technical word in Negri’s work; it refers to the trends and potentialities within the development of
capital and the working class that might materialise in the near future. The identification of a tendency is important
for two reasons: it allows the observer to understand the dynamics of constitutional development and it provides
important information for the formulation of organisational, strategical, and tactical activities.
81
Think of the intimate connection between class composition and the form of political institutions: to each class
composition corresponds a political subject and a form of government (e.g., to the mass worker corresponds the
Welfare State, the national trade union and the reformist political party).

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 44 Marco Goldoni and Michael A. Wilkinson

possible by new technologies, brings about a profound transformation of the material consti-
tution. Accordingly, the key bearing subject of the new material constitution is the multitude.82
The notion of the ‘multitude’ fails to convince for two reasons: it pushes the notion of material
constitution to a limit where it becomes almost entirely congruent with the notion of a
globalised societal organisation (and in this way, it loses analytical purchase); or the composition
of the multitude is so broad that it is difficult to identify any inner class dynamics. Although the
intuition behind this conception of the contemporary material constitution is powerful (i.e.,
the idea that the political is not a separate and autonomous sphere, but penetrates all social
systems),83 it is doubtful that this new understanding of the material constitution of the empire
(as the political form associated with the rise of the socialised worker) is tenable in light of the
increased relevance of processes of differentiation along multiple lines (race, gender, sex,
territory, to name a few). The price to be paid for the primacy of ontology over politics is, as a
constitutional matter, quite high.

1.8 CONCLUSION

Marxist political thought has been the cradle of the material constitution. In this chapter, we
have provided an overview of the implicit notion of the material constitution that can be
retrieved from Marx’s critique of political economy. We then tracked the development of this
approach to the material constitution in the first work that explicitly discusses the material
constitution (Lassalle) and in some of the most influential followers of Marx (Lenin and
Luxembourg). The limits of a determinist conception of the material constitution have led
authors to investigate other ordering factors: this expansion beyond economic determinism was
central to the innovative thought of Antonio Gramsci and of other (non-Marxist) political
thinkers of the interwar period. Finally, we tracked the marginalisation of the materialist
approach after the Second World War but singled out two notable exceptions emerging out
of the social movements of the 1960s and 70s (Balibar and Negri). Ultimately, the work of these
two authors shows that, by avoiding reductionist shortcomings, the critique of political economy
still provides essential and fresh insights into the material constitution. Conversely, Marxist
thought itself has much to gain by engaging with constitutional phenomena.

82
For the most recent formulation, see M. Hardt and A. Negri, Assembly (Oxford University Press, 2016). For a
reconstruction of Negri’s intellectual trajectory see T. Murphy, Negri (Routledge, 2012).
83
There is some affinity between the last version of Negri’s political thought and societal constitutionalism: see the
interesting exchange between Gunther Teubner and Negri in ‘Law, Property, and New Horizons’ (2010) 21 Finnish
Yearbook of International Law 1.

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 2

The Soul of the State

The Question of Constitutional Identity in Carl Schmitt’s

Verfassungslehre

Jens Meierhenrich

The state is constitution, in other words, an actually present condition, a status of unity and order. The state
would cease to exist if this constitution, more specifically, this unity and order, ceased to exist. The
constitution is its ‘soul,’ its concrete life, and its individual existence.
Carl Schmitt1

2.1 INTRODUCTION

In this chapter I seek to contribute to the material study of constitutions by revisiting Schmitt’s
argument about constitutional identity – which he developed in Verfassungslehre. In his
magnum opus, published in 1928, Schmitt took issue with liberalism’s failure to take seriously
the social requisites of constitutional democracy. His was a constitutional theory concerned with
the ‘soul’ of the state. Like Hermann Heller on the left, Schmitt was keen to revive in Weimar
Germany a tradition of political thought in which arguments from sensus communis were the
constitutional norm. His was an attempt to stop the influx of ‘mechanical and corpuscularian
philosophies’ into the theory and practice of law, a development that the publication, in 1637, of
René Descartes’s Discourse on the Method of Rightly Conducting One’s Reason and Seeking
Truth in the Sciences, had set off.2
By addressing the question of constitutional identity in Schmitt’s political jurisprudence,
I chart what I call affective constitutionalism. In my effort to relate mind to matter, I rely on
Raymond Williams, the literary theorist, and develop an argument about constitutions as
‘structures of feeling’.3 Williams introduced this concept in Marxism and Literature. There,
he laid the intellectual foundations for a cultural materialism by way of a trenchant critique of
Karl Marx’s theory of history.4 By making this approach to materiality usable for constitutional
theory, I hope to bring phenomenology – the philosophy of experience – to the study of
constitutional law.5

1
C. Schmitt, Constitutional Theory, J. Seitzer, trans. and ed. (Duke University Press, 2008), 60.
2
R. Serjeantson, ‘The Soul’, in D. M. Clarke and C. Wilson (eds.), The Oxford Handbook of Philosophy in Early
Modern Europe (Oxford University Press, 2011), 129.
3
R. Williams, Marxism and Literature (Oxford University Press, 1977), 128–35.
4
Ibid., 5.
5
For a broader argument about the phenomenology of the rule of law, see J. Meierhenrich, ‘What the Rule of Law Is . . .
and Is Not’, in J. Meierhenrich and M. Loughlin (eds.), The Cambridge Companion to the Rule of Law (Cambridge
University Press, 2021), 569–621.

45

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 46 Jens Meierhenrich

2.2 AFFECTIVE CONSTITUTIONALISM

‘To Schmitt’s mind’, as John McCormick writes, ‘the formalism of liberalism’ was a technology
of rule.6 The way Schmitt saw it, the procedural constitutionalists in Weimar Germany were
devaluing the ‘concept’ (‘Begriff ’) of the constitution. He faulted them, among other things, for
avoiding the question of constitutional identity. By running roughshod over its soul, he was
certain, they were failing the state.
Schmitt was a political existentialist par excellence. He had no patience for the excessive
legalism en vouge in the 1920s. Everything was a question of identity for Schmitt. Constitutional
life was about belonging – or not. In the dying days of the Weimar Republic, Schmitt’s
constitutional theory, like his institutional theory more generally, was subject to a cumulative
radicalisation. It became ever more exclusionary – and divisive.7 Schmitt’s thought in the
interwar period combined ‘existentialism’s “intensity” with militarism’s “struggle”’.8 Because
the telos of politics for Schmitt was the pursuit of an ‘intensive life’ (‘intensives Leben’), any
Verfassungslehre worthy of the name, or so he felt, had to be vitalist.9 By flying the flag for
facticity in Weimar Germany’s Methodenstreit, the jurisprudential debate in the 1920s among
constitutional theorists over the separation of law and morals, Schmitt outed himself as a
constitutional materialist, as Marco Goldoni and Michael Wilkinson use the term.10
In drawing our attention to ‘the underlying material context’, Goldoni and Wilkinson
foreground ‘the basic political and social conditions of possibility of constitutionalism’ as well
as ‘the dynamics of constitutional change’.11 The material determinants of constitutions are
various. Taking materiality seriously is not the same as being wise to the politics of constitutional-
ism, however. It requires more than ‘merely supplementing judicial with political analysis’.12 Not
all materialist critiques treat the political ‘as a superstructural phenomenon determined by
productive relations’.13 Goldoni and Wilkinson insist, as I do, that the study of the material
constitution must not be reduced ‘to the study of the underlying economic base’.14

2.2.1 The Concept of the Material

That it is possible to reclaim the idea of materiality from Marxists – to think materially without
reference to base and superstructure – Costantino Mortati showed in his constitutional thought.
Inspired by Paul Laband’s disaggregation of the concept of law (Gesetz) in the nineteenth
century, Mortati, in the 1930s, began to think about ‘the long arc of legality’ by bringing sociality

6
J. P. McCormick, ‘Three Ways of Thinking “Critically” about the Law’ (1999) 93 American Political Science Review
413, 415.
7
On the transformation of his institutional thought from ‘pragmatist institutionalism’ to ‘racial constitutionalism’ to
‘extremist institutionalism’, see J. Meierhenrich, ‘Fearing the Disorder of Things’, in J. Meierhenrich and O. Simons
(eds.), The Oxford Handbook of Carl Schmitt (Oxford University Press, 2016), 171–216.
8
R. Slagstadt, ‘Liberal Constitutionalism and Its Critics: Carl Schmitt and Max Weber’, in J. Elster and R. Slagstadt
(eds.), Constitutionalism and Democracy (Cambridge University Press, 1988), 115–16.
9
C. Schmitt, Positionen und Begriffe im Kampf mit Weimar – Genf – Versailles 1923–1939 [1933] (Duncker & Humblot,
1994), 226.
10
M. Goldoni and M. Wilkinson, ‘The Material Constitution’ (2018) 81 Modern Law Review 567. I hasten to add that
Schmitt’s understanding of facticity was hardly straightforward. For an insightful discussion, see G. Meuter, ‘Zum
Begriff der Transzendenz bei Carl Schmitt’ (1991) 30 Der Staat 483.
11
Goldoni and Wilkinson, ‘The Material Constitution’, 568.
12
Ibid., 569.
13
Chapter 3 from this handbook, 75.
14
Goldoni and Wilkinson, ‘The Material Constitution’, 587.

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 The Soul of the State: Carl Schmitt’s Verfassungslehre 47

into play.15 Intrigued by Laband’s idea of law ‘in a material sense’ (‘im materiellen Sinne’),
especially the German thinker’s verbiage, he began to contemplate the analytical possibilities of
this neologism – of theorising the interplay between formality and materiality. In 1940, Mortati
shared the product of his intellectual labour. He called it ‘la constituzione in senso materiale’.16
With his theory of the material constitution, Mortati stood Laband on his head. He subverted
the latter’s quest for a Staatsrechtswissenschaft, a science of constitutional law. With Italy’s
constitutional order as his reference, Mortati argued against Labandian legal positivism – and
that of like-minded theorists of public law such as Carl Friedrich von Gerber. The so-called
Gerber–Laband School was intent on purging from the theory and practice of constitutional law
‘all extraneous matters – history, politics, and ideas from private law’.17 The ideology of its
legalism was anti-materialist, which is what irked Mortati.
Laband and Gerber, not unlike Mary Wollstonecraft in England, imagined that the wheels of
government – including the wheel of law – were turning ‘like the wheels of any other machine’,
that is, autonomously.18 This constitutional imagination did not convince Mortati. To him the
imaginary constitutions it conjured were a little too perfect. They had little to do with the life of
constitutional law he knew. Not unlike Eugen Ehrlich, whose 1913 treatise on the sociology of
‘living law’ (‘lebendes Recht’) a few decades earlier had shaken up pure theorists in the Kelsenian
mould, Mortati wanted to explore the ‘grey area of constitutional law’.19 Like Schmitt and Heller,
who – along with Rudolf Smend – provided the inspiration, Mortati felt that the value-free, logical
method of jurisprudence was wanting. Constitutional law was not machine learning, he averred.
On Mortati’s political conception of constitutional law, ‘the nomic is intrinsic to the material’,
in the sense of ‘a peculiar conformation of the latter that triggers the former’.20 On this reading of
Mortati’s constitutional thought, ‘a certain aggregate of social forces’ created the conditions for
constitutional law ‘to emerge and work effectively’.21 The ‘social forces’ Mortati had in mind,
however, were not just – or even primarily – the productive forces so central to Marx’s theory of
history. Mortati was more realistic, in all senses of the term, about the material foundations of
life – and so was Raymond Williams.
For Williams, culture was matter. He thought of it as ‘practical consciousness’, as ‘a kind of feeling
and thinking’ that, rooted in everyday life, was ‘social and material’.22 Taking a leaf from Williams,
I argue that constitutions, for Schmitt, were ‘structures of feeling’, affective parameters to choice:
The term is difficult, but ‘feeling’ is chosen to emphasize a distinction from more formal
concepts of ‘world-view’ or ‘ideology’. It is not only that we must go beyond formally held and

15
Related, see D. Dyzenhaus, The Long Arm of Legality: Hobbes, Kelsen, Hart (Cambridge University Press, 2021),
whose phrase I have borrowed.
16
P. Laband, Das Staatsrecht des Deutschen Reiches (Laupp, 1878), vol. II, 1; C. Mortati, La constituzione in senso
materiale (Giuffrè, 1940).
17
M. Loughlin, Foundations of Public Law (Oxford University Press, 2010), 191.
18
M. Wollstonecraft, An Historical and Moral View of the Origin and Progress of the French Revolution and the Effect It
Has Produced in Europe (J. Johnson, 1794), 404.
19
E. Ehrlich, Grundlegung der Soziologie des Rechts, M. Rehbinder, ed. [1913], 4th ed. (Duncker & Humblot, 1989); L.
Rubinelli, ‘Costantino Mortati and the Idea of Material Constitution’ (2019) 40 History of Political Thought 515, 516.
The Kelsenian mould was still new at the time. Kelsen had only just presented it in H. Kelsen, Hauptprobleme der
Staatsrechtslehre (Mohr, 1911). But, as Stanley Paulson has shown, Kelsen’s early constructivism is indebted to the
‘juridico-scientific’ tradition of the Gerber-Laband School. S. L. Paulson, ‘Hans Kelsen’s Earliest Legal Theory:
Critical Constructivism’ (1996) 59 Modern Law Review 797, 798, 799–80.
20
M. Croce and M. Goldoni, The Legacy of Pluralism: The Continental Jurisprudence of Santi Romano, Carl Schmitt,
and Costantino Mortati (Stanford University Press, 2020), 6. Emphasis added.
21
Ibid., 6.
22
Williams, Marxism and Literature, 130, 131.

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 48 Jens Meierhenrich

systematic beliefs, though of course we have always to include them. It is that we are concerned
with meanings and values as they are actively lived and felt, and the relations between these and
formal or systematic beliefs [. . .].23

The question of constitutional identity was a material concern for Schmitt.24 By reconstruct-
ing his cultural materialism, I lay bare the constitutional sentiments in Verfassungslehre.25
Throughout the 1920s, Schmitt was seized by the task of understanding the affective life of
constitutions – of interpreting, to borrow from Oliver Wendell Holmes, Jr., ‘the feelings which
make the content of logic’.26 Whatever we make of Schmitt’s dangerous mind, he made great
strides in studying constitutional sentiments. Verfassungslehre is a manifestation of cultural
materialism avant la lettre. His constitutional thought is relevant to thinking about the material
constitution in the twenty-first century. Why? Because arguments for – and from – affective
constitutionalism shed light on the social origins of dictatorship and democracy. The illumin-
ation of material relations is apposite at a time when, as Goldoni and Wilkinson write, ‘formal
constitutionalism is beginning to look divorced from constitutional reality, and constitutional
order is, once again, threatened by radical change’.27 By approaching constitutionalism phe-
nomenologically – from the direction of culture – mine is a contribution to the debate over the
state of constitutional democracy.

2.3 HERDER’S VOLK

Schmitt recognised that, for constitutional democracy to thrive and survive, it needed to be
meaningful. Effective constitutions were affective constitutions. They required substance, not
just form, as he insisted in Verfassungslehre. They needed to be vitalist, not voluntarist.
Constitutions, to him, were life-affirming institutions. His was an argument for vernacular
constitutionalism.28 Pulsating with the lifeblood of a people, Schmitt thought of a constitution
as the autochthonous product of an imagined community – and also its social glue. In his
hopeful vision, constitutions turned citizens into soulmates.
Schmitt’s Verfassungslehre – like Hermann Heller’s Staatslehre – can be traced to the
organicist tradition Johann Gottfried Herder established in the eighteenth century.29 As Isaiah
Berlin once put it, as if writing with our two protagonists in mind,
all defenders of the local against the universal, all champions of deeply rooted forms of life, both
reactionary and progressive, both genuine humanists and obscurantist opponents of scientific
advance, owe something, whether they know it or not, to the doctrines which Herder [. . .]
introduced into European thought.30

23
Ibid., 132.
24
Goldoni and Wilkinson, ‘The Material Constitution’, 568.
25
Space constraints disallow a closer engagement with Williams. For a comprehensive analysis, with particular reference
to German history, see J. Meierhenrich, The Sentimental Constitution, Unpublished book manuscript, LSE,
December 2021. For a different approach, see A. Sajó, Constitutional Sentiments (Yale University Press, 2011).
26
Holmes’s formulation appeared in a critique of Christopher Columbus Langdell, the dean of Harvard Law School,
whose formalism he regarded with disdain.
27
Goldoni and Wilkinson, ‘The Material Constitution’, 597.
28
On vernacular constitutionalism, see J. Meierhenrich, The Legacies of Law: Long-Run Consequences of Legal
Development in South Africa, 1652–2000 (Cambridge University Press, 2008), 249–64.
29
On Heller’s Staatslehre, see Meierhenrich, Sentimental Constitution.
30
I. Berlin, Three Critics of the Enlightenment: Vico, Hamann, Herder, H. Hardy, ed. [1976] (Princeton University Press,
2000), 201.

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 The Soul of the State: Carl Schmitt’s Verfassungslehre 49

2.3.1 The Constitution of Peoples

The Volk makes the constitution, and the constitution makes the Volk, or so Schmitt’s consti-
tutional theory seemed to imply. His conception of constitutional democracy was exclusionary.
It rested on the quality of belonging to a particular people (‘zu einem bestimmten Volk’).31 What
precisely facilitated belonging to this Volk – and thus the constitution of peoples – was,
according to Schmitt, the stuff of culture, notably ‘ideas of common race, belief, common
destiny, and tradition’.32 Schmitt was not the first thinker to draw attention to the matter of
constitutional identity – and to its cultural determinants. We would also do well to remember
that the concept of the Volk in German constitutional thought did not always have the racial
connotations it took on during the Nazi debate about the Rechtsstaat.33 It has been as fiercely
contested as other essentially contested concepts. Indeed, Herder, who invented the Volk
theorem, was ‘an eighteenth-century humanitarian and liberal’.34
Schmitt’s organicism – like Heller’s and that of other thinkers who were disillusioned by the
rise of formalism in the theory and practice of nineteenth-century constitutionalism – can be
traced back to Herder, and to the German historicist tradition more generally. In Herder’s
Germany, there existed ‘little evidence of a collective sense of national identity’.35 Germans were
still a proto-nation in the eighteenth century. Dispersed across 300 odd states – most of them
micro-states, or Kleinstaaten, that belonged to the Holy Roman Empire – they did not think of
themselves as possessed of a common identity.36 A we-feeling, they did not have. Schmitt’s ‘status
of unity and order’ was inconceivable.
It was Herder, more than anyone else, who ushered in ‘a new period of political conscious-
ness’.37 In thinking about the constitution of peoples, he turned the ‘Volk’ into a social
imaginary. While it was Ferdinand Tönnies who, in 1887, made the idea of community famous,
it was Herder who first made it conceivable.38 This involved an analytical two-step. The first step
he took was theoretical, the second conceptual. Herder, as F. M. Barnard has shown, first
‘established the principle that language was the most natural and hence indispensable basis of
socio-political association’.39 For him, a community of language was a major organ in the body
politic. ‘The organ of thought’ is what he called it.40 Auch eine Philosophie der Geschichte,
Herder’s 1774 tract, anticipated many of historicism’s key themes: ‘that we should not judge the

31
C. Schmitt, Verfassungslehre (Duncker & Humblot, 1928), 227. Emphases omitted.
32
Schmitt, Constitutional Theory, 258.
33
On this little-known – but highly consequential – debate in Nazi jurisprudence, see J. Meierhenrich, The Remnants of
the Rechtsstaat: An Ethnography of Nazi Law (Oxford University Press, 2018), 95–158. On the Volk discourse more
generally, see J. Retterath, “Was ist das Volk?” Volks- und Gemeinschaftskonzepte der politischen Mitte in Deutschland
1917–1924 (de Gruyter, 2016).
34
C. J. H. Hayes, ‘Contributions of Herder to the Doctrine of Nationalism’ (1927) 32 American Historical Review 719,
734. On this point, see also I. Berlin, Three Critics of the Enlightenment: Vico, Hamann, Herder (Princeton University
Press, 2013), 179–82; and, more specifically, F. M. Barnard, ‘The Hebrews and Herder’s Political Creed’ (1959) 54
Modern Language Review 533.
35
F. M. Barnard, Herder’s Social and Political Thought: From Enlightenment to Nationalism (Clarendon Press, 1965),
29.
36
On the institutional design of this sprawling empire, with particular reference to its German-speaking population, see,
most recently, B. Stollberg-Rilinger, The Holy Roman Empire: A Short History, Y. Mintzker, trans. (Princeton
University Press, 2018).
37
Barnard, Herder’s Social and Political Thought, 30.
38
F. Tönnies, Gemeinschaft und Gesellschaft: Grundbegriffe der reinen Soziologie [1887] (Wissenschaftliche
Buchgesellschaft, 1979).
39
Barnard, Herder’s Social and Political Thought, 30.
40
Ibid.

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 50 Jens Meierhenrich

past by the standards of the present; that each culture is an individual and unique whole; that
each age has its own standards of happiness and virtue; that the past should be relived and felt
rather than just described and explained’.41
Schmitt’s variations on these themes make an appearance in many of his writings, also in his
Verfassungslehre. Notwithstanding his moody critique, in Political Romanticism, of the oeuvres
of Friedrich Schlegel and Adam Müller, Schmitt’s debt to Herder and the organicist tradition is
undeniable. We must not take Schmitt’s dismissal of ‘configurations of affect’ at face value.42 As
so often, his polemic was rash and the analysis on which he based it perfunctory. As Guy Oakes,
his translator, remarked about Political Romanticism, ‘it is the most contentious of all Schmitt’s
books, the work in which he embraces the j’accuse role with an unqualified enthusiasm’.43 The
charge that Schlegel and Müller ‘clothe affect with philosophical and scientific raiments and
words rich in associations’ applies equally to Schmitt.44 He was no less guilty than Schlegel and
Müller, to the extent that they were, of clothing affect, notably in his constitutional theory.
Herder was adamant that ‘to empathize with the entire nature of a soul’, one must ‘enter into
the age itself, follow the compass’.45 To understand the constitution of peoples, he told his
readers, ‘feel your way into everything – only then will you be on your way to understanding the
word’ – and the world.46 Herder’s philosophy was of a subjective variety. It stressed the
contingent influence of physical and historical circumstances upon national development.
His cultural nationalism, in this sense, was a cultural materialism. For him, a Volk was made
of mind and matter. ‘[S]o transfiguring the word Volk that it became the radiation-point in the
nineteenth century for the new gospel of nationalism’, as one of Schmitt’s contemporaries put it
just before the publication of Verfassungslehre, was Herder’s ‘most impressive contribution’.47 It
was also his most lasting. Of particular relevance to Schmitt’s constitutional theory, however, is
another aspect of Herder’s cultural materialism: its exclusionary thrust. ‘In clear antithesis to the
patriotism of the Enlightenment, which on principle kept its borders open for communication,
the Romantic concept of the nation’, as Bernhard Giesen writes, closed ‘the borders to outsiders.
Here membership in a nation approaches a primordial significance’.48

2.4 SCHMITT’S VERFASSUNG

When Herder called his imagined community a Volk, he attributed to language the power of
affect – the ability to constitute a people. By so doing, he laid ‘the ideological foundations of a
new dogma in the dialectic of argumentation’, a dogma that Schmitt and Heller sought to better
in the twentieth century. Both thought highly of the Volk, albeit in different ways. In his
constitutional theory, Schmitt came at it from the right, Heller took a stab at the question of
constitutional identity from the left.

41
F. C. Beiser, The German Historicist Tradition (Oxford University Press, 2011), 132. Emphasis added.
42
C. Schmitt, Political Romanticism, G. Oakes, trans. [1919] (MIT Press, 1986), 107.
43
G. Oakes, ‘Translator’s Introduction’, in Schmitt, Political Romanticism, xiii.
44
Schmitt, Political Romanticism, 107. For a discussion, see J. Meierhenrich and O. Simons, ‘“A Fanatic of Order in an
Epoch of Confusing Turmoil”: The Political, Legal, and Cultural Thought of Carl Schmitt’, in J. Meierhenrich and
O. Simons (eds.), The Oxford Handbook of Carl Schmitt (Oxford University Press, 2016), 3–70.
45
J. G. Herder, ‘Another Philosophy of History for the Education of Mankind’, in Another Philosophy of History and
Selected Political Writings, I. D. Evrigenis and D. Pellerin, trans. [1774] (Hackett, 2004), 24. Emphases omitted.
46
Ibid., 24. See also J. G. Herder, On World History: An Anthology, H. Adler and E. A. Menze, eds. (Routledge, 1997).
47
Hayes, ‘Contributions of Herder to the Doctrine of Nationalism’, 722.
48
B. Giesen, Intellectuals and the Nation: Collective Identity in a German Axial Age, N. Levis and A. Weisz, trans.
(Cambridge University Press, 1998), 96.

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 The Soul of the State: Carl Schmitt’s Verfassungslehre 51

What galvanised them both was the crisis of parliamentary democracy. Then, as now, consti-
tutional faith was on the wane.49 However, during the ‘twenty years’ crisis’ of the twentieth
century, the situation was more dire, certainly in Europe, than it is today, haunted as the
continent was by all kinds of collective violence, certainly in Germany.50 The spectre of
democratic breakdown hung in the air – and Schmitt was smelling constitutional rot.51 By
1932, he recalled years later, this crisis ‘already involved the concept of the constitution itself’.52
His publication in that year of Legality and Legitimacy, Schmitt insisted after the war, ‘was a
despairing attempt to safeguard the last hope of the Weimar Constitution, the presidential
system, from a form of jurisprudence that refused to pose the question of friend and enemy of
the constitution’.53 Although most of his contemporaries dismissed his argument from affective
constitutionalism as ‘political fantasy law’, he still believed, in the 1950s, that his early consti-
tutional writings possessed a desperately needed ‘intensity’ which they communicated ‘in a
constitutional history sense’.54 This reminiscence is indicative, I believe, of Schmitt’s preoccu-
pation with constitutional affect. He remained convinced that constitutional effectiveness
hinged on constitutional sentiments.
This conviction, this constitutional faith, Schmitt felt, had been lost in the nineteenth
century. As always with Schmitt, legal positivism was the culprit. In the interwar period, ‘[t]his
thoroughly dominant theory was no longer conscious of its own historical and theoretical
presuppositions’.55 To remedy this supposed failing, Schmitt’s constitutional theory conceived
of the constitution as ‘a special type of political and social order’.56 The adjectives are telling:
‘special’, ‘political’, ‘social’. To repair the constitutional framework of Weimar’s
Reichsverfassung, and to reclaim the concept of the constitution from Kelsen in particular, he
‘re-mystifies the state as a polity that is instilled with the autonomous will of the people’, the
Volk.57 Schmitt did ‘not accept’, as Jo Murkens shows, ‘Kelsen’s equation of the constitution
with the normative legal order of the state, which ignores its factual, sociological side’, which is
to say: its materiality.58 For Schmitt, ‘all constitutional aspects, such as union, order, goals (telos),
life, soul, are factual’.59 This is the reason why, for Mortati ‘Schmitt’s institutional theory was the
cradle of a compelling notion of materiality’.60
Re-enter Herder. In language that reminds of Schmitt’s verbal fusillades in the twentieth
century, Herder had in eighteenth-century Prussia complained about the ‘dullness’ and ‘mech-
anical regimentation’ of life.61 In Political Theology, Schmitt took a leaf from Herder’s book.
This early treatise gives a clear indication of the nature – and the radicality – of Schmitt’s

49
M. A. Graber, S. Levinson and M. Tushnet (eds.), Constitutional Democracy in Crisis? (Oxford University Press,
2018).
50
For a recent account, see M. Jones, Founding Weimar: Violence and the German Revolution of 1918–1919 (Cambridge
University Press, 2016).
51
The term is J. M. Balkin’s. See J. M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020).
52
C. Schmitt, ‘Afterword (1958)’, in Legality and Legitimacy, J. Seitzer trans. and ed. [1932] (Duke University Press,
2004), 95.
53
Ibid.
54
Ibid.
55
Ibid.
56
Schmitt. Constitutional Theory, 60.
57
J. E. K. Murkens, From Empire to Union: Conceptions of German Constitutional Law since 1871 (Oxford University
Press, 2013), 41.
58
Ibid., 45.
59
Ibid. Emphasis added.
60
Chapter 15 by M. Croce, 224.
61
Barnard, Herder’s Social and Political Thought, xii.

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 52 Jens Meierhenrich

approach to materiality. Although his argument from constitutional identity found its most
cogent expression in Verfassungslehre, his earlier book already foreshadowed Schmitt’s affective
constitutionalism. Already in 1922, he was romanticising ‘the power of real life’, an affective force
so potent that it ‘breaks through’, as he put it, ‘the crust of a mechanism that has become torpid by
repetition’, by which he meant the ‘liberal constitutionalism’ of Kelsen and other misguided ‘neo-
Kantians’ with their ‘juristic rationalism’.62 He saw himself as a philosopher of ‘concrete life’.63
The reference to life in Political Theology is ‘absolutely critical’, according to David Bates.64 It
makes plain that, for Schmitt, a political community ‘was very much like the organism in its self-
justifying, purely existential orientation’.65 We can take Schmitt’s reference to Søren Kierkegaard
as further evidence of the proposition that he was on a mission to make affect safe for constitu-
tionalism.66 ‘Endless talk about the general becomes boring’, Schmitt opined, in a swipe at
Kelsen.67 Why? ‘[B]ecause the general is not thought about with passion but with a comfortable
superficiality’.68 Kierkegaard, as is sometimes forgotten, was not just an existentialist, he was also a
social realist – and a cultural materialist. And so, if my argument is correct, was Schmitt.
Schmitt’s concept of the constitution is both ideational and material. It is rooted, as Murkens
writes, in a sphere ‘that lies beyond the positive, written constitutional text’.69 In the year
following the publication of Verfassungslehre, Schmitt inveighed against ‘the age of neutraliza-
tions and depoliticizations’.70 In hyperbolic prose, he elaborated an argument from cultural
materialism. Invoking Oswald Spengler’s dystopian account of The Decline of the West, Schmitt
lamented that the interwar period was ‘a soulless age of technology in which the soul is helpless
and powerless’.71 He blamed this state of affairs on the ‘torpid religion of technicity’.72 As he put
it, ‘Once everything had been abstracted from religion and theology, then from metaphysics and
the state, everything appeared to have been abstracted above all from culture, ending in the
neutrality of cultural death’.73 This diagnosis of ‘cultural decline’ is one of many material traces
in Schmitt’s constitutional theory, another example of the attention he paid – in
Verfassungslehre and beyond – to what Goldoni and Wilkinson think of as ‘the underlying
material context’.74

2.4.1 The Materiality of Identity

Inspired by Herder, but also by Rousseau and especially Emmanuel Joseph Sieyès, Schmitt
assumed that the people – the Volk – existed ‘before and above the constitution’.75 He regarded

62
C. Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, G. Schwab, trans. [1922] (MIT Press,
1986), 14, 15.
63
Ibid., 15.
64
D. Bates, ‘The Political Theology of Entropy: A Katechon for the Cybernetic Age’ (2020) 30 History of the Human
Sciences 109, 113.
65
Ibid., 113.
66
Related, see P. Markell, ‘Making Affect Safe for Democracy? On “Constitutional Patriotism”’ (2000) 28 Political
Theory 38.
67
Schmitt, Political Theology, 15.
68
Ibid.
69
Murkens, From Empire to Union, 45.
70
C. Schmitt, The Concept of the Political, G. Schwab, trans. and ed. [1929] (University of Chicago Press, 2007), 80–96.
71
C. Schmitt, ‘The Age of Neutralizations and Depoliticizations’, in The Concept of the Political, G. Schwab, trans. and
ed. [1929] (University of Chicago Press, 2007), 93.
72
Ibid., 95.
73
Ibid., 93.
74
Ibid., 92; Goldoni and Wilkinson, ‘The Material Constitution’, 568.
75
Murkens, From Empire to Union, 107.

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 The Soul of the State: Carl Schmitt’s Verfassungslehre 53

the demos ‘in romantic and organic terms’ as the prerequisite of the nation-state.76 This ‘Volk-
centric, monist reading’ of constitutional democracy is further evidence that the Germanic
discipline of Staatsrecht – which Schmitt hoped to reimagine with his Verfassungslehre and
Heller to standardise with his Staatslehre – stood for a distinctly socio-legal habitus, one that
‘searches for and finds answers also outside the discipline of law’.77 This habitus, to be sure, was
neither the sole preserve of the right nor of the left. In the early twentieth century, the question of
constitutional identity, rather, was a concern common to many of Germany’s public lawyers.
More than a few were ready to break with Staatsrechtslehre, that is, the scientific approach to law
they felt was a burdensome legacy of ‘Labandism’.78
As per the quote from Verfassungslehre with which I opened this chapter, the state, according
to Schmitt, does not ‘have’ a constitution; the state ‘is’ the constitution.79 He held the unity of
people, state and constitution to be indivisible. The constitution was the state’s ‘soul’, the people
its body politic, the embodiment of Sieyès’s pouvoir constituant. Schmitt accused statutory
positivists of destroying this soul. It was impossible to think about constitutional matters
scientifically, he argued. Abstraction, for him, was no substitute for concreteness. As far as the
meaning of the constitution was concerned, Schmitt deemed it important to think about the
concept phenomenologically. For him a constitution, to count as a constitution, had to have a
material existence, it had to be ‘actually present in the world’, as McCormick puts it.80
According to Schmitt, a constitution, properly defined, derived from the will of a pouvoir
constituant. This will, because it is ‘existentially present’ (‘existentiell vorhanden’), he regarded
as a material fact.81 Its materiality lies in its ‘being’ (‘Sein’), which, for Schmitt, was the source of
sovereign authority.82
Schmitt’s Verfassungslehre was, he proclaimed, ‘an attempt at a system’.83 It was an exercise in
‘categorical ordering’, one of many.84 Any constitution to be deserving of the name, Schmitt
maintained, had to achieve a structural unity of people, state and constitution. ‘The concept of
the constitution is absolute because it expresses a (real or reflective) whole’, he wrote.85 The
cohesiveness and coherence of a legal order, in Schmitt’s argument, derived from a consti-
tutional existence, ‘an actually present condition, a status of unity and order’, as he put it.86 This
supposition is a material claim. Schmitt’s second claim, which he tied to the first, was cultural. It
adds a twist to his argument about constitutional identity and speaks to his idea of the state: ‘The
constitution is its “soul,” its concrete life, and its individual existence’.87 This aphorism cuts to
the heart of Schmitt’s constitutional theory, summing it up succinctly – all the while leaving
much to the imagination, as was his wont.
Ellen Kennedy is right: Verfassungslehre was ‘unlike any contemporary work on the Weimar
constitution’.88 It was not ‘an interpretation of that one constitution, nor was it a general theory

76
Ibid.
77
Ibid., 108.
78
H. Heller, Gesammelte Schriften, vol II. [1926], 2nd ed. (Mohr, 1992), 16.
79
Schmitt, Constitutional Theory, 60. Emphases omitted.
80
J. P. McCormick, Carl Schmitt’s Critique of Liberalism: Against Politics as Technology (Cambridge University Press,
1997), 231.
81
Schmitt, Constitutional Theory, 64; Schmitt, Verfassungslehre, 9.
82
Schmitt, Verfassungslehre, 9.
83
Schmitt, Constitutional Theory, 53.
84
Meierhenrich and Simons, ‘A Fanatic of Order in an Epoch of Confusing Turmoil’, esp. 12–21.
85
Schmitt, Constitutional Theory, 59.
86
Ibid., 60.
87
Ibid.
88
E. Kennedy, Constitutional Failure: Carl Schmitt in Weimar (Duke University Press, 2004), 119.

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 54 Jens Meierhenrich

of the state’.89 Schmitt’s take on the material constitution, which is what I believe it was,
upended conventional wisdom about the question of constitutional design. Indeed, by mobilis-
ing the substance of the constitution ‘against its functional elements’, as Ulrich Preuß once put
it, Schmitt’s was an argument against constitutionalism, conventionally understood.90 Schmitt’s
Verfassungslehre was a genre-bending publication, one entirely in keeping with the ‘trinity’ of his
thought, which is why it is entirely fitting to bring phenomenology to legality.91 An awareness of
the interplay of Schmitt’s political, legal and cultural thought is useful, and perhaps indispens-
able, for grasping what the materiality of identity was all about in Schmitt’s constitutional
theory – where it came from and what it meant.
Schmitt’s Verfassungslehre is an argument for, and from, ‘communitarian existentialism’.92
Conventional wisdom has it that he conceived constitutional identity in ethnic terms. Many,
Jürgen Habermas foremost among them, have portrayed Verfassungslehre as an outgrowth and
manifestation of Schmitt’s ‘militant ethnonationalism’.93 Andreas Kalyvas begs to differ, as do
I. Habermas’s interpretation of Schmitt’s constitutional theory is clouded by outcome know-
ledge. As are similar interpretations by Ulrich Preuß and Michel Rosenfeld, who influenced the
reception of Schmitt’s constitutional thought in the English-speaking world early on. In the
process, they distorted Schmitt’s argument about the question of constitutional identity. Schmitt
may well have been ‘the most influential theoretical antipode’ of liberal constitutionalism in the
early twentieth-century, but neither was he the only constitutional theorist to think phenomeno-
logically about the pouvoir constituant, nor did he reinterpret the concept of the constitution ‘in
an ethnicist manner’.94 It is inaccurate to claim, as Preuß has, that Schmitt regarded ‘ethnic and
national sameness’ as the sine qua non of a ‘constitutionally unalienated people’.95 Schmitt may
well have thought as much, but he did not say so in Verfassungslehre.
To be sure, Schmitt was a lifelong anti-Semite, and he did play handmaiden to dictatorship.
Indeed, he was a voluble advocate of ‘racial legalism’.96 This notwithstanding, in 1928, Schmitt’s
constitutional theory, like Heller’s, was völkisch, but not yet racial. The radicalisation of his
institutional theory was in the offing – but not complete.97 Homogeneity mattered to Schmitt; it
was meaningful to him. But there is no evidence that he, prior to 1933, glorified ethnic identity,
neither in Verfassungslehre nor in his other writings. As William Scheuerman writes, Schmitt, in
what was a liminal period for self and country, ‘does leave open the possibility that homogeneity
can take distinct forms’.98 Kalyvas goes even further. On his interpretation, Schmitt ‘did not posit
ethnicity or race as the fixed essence of identity. On the contrary, political identities and shared
conceptions of the “we” are constituted through struggles, antagonisms, and differential relations

89
Ibid.
90
U. K. Preuß, ‘The Critique of German Liberalism: Reply to Kennedy’ (1987) 71 Telos 97, 99; see also U. K. Preuß,
‘Carl Schmitt and the Weimar Constitution’, in J. Meierhenrich and O. Simons (eds.), The Oxford Handbook of Carl
Schmitt (Oxford University Press, 2016), 471–89.
91
Meierhenrich and Simons, ‘A Fanatic of Order in an Epoch of Confusing Turmoil’.
92
I borrow the moniker from D. Dyzenhaus, Legality and Legitimacy (Oxford University Press, 1999) 2.
93
J. Habermas, ‘On the Relation between the Nation, the Rule of Law, and Democracy’, in J. Habermas, The Inclusion
of the Other: Studies in Political Theory, C. Cronin and P. de Greiff ed. (MIT Press, 1998), 148.
94
U. Preuß, ‘Constitutional Powermaking for the New Polity’, in R. Bellamy (ed.), Constitutionalism and Democracy
(Routledge, 2017), 153.
95
Ibid., 154.
96
See J. Meierhenrich, ‘Racial Legalism’ (2023) 19 Annual Review of Law and Social Science (forthcoming).
97
On the temporal dimensions of this radicalisation, see Meierhenrich, ‘Fearing the Disorder of Things’.
98
W. E. Scheuerman, Carl Schmitt: The End of Law (Rowman and Littlefield, 1999), 280, fn. 30.

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 The Soul of the State: Carl Schmitt’s Verfassungslehre 55

among groups’.99 Kalyvas has a point. A close reading of Verfassungslehre reveals a thinker who
cared passionately about preserving the sanctity of the pouvoir constituant, but one who was not
yet hung up on the essence of constitutional identity. The ‘alternative constitutional theory’
Schmitt presented in the late 1920s was about preventing the decline of the constituent power of
the sovereign Volk, whatever its make-up.100 It is a misreading of Verfassungslehre to suggest, as
Preuss and others have done, that it contains an argument for substituting ‘the ethnos for the
demos’ as a category of constitutional theory and practice, for it does not.101 What it does contain,
to stay with the Greek nomenclature, is an argument for the nomos taking the place of the
demos. This brings us back to the question of cultural materialism.
Robert Cover, to invoke another genre-bending constitutional theorist, used the concept of
nomos as a shorthand for the normative universe from which ‘legal worlds’ derive their meaning.
The creation of legal meaning – what he called ‘jurisgenesis’ – was for Cover ‘an essentially
cultural’ process.102 According to him, a nomos was ideational and material, ‘a present world
constituted by a system of tension between reality and vision’.103 This normative universe, Cover
argued, was ‘as much’ of our world as ‘the physical universe of mass, energy, and momentum’.104
Schmitt thought similarly, though not identically, about the constitution of constitutional law.
In Verfassungslehre, he presented a case for taking the nomoi of constitutions seriously, both
theoretically and practically. Schmitt’s was a normative case for doing justice to material culture,
viz., the ‘pre-political identity’ of a pouvoir constituant.105 His concept of constitutional identity,
at this point in his life at least, was still permissive. He was agnostic regarding its substance, as
long as this constitutional substance was organically grown. Schmitt was an existentialist in 1928,
not yet the institutional extremist he would become. For him even an economically-stratified
‘class’ (‘Klasse’) was, theoretically speaking, capable of growing into a Volk as long as it behaved
like a ‘genuine friend-and-enemy grouping’ (‘echte Freund- und Feindgruppierung’).106
Schmitt was a prophet of extremity, but his constitutional thought in Verfassungslehre was
reactionary – not yet racial. His break from previous thought was less radical – and far less
original – than it is often made out to be. We may want to think of Schmitt as one of several
‘reactionary modernists’, as a sharp-tongued intellectual who, in law and in life, detested the rise
of machine politics, regarding it ‘as a threat to the German soul’.107 However, these ‘romantic
anticapitalists’, as Jeffrey Herf has shown, were ‘no less hostile to reason’ than ‘their contempor-
aries in the political Center and Left’.108 What set them apart was an uncanny ability ‘to
articulate a set of cultural symbols’, to which the constitutional sentiments that Schmitt
conjured in Verfassungslehre belonged, ‘in which technology’, including constitutional engin-
eering, ‘became an expression of that soul, and thus of German Kultur’.109 That Weimar’s

99
A. Kalyvas, Democracy and the Politics of the Extraordinary: Max Weber, Carl Schmitt, and Hannah Arendt
(Cambridge University Press, 2008), 122.
100
Ibid., 129.
101
Preuss, ‘Constitutional Powermaking for the New Polity’, 153.
102
R. M. Cover, ‘Nomos and Narrative’ (1983) 97 Harvard Law Review, 1, 11.
103
Ibid., 9.
104
Ibid., 5.
105
M. Rosenfeld, The Identity of the Constitutional Subject: Selfhood, Citizenship, Culture, and Community (Routledge,
2010), 153.
106
Schmitt, Verfassungslehre, 234.
107
J. Herf, Reactionary Modernism: Technology, Culture, and Politics in Weimar and the Third Reich (Cambridge
University Press, 1984), 46.
108
Ibid.
109
Ibid.

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 56 Jens Meierhenrich

republicans failed to do the same – that they neglected the question of constitutional affect – was
one of Heller’s major regrets.

2.4.2 Völkisch Materialism

Schmitt’s argument from cultural materialism, as I have presented it here, differed from
comparable arguments on the left. For all his talk of cultural homogeneity, Heller, for example,
was a prophet of solidarity. His progressive constitutionalism was about the supply of dignity.110
By contrast, Schmitt’s reactionary constitutionalism, to coin a phrase, was about the demand for
difference. Consider the following passage from Verfassungslehre in which Schmitt articulated
the meaning of representation as a constitutional principle, a recurring theme in his 1928 book.
In this instance, he repudiated liberal constitutional theory by insisting that the act of represen-
tation was ‘something existential’ (‘etwas Existentielles’), which is why, he argued, it could not be
reduced to a procedure.111 Schmitt maintained that it only made sense to speak of representation
in relation to a Volk already possessed of ‘political unity’ (‘politische Einheit’).112 Only an
existential community could be represented, a random group of individuals (‘eine irgendwie
zusammenlebende Menschengruppe’) could not.113 A community worthy of representation, as far
as Schmitt was concerned, had to meet certain requirements: ‘Anything dead, anything worth-
less (Minderwertiges) or of little value, anything lowly (Niedriges)’ could not be represented, he
was certain, because such an inferior kind of being was inherently incapable of a political
existence.114 This Schmittian standard of civilization recalls Herder. Yet Schmitt’s variation on
Herder’s theme has a ruthless ring to it that was largely absent from the völkisch materialism –
this peculiar brand of German nationalism – that preceded it. Given Schmitt’s penchant for
verbal harshness, and his willingness to countenance constitutional violence, it is easy to see why
Habermas and others likened Verfassungslehre to the ‘steel-like romanticism’ (‘stählerne
Romantik’) of which Joseph Goebbels dreamt.115
Weimar constitutionalism, according to Schmitt, was order-producing, but not in a consti-
tutive sense, only in a regulatory sense. The constitutional design of 1919, he repeatedly
opined, was soul-destroying: mechanical, not meaningful. This constitutional effect he diag-
nosed as a pathology of liberal constitutionalism. Schmitt reasoned that it presented whenever
the pouvoir constituent becomes the pouvoir constitué. When the constituting people in a
constitutional founding becomes the constituted people, it loses a part of itself – its sovereign
visibility, or so he argued. ‘With the creation of a stable constitution, the sovereign moves from
a situation of concrete and physical public prominence to a state of invisibility. It exits the
political and retreats to the social’.116 A constitutional founding makes the people invisible –
the very people without whose existence the constitution would not have been conceivable.
For Schmitt, this transformation of sovereignty was to be expected – and a wellspring
of apathy.

110
More recently, see also D. Cornell and N. Friedman, The Mandate of Dignity: Ronald Dworkin, Revolutionary
Constitutionalism, and the Claims of Justice (Fordham University Press, 2016).
111
Schmitt, Verfassungslehre, 209.
112
Ibid., 210.
113
Ibid.
114
Ibid.
115
As quoted in Herf, Reactionary Modernism, 47.
116
Kalyvas, Democracy and the Politics of the Extraordinary, 133.

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 The Soul of the State: Carl Schmitt’s Verfassungslehre 57

Schmitt worried about the proportion of ‘fundamental’ to ‘circumstantial’ elements of a

constitution.117 The more oblique the references to the constitutional sentiments of the pouvoir
constituant – its constituent will and values – the less expressive of ‘the identity and eidos of a
political community’ a given constitution will be.118 As Schmitt wrote, the ‘constituent will of the
people’ (‘verfassungsgebende Wille des Volkes’) is an ‘unmediated will’ (‘unmittelbarer Wille’),
one that exists ‘prior to and above’ constitutional law.119 Constitutional democracy, according
to Schmitt’s völkisch materialism, is a non-starter without constitutional ethics
(Verfassungsethik’).120 The substantiality (Substantialität’), univocity (Eindeutigkeit) and the
authority (Autorität) of this affective code of ethics will determine whether constitutionalism is
meaningful (and thus potentially democratic) or mechanistic (and thus merely liberal).121
Schmitt was for constitutionalism as long as the crafting of a constitutional framework proved
capable of stirring feelings, the kind that inspired what John Adams, the world’s most famous
constitution-builder, in his marginalia of Wollstonecraft’s 1794 treatise, called ‘attachment’.122
Schmitt detested, and viscerally so, the kind of constitutionalism that cared more about
creating contractual obligations than achieving constitutive identifications. In
Verfassungslehre, he put it thus: ‘[O]ne must insist that a constitution, which rests on an act of
the constitution-making power of the people, must be something essentially different than a
social contract’.123 If constitutionalism is about nothing more than codifying rules of the game,
an understanding that Schmitt dismissed as ‘Ethik des fair play’, he thought it of no use to
democracy, as he used that term.124 ‘A constitutional contract’, he maintained, ‘does not establish
the political unity’ of a people.125 ‘It presupposes this unity’.126
Schmitt’s was an argument from the logic of appropriateness. For him, an effective
Verfassungsethik was affective: it inspired constitutional sentiments. Yet, prior to 1933, to reiterate
an earlier point, Schmitt did not call for ‘an attachment to any particular country, state, or
ethnos’.127 Although Germany was foremost on his mind when he wrote Verfassungslehre, his
references to, say, ‘[t]he constitution of the American state of Massachusetts, drafted by John
Adams’, suggest that Schmitt, prior to throwing his lot in with the Nazis upon their seizure of
power, had not yet embraced the ‘racial institutionalism’ that almost immediately became a
hallmark of his scholarship.128 In his Weimar years, Schmitt still reasoned – and sounded – like a
run of the mill anti-positivist. He argued that ‘a constitution is stable and efficient when it
depends on a population’s conscious affection for a set of higher political values, when the
citizens recognize the constitution as their constitution – that is, when through the constitution,

117
C. J. Friedrich, Constitutional Government and Democracy: Theory and Practice in Europe and America (Little,
Brown, 1941), 144.
118
Kalyvas, Democracy and the Politics of the Extraordinary, 131.
119
Schmitt, Verfassungslehre, 84; Schmitt, Constitutional Theory, 132.
120
C. Schmitt, ‘Staatsethik und pluralistischer Staat’, in Positionen und Begriffe im Kampf mit Weimar – Genf –
Versailles 1923–1939 [1930], 3rd ed. (Duncker & Humblot, 1994), 151–65.
121
Schmitt, ‘Staatsethik und pluralistischer Staat’, 164.
122
John Adams, Marginalia in Mary Wollstonecraft, an Historical and Moral View of the Origin and Progress of the
French Revolution; and the Effect It Has Produced in Europe (J. Johnson, 1794), 404, available at: https://archive.org/
details/historicalmoralv00woll/mode/1up?q=constitution&view=theater, last accessed 20 July 2022.
123
Schmitt, Constitutional Theory, 112. Emphasis added.
124
Schmitt, ‘Staatsethik und pluralistischer Staat’, 164.
125
Schmitt, Constitutional Theory, 113. Emphases omitted.
126
Ibid.
127
Kalyvas, Democracy and the Politics of the Extraordinary, 161.
128
Schmitt, Constitutional Theory, 113; Meierhenrich, ‘Fearing the Disorder of Things’, esp. 192–98.

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 58 Jens Meierhenrich

as through a mirror, they see themselves as the constituent power’.129 Although Schmitt was
primus inter pares among constitutional materialists in Weimar Germany, Heller started from
the same assumption.
To tackle the question of constitutional identity, in other words, was unusual – but innocuous. In
many respects, Schmitt, Heller and Mortati thought alike. Unlike Heller and Mortati, Schmitt was
an anti-humanist, however.130 Hastened by the rise of constitutional dictatorship in the Weimar
Republic – and the breakdown of democracy that it facilitated – Schmitt’s affective constitutional-
ism eventually turned sinister.131 His constitutional sentiments became violent sentiments.

2.5 VIOLENT SENTIMENTS

As I have previously shown, in his 1933 pamphlet Staat, Bewegung, Volk, Schmitt
imbued the idea of the emergent racial state with völkisch, that is, racial values. What previously
had been ‘just’ an example of extremist institutionalism he retrofitted with the trappings of
National Socialism, including some of the ideological tenets that combined with the regime’s
‘eliminationist racism.’ This was easily done because Schmitt’s institutional theory was largely
agnostic about the content of the form.132

Whereas Schmitt, in 1928, was still agnostic about the kind of identity that was required for
making constitutional democracy work, in Staat, Bewegung, Volk he let rip.133 In his theory of
racial sentiments, he insisted that ‘Artgleichheit’, or racial equality, was essential for bringing
Hitler’s constitutional revolution to fruition.134 The cultural materialism – the affective interplay
of legality and materiality – in Schmitt’s constitutionalism was front and centre. ‘National
Socialism does not think abstractly and rigidly (schablonenhaft)’, Schmitt declared with evident
pride.135 National Socialism, he predicted, would tend to the Volk’s ‘real’ substance wherever the
movement encountered it, whether in ‘landscape, tribe, or guild’ (‘Landschaft, Stamm, oder
Stand’).136 A year later, in the Nazi mouthpiece Völkischer Beobachter, Schmitt marvelled at the
latest ‘new constitutional law’ the dictatorship had given itself.137 Taking stock of the consti-
tutional revolution that ushered it in, he congratulated the movement for having dispensed with
a constitutional document (‘Verfassungsurkunde’) à la Weimar and Philadelphia in constitu-
tionalising the Führerstaat and for having adopted instead, in rapid succession, ‘grand consti-
tutional laws’ (‘große Verfassungsgesetze’).138 Their passage, Schmitt gloated, had laid a new

129
Kalyvas, Democracy and the Politics of the Extraordinary, 161.
130
For a recent discussion, see J. Meierhenrich, ‘Thinking against Humanity: Carl Schmitt’s Critique of Human Rights’,
in D. Gosewinkel and A. Weinke (eds.), Menschenrechte und ihre Kritiker: Ideologien, Argumente, Wirkungen
(Wallstein, 2019), 67–95.
131
See, e.g., F. M. Watkins, The Failure of Constitutional Emergency Powers under the German Republic (Harvard
University Press, 1939). I have traced the cumulative radicalisation of Schmitt’s institutional thought in
Meierhenrich, ‘Fearing the Disorder of Things’.
132
Meierhenrich, ‘Fearing the Disorder of Things’, 194.
133
C. Schmitt, Staat, Bewegung, Volk: Die Dreigliederung der politischen Einheit [1933], reprinted in C. Schmitt,
Gesammelte Schriften 1933–1936 mit ergänzenden Beiträgen aus der Zeit des Zweiten Weltkriegs (Duncker &
Humblot, 2021), 67–115.
134
Ibid., 115.
135
Ibid., 103.
136
Ibid.
137
The constitutional law in question was the Gesetz über den Neuaufbau des Reiches vom 30. Januar 1934. C. Schmitt,
‘Das Neue Verfassungsgesetz’ [1934], in C. Schmitt, Gesammelte Schriften 1933–1936 mit ergänzenden Beiträgen aus
der Zeit des Zweiten Weltkriegs (Duncker & Humblot, 2021), 127–30.
138
Ibid., 130.

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 The Soul of the State: Carl Schmitt’s Verfassungslehre 59

‘Verfassungsboden’.139 It was an evocative, carefully chosen term. Although its deeper meaning is
lost in translation, the composite noun smacked of cultural materialism. To Schmitt, the laying
of new constitutional soil represented the beginning of the end of the ‘groundless existence’ he –
and his country’s constitution – had led during the Weimar years.140

2.5.1 Blood and Soil

The new constitutional order was extraordinarily meaningful for Schmitt, which may explain his
odious defence of the indefensible. A few months before the Nazi revolution, Schmitt, in a
lecture to chemical industry executives, had complained that ‘all fundamental institutions of the
Weimar Constitution’ were ‘completely denatured’.141 The successful repoliticisation of the Nazi
constitution therefore represented a substantive turnaround – a volte face that he greeted with
racial fanfare.
It stands to reason that the arrival of sovereign dictatorship also assuaged, at least initially,
Schmitt’s personal fear of disorder. This may account for the radicalisation of his constitutional
sentiments, especially the speed of their racialisation. Be that as it may, Schmitt’s version of racial
legalism bears out Robert Cover’s observation that ‘[r]evolutionary constitutional understandings
are commonly staked in blood’, that in them ‘the violence of law takes its most blatant form’.142
Staat, Bewegung, Volk was full of violent sentiments. And it was one of many writings in which
Schmitt advocated, justified, or otherwise legitimated constitutional violence to help establish
the Nazi Volksgemeinschaft.143 We know, and not only from his diaries and Glossarium, that
Schmitt welcomed the death of parliamentary representation that Nazi rule brought. The arrival
of Germany’s racial order, he reckoned, would usher in a living constitution, one staked in blood
and soil. The material constitution, he prophesised, would be truly representative.
Already in Verfassungslehre, Schmitt had bemoaned the limits of representation – as liberals
were using the term. For Schmitt, delegation was not a form of representation. Sending
representatives to assemblies was anathema to his understanding of politics. Representation,
for Schmitt, was an inherently political act – and thus not one that could be regulated by
‘general norms’ (‘generelle Normen’), electoral and otherwise.144 Representation, he wrote in
Verfassungslehre, was ‘something existential’ (‘etwas Existentielles’).145 Schmitt’s problem with
liberal understandings of representation related to their conception of the Volk as an aggregate
phenomenon of loosely associated individuals (‘einer irgendwie zusammenlebenden
Menschengruppe’).146 For him, a Volk was represented only to the extent that its ‘political unity
as a whole’ (‘politische Einheit als Ganzes’) was expressed.147 A representation merely of its
members, Schmitt implied, was not enough. He wanted to see the Volk represented as a unitary

139
Ibid.
140
For the background of my argument, see also M. Marder, Groundless Existence: The Political Ontology of Carl
Schmitt (Continuum, 2010).
141
C. Schmitt, Konstruktive Verfassungsprobleme: Rede des Professors Dr. Carl Schmitt gehalten auf der
Hauptversammlung des Vereins zur Wahrung der Interessen der chemischen Industrie Deutschlands e.V. am 4.
November 1932 (Maurer & Dimmick, 1932), 5.
142
R. M. Cover, ‘Violence and the Word’ (1986) 95 Yale Law Journal, 1601, 1607.
143
Sixty-five others are collected in Schmitt, Gesammelte Schriften 1933–1936 mit ergänzenden Beiträgen aus der Zeit des
Zweiten Weltkriegs.
144
Schmitt, Verfassungslehre, 211–12.
145
Ibid., 211.
146
Ibid., 210.
147
Ibid., 212. To get across the importance of this point, Schmitt rendered the formulation in italics.

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 60 Jens Meierhenrich

phenomenon. Paradoxically, for someone who railed so much against abstraction, an author
who fetishised the virtue of concreteness, the object of representation, for Schmitt, was about the
idea of the Volk, not its grubby reality. He saw no upside in representing the Volk ‘in its natural
state’ (‘in seinem natürlichen Vorhandensein’).148 The locus of representation was the ideal, not
the real.
Schmitt thought a great deal about the principle of representation in the 1920s, first in
Römischer Katholizismus und politische Form, one of his least-read contributions to institutional
theory. In it, he warned that ‘the capacity for representation’ (‘das repräsentative Vermögen’) was
becoming extinct.149 The Catholic Church, Schmitt suggested, was the only truly representative
figure still standing. All others, from Kaiser to Ritter, from emperor to knight, no longer
commanded authority. That sovereignty only existed in fragments, Schmitt blamed on liberals
and libertarians, on savants and merchants. The way he saw it, the rise of ‘economic thought’
(‘ökonomische[s] Denken’) spelled the death of representation because it was causing individuals
to care more about themselves than the imagined communities to which they belonged.150 The
logic of instrumental choice, Schmitt lamented, was prioritising costs and benefits, not norms
and values. For him, nothing could be further removed from the idea of representation (‘des
Prinzips der Repräsentation’) than what constitutional theorists in the second half of the
twentieth century called ‘the calculus of consent’.151
For Schmitt, the life of the law was experience. He believed that ‘the economical’ (‘das
Ökonomische’), especially in combination with ‘the technical’ (‘dem Technischen’), demanded a
‘real presence of things’ (‘Realpräsenz der Dinge’).152 Such a materialism was anathema to his
cultural materialism, however. Bodily representation was not what he thought desirable. For
Schmitt, the translation of votes into seats – this central conceit of parliamentary democracy –
was not the highest form of representation but its nadir. He wrote dismissively of ‘Stellvertretung’,
or deputising, in castigating the practice.153 As far as he was concerned, the mechanisation of
politics had turned the principle of representation into a technology of rule. Schmitt regarded
the institutions of liberalism – Weimar’s parliamentary assembly, the Reichstag, foremost among
them – as inorganic, inauthentic and immaterial. He derided them as ‘automata and machines’,
inherently incapable of facilitating representation: ‘Vor Automaten und Maschinen kann man
nicht repräsentieren, so wenig wie sie selber repräsentieren oder repräsentiert werden können’.154
Schmitt was not, in any meaningful sense, interested in the political economy of constitutions,
which is why Verfassungslehre was an argument for a moral economy of constitutions – one that
foregrounded the question of constitutional identity. What he delivered was a sentimental
manifesto.

2.5.2 A Sentimental Manifesto

The spectre of individualism with which Schmitt found fault in Römischer Katholizismus und
politische Form was also the target of his constitutional theory. In Verfassungslehre, Schmitt

148
Ibid., 212.
149
C. Schmitt, Römischer Katholizismus und politische Form [1923], 5th ed. (Klett-Cotta, 2008), 32.
150
Ibid., 34.
151
Ibid., 14. Cf. J. M. Buchanan and G. Tullock, The Calculus of Consent: Logical Foundations of Constitutional
Democracy (University of Michigan Press, 1962).
152
Schmitt, Römischer Katholizismus und politische Form, 35.
153
Ibid., 36.
154
Ibid.

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 The Soul of the State: Carl Schmitt’s Verfassungslehre 61

returned to the concept of representation. He was convinced that the principle, liberally
understood, ‘endangered’ all affective attachments – that it stood in the way of an organic order
of equals.155 Schmitt longed for an age of deneutralisations and repoliticisations, a cultural
materialism that would restore in Germany an affective way of law.
Verfassungslehre was a blueprint for affective constitutionalism. For Schmitt, commonality
was a sine qua non of equality. He reimagined the ideal of equality as a ‘political’ concept – and
thus in existential terms.156 ‘The equality that is part of the essence of democracy’, he wrote,
‘orients itself internally and not externally’.157 Equality stops, he suggested, at democracy’s edges –
on the border of order. On a state’s territory, within a democratic body politic (‘Staatswesen’), all
citizens (‘Staatsangehörige’) are equal.158 Whoever did not belong to this imagined community,
however, was out of luck. Schmitt was adamant: ‘the other, the stranger’ was not entitled to
partake of democratic equality.159 ‘A form of equality without the possibility of an inequality, an
equality that one has exclusively and that cannot be at all lost, is without value or signifi-
cance’.160 For Schmitt, who craved ‘intensity’, it was precisely the possibility of exclusion that
made constitutionalism affective and democracy meaningful.161 In Schmitt’s existentialism, ‘the
devaluation of all traditional values meant that human existence, in its brute factivity [sic],
became a value in and of itself’.162
This marks the spot where the cultural and the material in Schmitt’s constitutional thought
are enjoined. As a founding authority, the pouvoir constituant, according to Schmitt, becomes
invisible in the course of constitutional democracy, but not immaterial. It continues to exist and
‘is no mere conceptual fiction’.163 Schmitt believed, as William Scheuerman writes, that ‘we
need to take the idea of the inalienability, indivisibility, and absoluteness of the pouvoir
constituant seriously’.164 At the same time, Schmitt insisted that a real representative was needed
to ensure the sanctity of the political unity of the Volk. To him the personification of sover-
eignty – its embodiment – mattered. Schmitt’s constitutionalism was always katechontic.165 For
he was, as Hans-Ulrich Wehler, the eminent historian, once put it, ‘a fanatic of order in an
epoch of confusing turmoil’ (‘ein Ordnungsfanatiker in einer Epoche turbulenter Wirren’).166
However misguided Schmitt’s prescriptions, staving off chaos was the telos of his constitutional
theory – and of his practice.167
Faith in constitutional law, which Schmitt took to mean ‘a multitude of individual consti-
tutional laws’ (‘eine Vielheit von einzelnen Verfassungsgesetzen’), he deemed insufficient.168 As
he noted in his Glossarium, on 3 October 1947, faith in law (Gesetzesglaube) was a sign of the

155
Schmitt, ‘The Age of Neutralizations and Depoliticizations’, 94.
156
Schmitt, Constitutional Theory, 258; Schmitt, The Concept of the Political, 27.
157
Schmitt, Constitutional Theory, 258.
158
Schmitt, Verfassungslehre, 227. The translation of ‘Staatswesen’ as ‘state system’ in the English edition of
Verfassungslehre does not do justice to the vitalist and organicist connotation in the German original. As a result,
it conceals Schmitt’s anthropomorphisation of the state. Cf. Schmitt, Constitutional Theory, 258.
159
Schmitt, The Concept of the Political, 27.
160
Schmitt, Constitutional Theory, 258.
161
See, for example, Schmitt, Political Theology, 15; Schmitt, The Concept of the Political, 26.
162
R. Wolin, ‘Carl Schmitt, Political Existentialism, and the Total State’ (1990) 19 Theory and Society, 389, 394.
Emphasis omitted.
163
Scheuerman, Carl Schmitt, 70.
164
Ibid.
165
See also J. Meierhenrich, ‘The Dictatorship of the Kaiser: Carl Schmitt’s Theory of Monarchy’, in C. Armenteros and
I. Zarikos (eds.), The Making of Modern Atlantic Monarchy (Bloomsbury, forthcoming), vol. II.
166
H. Wehler, Deutsche Gesellschaftsgeschichte (C. H. Beck, 2003), vol. IV, 491.
167
Meierhenrich, ‘Fearing the Disorder of Things’.
168
Schmitt, Verfassungslehre, 20.

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 62 Jens Meierhenrich

‘instinctlessness of a life-form condemned to decline’ (‘Instinktlosigkeit der zum Untergang

verurteilten Lebewesen’).169 Schmitt contrasted this unsentimental approach to law, the kind
he abhorred, with that of Hitler, which he still, even after war’s end, endorsed. Paraphrasing
Seneca’s De Providentia, Schmitt recalled reverentially the Nazi dictator’s ‘method of legality
oaths’ (‘Methode der Legalitätseide’), the legal performances that, starting in September 1930,
put paid to the idea of law’s sovereignty.170 Schmitt implied that Hitler’s deception deserved not
revulsion but respect – for the cunning with which the wannabe dictator had exposed the
degenerate law of the Weimar Republic.
The two entries in the Glossarium speak to my argument about affective constitutionalism.
They attest to Schmitt’s ‘visceral reaction to “the law”’, as Helmuth Lethen put it.171 Or, as
Schmitt himself wrote, on 19 January 1948, ‘the word’ and ‘the concept’ of law caused in him
‘shudder and outrage’ (‘Schauder und Entsetzen’).172 Appreciating Schmitt’s visceral reaction to
the law is key to seeing Verfassungslehre for what it was – a sentimental manifesto. Schmitt’s was
an argument for nurturing the soul of the state. In his moral economy, the cultural production of
value mattered more than anything else. Schmitt wrote more passionately than most about the
affective life of constitutions, which is one of the reasons why his constitutional theory remains a
touchstone in the twenty-first century.
The spectre of violence was key to Schmitt’s understanding of constitutional identity. Schmitt
stated his position especially bluntly in 1926, in his preface to the second edition of The Crisis of
Parliamentary Democracy. Several of his observations about ‘the substance of equality’ in that
monograph resurfaced almost verbatim in Verfassungslehre two years later.173 One passage I want
to single out goes like this: ‘Democracy requires’, according to Schmitt, ‘first homogeneity and
second – if the need arises – elimination or eradication of heterogeneity’.174 To illustrate his
principle of constitutional identity, Schmitt invoked the case of Turkey, ‘with its radical expulsion
of the Greeks’, as an example of a ‘modern democracy’ and a nation that knows how to ‘keep at bay
something foreign’ which ‘threatens its homogeneity’.175 The passage recalls twenty-first century
debates about the crisis of constitutional democracy which also revolve around the accommoda-
tion – and annihilation – of difference. The passage is also testament to the radicalisation of
Schmitt’s constitutional thought in the years 1933–36, when the material requirement of racial
equality replaced political equality as the constitutional eidos for which he advocated.

2.6 CONCLUSION

Verfassungslehre, for all its flaws, was a pioneering achievement. In 1931, Eric Voegelin had
mostly praise:
Those who move within the circle of ideas of modern constitutions of the Weimar type find
there such concepts as: constitution, constitutional law, constitution-giving power, bearer of
constitution-giving power, continuity of state and constitution, validity of the constitution,
constitutional changes, constitutional breach, and so on. And, if it can be done, it is doubtless

169
C. Schmitt, Glossarium: Aufzeichnungen der Jahre 1947–1951, E. F. von Medem, ed. (Duncker & Humblot, 1991), 23.
170
Ibid., 23.
171
H. Lethen, Cool Conduct: The Culture of Distance in Weimar Germany, D. Reneau, trans. (University of California
Press, 2002), 179.
172
Schmitt, Glossarium, 85.
173
C. Schmitt, The Crisis of Parliamentary Democracy, E. Kennedy, trans. [1926] (MIT Press, 1988), 9.
174
Ibid.
175
Ibid.

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 The Soul of the State: Carl Schmitt’s Verfassungslehre 63

a task of extraordinary importance to order this conceptual world according to its immanent
sense. Only one scholar has risen to the task [. . .].176

Voegelin lauded Schmitt’s phenomenological approach, especially the ‘perspective on the

totality of the experience of the state’ that Verfassungslehre afforded. But he was not persuaded by
the universalising claims that it also contained.177 ‘Throughout the whole book’, complained
Voegelin, Schmitt let it be known ‘that the world of ideas is itself politics, yet he makes
statements about the reality of the state as though politically immanent concepts were at the
same time scientifically transcendent ones’.178 That Schmitt advanced his opinions ‘in the tone
of scientifically objective statements’ Voegelin found problematic, and rightly so.179 For all its
erudition, Verfassungslehre is less learned than it appears to be. Like all of Schmitt’s books, it
‘provides little more than formulas’.180 Nonetheless, Schmitt’s sentimental manifesto has stood
the test of time.
I presented Schmitt in this chapter as a protagonist of affective constitutionalism. I took the
term to refer to a quest for a constitutional order – a constitutional ideology – that eschews, in
Schmitt’s parlance, the ‘dead hand of abstraction’.181 Because Verfassungslehre addresses the
sentimental life of constitutional law, it is uniquely capable of informing the debate about the
crisis of constitutional democracy in our time – a debate in which the expressive function of
constitutional law has taken a backseat to its instrumental function. Constitutionalism today, as it
did then, turns ‘on the contradiction between representation and identity’.182 In the 1920s,
Schmitt, alongside Heller, recognised the importance of thinking about the affective life of
constitutions – of toning down the neo-Kantian rhetoric of rationality. His was an argument
against constitutionalism as technology, an argument that resonates in the 2020s.183
Like Heller on the left, Schmitt regarded the constitution as the ‘soul’ (‘Seele’) of the state.184
Both thought about the constitution of peoples, specifically about the constitutional embodi-
ment of the German Volk. Both raised the question of constitutional identity as a practical
response to the crisis of parliamentary democracy in Weimar Germany. Both developed answers
from cultural materialism. And both gave pride of place to constitutional affect. The key
difference between Schmitt and Heller was where they located the soul of the state. Schmitt
was convinced it lay in the purity of the Volk, Heller that it revealed itself in the solidarity of the
Volk. Heller was consumed by ‘civil passions’, especially the integration of marginalised groups,
and thus the eradication of difference.185 Schmitt’s ‘sentiments and desires’ revolved around the
intensification of difference. This decidedly uncivil passion will forever be a stain on his
constitutional theory.186

176
E. Voegelin, ‘Die Verfassungslehre von Carl Schmitt’, in The Collected Works of Eric Voegelin, vol. XIII: Selected
Book Reviews, J. Cockerill and B. Cooper, trans. and ed. [1931] (University of Missouri Press, 2000), 63.
177
Ibid., 66.
178
Ibid., 65.
179
Ibid.
180
Ibid., 50.
181
As quoted in Kennedy, Constitutional Failure, 96.
182
Ibid., 98.
183
More generally, see McCormick, Carl Schmitt’s Critique of Liberalism. For a neo-Schmittian critique of liberal
constitutionalism, see M. Loughlin, Against Constitutionalism (Harvard University Press, 2022).
184
Schmitt, Verfassungslehre, 4.
185
Sharon R. Krause, Civil Passions: Moral Sentiment and Democratic Deliberation (Princeton University Press, 2008).
186
The stain became indelible when Schmitt put his argument about the material constitution in the service of an
authoritarian regime intent on the annihilation of difference.

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 3

Laski’s Materialist Analysis of the British Constitution

Martin Loughlin

3.1 INTRODUCTION

Over the first decade of his academic life, Harold Laski pursued an ambitious intellectual and
political project whose objective was to present a compelling account of the principles and
practices needed to legitimate the new social order of democracy that was emerging. Beginning
with critical analysis of orthodox conceptions of state, sovereignty and authority, this project
culminated in the publication in 1925 of A Grammar of Politics. This, he stated, ‘completes an
effort, begun in 1915, to construct a theory of the place of the State in the great society’.1 By the
end of the 1920s, his intellectual achievements were widely admired and his influence on public
affairs universally recognised.2
During the 1930s, however, the orientation of Laski’s work changed. Political developments
led him to doubt the efficacy of the pluralism and gradualism he had previously so vigorously
advocated and to adhere instead to an economic determinism that saw the state as the executive
instrument of the class that controlled the means of production. Accordingly, he developed a
materialist analysis of British constitutional arrangements. This chapter examines this later
development of his thought.
By 1930, Laski recognised that the prospects for continued social progress were receding and
across Europe ‘a widespread dissent from the principles of constitutionalism’ was spreading. The
reforms of the nineteenth century, bringing religious equality, universal suffrage and popular
education, had been conceded gradually and without huge sacrifice. But there were now more
formidable barriers facing the newly enfranchised who were seeking greater social and eco-
nomic equality. This type of reform encountered stiff resistance, he argued, because it
threatened the entrenched order of property.3 Throughout the 1920s, he had continued to hope
that, with determined political will, the barriers to realising a democratic society could be
overcome. But during the 1930s that optimism quickly evaporated.
By 1932, we find him arguing that nineteenth century reforms had only been made possible by
the opening up of capital investment through colonialisation alongside the ‘vast expansion of
material well-being which scientific discovery effected’. In the twentieth century these material
conditions were disappearing and political conditions were accordingly changing. The growth
of administrative government had transferred power to the executive, leading to Parliament

1
H. J. Laski, ‘Preface’, A Grammar of Politics (Allen & Unwin, 1925).
2
See M. Loughlin, ‘The Political Jurisprudence of Harold J. Laski’ (2021) 50 Quaderni fiorentini 251.
3
H. J. Laski, ‘The Prospects of Constitutional Government’ (1930) 1 Political Quarterly 307, 307.

64

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 Laski’s Analysis of the British Constitution 65

becoming ‘little more than an organ of registration’. The technicality of legislation had rendered
its meaning ‘unintelligible to the multitude’. Colonies were ‘in revolt against tutelage’. The idea
of national economic self-sufficiency was finished. And the Victorian spirit of liberty ‘[was]
everywhere at a discount’. Representative democracy, in short, had reached a cul-de-sac in
political purpose.4
The system of representative democracy was not working effectively, he surmised, because no
agreement could be reached on the fundamental principles necessary for the common good.
A programme of institutional reforms could be listed but, without political will, they would just
be words on paper. With guidance from Alexis de Tocqueville, he identified the problem. What
holds society together, Tocqueville had argued, ‘was not the constitution of the government, but
the unalterable laws that constitute society itself’.5 This insight led Laski to conclude that the
malaise of representative democracy had arisen because the governing classes were either
unwilling or unable to alter the essential characteristics of capitalist society.6
Confronted with this realisation, he turned to Marxism as an explanatory tool. Laski was never
a Marxist in the sense of someone who accepted ‘the vast all-embracing structure known as
dialectical materialism’.7 He could never fully accept Marxist determinism because of his liberal
belief in the emancipatory potential of the individual, but what he did take from it was the
materialist conception of history.8 During the 1930s this materialist method came to dominate
his work. The implications for his understanding of the character of parliamentary government,
the nature of the state and the constitution will be examined later, but what were the reasons for
this shift in thought?

3.2 ACCOUNTING FOR THE MATERIALIST TURN

The significance of Laski’s shift is gleaned from the fourth edition of A Grammar of Politics,
published in 1938. The main text remained unaltered but it was accompanied by a new
introductory chapter, the tenor of which was very different from the self-assurance behind his
account of the ‘new philosophy’ of the ‘new world’ written in 1925. When the book was first
published, Laski accepted that democracy could only be realised by promoting an equality of
conditions. But he was then confident that such conditions could be met by political reforms
and that Britain was capable of evolutionary transition from capitalism to socialism. By the mid-
1930s, his mood had changed.
The announcement that ‘no theory of the state is ever intelligible save in the context of its
time’ was a direct comment on his own book. He now argued that the state ‘expresses a will to
maintain a given system of class relations’ and that, although democratisation might give those
without privileges the power to bring about change, those with the privileges of ownership would
actively work to maintain them. This leads to a crisis in understanding that only the Marxian

4
H. J. Laski, ‘The Present Position of Representative Democracy’ (1932) 26 American Political Science Review 629,
629–30, 631.
5
A. de Tocqueville, Recollections, trans. G. Lawrence (Doubleday, 1971), 95.
6
Laski, ‘Representative Democracy’, 639.
7
R. Miliband, ‘Harold Laski’s Socialism’ (1995) 31 Socialist Register 239, 240.
8
H. J. Laski, Communism (Thornton Butterworth, 1927), 90: ‘We conclude, then, that the materialist interpretation of
history is, as a general doctrine, undeniable. In the context of communism, there is no necessary connection between
its theses and the inferences and predictions made by Marx. A necessary connection may, however, be made. The only
way to avoid its coming is to prove by social policy that it is unnecessary.’

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 66 Martin Loughlin

theory of the state could meet. ‘As an index to the problems of our age’, Laski asserted, ‘it
decisively . . . holds the field’.9
Just as there was a crisis in the theory of the state, so too was there a crisis in legal thought.
Kelsen’s pure theory of law might provide a cogent account of positive law but ‘its substance is an
exercise in logic and not in life’. Only the Marxian interpretation could explain the substance of
law. A true sociological conception of law must therefore acknowledge that ‘legal relations are
rooted in class relations’. As such they could not be transcended because their postulates ‘are
never self-determined, but given to it by the economic system of which it is the expression’. His
earlier legal pluralism, he acknowledged, ‘did not sufficiently realise the nature of the state as an
expression of class-relations’.10
In his 1938 account, Laski conceded that his earlier pluralism was merely a stage in the
process of accepting the Marxian method. This pluralism, he now recognised, could only be
realised when society attained an approximate social and economic equality. Only when a class-
society is destroyed can ‘both the nature of authority and the law it ordains undergo a
fundamental transformation’.11 What caused Laski to amend his accounts of law and state?
The failure of the General Strike of 1926, followed by the enactment in 1927 of a Trades
Disputes Act that made sympathy strikes unlawful, were undoubtedly significant factors. At the
time, Laski reaffirmed his position of maintaining a class analysis of the social order while
rejecting economic determinism, but his confidence in the ability of parliamentary methods to
achieve socialism was already being strained.12
The crunch came in 1931. In the 1929 election, Labour was returned as the largest party and
formed a minority government. Two years after the stock market crash and under pressure to
make cuts, the Labour cabinet refused to include cuts in unemployment benefits in a package to
resolve the budget crisis. But, rather than resigning as prime minister, Ramsay MacDonald split
the party by agreeing to form a National government and, in the general election that followed,
Labour’s representation was reduced from 287 to 52 MPs.13 These events shattered Laski’s belief
in the parliamentary road to socialism. He claimed that both the king and MacDonald had acted
unconstitutionally and the crisis strengthened his belief that ‘effective authority lies in the hands
of a small knot of financiers, responsible . . . to no one’. It also caused him to question whether
evolutionary socialism had ‘deceived itself into believing that it can establish itself by peaceful
means within the ambit of the capitalist system’.14
The 1931 crisis was the most important single event in his ‘swing to the left’,15 but it was
strengthened by other factors. In a later statement of his beliefs he explained:

9
Laski, Grammar, i, iii, v.
10
Ibid., vii–viii, ix–x, xxii, xi.
11
Ibid., xiii.
12
Laski, Communism, 83: ‘To accept the materialist conception is not, of course, to say that it explains all historical
phenomena. There are passages in Marx’s works in which this claim seems to have been made . . .’. H. J. Laski, Karl
Marx: An Essay (Allen & Unwin, 1922), 33–34: ‘No economic conditions can explain the suicidal nationalism of the
Balkans . . . Historically, too, the part played by religion in the determination of social outlook was, until at least the
peace of Westphalia, as important as that played by material conditions . . . The impulses of men, in fact, are never
referable to any single source. The love of power, herd-instinct, rivalry, the desire of display, all these are hardly less
vital than the acquisitiveness which explains the strength of material environment.’
13
See R. Skidelsky, Politicians and the Slump: The Labour Government 1929–1931 (Macmillan, 1994).
14
H. J. Laski, The Crisis and the Constitution: 1931 and after (Hogarth Press, 1932), 9, 34, 49.
15
N. Riddell, Labour in Crisis: The Second Labour Government 1929–1931 (Manchester University Press, 1999), 213: ‘For
Harold Laski, the 1931 crisis was the catalyst for his swing to the left, both ideologically and in factional terms.’

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 Laski’s Analysis of the British Constitution 67

The experience of Russia, the advent of Fascism in central and south-eastern Europe, the
attitude of the owning class in Spain and France and the United States to all serious attempts
at social reform, the general strike of 1926 and the betrayal of 1931 in England, the new
imperialisms of Japan and Italy, have all convinced me that, in large outline, there is no answer
to the philosophy of Marx.16

Similarly, in his 1938 introduction to Grammar, he stated that the ‘union of economic oligarchy
and political democracy worked well enough so long as capitalism was in its phase of expansion’,
but at the end of the First World War capitalism entered into a period of contraction. In the
expansionary phase, it could make concessions, but during contraction resistance mounted. The
state could present itself as a regime of toleration and pluralism only on the implicit condition
that these values ‘did not threaten the economic foundations of the regime itself’.17

3.3 THE CRISIS OF PARLIAMENTARY DEMOCRACY

Laski’s first task was to address the implications of these developments on the standing of
parliamentary democracy. This he did in Democracy in Crisis, published in 1933 and based
on lectures he had given in the United States.
His first lecture, on ‘the illusion of security’, advanced the thesis that the present generation
has ‘lost its scheme of values’. Conditions in advanced societies undoubtedly differed from those
that brought about the Russian revolution: ‘our administrative mechanism is not in decay’, ‘our
middle class . . . remains strong’, the armed forces ‘have shown no signs of serious disloyalty to
the civil government’ and ‘strike after strike . . . has been met and broken without exceptional
loss’. Nevertheless, the general state of affairs was one of disillusion: ‘certainty has been replaced
by cynicism’, ‘the war dealt a mortal blow at religious belief’ and the victory of individualism and
triumph of the acquisitive society is a merely Pyrrhic one since we have learned ‘the arts of
production’ but have ‘no clue to the problem of justice in distribution’.18 The evolving British
parliamentary system had avoided revolutionary overthrow because it could consolidate in a
period of continuous economic expansion and at a time when the two main parliamentary
parties were agreed on political fundamentals. But, having ended the Victorian compromise, the
rise of the Labour party has brought about a crisis, as it sought to achieve a social revolution
through the redistribution of economic power.
The political crisis was taken up in his second lecture on the ‘decay of representative insti-
tutions’. Laski explained that legislatures are in an unsatisfactory condition because they are
overwhelmed with work, controlled by parties, and have ceded initiative to governments. Two
traditional institutions in particular need of fundamental reform were highlighted: the mon-
archy and the judiciary. Although the monarchy appeared to be a merely decorative part of the
constitution, this was deceptive. Since a king implies a court and a court implies an aristocracy,
‘all its effective social relationships are a denial of the hypothesis of equality’. And although law
requires impartiality, there can be no true equality before the law without social and economic
equality. This is unattainable ‘so long as the assumptions of capitalist philosophy dominate the
practice of the courts’.19

16
H. J. Laski, ‘I Believe’, in W. H. Auden et al. (eds.), I Believe: The Personal Philosophies of Twenty-Three Eminent Men
and Women of Our Time (Allen & Unwin, 1940), 163–68, 168.
17
Laski, Grammar, xiv, xxiv.
18
H. J. Laski, Democracy in Crisis (Allen & Unwin, 1933), 14, 16–17, 19.
19
Ibid., 125, 129, 133.

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 68 Martin Loughlin

Fundamental reform, Laski maintained, requires either a period of dictatorship or a gradual

change in which expectations are slowly altered. The dilemma is that parliamentary democracy
precludes the former but, when the main levers of leadership (access to education, the profes-
sions, the media) remain under capitalist control, the electorate will not be allowed ‘to stumble
into socialism by the accident of a verdict at the polls’. From this he concluded that a Labour
government must bring about ‘a radical transformation of parliamentary government’, requiring
them to adopt new procedures, ‘take vast powers, and legislate under them by ordinance and
decree’.20
Radical though that argument may be, in the next lecture, on ‘authority and discipline in
capitalist democracy’, Laski contended that ‘no mere changes in political machinery are
adequate to the proportions of the problem’. Since institutions have value only by virtue of
the spirit that energises them, the question is whether socialism can transform their meaning.
Having previously thought that socialism could reach a compromise with capitalist democracy,
he now admitted that a ‘society can no more make peace between the motives of private profit
and public service than it can continue half-slave and half-free’. The critical question was
whether such fundamental reforms could be achieved without violence. Laski acknowledged
the primacy of reason as a method of resolving social differences but doubted the prospect of
finding the conditions of maintaining that temperament. Critics might see in democratic
socialism the destruction of liberty, but this was because, for them, liberty is a function of
possession of property. It is a name ‘of noble sound and squalid result’.21 Liberty can only have
value on the basis of equality.
In his final lecture, Laski assessed the merits of ‘the revolutionary claim’, the argument that
nothing can be gained in seeking to realise socialism by constitutional means since the
capitalist class ‘is likely to defend with violence the injustice for which it is responsible’.
Acknowledging its force, he emphasised its pitfalls. First, revolution is an art: ‘nothing is
gained by embarking upon it except under conditions which maximise the prospects of
success’, and the ‘environment in which Lenin was successful is of extreme rarity in history’.
Secondly, revolutions lead invariably to dictatorship, the conditions of which vary. The
proletarian dictatorship imposed in Russia was founded on the specific conditions of a
collapsed autocracy. In Britain, by contrast, where there is ‘a large middle class habituated
to domination and privilege’, the dictatorship – like that in fascist Italy – would be that of the
middle class. Laski recognised, thirdly, that revolution is ‘infinite tragedy, since, in its very
nature, it means pain and suffering and the tragic confusion of means and ends’. And, finally,
it is ‘the enemy of Reason and Freedom – the twin goddesses whose triumph gives what of
beauty there is in the ultimate texture of men’s lives’.22
The crisis of parliamentary democracy thus arises from the fact that, although capitalism
and democracy arrived at the same point in history through a common need to destroy
hereditary aristocracy, they could no longer work together. The dilemma facing a capitalist
society is that the logic of universal suffrage leads to a continuous expansion of welfare which
not only reduces the contrast between rich and poor but also undermines capitalism’s profit-
making motive. The challenge is great indeed but, having rejected the revolutionary option,
Laski accepted there was no serious alternative to promoting radical reforms through consti-
tutional methods.

20
Ibid., 77, 87.
21
Ibid., 149, 164, 189, 207.
22
Ibid., 233, 234, 236, 256–57, 266.

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 Laski’s Analysis of the British Constitution 69

3.4 THE NATURE OF THE MODERN STATE

In Democracy in Crisis, Laski resiled from his earlier pluralism. He also abandoned his earlier
critique of state sovereignty, now presenting the state as the supreme coercive organisation of
society. It is to this institution that Laski next turned. The aim of his 1935 work, The State in
Theory and Practice, was ‘to discover the nature of the modern state’.23 He pursued the inquiry
by offering answers to three questions. What should be the basic purpose of the state? To what
extent is that purpose actually being served? And, in the light of actual practice, what is to
be done?
Laski first defined his key terms. By society is meant ‘a group of human beings living together
for the satisfaction of their mutual wants’ and a state is ‘a society of this kind which is integrated
by possessing a coercive authority legally supreme over any individual or group which is part of
that society’. The supreme coercive power exercised by the state is called sovereignty and, once
the idea of sovereign state is accepted, ‘law can be no other thing than the will of the state’.24
These definitions are the basis for the critique that followed.
Law, Laski argued, must be founded on something more than coercive power because
otherwise law cannot provide an adequate justification for demanding obedience. Idealist
political philosophers maintain that the basis for obedience is that only within the state can
our real will be expressed. The spirit informing this idealist argument, Laski asserted, is equality:
‘It is to protect equality that law, to be law, must always be general’ and ‘it is to protect
equality . . . that a civil religion is established, that men may be trained passionately to safeguard
the spirit of the constitution’. The problem with idealism, he maintained, is that it tends to
confuse the ideal purposes of the state with the actual policies of the government. He avoids this
conflation, arguing that the state’s legitimacy depends on the extent to which it is able to satisfy
the equality claims of its citizens. Law must therefore find its ‘title to consent’ in the individual
citizen’s judgment.25
In answer to the second question, on whether the state’s purpose is actually being served,
Laski argued that, although it is natural to infer that the state seeks to realise the common good,
in reality it cannot transcend particular interests. The modern struggle for control of the state has
always been between economic classes and it is a struggle in which the state itself is never
neutral. This has left the disadvantaged class doubting the validity of the existing order,
demanding change and developing hostility to the dominant ideology. But since the will of
the state is enforced through its government and the will of the government is ‘determined by
the character of the class-relations in society’, this will also determines ‘the end for which law
and order are preserved’.26
This brings us to Laski’s last question: if unity in the state is actually based not on consent but
on coercion and if its essential feature is not common welfare but its power to compel the
acceptance of class-relationships, what is to be done? There is, he states, no reason to suppose
that ‘we can transform the foundations of bourgeois society without heavy fighting’. To assume
otherwise ‘is an illusion born of special historical circumstances . . . now fading before our eyes’.
Capitalist democracy ‘had conferred political power upon the masses; but it was on the saving
condition that political power should not be utilised to cut at the root of capitalist postulates’.

23
H. J. Laski, The State in Theory and Practice (Allen & Unwin, 1935), 9.
24
Ibid., 20–21, 31.
25
Ibid., 62, 69, 76, 95.
26
Ibid., 198, 199.

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 70 Martin Loughlin

And today class relations ‘have become incompatible with the maintenance of social peace’.27
Returning to the issue that closes Democracy in Crisis, Laski here comes much closer to
abandoning faith in the prospect of reform through constitutional methods.
Laski concluded his book on the state on a highly ambivalent note. His argument runs as
follows: (i) in order to realise the true ends of the state, it is necessary to change the existing
system of class relations, (ii) ‘it is the duty of the citizen to exhaust the means placed at his
disposal by the constitution of the state before resorting to revolution’, (iii) ‘the nature of
capitalist society weighs the scales unduly against him’, (iv) nevertheless ‘the gains which are
inherent in the technique of constitutionalism are profounder, even though they are more slow,
than those which are implicit in the revolutionary alternative’ and (v) that, since ‘changes in the
class-structure of society have rarely been made without revolutionary means’, those who make
preparation for it ‘have a case that has not been answered by the proponents of peaceful
change’.28 The State in Theory and Practice is Laski’s most pessimistic work. It closes with the
prediction that it is unlikely Britain can be transformed through violent revolution and equally
unlikely that radical reform can be effected through constitutional means.

3.5 THE MATERIAL CONSTITUTION

The impact of Laski’s analysis of the crisis of democracy and the nature of the modern state on
his materialist understanding of the British constitution is clarified in his 1938 book,
Parliamentary Government in England.29 The book follows the conventional format of examin-
ing sequentially the main institutional arrangements of the British system: the party system, the
House of Lords, the House of Commons, the Cabinet, the Civil Service, the Judiciary and the
Monarchy. But his objective was not to explain the basic machinery of British government; it
was to expose the underpinning ideology enabling that machinery to work. This led him to
critically examine the limits to the British constitution’s feted flexibility. If the ambition of
Bagehot’s classic analysis of the constitution had been to explain its workings to a mid-Victorian
liberal audience, ‘the upper ten thousand’, Laski’s was to offer a socialist analysis for the newly-
enfranchised citizens of Britain’s parliamentary democracy, the multitude.
His account of the workings of these institutions is similarly conventional. What is innovative
is its basic thesis, which runs as follows. The British constitution may have been ‘the deposit of a
grim civil war’, but for a period of 250 years, when other states have been reshaped by violent
revolutions, all of its fundamental changes have since been effected by peaceful compromise.
This achievement was not due to ‘some special British genius for the difficult art of self-
government’ but because certain pre-requisites enabled contending political factions to reach
settled agreement on fundamentals. These fundamentals bolster the basic principles of
capitalism and it was this settlement, emerging from the protection of property rights and
reinforced by successes in war and empire-building, that enabled Arthur Balfour in 1928 to
claim that ‘our whole political machinery presupposes a people so fundamentally at one that
they can safely afford to bicker; and so sure of their own moderation that they are not
dangerously disturbed by the never-ending din of political conflict’.30

27
Ibid., 271, 272, 274.
28
Ibid., 213, 214–15.
29
H. J. Laski, Parliamentary Government in England (Allen & Unwin, 1938).
30
Ibid., 13, 18. The Balfour quotation is from A. J. Balfour, ‘Introduction’, in W. Bagehot, The English Constitution
(Oxford University Press, 1928), xxiv.

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 Laski’s Analysis of the British Constitution 71

It was this underlying sense of unity that enabled Ministries to be formed and overthrown with
relative equanimity.31 And it was the growing wealth that flowed from this settlement that
permitted concessions to social reform. These developments led many British socialists to regard
the state as ‘a neutral force which responded objectively to the will of an electoral majority’. But
although the evolving political constitution placed governmental power at the disposal of the
party that commanded a majority in the House of Commons, Laski emphasised that the pivotal
positions in the judiciary, the civil service, the defence forces, and the police remain comman-
deered by members of the governing class, whose ‘rules and habits . . . are those which do not
disturb the social order they dominate’.32
The critical question was whether these constitutional arrangements could still work when
one of the two major parliamentary parties advocated radical reform of the economic founda-
tions of society. The question, in other words, was whether the constitution ‘not seen abstractly,
but in terms of the social order, of which it is the protective envelope, is elastic enough to admit
changes which seek its basic transformation’.33 In its form, the constitution provides ‘all the
necessary avenues to achieve this transformation peacefully’ but in its material reality ‘every
political democracy that is based on the principle of inequality in matters of social and economic
constitution encounters a difficulty here from which Great Britain is no more free than any
other country’.34
Having expounded his thesis, Laski sought to vindicate it through an examination of consti-
tutional practice. All of his proposed reforms had previously been canvassed in the Grammar,
but his objective now was to explain the workings of these constitutional arrangements from this
materialist perspective.
Laski began with the party system. Despite its lack of legal recognition, the system is a vital
component of the constitution and is expressed through the division between government and
opposition. The ‘mimic warfare’ it generates has many advantages, not least in ensuring the
control of the Commons by the Cabinet. But its most striking feature is that ‘it maintains (or has
so far maintained) the peace’. Continuity of policy had been possible because, since 1689,
‘disputes between political parties tended . . . to conceal their unity of essential purpose and
emphasise their inessential differences’. In reality, a single party has been in continuous control
of the state and, though it might have been divided into two wings, its quarrels were essentially
family quarrels. This is the great change that occurs with the coming of democracy and the
emergence of the Labour party. A political democracy ‘seeks, by its own inner impulses, to
become a social and economic democracy’ and, embarking on that trajectory, it ‘finds the road
barred by the capitalist foundations upon which the political democracy is built’.35

31
Laski, Parliamentary Government in England, 94: ‘Since 1689 . . . neither [party] has ever moved so far from each other
upon any vital question as to bring an ultimate disharmony into view. Each has always remained convinced that the
private ownership of the means of production could not legitimately be called into question. The men who directed
the destinies of both circles came, broadly, from the same social environments; they spoke the same language; they
moved in the same circles; they depended upon the same common stock of ideas. They thought in the same way
because they lived in the same way. Members of either wing could cross to the other without any alteration of
fundamental doctrine. A Tory democrat like Disraeli could be more advanced in matters of social legislation than a
Liberal like Gladstone or a Radical like John Bright. A Conservative aristocrat like Lord Cecil could have more
cosmopolitan conceptions of foreign policy than a Radical “man of the people” like Mr. Lloyd George. A Liberal like
Sir Herbert Samuel could take the same view of the problems of Indian self-government as a high Tory like Sir Samuel
Hoare.’
32
Ibid., 19, 23.
33
Ibid., 24.
34
Ibid., 26, 35, 48.
35
Ibid., 72, 90, 89.

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 72 Martin Loughlin

This material reality of the constitution, he explained, was hidden even from the Labour Party
‘because it has accepted traditional economics and the traditional theory of the State’. Labour
too readily accepted the state as a neutral institution available to any party obtaining a parlia-
mentary majority, failing to appreciate that ‘the neutrality of the State between Liberals and
Conservatives was because both had the same fundamental ends in view’. Whichever party was
in power, both upheld the principles and policies of a capitalist society.36
This was the challenge of the parliamentary road to socialism. The institutional barriers were
immense. The House of Lords, as the second chamber of a political democracy, was ‘an
indefensible anachronism . . . responsible to no one but themselves’. Expressing a fusion of
aristocracy and wealth, its delaying power was simply ‘a bulwark against the will of the masses’.37
The great extension of governmental business required the minister ‘to leave to his officials all
but the largest decisions on major policy’ and, although the abolition of patronage resulted in a
civil service with high standards of competence and conduct, its leaders still came from the
traditional governing class: ‘they go to the same schools and universities . . . belong to the same
clubs . . . [and] the assumptions upon which their ideas rest are the same as those of the men
who own the instruments of production in our society’. This is why civil servants could maintain
neutrality and why ‘the measures they have recommended have proved equally acceptable to
Cabinets of either party’.38 The judiciary acted as the guardian of a common law tradition which
‘has been predominantly shaped by the need to serve the wants of a business civilization’ and
whose individualism is unsuited to a collectivist age.39 And the monarchy ‘has been sold to the
democracy as a symbol of itself’.40
In Parliamentary Government, Laski departed radically from classical commentaries on the
glory of the British constitution. From Montesquieu and Burke to Dicey and Bagehot the
standard refrain had been that its virtue was its ability to maintain flexibility in its governing
apparatus while continuing to protect life, liberty and property from governmental interference.
In one sense, Laski does not disagree. But in explaining how this flexible constitution was settled
by those material interests its fixed policy was to protect, he raised profound questions for those
who sought political equality as a stage in realising social and economic equality. For those
seeking to advance the common good, the institutions that made British parliamentary govern-
ment such a success story had become major obstacles to continuing innovation.

3.6 THE MATERIAL CONSTITUTION REVISITED

Laski’s last book was published posthumously as Reflections on the Constitution. Based on the
Simons Lectures delivered at the University of Manchester in 1950, it reviewed the performance
of political institutions in an age of ‘turbulence and confusion’. Adopting a very different tone to
that of Parliamentary Government in England written 13 years earlier, the book is something of a
puzzle. Not only is his account of the institutions of government thoroughly orthodox, it also
diverges from the radical criticisms of the earlier work. Indeed, the only allusion to the earlier
book was his suggestion that, if there is a threat to the system, ‘it seems to me to lie in the use of
great financial and industrial power to prevent the will of the electorate being made effective by
the government of its choice’. But even this was tempered by his claims that there is ‘no reason to

36
Ibid., 186.
37
Ibid., 111, 130.
38
Ibid., 309, 316, 317.
39
Ibid., 363, 370.
40
Ibid., 392.

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 Laski’s Analysis of the British Constitution 73

suppose that the status of the House of Commons has deteriorated in the last 50 years’ and that ‘I
see no decline in its greatness, nor any ultimate danger that it should be by-passed in its
fundamental purposes’. He further asserted that the ‘growth of cabinet power has not meant
the reduction of the House of Commons to what may be termed colonial status’.41
What explains such complacency and the change from his fears for parliamentary govern-
ment expressed in 1938? One commonly touted explanation is that the experience of the war and
the delivery of the post-war Labour government’s programme changed his views of possibilities
in unexpected ways. In the social and economic conditions of the post-war period, the great gulf
between the major parties he foresaw and which he believed would lead not only to the sabotage
of Labour’s nationalisation and welfare programme but even to the breakdown of parliamentary
government, did not materialise. Major differences between the parties remained, but there was
also a much greater degree of cross-party support on such issues as the Beveridge Report, the
National Health Service, the Butler Education Act and the White Paper on Employment than
Laski might have expected. Neither was there much evidence that the capitalist class had
managed to subvert the significant change in property relations brought about by these and
related reforms.
Yet another explanation for dissonance between the texts is simply that Laski had misread the
constitutional crisis of the period. Laski had convinced himself that the Labour party was a
militant force determined to use Parliament to overthrow the citadel of capitalism. This led him
to believe that, should this programme be frustrated by the establishment, direct revolutionary
conflict was likely to follow. As Robert Mackenzie commented, this ‘surely was almost pathetic
romanticizing on Laski’s part’. Laski had exaggerated the ideological gap between the two
parties: ‘Labour was less militant than Professor Laski hoped; the Conservatives, for whatever
motive, have been nothing like as reactionary as he feared’. In reality, Mackenzie concluded,
‘both parties when in power have had to operate in a set of circumstances which have drawn
them very close together indeed’.42
Laski remained thoroughly ambivalent about the post-war achievements. In his last recorded
notes, he recognised that:
The history of law in the last eighty years has been, very largely, the history of an importation into
freedom of contract of limitations and conditions which are less and less the result of agreements
of the parties to the contract, and more and more the result of the intervention of society which
uses the authority of the state-power to deprive the owner of property of the economic
sovereignty his possession of which seemed ‘natural’.43

But he then reflected on actual achievements. This development may have improved the lot of
the agricultural worker but it ‘has not involved any serious change in the relations of production
in agriculture’. Although the national health service, social welfare and education reforms ‘are
all of them big and impressive gains’ nonetheless ‘it must be remembered that there still remain
two systems of education in Great Britain, one for the rich and one for the poor’. And, although
a ‘brave effort’ had been made to deal with the housing problem, ‘there is nothing yet which
permits us to say that a still predominantly capitalist society can solve the housing problem’.44

41
H. J. Laski, Reflections on the Constitution (Manchester University Press, 1951), 2, 104, 34, 103, 107.
42
R. T. Mackenzie, ‘Laski and the Social Bases of the Constitution’ (1952) 3 British Journal of Sociology 260, 262, 263.
43
H. J. Laski, The Dilemma of Our Times: An Historical Essay (Allen & Unwin, 1952), 79–80. (This is a draft of a
proposed updated version of his work, Faith, Reason and Civilization (1944); it remained incomplete but was prepared
posthumously for publication by R. T. Clark.)
44
Ibid., 105.

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 74 Martin Loughlin

This type of argument led Laski to characterise those aiming to ‘transform capitalist democ-
racy into socialist democracy by peaceful means’ as ‘radical bourgeois’. They differ in degree but
not in kind from the ‘conservative bourgeois’ in that they ‘assume that as the relations of
production change in a political democracy the values of the class which has hitherto owned
the instruments of production will change also’ and so far ‘all the evidence is against this
assumption’.45 Analysis here is replaced by labelling. Abandoning historical realism, Laski ends
up employing a kind of argument that signifies retreat from any serious examination of the issues
confronting post-war society.

3.7 CONCLUSION

Harold Laski was a remarkably astute constitutional analyst of the inter-war period. The range of
his learning was immense, his eye for detail outstanding, and he had a talent for coining biting
epigrams that exposed the hypocrisy of so much writing about the British constitution. Laying
bare many of the orthodox assumptions about the subject, he revealed how the modern
settlement depended on the entrenched order of property and directly addressed the challenges
facing political movements seeking radical social change through inherited parliamentary
arrangements. In these respects, his was a penetrating critique of the modern constitution.
But Laski was also a political activist and his growing frustration with the labour movement’s
failure to deliver transformative change and bring about a socialist society led him into a type of
economic determinism that seemed increasingly dogmatic and formulaic, and which ultimately
dulled his analytical insights. ‘No theory of the state is ever intelligible’, he had declared, ‘save in
the context of its time’. In the 1930s, this led him to amend the theory of the state he had
advanced in the 1920s. But despite the fact that his prediction that social peace would not be
maintained without radical change not being realised in the post-war period, Laski was incap-
able of further revisions during his last years.
One reason is that he still believed that the march of history was on his side. In his 1943
Reflections on the Revolution of Our Time he acknowledged that, being in a period of reaction
from its ideology, it was difficult to judge the Russian Revolution. But he went on to assert that
we should recognise it as ‘the first stage in a fundamental transformation of the social principles
of Western civilization’. Maintaining that we must ‘build an equal society in the next generation
or we must abandon the democratic experiment’, he argued that the fight must be won not just
against reactionaries but also against counter-revolutionaries. The counter-revolutionaries most
surely recognised the impossibility of returning to the world of laissez-faire and an aristocracy of
birth, but their aim ‘is to adapt capitalist society to the conditions of modern technology, of a
world market, of a division of labour which has made the collectivist organization of social
relationships inevitable’.46
The counter-revolutionary movement he had in mind here was fascism. But in the post-war
period, things turned out rather differently. Fascism was defeated and much later the experiment
of the Soviet Union imploded. Managed capitalism organised through a regulatory welfare state
became the western model. Towards the end of the twentieth century, however, it was increas-
ingly apparent that we were facing a different type of counter-revolution, that of neo-liberalism.
Neo-liberalism marked a radical shift from social democracy, managed capitalism, or what Laski

45
Ibid., 65, 66.
46
H. J. Laski, Reflections on the Revolution of Our Time (Allen & Unwin, 1943), 42, 203, 252.

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 Laski’s Analysis of the British Constitution 75

called a radical bourgeois politics. Its extending influence might lead us to further reflections on
the material bases of constitutional orders, though with a rather different inflection to Laski’s.
Laski’s world is no longer ours. But does his materialist method still have something to offer?
The fundamental problem of Laski’s constitutional analysis is that he presented the two
conceptions of constitution – the ideal and the material – as a chasm, one being romantic
and the other real. Yet, far from being polar opposites, they most surely express a tension that is
inherent in the nature of the modern state. The two aspects do not express, as Laski seems to
believe, the ideal version he presented in the 1920s and the material emphasised in the 1930s.
Laski conceives them almost as the normal and the pathological. But as so many scholars have
demonstrated, the two aspects inhere in the very idea of the state.47 There is, as Pierre Bourdieu
noted, a fundamental ambiguity about the state: ‘The state is a Janus about which it is impossible
to state a positive property without simultaneously stating a negative property, a Hegelian
property without a Marxist property, a progressive property without a regressive or oppressive
property’.48
The flaw in Laski’s analysis – and perhaps in all theories founded on the idea of ‘the material
constitution’ – is its tendency to one-sidedness. For the Laski of the 1930s, the state is presented
as a mechanism which bourgeois capitalists, conscious of their own class interests, have devised
and continue to operate for their own ends. There are elements of truth in this, but as an analysis
of the state and its constitution it leads ultimately to a reductive account of excessive abstraction
and simplification. Bourdieu had suggested that the two-sided character of the state ‘is troubling
for those who like to think that everything will turn out rosy’.49 It is equally troubling for those
who, like Laski, veer between an inflated ideal and a depressed hyper-reality. The nature of the
state can be adequately explained only once the autonomy of the political is taken seriously and
this requires recognising that the political is concerned with a set of human relations that is not
reducible to class conflict or socio-economic tensions.
Unless the political is accepted as a distinct domain in which this tension between ideal and
reality, state and government, sovereignty and sovereign, is played out, then one cannot explain
the hypocrisy of using legality as a cloak for exploitation. If there is no symbolic representation,
there is no concept of state; there is only despotic power. The materialist critique highlights the
gulf between ideal and reality but, once it treats the political as a superstructural phenomenon
determined by productive relations rather than being itself a constitutive element of human
experience, this materialist analysis fails to offer an adequate account of power dynamics in
contemporary society.

47
See M. Loughlin, Foundations of Public Law (Oxford University Press, 2010), 163–64.
48
P. Bourdieu, On the State: Lectures at the Collège de France, 1989–1992, D. Fernbach, trans. (Polity, 2014), 98.
49
Ibid., 98.

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 4

Rudolf Smend’s Legacy in German Constitutional Theory

Tim Wihl

4.1 INTRODUCTION

Compared to figures like Hermann Heller or Carl Schmitt, Rudolf Smend’s heritage in German
constitutional law seems to be at the same time more evident and more obscure. More evident,
because powerful constitutional lawyers like Konrad Hesse, Horst Ehmke and Peter Häberle
were heavily influenced by Smend and because, last but not least, the German Federal
Constitutional Court took up several parts of Smend’s doctrine in its judgments – mostly in
the area of fundamental rights, as in its famous Lüth decision on the ‘objective value’ of rights in
the entire legal order. More obscure, because it is highly debatable not only whether Smend’s
legal thought is actually still alive in dominant constitutional doctrines like the proportionality
test, the balancing of constitutional goods, cooperative federalism or even fundamentals of
immigration and citizenship law – but also whether Smend’s influence on Germany’s material
constitution has been, on the whole, advantageous for post-war legal development. Germany’s
collision model of constitutional rights, an apparent heir to Smend’s obsession with Abwägung
(balancing) avant la lettre, is coming under stress as more and more conflicts arise between
opposing rights claims, for instance.
Yet Smend’s success in established constitutional doctrine is striking. Rights are no longer
understood primarily as subjective claims, but rather as objective principles. Society and the state
are no longer diametrically opposed in constitutional theory. Furthermore, the success of the
concept of integration in German political culture is evident. Rarely a politician forgoes an
opportunity to remind German citizens of the value of integration, first of all in debates on
immigration law. It is however unclear whether this idea of cultural integration – as opposed to
assimilation or multiculturalism – can be traced back to Smend’s Integrationslehre.1 In any case,
its hegemonic position in German political discourse renders it necessary to analyse whether
integration in the Smendian sense amounts to an overarching model of societal harmony and
internal peace that is, in turn, concretely reflected in constitutional and legal doctrine. Beyond
that, it is worthwhile looking at how Smend’s ideas were assimilated, but also transformed in
important ways in highly influential casebooks and monographs such as Konrad Hesse’s
Grundzüge des Verfassungsrechts der Bundesrepublik Deutschland, a milestone in shifting the
generally conservative legal discourse in West Germany after 1949 toward more pluralist and

1
On the concept of integration in German immigration law, cf. J. Eichenhofer, Begriff und Konzept der Integration im
Aufenthaltsgesetz (Nomos, 2013).

76

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 Rudolf Smend’s Legacy in German Constitutional Theory 77

liberal positions. At first sight, it seems odd that Smend’s integration thesis inspired pluralist
conceptions like Hesse’s. This powerful path of renewed constitutional thought in post-war
Germany therefore merits special attention.

4.2 FROM ANTI-POSITIVISM IN WEIMAR GERMANY TO

INTEGRATION THEORY

Smend belonged to the important anti-positivist current in the constitutional law of the
Weimar Republic, which was formed against the positivism inherited from the pre-war
Empire, such as that represented by Gerhard Anschütz and Richard Thoma. In this context,
his lecture at the German conference of constitutional law teachers on freedom of opinion on
the one hand, and his monograph ‘Verfassung und Verfassungsrecht’ (Constitution and
Constitutional Law) on the other hand, were trend-setting. Smend was part of a cohort that
was rather sceptical of the first German democracy and feared in particular a dominance of the
political left over ‘bourgeois’ forces. The discovery of legal ‘substances’ indispensable for
democratic law can therefore be interpreted in terms of social history: these substances were
intended to help secure a continuity of the state and its apparatuses as well as defend a certain
bourgeois social order.
An essential role in this process was played by the reception of traditional currents of legal
philosophy – after all, the representatives of anti-positivism describe themselves as a ‘humanistic’
school. This insinuates that positivism is bound to an ideal of science that is actually natural-
scientific and somehow under-complex. Humanists, on the other hand, allegedly ‘understand’
life in its entirety and complexity. Positivists ‘only’ describe and explain causalities, and when
applying the law, they work like ‘subsumption machines’. Humanists try to dig deeper and
‘comprehend’ what the law as a living phenomenon is all about. Often, Smend’s references to
Theodor Litt’s philosophy of ‘life’ are pointed out, which are indeed very numerous, but
philosophically doubtful. It is unclear whether Litt (and Smend, as his supposed follower)
succeeded in overcoming the contradictions of ‘individual’ and ‘community’, ‘man’ and ‘world’.
Nevertheless, such rather vague philosophies of life played a not insignificant role as an
intellectual fashion at the time.
Another deep current of Smend’s teaching was the influence of the Prussian ‘state philoso-
pher’ Friedrich Julius Stahl with his organic conception of the state. Although it would be
quite erroneous to draw a line from Hegel to Smend just because both share a certain meta-
theoretical tendency (Smend cannot even come close to the conceptual strength and intellec-
tual substance of Hegelianism), Smend describes Stahl’s definition of the state – a ‘dialectical
vitality with the moral goal of a constantly re-established, preferably harmonious balance of
conflicting political forces’ – as exemplary for his theory of integration.2 Furthermore, Smend
shared Stahl’s fundamental view that the law only has the ‘justice value’ of a negative barrier
for the executive and the legislature, while the justice value of the law for the judiciary is to
be a ‘positive goal’.3 This not only expresses a political position in the dispute over the role of
the judiciary in Weimar, but also a privileging of the judiciary as a state power with a mandate

2
H. Wiegand, Das Vermächtnis Friedrich Julius Stahls (Müller, 1980), p. 19, with reference to R. Smend, ‘Verfassung
und Verfassungsrecht’, in Staatsrechtliche Abhandlungen (Duncker, 1968), 119 ff., 183. (All translations from German
literature are mine.)
3
Wiegand, Vermächtnis, 77, fn. 31 with reference to Smend, ‘Verfassung und Verfassungsrecht’, 210.

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 78 Tim Wihl

to do justice, which was an influential current in Germany – especially after

National Socialism.
In terms of fundamental rights theory, Smend elaborates on the ‘integration thesis’ in his
‘Staatsrechtslehrerreferat’ on freedom of speech (more extensively than in ‘Constitution and
Constitutional Law’), which emphasises the freedom of university professors in comparison to
the Kaiserreich, but (ironically) further relativises liberal rights (such as freedom of opinion) that
are not specific to the status of a state academic.4 Smend sums up the role of fundamental rights
very clearly and reminiscent of Stahl: ‘For today’s fundamental rights . . . the principle of human
rights determines that these rights should not be barriers but reinforcements of the state and state
power, whose acts, as executed within the framework of these rights, should therefore be all the
more effective.’5
Although neither Stahl nor Smend present a sophisticated balancing theory of rights, they do
provide arguments for relativising liberal and political rights in particular, especially on the basis
of common or ‘state welfare’ interests.6 At first glance, this statist, legalist, and positivist line
seems to have little in common with Weimar anti-positivism. And indeed, legalism and
positivism are refined. But both are united by the statist rejection of rationalist natural law and
thus of the idea of a juridical, subjective fundamental right that is conceptually directed against
state rule instead of being ‘granted’ by the state in an objectively reflexive way. Laws, in this line
of continuity, are neither expressions of rights nor their potential opponents. The purpose of
such a conception of the state as a ‘real-dialectical unit of action’ is the ‘reintegration of divergent
political and intellectual forces into a unified sphere of rule’.7
Smend himself distinguished between three different types of ‘integration’ – all of them are
state-centred instead of fundamentally democratic. The individual is entirely functionalised for
‘greater ends’. Personal integration means active participation in the integration process, which
is always thought of in terms of the state. Functional integration, on the other hand, refers to
institutional participation in elections, for example. Finally, the paths of material integration are
very heterogeneous: They include flags or other state symbols as well as other ‘state values’. The
assignment of fundamental rights to the domain of material integration is of particular legal
significance. As a result, they appear first and foremost as state-related ‘values’ and not, for
example, as strict concepts with clear boundaries and an initial power-framing character or as
substances with clearly defined qualities that would correspond to normative individualism.
Rather, fundamental rights appear in a serving function and come ‘from above’ in a rather
diffuse way, instead of being primarily an expression of personal autonomy. Moreover, their
functionalisation in favour of the state dictates that they are to serve the strengthening, not the
weakening, of the monopoly on the use of force.

4.3 SMEND’S LEGACY IN THE FEDERAL REPUBLIC AFTER 1949

After the Second World War, the doctrine of integration was dogmatised; Smend attempted to
make it digestible for constitutional law, which was now to be democratic again, in concise,

4
Veröffentlichungen der Vereinigung der deutschen Staatsrechtslehrer (VVDStRL) 4 (1928) 44 ff.
5
R. Smend, ‘Das Recht der freien Meinungsäußerung’ (1927) 4 VVDStRL 44, 48.
6
On Stahl’s theory of political rights in F. J. Stahl, Philosophie des Rechts, vol. II, 2nd ed. [1837] (Heidelberg, 1846), 266,
cf. H.-J. Böhme, Politische Rechte des einzelnen in der Naturrechtslehre des 18. Jahrhunderts und in der Staatstheorie des
Frühkonstitutionalismus (Duncker 1993), 77.
7
Wiegand, Vermächtnis, 39.

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 Rudolf Smend’s Legacy in German Constitutional Theory 79

sober statements. From the outset, many constitutional lawyers feared that, in Smendianism, the
Hegelian dualism of state and civil (bourgeois) society would be resolved in a conceptually
blurred manner and that the intrinsic liberal value of individual rights, and indeed the legal form
as a whole, would be eclipsed by state-defined goals. Admittedly, the weak side of West German
constitutional law does not tend to consist in excessive republicanism. That would be a
misunderstanding of Smend’s teaching. Despite his proclaimed sympathy for the citoyen and
therefore certain Rousseavian echoes, for instance, in his opposition of ‘citizen’ and ‘bourgeois’ –
he even goes so far as to interpret his principle of integration as a volonté générale conceived in a
dynamised way – neither the popular sovereigntist pathos nor the main goal of preserving
freedom precisely through republican association is present in Smend’s work.
Konrad Hesse, Horst Ehmke and Peter Häberle took up the thread as Smendians8 and quite
soon asserted themselves through the Basic Law9 against Schmittians who were sceptical of
balancing, and above all against the ‘Ridder school’10 (which proclaimed: The Basic Law is ‘to
the left of social reality’).11 The point of attack of the latter was the vicious dialectic of German
statism: either to overcome pre-state ‘chaotic nature’ as a unity or to reconstruct a given order as
a unity.
According to a common narrative, in the early days of West German constitutional law
doctrine in the post-war period, there were essentially two major currents opposing each other,
each of which felt more or less strongly connected to the work of Carl Schmitt or Rudolf
Smend.12 Indeed, for the debate on fundamental rights in particular, a clear frontline can be
discerned, related to Ernst Forsthoff’s and Carl Schmitt’s invective against the ‘tyranny of
values’.13 On the other hand, large sections of legal academia used to encourage the Federal
Constitutional Court (FCC) to continue following the ‘Smendian’ line it had taken in its
epochal ‘Lüth’ decision.

8
Cf. R. Camilo de Oliveira, Zur Kritik der Abwägung in der Grundrechtsdogmatik (Duncker, 2013), 19, 144 f. on the
‘genealogical’ connection of Smend, Häberle and Alexy in ‘Abwägungs- und Wertdenken’ as a special case of moral
discourse; specifically on Häberle’s Smend-translations, pp. 154 f.
9
The formulations in the Basic Law may follow stylistic principles in detail, cf. C. Bumke, Der Grundrechtsvorbehalt
(Nomos, 1998), 124. However, the ‘subjective’ considerations of the Parliamentary Council on stronger specification
hardly succeeded in shaping the ‘objective’ practice of jurisprudence, as it prevailed from 1958 onward (Lüth,
Apotheken).
10
K. Hesse, Grundzüge des Verfassungsrechts der Bundesrepublik Deutschland (Müller, 1967); P. Häberle, Die
Wesensgehaltsgarantie des Art. 19 Abs. 2 Grundgesetz (Müller, 1962). In case law as a ‘collision theory’ based on what
is misleadingly (and rather rarely) called ‘optimization imperatives’, see Bumke, Grundrechtsvorbehalt, 157 ff, 226.
Richard Thoma had intended the optimisation of effectiveness to refer to nothing other than the legally binding
character of fundamental rights, see P. Lerche, Die Verfassung als Quelle von Optimierungsgeboten?, in Ausgewählte
Abhandlungen (Duncker, 2004), 72 ff., 75.
11
H. Ridder, Die soziale Ordnung des Grundgesetzes (Westdeutscher Verlag, 1975), 17.
12
More nuanced: C. Möllers, Der vermisste Leviathan (Suhrkamp, 2008); F. Günther, Denken vom Staat her
(Oldenbourg, 2004).
13
Carl Schmitt, Die Tyrannei der Werte (Duncker, 2011); E. Forsthoff, Die Umbildung des Verfassungsgesetzes, in: M.
Tohidipur (ed.), Der bürgerliche Rechtsstaat (Suhrkamp, 1978), vol. I, 177 ff. On this point, see the account in F.
Meinel, Der Jurist in der industriellen Gesellschaft (Akademie, 2011), 410 ff. Meinel points out that the attack on the
value-material understanding of the constitution cannot be understood as a mere school dispute (p. 412). Nevertheless,
it must be objected that the ‘German’ formal type of fundamental right of the Lüth judgment has been conceptually
captured in an almost ‘ideal-typical’ way precisely by Smend’s teachings. But Smend was not alone, Hesse has strongly
modified his theory (pp. 414 f.), and the doctrinal power of FCC case law is undisputed (p. 413). Forsthoff, in addition
to the Smendians, also opposed a welfare-state line, for example, in Jürgen Habermas (pp. 415 f.), which one cannot
deny having an increasing influence on jurisprudence. This is one of the initially latent, then emerging tendencies of
German constitutional theory.

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 80 Tim Wihl

For the FCC, the tendency to enrich rights with ‘objective’ content14 culminated for the time
being in the court’s ‘NC’ ruling,15 which established the idea of a derivative right of participation,
as well as in the first abortion decision,16 which introduced the so-called duty to protect. For
scholars, this tendency culminated in Peter Häberle’s dialectical sublation of rights between their
subjective definition and their objective institution,17 from the ‘status activus processualis’ to the
interpretive sovereignty of the holders of fundamental rights to their social participation dimen-
sion.18 The opening up of the definition of the scope of protection for those entitled to fundamental
rights19 and the opening up of new ‘dimensions’ (private law effect, participation, social welfare,
protection) makes rights more global, in that both greatly expand the areas of life covered by rights,
though they remain unchanged in their formulation; the internal normative sphere of rights
therefore becomes more abstract in the overall view, without the formulations of the articles of
fundamental rights necessarily having to change, because more abstract rights come to the fore in
the case law, such as the general principle of equality and the ‘connection’ of fundamental rights
with the principle of equality20 or (later) even, marginally, the article on human dignity.21 Finally,
the relativity of the external normative sphere of rights becomes quite dominant, as rights constantly
have to assert themselves against each other and against further, ever more numerous ‘constitutional
goods’ (Verfassungsgüter, a very Smendian vocabulary!).22
The expression of this movement in constitutional theory, which was able to assert itself in the
long-term, not least in Court decisions, was the integration-theoretical concept of fundamental
rights as ‘objective values’ of the ‘state community’, which was continuously developed by the
‘Smendians’ and in which the constitutional dualism of state and society – the central dilemma
for (right-wing as well as left-wing) Hegelianism – could be resolved. It is nevertheless open to
questions as to which part of those conceptions of objective fundamental rights was actually
inferred from Smend’s teachings. For Smend’s theory of integration, which was only sketchily
modified after the war,23 does not say much more about fundamental rights than that they are a
means to the higher end of (objective) state integration.24 In the interpretation of positive
fundamental rights, Smend himself was rather erratic, as demonstrated by his remarkably
contradictory Staatsrechtslehrervortrag which he gave briefly on freedom of speech, but then
mainly on freedom of science as the freedom right of his guild.25
‘Smendianism’ allowed the application of fundamental rights in far-reaching abstraction
from their textual formulations, especially regarding the limitation clauses of fundamental

14
W. Schmidt, ‘Grundrechte – Theorie und Dogmatik seit 1946 in Westdeutschland’, in Dieter Simon (ed.),
Rechtswissenschaft in der Bonner Republik (Suhrkamp, 1994), 188 ff., 202 ff.
15
BVerfGE 33, 303, 338 – NC.
16
BVerfGE 39, 1, 42 ff. – Abortion I.
17
Häberle, Wesensgehaltsgarantie.
18
P. Häberle, ‘Grundrechte im Leistungsstaat’ (1972) 30 VVDStRL 43. For an analysis, see A. Voßkuhle and T.
Wischmeyer, ‘Der Jurist im Kontext. Peter Häberle zum 80. Geburtstag’ (2015) 63 Jahrbuch des öffentlichen Rechts
der Gegenwart (JöR) 401.
19
P. Häberle, ‘Die offene Gesellschaft der Verfassungsinterpreten’ (1975) 30 Juristenzeitung (JZ) 297–305.
20
BVerfGE 33, 303, 338 – NC.
21
BVerfGE 45, 187, 228 f. – Life imprisonment.
22
Pioneering, esp. BVerfGE 28, 175 ff., 185 ff. (military security); BVerfGE 28, 191 ff., 200 ff. (state administration).
Concise critique in K. Kröger, Grundrechtstheorie als Verfassungsproblem (Nomos, 1978), 22.
23
R. Smend, ‘Art. Integrationslehre’, in Staatsrechtliche Abhandlungen (Duncker, 1968), 475–81. Smend concedes here,
after all, an overly strong harmony and totality orientation of integration theory.
24
R. Smend, ‘Verfassung und Verfassungsrecht’, 119 ff., 260 ff., 264: ‘(the catalog of fundamental rights) intends to
standardize an objective series of a certain unity, i.e. a system of values or goods, a system of culture’. They are at least
‘rules of interpretation’ (p. 265).
25
Smend, ‘Meinungsäußerung’, 44 ff.

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 Rudolf Smend’s Legacy in German Constitutional Theory 81

rights, and thus their mutual blunting through ‘practical concordance’26 and balancing, in other
words.27
Smend’s impact must therefore be seen primarily in the doctrine of balancing. In German
fundamental rights jurisprudence, the balancing doctrine combined with the proportionality test
has dominated to this day.28
In contrast to this rather moralistic resolution of rights conflicts, which seeks to rely on the
Aristotelian epikeia (equity) as a universal demand on the law,29 classical ‘conceptual’ solutions –
which include, for example, the Sonderrecht doctrine in freedom of speech (no viewpoint
discrimination and no discrimination against speech per se) – seek to avoid balancing as well
as rhetorically affirmed ad hoc solutions without denying the necessary mediation with the case
material. Indeed, it is one of the concomitants of the Smendian compulsion to clarify that
fundamental rights are no longer understood as concepts (in a strong sense) and thus in their full
ideational depth.
The FCC’s ‘objective value order’ (objektive Wertordnung) was the door-opener for universal
balancing and can be traced back to Weimar, but, contrary to common wisdom, not to the
‘value philosophy’ according to Hartmann or Scheler,30 but to Albert Hensel,31 among others.
Finally, balancing ideology reached its theoretical climax in Robert Alexy’s so-called legal
principles theory, which is firmly grounded in FCC case law.32
The ambivalence of the German tradition, which is expressed up to the present day as a
juxtaposition of balancing and severe doctrinal criticism of it, especially in the variant of the
‘middle way’ as a constant attempt to rationalise balancing at the court itself and even more in
doctrine,33 nevertheless allows relativity – which is also disposability – of rights to
become ubiquitous.

26
Thus, originally Richard Bäumlin, cf. critically, also on the historical references to Gratian’s ‘Concordia discordan-
tium canonum’ rather than to Nicolaus of Cusa’s ‘De concordantia catholica’: A. Fischer-Lescano, ‘Kritik der
praktischen Konkordanz’ (2008) 41 Kritische Justiz (KJ) 166, 170. Bäumlin later explained in his
Staatsrechtslehrerreferat how this concordance technique is able to valorise community tasks such as school, military
and administration because these are precisely not to be subordinated to fundamental rights. As a result, freedom of
conscience in particular runs largely empty in terms of fundamental rights. R. Bäumlin, ‘Das Grundrecht der
Gewissensfreiheit’ (1970) 28 VVDStRL 3. For an account of Hesse’s method, see, more precisely, T. Marauhn and
N. Ruppel, ‘Balancing Conflicting Human Rights: Konrad Hesse’s Notion of “Practical Concordance” and the
German Federal Constitutional Court’, in E. Brems (ed.), Conflicts between Fundamental Rights (Intersentia, 2008),
273 ff., 279 ff. Marauhn and Ruppel emphasise the ultima-ratio character that underlines the centrality of the method,
however, the value-levelling premise of the method and its anchoring in Kantian practical reason. One can then
hardly avoid registering the proximity to the ‘community reservation’ of fundamental rights advocated earlier by the
Federal Administrative Court (p. 282). For a decided demarcation of (dogmatically secured) practical concordance
from situational value considerations, see F. Müller, Die Positivität der Grundrechte (Duncker, 1969), 49, 53, 89, et
seq. Dogmatic consolidation, however, does not contradict the relativity thesis.
27
Hesse, Grundzüge. Cf. on genealogy likewise (by proxy) Camilo de Oliveira, Abwägung, 144.
28
See BVerfGE 7, 198, 209 f. – Lüth (private effect) for a fundamental discussion of the balancing of interests. Further
essential stations: BVerfGE 28, 243, 261 – Dienstpflichtverweigerung (unconditional fundamental rights); BVerfGE
30, 173, 195 f. – Mephisto (collisions of fundamental rights). On the genealogy, Camilo de Oliveira, Abwägung, 150,
following B. Schlink, Abwägung im Verfassungsrecht (Duncker, 1976), 22, and Kröger, Grundrechtstheorie, 17 ff.
29
Aristotle, Nicomachean Ethics V, 15; 1137b26.
30
G. Lübbe-Wolff, Grundrechte als Eingriffsabwehrrechte (Nomos, 1988), 283, 289, fn. 225
31
Cf. Kröger, Grundrechtsentwicklung, 65: Aim of the contradiction-free unity of the legal order based on
fundamental rights.
32
R. Alexy, Theorie der Grundrechte (Suhrkamp, 1994).
33
In particular: P. Lerche, Übermaß und Verfassungsrecht (Heymann, 1961); with an effort to avoid ‘overstretching’,
according to the ed. in: ‘Übermaß und Verfassungsrecht. Bemerkungen zur Wiederauflage’, in Ausgewählte
Abhandlungen (Duncker, 2004), 244, 252.

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 82 Tim Wihl

As a result, an ordered competition of rights does not open up ‘community-damaging’, but

only state-approved spheres of freedom on the basis of relative societal homogenisation, for
example in the case of the Basic Law’s freedom of opinion, which can be restricted according to
Smend’s ‘theory of balancing’ and which may thus serve as a kind of paradigm.

4.4 KONRAD HESSE: TURNING SMEND UPSIDE DOWN

Konrad Hesse is the most influential student of Smend’s in the Federal Republic. In particular,
he served as a judge on the Federal Constitutional Court and also wrote the most important
textbook of constitutional law under the Basic Law to date. At the same time, he departs from his
academic teacher in many, if not most, respects. His ability to learn and his intellectual
suppleness are evident in numerous gradual changes of position that can be seen in the various
editions of his textbook (for example, on the private law effect of fundamental rights or on
general freedom of action).
Personally, he is portrayed as a man of balance and this temperament was reflected precisely
in his legal convictions and judicial practice. In this way, he may have played his part in shifting
the Basic Law to the social ‘center/middle ground’ so overly valued in post-1949 Germany.34 The
FCC judgment on co-determination in companies then appears as an expression of ‘balance’,35
the judgments on public broadcasting as ‘reality-based’36 (the latter because Hesse laid the
foundation for the typically German dual broadcasting system, in which private broadcasting is
not given priority as neither publicly nor privately organised media guarantee sufficient diversity
on their own. Instead, they both require a constitutional framework in order to be able to
develop in the spirit of pluralism of opinions). The Court has stuck to this convincing, ‘realist’
line, arguably performing an invaluable service to German democracy to this day.
The constitutionalisation of the entire legal order, that is, in particular, the radiation effect of
fundamental rights on private law as a typical part of a strongly substantive concept of the
constitution, became a focus of Hesse’s influence on the Court. This was ironic because Hesse
was initially rather cautious about this tendency.37 He had himself advocated tying the private
law effect of fundamental rights to the criterion of social and economic power. Later, however,
he spoke of ‘protective, guideline, and impulse functions’ of constitutional law vis-à-vis private
law.38 He continued to emphasise the importance of private law for human self-determination,
but now saw the main problem not so much in substantive constitutionalisation as in overtaxing
the constitutional court. From his point of view, it was the legislature that should act.
From a theoretical-scientific, rather than a constitutional-court perspective, Hesse’s greatest
legacy probably remains the methodological figure of ‘practical concordance’, even if it origin-
ates from Richard Bäumlin. At its core, it involves the balancing of conflicting fundamental
rights positions. Constitutionally protected legal interests must be harmonised with each other in
such a way that each of them gains reality, and limits must be set to both goods so that both can
achieve optimal effectiveness. This only makes sense if the entire constitution is regarded as a
totality of legal ‘values’ that (reciprocally) limit each other – a highly dubious claim because it

34
A. Voßkuhle and J. Schemmel, ‘Der Staatsrechtslehrer Konrad Hesse als Richter des Bundesverfassungsgerichts’
(2019) 144 Archiv des öffentlichen Rechts (AöR) 425, 432.
35
Ibid.
36
Ibid., 433.
37
Ibid., 438.
38
Ibid., 439.

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 Rudolf Smend’s Legacy in German Constitutional Theory 83

reifies the legal constitution into a ‘superstructure’ in the realm of (Schmittian)

political legitimacy.
In his lecture ‘The Normative Power of the Constitution’,39 Hesse spells out the constitution’s
reference to reality. This is not an independent world of ideas, but always demands its final
realisation in the real world. In doing so, Hesse adopts Smend’s process thinking. The claim to
validity cannot be detached from the historical conditions of its realisation:40 ‘Reality-condition-
ality and normativity of the constitution can only be distinguished; they can neither be separated
from each other nor identified with each other.’41 Obviously, this conception of normativity is
directed both against a Lassallean rash (supposedly materialistic) identification of the consti-
tution with actual conditions and against an overly idealistic opposition of the constitutional
ideal and a bad reality. Both positions were constitutionally useless, Hesse believed. Admittedly,
this meant a defence of the Basic Law against its numerous detractors at the time, but perhaps
somewhat underestimated the polemical–provocative potential of a ‘raw’, young constitution,
which was also directed or had to be directed head-on against restorative tendencies in society.
This aspect was later emphasised by Wolfgang Abendroth, Helmut Ridder and Jürgen Seifert
with their normatively more demanding interpretations of the Basic Law. Hesse, on the other
hand, wrote that no one could hope ‘that the tensions indicated here between constitutional
standardization and political and social reality would lead to a serious conflict between the two.
The outcome of such a conflict would by no means be certain (. . .)’.42
Possibly clairvoyantly, Hesse saw the most important challenge in strengthening the ‘will to
the constitution’, that is, popular identification with its commands, which was not and is not
always self-evident at the time or even today. After all, the federal government at the time was
more inclined to abuse the court (e.g., in the proceedings against the Communist Party), and
the after-effects of the fascist dictatorship were evident everywhere, for example in the prominent
role of National Socialist functionaries in key positions in West German society and in the
relentless persecution of communists or homosexuals. Both of these groups suffered from
continuing criminalisation, and thousands of them got convicted under the 1951 political crimes
law and the infamous §175 (male homosexuality), respectively, until the end of the 1960s.
Smend’s legacy lives on in Hesse’s work, above all in the postulated openness of the consti-
tution to historical change. This is somewhat surprising in that Smend himself had pursued
more conservative intentions with his doctrine of integration. However, the processual character
of integration could be perfectly suited to the needs of post-war democracy for a theory of the
evolving constitution, which is still part of constitutional self-understanding today. Originalism
has never had a real chance in the constitutional interpretation of the Federal Republic. One
may regret this insofar as the spirit of constitution-making in a post-totalitarian 1948 Constitution
was, after all, quite different from that of the US founding in the eighteenth century. The
progressive potential of a short-lived anti-fascist consensus was thus possibly wasted.
Later on, the true dialecticians of German constitutional theory, such as Ridder, were to
remind us of this again and again: dialectics in the doctrine of the normativity of the constitution
means pushing it to the extreme and, in constructing the case, also engaging with the facts
unconditionally, and that often means materialistically – by looking for all the material interests

39
K. Hesse, Die normative Kraft der Verfassung (Tübingen: Mohr, 1959).
40
D. Grimm, ‘Offenheit als Leitmotiv im Verfassungsverständnis von Konrad Hesse’ (2019) 144 AöR 457.
41
Hesse, Kraft, 8.
42
Ibid., 24.

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 84 Tim Wihl

involved. However, rudiments of this dialectical thinking can also be found in Hesse, not only in
his aforementioned lecture, but also in his magnum opus, the textbook on constitutional law.
The ‘Grundzüge’ (the title of Hesse’s famous textbook) work their way consistently from the
politics to the theory to the dogmatics of the constitution. In doing so, the entire enterprise can
be characterised as Hesse’s ‘turning Smend from his head to his feet’, with set pieces ranging
from Hermann Heller to modern political science. Smendian set pieces generally remain purely
rhetorical. Throughout, even against Smend and the anti-positivists, Hesse rejects a norm-
theoretical special status of the constitution vis-à-vis statutory law. He goes so far as to discuss a
‘constitutional interpretation in conformity with the law’.43 This is the flip side of the consti-
tutional interpretation of sub-constitutional law and, for Hesse, simply an expression of the
strong interrelatedness of ordinary law and the constitution, ultimately even of the ‘unity of the
constitutional and legal order’. For Hesse, this unity is virtually a fetish of constitutional
interpretation: the individual norms of the constitution are not to be read in isolation, but
always in their logical context. Hesse extends the idea to the entire legal order: This must –
above all – be free of contradictions.
At this point, the undialectical trait of Hesse’s thought perhaps comes to the fore most clearly.
Ideas of continuum and process may dominate the entire textbook, but these are largely not of
the type of sharply contoured contradictions and conceptual contrasts, but rather animated by
the will to harmonise. Thus, although the constitution shapes the entire legal order, it is also for
its part concretised by laws, and requires, moreover, the ‘will to it’ in the everyday application of
the law, and remains itself determined by contradictory norms that are never resolved, but are to
be defused by balancing them. Moreover, unity is understood as the ‘political unity to be
constantly won anew . . . made possible and brought about by agreement or compromise, by
tacit consent or mere acceptance and respect, under certain circumstances even by successfully
exercised coercion, that is, a unity of a functional kind.’44 Here, Hesse skilfully avoids the shoals
of the concept of the political unity of the state, as they had burdened the Weimar and fascist
discussions. Nevertheless, the orientation toward unity as the overriding goal of Germany’s
historical development from 1800 to 1990 (and today?) remains. This definition of direction is
not necessarily emancipatory, but it is certainly taken over in essence from Smend and others.
The insertion of the functional aspect is quite typical for Hesse, who likes to rely on a sociologic-
ally sober theory of the state, which largely replaces Smend’s theory of integration’s statist surplus
with sociological rationality.

4.5 DE-DIFFERENTIATION OF STATE AND SOCIETY

The Constitution is the ‘basic legal order of the polity’. This formulation is important45 because
it refers not only to the state, but it can also potentially shape social life. In general, Hesse, like
Smend, is sceptical of an overly strong separation of ‘state and society’. As a leitmotif, the critical
questioning of this dualism can be found in the work of other scholars,46 and, in the Federal
Republic in general, it represents an important prerequisite for a materialisation of the consti-
tution and constitutionalisation of the legal order.

43
K. Hesse, Grundzüge des Verfassungsrechts der Bundesrepublik Deutschland, 20th ed. (C. F. Müller, 1995/1999), 33.
44
Ibid., 6.
45
Cf. Grimm, ‘Offenheit’, 461.
46
For example: H. Ehmke, ‘Prinzipien der Verfassungsinterpretation’ (1963) 20 VVDStRL 61.

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 Rudolf Smend’s Legacy in German Constitutional Theory 85

Dieter Grimm comments on the problematic balance of rigidity and openness of the consti-
tution in Hesse and Smend: ‘. . . the fulfillment of the integration mandate “will often be
achieved in ways that are not exactly constitutional.” Unlike Hesse, however, Smend does not
take offense at this. Deviations from the constitutional trajectories would do better justice to the
meaning of the constitution than a “more faithful to the paragraph” constitutional life.’47
If Hesse wants to stick to the limits of the constitutional text, this also shows in his interest in
rationalisation and a certain sobering up, which is contrary to Smend’s more irrationalist
inclinations. In case of doubt, rationalisation beats integration for Hesse. In general, Hesse’s
textbook is characterised by the spirit of an imperfect Westernisation, a primacy of securing
freedom on an individualistic basis, but still within the unity of the state.
Hesse also takes some of Smend’s claims more seriously than Smend himself. This applies, for
example, to his more rational methodology. Hesse realises the dynamics of the constitution,
which Smend proclaimed more than he realised, on the basis of the concretisation-oriented
methodology of his eminent student Friedrich Müller, which aims at a rigorous (‘concrete’)
construction-interpretation of the constitution in view of the facts of the particular case. Instead
of being integrated by the ‘ethos’ of a ‘bourgeois’ constitutional order, it is thus integrated by
rational legal practice.
Democratic politics is accordingly affirmed insofar as the role of the judge is more rationally
circumscribed. According to Hesse, it is precisely in order to be able to concretise the consti-
tutional text in a rationally justified way that one must demonstrate one’s own prior understand-
ing of constitutional theory in a transparent way. The reflexive rationality that can be achieved in
this way takes the place of the meta-constitutional yardstick of the contribution to ‘integration’.
Although a spirit of balancing pervades Hesse’s unity-regulated constitutional theory, he
nevertheless speaks out against any merely abstract balancing of constitutional goods. The
best-known doctrine associated with his writing, namely the ‘practical concordance’ of funda-
mental rights, works much more concretely than an unstructured balancing.
More concrete, more sober, Hesse’s textbook also makes other substitutions, all of which are
concessions to a sociological–political enlightenment: Politics instead of the ‘political’, sociology
instead of phenomenology, action instead of the ‘integration process’. A pseudo-sublation of
opposites (which has absolutely nothing Hegelian about it because of its open disregard for
social facts) is displaced by questions of organisation, power and the separation of powers.
Pluralistic conflict-orientation moves in. Substantially, a lot is closer to Hermann Heller than
to Smend. The contents of the textbook are also substantially different; Hesse talks a lot about
political parties, democracy and the sozialer Rechtsstaat (Heller). There remains a certain, but
now democratically purified, anti-relativism. His remarks on federalism favour stronger central-
isation, which Smend had vocally criticised.
Hesse also has an interesting comment to make on the interpretation of fundamental rights as
an ‘objective value system’ by the Federal Constitutional Court,48 which is so central to the
materialisation of the German constitution: instead of working through in detail the fierce
criticism of it, especially from the liberal–conservative or Schmittian side, but also from the left,
he interprets the invocation of fundamental rights as values primarily as a temporary solution, a
stopgap of the Court. Values were invoked because rights as norms had not yet been sufficiently

47
Grimm, ‘Offenheit’, 463.
48
FCC – Lüth decision (1958) (s.a.).

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 86 Tim Wihl

concretised and contoured. This also had the advantage of referring to international human
rights as a system of values.49 Hesse probably hits an important point here.
The more fundamental rights have been ‘concretised’ through case practice, that is, they have
gained reality through the development of legal topoi, the more any direct recourse to values is
prohibited.50
The fact that it is thus also forbidden to resort to abstract trade-offs follows from this
concretisation theory of constitutional norms. Once again it becomes clear that Hesse turns
Smend upside down by means of his methodological (besides the social-scientific) innovations.
Therefore, it would also be mistaken to understand his idea of practical concordance, taken over
from Bäumlin, as a simple balancing that tends to be repressive (or repressive-tolerant) because it
is abstracting. Hesse writes on practical concordance, which he by no means conceives only as a
fundamental rights doctrinal figure and even less only as a collision management mechanism of
boundless fundamental rights in reasonableness tests (as suggested in more recent legal text-
books): this requires the ‘proportionate’ allocation of fundamental rights and legal
interests limiting fundamental rights. Both would have to reach optimal effectiveness in the
individual case.51
Also striking, because they are contrary to Smend, are Hesse’s many theoretical
statements on democracy as a principle – with which Smend could do nothing, but which
Hesse very clearly designs as a necessarily representative system on indeterminate ‘realistic’
grounds and which, like so much else in constitutional law, he understands as an expression
of the modern ‘rationalisation’ of rule. Hesse’s conception of rational rule is almost Weberian in
kind: the state becomes demystified and lives on as a bureaucratic machine in a society
of ‘organisations’.

4.6 RICHARD BÄUMLIN

Finally, I would like to add a few words about the Swiss constitutional lawyer Richard Bäumlin,
who was certainly Konrad Hesse’s equal and whose work also exerted a rather significant, too
often overlooked influence in Germany. Regarding Bäumlin, Grimm remarks:
Bäumlin pushes the idea of the historicity and the consequent objective character of law. In this
context he quotes Hesse’s inaugural lecture approvingly. But in the course of Bäumlin’s investi-
gation, the character of law as a ‘concept of stabilizing behavior’ recedes more and more behind
the processual, until in the end it can only be understood ‘from its completion, as an event of the
realization of law’. Hesse sees in Bäumlin’s conception ‘an essential modification of traditional
terms and distinctions, insofar as it does not render them irrelevant at all’. Since everything is
ultimately only process, Bäumlin is rightly asked by Hesse in the review of his writing whether
law, if it depends solely on the respective concretization, does not become ‘an all too easily
disposable quantity’.52

This seems like a rather harsh judgment with regard to Bäumlin’s later and more concrete
writings, which appear to paint a more diverse picture.

49
Hesse, Grundzüge, 20th ed., 135.
50
For a summary account of his theory of rights, cf. K. Hesse, ‘Grundrechte – Bestand und Bedeutung’, in E. Benda, H.-
J. Vogel and W. Maihofer (eds.), Handbuch des Verfassungsrechts (De Gruyter, 1984), 79.
51
Hesse, Grundzüge, 20th ed., 142.
52
Grimm, ‘Offenheit’, 463.

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 Rudolf Smend’s Legacy in German Constitutional Theory 87

For Bäumlin, freedom of conscience was a concise example to demonstrate that the individ-
ual can neither be harshly opposed to the state (for then conscience as a private thing would be
irrelevant for law) nor be identified with it (that would be totalitarian). So there remained only
one way of mediation:
The idea of the ‘constitutional polity’ understands the state from society. The political society is
the civil society with respect to a certain function: the solution of social conflicts by coping with
absolutely necessary (but related to historical utilitas) community tasks. A principled resolution
of the conflict between individual conscience and societal-state sanctioned notions of rightness
is not sought (‘open society’). Rather, it is a matter of establishing optimal concordance, of
developing workable solutions to the conflict.53

So here it reappears, the leitmotif of ‘optimal’ or ‘practical concordance’. Interestingly, it is not

a matter of any liberal notions of the material rule of law, but only of defining the function of
the democratic legislative state. The latter must exercise restraint and be tolerant – no less, but
above all no more:
6.1 The guiding principle is ‘tolerance as a legal principle’. Concordance is tolerance
in practice.
6.2 Freedom of conscience imposes limits on the state. However, it also imposes a duty of
concretization. It is a matter of shaping the legal order in such a way that the possibilities of
conflict are limited as far as possible in advance. Where conflicts can be avoided by alternatives
which are acceptable to the community, such alternatives should be provided.
6.3 The concordance of ‘freedom and obligation’ (e.g. also the question of the acceptability of an
alternative solution) is always a question of case-related balancing of legal interests. However,
problem-structuring principles can be developed.54

Bäumlin – following the direct-democratic tradition of Switzerland – does not move away
from this scepticism towards a hypostasised rule of law (‘Rechtsstaatlichkeit’) even later. This part
of Bäumlin’s doctrine, which distinguishes him considerably from Smend’s doctrine of integra-
tion, shows, once again, how little of the authoritarian, statist trait of Smend’s doctrine remained
among his most important students. Bäumlin’s rejection of an excessively ‘materialised’ inter-
pretation of the constitution in the interest of bourgeois individualism and private-sector actors
goes so far that, together with Helmut Ridder, he passes a rather scathing judgment on the
original integration doctrine in the 1984 ‘Alternativkommentar’.55 Following them, this doctrine
was ‘decidedly anti-liberal’, inspired by Italian fascism, and ultimately wanted to return to a sort
of renewed Bismarckian constitutionalism. Very unlike the late jurisprudence of the Federal
Constitutional Court, a strongly pronounced constitutionalisation of democratic majority rule is
met with the greatest scepticism. This important, de-materialising critique was soon taken up by
Ingeborg Maus’ radical–democratic constitutional theory and Jürgen Habermas’ opus ‘Between
Facts and Norms’.
Ultimately, the most important Smendians in the Federal Republic no longer agreed on how
the deeply materialised constitutional order of the Federal Republic should be judged (demo-
cratically) with regard to the democratic legitimacy of the Court as a counter-majoritarian body
or, rather, substitute/ersatz institution for Parliament when it comes to balancing so-called
53
Bäumlin, ‘Gewissensfreiheit’, 28.
54
Ibid., 31.
55
R. Bäumlin and H. Ridder, ‘Rechtsstaat’, in R. Wassermann (ed.), Alternativkommentar zum Grundgesetz
(Luchterhand, 1984), 1288, 1305.

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 88 Tim Wihl

constitutional values. They remained deeply divided on questions such as the ‘Wertordnung’
(value order) of the Basic Law or liberal-democratic separation of powers. For an, in the eyes of
many, overly materialised, multi-layered constitutional order increasingly limits the democratic
sovereignty of the people. Even the Constitutional Court itself has shown some signs of self-
doubt lately. During the COVID-19 Pandemic, the Court has been mostly deferential to all
kinds of emergency legislation. Clearly, Smend himself did not provide any useful yardsticks for
an answer to the question of how much ‘democratic deference’ is due by the Courts, which
today seems more open than ever.

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 5

The Constitution in the Material Sense According to

Costantino Mortati
Lucia Rubinelli*

This chapter will examine the legal and political thought of Costantino Mortati, the Italian consti-
tutional thinker who, more than any other, dedicated time and effort to theorising the material
aspects of twentieth century constitutions. Writing during and after the fascist regime and in
opposition to Italian and German legal positivism, Mortati was committed to exploring the ‘grey
area between law and politics’. This space, where law and politics meet and merge into each other,
was seen by Mortati as the source of all normativity and had to be studied as such. To do so, he
developed the theory of the ‘constitution in the material sense’, which he juxtaposed to the legalism
of those who focused exclusively on the formal aspects of the constitution. This emphasis on the
material reality of the constitution led him not only to theorise about it, but also to actively promote
means of popular participation suitable to uphold the material constitution and keep its relationship
to the formal aspects of law active and dynamic. In what follows, I will first offer a brief overview of
Mortati’s life and oeuvre, aimed at situating his intellectual commitments within wider debates
taking place in Europe, and especially in Italy and Germany, at around the same time. Second, I will
provide a detailed discussion of Mortati’s concept of the ‘constitution in the material sense’, in which
I will highlight how it differs from the formal constitution and discuss its two fundamental features:
the essential content and the normative material elements. Last, I will focus on the political and
institutional implications of thinking about the constitution as a by-product of material relations.
This, in Mortati’s view, demanded committing to extensive forms of popular involvement in the
political process which, alone, could guarantee the correct correspondence between the material
reality of social relations and the formal positivity of the legal system.

5.1 THE GREY AREA OF POLITICS AND LAW

Throughout his long life, Mortati remained consistently committed to studying the workings of
the legal system, with a specific focus on the constitutional order. This, in his view, demanded
going beyond the analysis of black-letter law, of the written legal text and of its instantiation in
legal procedures and judgments. By contrast, Mortati was firmly convinced that any given
constitutional order could only be understood when seen as a socio-political artefact. In other
words, he believed that the core meaning of law in general, and constitutional law in particular,
had to be found in the ‘grey area’ where politics and law meet, and where it is possible to identify

*
A longer version of this article appeared in L. Rubinelli ‘Costantino Mortati and the idea of material constitution’ (2019)
40 History of Political Thought 515–546.

89

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 90 Lucia Rubinelli

the political will of a given community and retrace its transformation into a set of formalised
legal provisions. From early on in his intellectual life, he thus decided to make the relationship
between law and politics the centre of his intellectual endeavours. This commitment took the
shape of a sustained intellectual engagement with two strands of legal positivism that were
popular at the time: that of Austrian jurist Hans Kelsen, and that of Italian constitutional theorist
Vittorio Emanuele Orlando.1
In brief, Mortati took issue with Kelsen’s vision of law as a pure science, as theorised in his
Reine Rechtslehre, the Pure theory of law. What worried Mortati about Kelsen’s methodology was
the idea that the origins, validity and functioning of the legal system could be ascribed to criteria
that are either formal or internal to the law itself. This formalistic approach, also adopted by
Orlando, appeared to Mortati like a misguided attempt to free law, and legal science more
broadly, from the context in which they operate, which is necessarily much wider and tangled in
interactions with other spheres of social life. Mortati’s engagement with Kelsen took the form of
a long-lasting effort to come to terms with his strand of positivism, as evident in the fact that he
often criticised him in his writings. Just to offer an example, when analysing the first article of the
Italian constitution for Branca’s Commented Edition, Mortati attacked Kelsen for his anti-
voluntarism. In this context, he argued that Kelsen’s approach reduced the source of legal
normativity to a hypothesis, whose necessary implication was that a legal act is willed simply
because it is valid. This appeared like a nonsensical conclusion to Mortati, who firmly believed
that legal acts were valid only when it was possible to identify a will behind them.2 In other
words, the validity of legal acts derives, according to Mortati, exclusively from the will.
Similarly, Mortati also took issue with Orlando’s attempts to separate law from politics, as the
following example demonstrates. On 23 April 1947, both Mortati and Orlando were sitting in the
Italian Constituent Assembly, which was discussing the desirability of regulating ethical and
social relations in the constitutional text. Orlando spoke against this proposal, arguing that all
norms that touched on social, political or even moral issues had to be excluded from the
constitution, insofar as they were not formal legal problems, and hence had no place in a
constitutional text. Mortati responded accusing Orlando of misleadingly trying to separate what
cannot be set apart: the purely legal from the social and political context from which it arises. All
legal norms, Mortati maintained, directly derive from considerations that are socio-political in
nature, and it is precisely their relationship to these socio-political origins that gives them legal
validity.3 The distinction between purely legal and socio-political norms is thus a chimera, all
norms are political in Mortati’s view.
Although these examples do not do justice to the complexities of both Kelsen and Orlando’s
thought, they point to the main difference that separated legal positivism from Mortati’s
approach. While legal positivism portrayed law as an independent and autonomous sphere,

1
For a detailed discussion of Mortati’s relationship to German legal thought see I. Staff, ‘Costantino Mortati: Verfassung
im materiellen Sinn. Ein Beitrag zur Rechtsentwicklung im faschistischen Italien und im Deutschland der Weimarer
Zeit und im Nationalsozialismus’ (1994) 23 Quaderni fiorentini per la storia del pensiero giuridico moderno 265; I. Staff,
Staatsdenken Im Italien des 20. Jahrhunderts Ein Beitrag Zur Carl Schmitt-Rezeption (Nomos, 1991). On Italian
formalism and Orlando see M. Fioravanti, ‘Dottrina dello stato persona e dottrina della costituzione – Costantino
Mortati e la tradizione giuspubblicistica italiana’, in M. Galizia and P. Grossi (eds.), Il pensiero giuridico di Costantino
Mortati (Giuffre, 1990), 45–186.
2
C. Mortati, ‘Commento all’art. 1 della Costituzione’, in G. Branca (ed.), Commentario della Costituzione (Zanichelli,
1975), 1–50. A similar point is raised in C. Mortati, ‘Costituzione dello stato’, in Cosa-Delib., Enciclopedia del Diritto
(Giuffrè, 1962), vol. XI, 152. See also C. Mortati, La volontà e la causa nell’atto amministrativo e nella legge (De Luca,
1935) and V. Frosini and F. Riccobono, ‘Mortati e Kelsen’, in M. Galizia (ed.), Forme di stato e forme di governo: nuovi
studi sul pensiero di Costantino Mortati (Giuffrè, 2007), 407–30.
3
This exchange between Mortati and Orlando happened on 23 April 1947 and is reported by Fioravanti, ‘Dottrina dello
stato persona’, 168–69.

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 Constitution in the Material Sense 91

Mortati believed that the validity of law could only be ascribed to extra-legal sources, which are
political and social in origins as well as in nature. This belief explains his life-long commitment
to a realist legal methodology, which consisted in identifying ‘the reality of the state with the
system of social forces organised in such a way as to guarantee their supremacy’.4 If the reality of
the state is reliant on a given hierarchy of social forces, the normative validity of the law cannot
be separated from its efficacy, in that both depend on the material reality in which they operate
and from which they arise.5 This material reality, as it will become clear later in the chapter,
reflects a specific organisation of social forces, which are capable of expressing a fine politico, a
‘political goal’. This, in Mortati’s words, is ‘a political idea, whose working entails a certain
degree of political homogeneity, able to create a superior unity comprising the majority and the
minority of the population and able to give shape to all the prerequisites necessary for the
existence of a consistent and harmonious state’s will’.6 The validity and efficacy of a state’s legal
system is thus ascribed to the ability that the dominant social forces have to create unity around
their specific political project and make it appear like a political goal of general import. This
political goal, when successfully established and recognised by the rest of society, becomes the
source of both legal and political normativity, giving shape to the unity and coherence of the
legal system from the outside. It thus follows that, contrary to legal positivism, this political
source of normativity cannot be discovered in the mere working of the legal system, nor can it be
recognised in a hypothetical norm that has no relationship to the material and contextual reality
of a given state. The only methodology truly apt to investigate the foundation of a legal system is
the study of the ‘grey area of politics and law’, which is where the fine politico is first articulated,
then translated into legal norms and finally applied to the institutional and constitutional
structure of the state. Understanding the workings and logic of a constitutional system thus
demanded, according to Mortati, looking at the fundamental political projects and values that
inspired its functioning and reconnecting these political values to the social forces that estab-
lished them as fundamental political goals for the state.

5.2 THE CONSTITUTION IN THE MATERIAL SENSE

The key tool for the study of the ‘grey area’ between politics and law is the concept of material
constitution. This, as will become clear in the following paragraphs, is part of a conceptual pair,
whose other pole is the idea of formal constitution. Mortati’s reliance on this dichotomy is key to
understanding two aspects of his work: on the one hand, it allowed him to explore how the
formal legal text relates to the material context in which it operates, by foregrounding the
importance of the fine politico and of the social forces that maintain it. On the other hand, this
shift in focus, away from the formal legal text and toward the socio-political relations that
underpin it, allowed Mortati to give institutional and organisational priority to the ‘extra-legal’
aspects of the constitution. While this second implication will be discussed at length in the
Section 5.3, I will now focus on the explanatory power of this dichotomy, and of the concept of
material constitution more specifically, for Mortati’s realist study of legal theory.

4
C. Mortati, Istituzioni di diritto pubblico [1949] (CEDAM, 1969), 33.
5
This methodological orientation, it should be noted, is heavily indebted to the work of Santi Romano, one of the most
prominent anti-positivist thinkers in Italy, to whom Mortati dedicated his 1940 La Costituzione in Senso Materiale. See
C. Mortati, La costituzione in senso materiale (Milan, 1998 [1940]). Romano not only built upon the French
institutionalist tradition, but also argued that the legal system results from the ‘spontaneous secretion’ of norms from
society. Further, Romano’s belief that ubi societas, ibi ius provided a rich source of methodological inspiration for
Mortati. See Santi Romano, The Legal Order (Routledge, 2017).
6
Mortati, La costituzione in senso materiale, 55.

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 92 Lucia Rubinelli

To do so, it is necessary to start by what Mortati meant by formal constitution. This, in its
more general formulation, is the actual text of the constitution, the legal document. It regulates
the workings of state institutions by setting norms and procedures. And yet, it has no normative
value in and of itself. This is because, according to Mortati, and differently from (old) positivist
thinkers, the core content of the constitution [il contenuto proprio] cannot be identified in the
text of the constitution. The latter amounts to a list of organisational and technical prescriptions,
that say nothing about the political orientation of the constitutional system, its aims and its
political goal. It follows that the legal text does not have the force to demand obedience, but its
power is limited to describing the mode of existence [modo d’essere] of the legal system.
Otherwise said, the formal constitution is a photographic description of an existing order which,
like all descriptions, has no power to ground the validity of the object it describes, let alone
enforce its content and demand obedience for it. As such, the formal constitution is needed to
visualise the state’s legal system and to organise its organs and their reciprocal relations at
institutional level. In turn, the descriptive capacity of the formal constitution makes the legal
system intelligible to itself and internally consistent, thus enhancing its applicability and
functioning. The main implication of this way of thinking about the legal text of the constitution
is that of importantly deflating its role and status in legal theory. It is indeed clear that, for
Mortati, it is ‘impossible to retrace in the formal elements the defining features of the consti-
tution, as the former, by themselves, can in no way perform the tasks of identification, guarantee
and unification that are proper of the constitution’.7 The role of the formal constitution is thus
limited to purely organisational and instrumental tasks. The actual core content of the consti-
tution, what gives it normative power and validity, is to be found elsewhere. Those who ‘want to
deduce the actual core content [contenuto proprio] of the constitution from the constitutional
text necessarily lead to absorbing the material determination into the formal, and, eventually, to
denying the autonomous function of the constitution’.8 And the autonomy of the constitution,
for Mortati, lies in the fact that it does not merely describe the presence of a legal political order.
Rather, it brings it into existence by prescribing its defining features, its core content, and
making it valid and binding. This prescriptive power, the contenuto proprio of the constitution,
can only be found in the material reality of the latter.
The constitution in the material sense is comprised of two distinct elements. The first is what
he calls the ‘typical and essential content’ of the constitution – which Mortati also calls the fine
politico – and the second is the ‘normative material elements’ that give shape to the essential
content of the constitution. Starting from the normative material elements, it should be noted
that these refer to the specific socio-economic relationships that shape a specific political goal,
make it emerge and impose it on the general population. It is important to note, at this point,
that Mortati never refers to ‘society’ as a relevant agent in this context. Society is a general term
that refers to an abstract entity, which, by definition, is too general and abstract to be able to act
in the first place. It thus follows that society at large cannot be considered the normative material
element at the origins of a fine politico. When taken in its pure pre-state form as a spontaneous
general will, society – or ‘community’, ‘nation’ and ‘people’, for that matter – has no direct
juridical character. If considered as the sum of citizens, active in an already established state
formation, it only refers to passive individual citizens, who have no specific relation to each other

7
Ibid., 201.
8
Ibid., 7. Mortati criticises Kelsen in a similar way also in Mortati, ‘Costituzione dello stato’, vol. XI, 152. There he says
that it is unacceptable to ‘identify the point of reference of the legal system in a hypothetic norm, detached from the
structure in which it is rooted and relegated to the domain of legally unknowable’.

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 Constitution in the Material Sense 93

and hence cannot contribute to shaping the political goal of the constitution. If it refers to a
collective entity, then it is too general to identify any specific actor and is thus only useful to
indicate the recipients of the law, the entity that is organised by the specific vision of politics
enshrined in the constitution. It should thus be clear that, for Mortati, the fine politico does not
come about from the general will of an abstract and undifferentiated social whole.
On the contrary, the agent behind the articulation of the contenuto proprio of the constitution
is always a complex entity, made up of a number of different social forces that coalesce and unite
around ‘basic elements of organisation’. As Mortati explained:
the content of the material constitution that we are looking for here . . . cannot be found but in
the social community itself, yet no longer considered as an undistinguished whole, but as
organised according to a minimum level of organisational elements that are necessary to
conceive of society as capable of action.9

These organisational elements consist in the specific organisation that given social groups obtain
to act collectively and gain power and influence over competing social forces. The organisa-
tional elements amount to ‘the production, within society, of a certain organisational structure
indicating the position of its members whereby some succeed at exercising power over others
and obtain their obedience’.10 It follows that the first feature of the material constitution, its
‘normative material elements’, amounts to a given configuration of power as reflected in the
relative strength and organisation of given social groups. As such, this configuration is always the
expression of relations of power, where one or more groups succeed at imposing themselves
upon others. The group, or groups, which end up shaping the fine politico and giving normative
substance to the constitution
can result from unitary social forces which present themselves as a unique subject, because they
share the same interest and represent only one centre of political unity. Alternatively, it can
result from a compromise between different forces, which agree, during the constituent phase,
to establish a common ground where various interests able to create a solid political order meet,
merge and secure their pacific coexistence.11

In both cases, there are forces that dominate and forces that remain out of the picture and are,
thus, dominated. Yet these forces can either passively accept their condition of domination or
actively seek to challenge and contest it. And the movements sparked by competition among
dominant and dominated forces explain the changes in meaning, efficacy and normative value
of the formal constitutional text.
Alongside the normative material elements, the other feature defining the constitution in the
material sense is what Mortati calls the ‘essential content’. While the former refers to the
material relations that are at the origins of constitutional normativity, the latter points at what
the content of this normativity is. This is equivalent to what Mortati calls, in other passages, the
fine politico or the contenuto proprio of the constitution. All three expressions are used to
indicate the ‘grey area’ between politics and law, the space in which a contingent and partial
political project, elaborated by a given configuration of socio-economic groups, is transformed
into a general principle valid for the entire community. This principle then becomes the
foundation of the constitution, which gives meaning and normative purchase to the formal text
of the law. The essential content of the constitution thus acts as the ‘centre of unification for the

9
Mortati, La costituzione in senso materiale.
10
Ibid., 75.
11
Ibid., 25.

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 94 Lucia Rubinelli

life of the community, that distinguishes and protects it from the outside, from other commu-
nities living in other territories, and organises from the inside the conflict of contrasting interests
through the determination and protection, even through violence, of the interests considered as
prevalent.’12 As the quote makes clear, the ‘essential content’ of the constitution becomes a
principle of unification of the community as well as a tool of organisation of its social and
political life. It articulates the identity of the community and posits it as a political will to be
realised and obeyed by all members of society. In other words, it gives structure and direction to
the whole community and, in so doing, it distinguishes it from other political communities. And
yet, Mortati is careful to underline that the ‘essential content’ should not be mistaken for the
expression of the general will: it always and unmistakably relates back to the initial interests of
the dominant social groups which, thanks to their relative position vis à vis the rest of society, are
able to transform their particular vision of politics into an authoritative power, that becomes the
‘stable centre of qualification of social activities, of their diverging relevance vis-à-vis the political
goals it presents as necessary’.13 In short, the dominant social groups succeed when they
transform their political vision into the ‘idem sentire de repubblica’.14 This is what Mortati means
by ‘essential content’ of the constitution, which not only expresses the fundamental principle of
order for the political community but also institutionalises the relationship between dominant
and dominated social forces. This relationship reflects both sheer asymmetries of power and the
relative distance that separates various groups from the fine politico. This indeed becomes the
reference point against which the legitimacy of competing visions of politics and the social
groups that underpin them is assessed. As Mortati argues, the material constitution ‘does not
contain only the indication of the goals to be achieved, but it also expresses the relevance of the
values of the dominant group and creates an organisation aimed at their maintenance’.15 The
material constitution is not indifferent to the reciprocal relation between social forces, but is
instead committed to crystallising them in favour of the forces that first expressed the fine
politico, its ‘essential content’. This institutionalisation of social relations is guaranteed by the
relative rigidity of the formal constitution, even though Mortati admits that minor changes and
revisions are needed to absorb and integrate competing forces and draw them closer to the
dominant fine politico. The goal is that the ‘essential content’ of the material constitution, as
reflected in its formal text, is ‘rigid enough to be a stronghold in the oscillations of forces and
their relationships over time, but it is also elastic enough to look over the working of the associate
life, thus allowing for the amendments it requires’.16 As such it harmonises and unifies the static

12
Ibid., 76.
13
Ibid.
14
Ibid., 118.
15
Ibid., 206. In underlying the tight connection between the legal system and the interests of dominant forces in society,
Mortati is unmistakably close to Antonio Gramsci. Not only does Mortati’s dominant social force resembles Gramsci’s
party as the modern prince, but also Mortati seems to echo some aspects of Marxist materialism, that is, the law as
expression of the material interests of dominant social forces. Yet, up until 1962, Mortati makes little to no reference to
the idea of social classes, nor anything that could suggest that the law is purely super structural (on the contrary,
Mortati repeatedly refers to values too). In addition, it is unlikely that, when writing La costituzione in senso materiale,
Mortati had any knowledge of Gramsci’s work. See M. Loughlin, Foundations of Public Law (Oxford University Press,
2010), 397 and M. La Torre, ‘The German Impact on Fascist Public Law Doctrine – Constantino Mortati’s Material
Constitution’, in C. Joerges and N. Singh Ghaleigh (eds.), Darker Legacies of Law in Europe: The Shadow of National
Socialism and Fascism Over Europe and its Legal Traditions (Hart, 2003), 340.
16
Mortati, La costituzione in senso materiale, 88.

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 Constitution in the Material Sense 95

and dynamic elements of society, making sure that the fundamental fine politico remains the
unchallenged source of juridical normativity as well as of social stability.
And yet, the material constitution cannot remain permanently stable. Even though its content
tends to remain stable over long periods of time, as the social forces that underpin it keep their
hold on society, it is eventually destined to change. Mortati offers a long historical perspective,
when discussing changes in the material constitution. He is clear that a simple constitutional
revision, a mere change in government or a shift in balance amongst parties in parliament, does
not add up to a change at the level of the material constitution. These are superficial changes,
which touch upon the composition of the ruling elite or minor norms and constitutional
procedures. For a change to happen at the level of the material constitution, more is needed.
In fact, the single most important signal of such change is a radical shift in the vision of politics
underpinning a given political system. For a liberal constitutional state, that would mean
abandoning the principles of rule of law, party pluralism and alternation in government in
favour of, for example, a fascist dictatorial regime. Another example, Mortati suggests, can be
identified in France in the passage from the monarchical system based on the ancien régime to
the revolutionary regime based upon the principle of popular sovereignty. This passage reflects a
change from a vision of politics based on an aristocratic system to a democratic regime
underpinned by the principle of collective self-government. It thus follows that it takes time to
change the material constitution, as the new and sufficiently powerful configuration of social
groups needs to coalesce behind an alternative political vision. This is necessarily a slow process
and one that requires structural changes at the level of the organisation and distribution of power
in society. The content of the material constitution is thus certainly open-ended and liable to
challenge, but its tight connection to deeply entrenched social relations makes it extremely
stable in time. This stability, in turn, points to the fact that the sources of normativity, for
Mortati, are never the simple and straightforward outcome of the exercise of power. By contrast,
they emerge from the complexity, durability and materiality of social relations.
In this sense, Mortati’s account of the material constitution is different from Schmitt’s. The
German jurist had also introduced a distinction between ‘the two meanings of the constitution’:
the first being relative and the second absolute.17 The relative constitution refers to the legal text
itself, similarly to what Mortati means by formal constitution. The absolute meaning points
instead at the decision that creates the constitutional text and gives it validity. This could be
interpreted as similar to Mortati’s constitution in the material sense, and there certainly exist
important points of convergence: both describe the political will that gives normative validity
and stability to any given constitutional order. For Schmitt, the absolute meaning of the
constitution refers to a political decision, affirming the creation of a new ordering principle,
and corresponds, roughly, to Mortati’s ‘essential content’ of the constitution. Yet the difference
comes in once we consider the source of the decision in Schmitt. While for Mortati this is found
in the complexity of the ‘normative material elements’, for Schmitt it expresses the unity of the
will of the nation and it is best represented by the bearer of the executive power. Schmitt is
indeed not particularly interested in investigating the specific relations of power that give rise to
the decision. By contrast, once it has been taken, the decision has a normative power of its own.
Schmitt’s account of the material origins of the constitution is thus not satisfactory for Mortati, as
it is not enough to assume that a decision exists to explain the normative, creative and directive
power this exercises upon the state and its legal system. It is on the contrary necessary to

17
See C. Schmitt, Constitutional Theory [1928] (Duke University Press, 2008).

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 96 Lucia Rubinelli

investigate where this decision comes from, what configuration of social relationships make it
possible and what social context makes it meaningful and valid. In other words, Schmitt’s
version of the constitution in the material sense – the absolute constitution – importantly misses
one of the two elements that are key in Mortati’s theory: the role that material relationships have
in shaping the essential content of the constitution. By ignoring the complexity and the
durability of the social relations behind the political decision, Schmitt assumes the normative
validity of the constitution to spring from the unitary will of a fictitiously unitary nation.18 This,
in Mortati’s view, is undesirable both as a descriptive account of the origins of the constitution
and as a political statement, in that it oversimplifies the relations of power active behind the
formal text of the constitution.
But Mortati was not satisfied with attributing the source of the constitution to the Volk
either.19 This is because, although Mortati recognised that society is certainly the material basis
of all legal and political norms, he refused to see it as a unitary undifferentiated actor, with a
unitary national consciousness. The very terms ‘society’ or ‘people’ referred, for Mortati, to an
overgeneralisation that had no use to explain the relations of power behind the emergence of a
given normative constitutional outlook. ‘The people’ does not exist for Mortati, what exists is
only a variety of groups in a constant state of conflict and competition with each other, and it is
precisely from this conflict that the collective will arises and is translated into law.
The differences separating Mortati’s theory of the constitution from similar accounts
developed in Weimar Germany thus signal the main points of originality of Mortati’s thought.
This lies not only in the distinction between the constitution in the formal and in the material
senses but also, and most importantly, in the unpacking of the two elements that comprise the
material constitution: its ‘essential content’ and the ‘normative material elements’ from which
the validity of the constitution arises. These two elements combined have the power to produce
and maintain the constitutional structure, while presenting it not just as ‘the expression of a
purely existential entity, but rather as a deontological one’.20 The study of the material consti-
tution thus helps Mortati achieve a double objective. On the one hand, it allows him to describe
the ‘grey area’ of politics and law, with a degree of precision that cannot be achieved by the
traditional language of constitutional law, which systematically collapses in the term constitution
both the fundamental principle organising the state and its legal structure. On the other hand,
the idea of the material constitution allowed Mortati to move the attention of legal theory away
from the study of purely legal structures, in favour of wider reflections about politics and its
relationship to law. The result was a new focus on the social dimension of law, which becomes
just one amongst other manifestations of a socially embedded political will. In other words, it
shed light on the priority of the ‘grey area’ over the positive text.

18
On Mortati’s relationship to Schmitt, see Mortati, ‘Costituzione dello stato’, 17. See also C. Mortati, ‘Brevi note sul
rapporto fra costituzione e political nel pensiero di Carl Schmitt’ (1973) 2 Quaderni fiorentini per la storia del pensiero
giuridico moderno 511. On Schmitt and Mortati see A. Catania, ‘Mortati e Schmitt’, in A. Catelani and S. Labriola
(eds.), La costituzione in senso materiale. Percorsi culturali e attualità di un’idea (Giuffrè, 2001), 109–28.
19
On Mortati’s interpretation of other German jurists, such as Smend and Heller, see Staff, ‘Costantino Mortati:
Verfassung im materiellen Sinn’ and S. Rossi, ‘La costituzione in senso materiale e il dibattito Tedesco degli anni 20 e
30’, in P. Galizia (ed.), Forme di stato e forme di governo: nuovi studi sul pensiero di Costantino Mortati (Giuffre, 2007),
902–3. For an analysis of Heller’s account of the material constitution and its socio-economic and democratic basis,
see M. Goldoni and M. Wilkinson, ‘The Material Constitution’ (2018) 81 Modern Law Review 576.
20
Mortati, La costituzione in senso materiale, 89. Clearly, it is Kelsen who presented the material elements of the
constitution as purely existential and, hence, excluded them from legal considerations.

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 Constitution in the Material Sense 97

5.3 THE INTERMEDIATE COMMUNITIES

In assigning a new priority to the extra-legal sphere, the study of the material constitution led
Mortati to reflect on the interaction between law and politics. This reflection became particu-
larly urgent and acute once Mortati got involved in politics, at the end of the Second World
War. It is indeed in the early 1940s that he became a member of the Christian Democratic party
and, as such, was elected to the Italian Constituent Assembly. In this new role, he had the
opportunity to test his theory of the material constitution, as well as to apply some of the insights
gained from his studies to post-war politics in Italy. More specifically, during his time at the
Constituent Assembly and in his later written work about it, Mortati relied on his reflections on
the social origins of the constitution to argue for popular involvement in democratic politics,
thus turning his realist analysis into an instrument of normative theorising.21
The starting point of Mortati’s involvement in the constitution-writing process was the
realisation that, with the end of the war and the referendum that installed the republic, a new
fine politico had been established for the Italian state – one he shared and was committed to.
This fine politico was of a clear democratic nature and represented a clear break from that
animating the fascist state. To become the essential content of the new Italian constitution,
however, this democratic principle needed further spelling out and qualification, especially
when considering the diminished – but nonetheless present – influence of formalist theorists
amongst the drafters of the new constitution. He thus committed himself to finding ways to
insert extensive popular participation in the very working of the constitution. This is because he
believed that, when the political ‘fine’ is democracy, ‘each single citizen should actively and
responsibly contribute to create the totality’.22 But for this to be possible, ‘it is key to put in place
the material conditions and the technical instruments necessary to allow every citizen to emerge
from the mass and contribute to the common oeuvre with his personal and unique contribu-
tion’.23 As this quote makes clear, two factors are required for popular participation. The first is
what he calls ‘material conditions’ and the second is the ‘technical instruments’. I will briefly
examine both.
The material conditions intuitively refer to his theory of the material aspects of the consti-
tution. Mortati did not believe that concepts such as ‘society’, ‘nation’ or ‘people’ could point to
any real entity capable of breathing life into a constitution. By contrast, he believed them to be
empty words. In much the same way, also the abstract and isolated individual did not correspond
to any entity capable of action at the level of constitutional politics. As a result, popular
participation could not be conceived of as involving either the unorganised and general public,
for example via direct self-government, or the individual citizen, through occasional instances of
isolated and optional participation. In other words, the material conditions for the expression of
the democratic fine politico demanded a firm grasp of the actual organisation of society, and not
a general and void reference to either society or the individual citizen. This meant, for Mortati,
that participation, to be meaningfully integrated in the state’s constitutional structure, had to be
organised around social groups. The importance of social groups to the realisation of the
democratic fine politico is evident, for example, in Mortati’s endorsement of the institution of
a second chamber organised around the principle of ‘complex representation’. This was meant
to organise political representation around interests and groups, as opposed to atomised

21
For Mortati’s work and reflections following the Constituent Assembly, see C. Mortati, La teoria del potere costituente,
(Quodlibet, 2020), 1–160.
22
C. Mortati, Studi sul potere costituente e sulla riforma costituzionale dello stato (Giuffrè, 1972), 4.
23
Ibid.

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 98 Lucia Rubinelli

individuals, and would have reflected the relative strength of organised groups within society.
But Mortati went further than that and argued that the fundamental unit of a democratic
material constitution was the comunità intermedia or ‘intermediate community’. These would
act as ‘intermediary structures between governors and governed’,24 in that they are social groups
that establish themselves to satisfy needs that arise in relation to the state. This means that,
depending on the relative positioning of the different groups present at any given time,
intermediate communities can act to both solidify the grip of certain groups on the state or to
challenge it. In a democratic state, the presence and action of these intermediate communities is
thus key to channel citizens’ personal as well as group preferences into the daily working of state
institutions and the resulting policy decisions. Amongst the large number of intermediate
communities, the most relevant ones were, for Mortati, the family, religious associations,
cultural organisations of all types and inspirations as well as professional associations and labour
unions. To these, he also added territorial communities, such as regions, provinces and cities.
Citizens would of course be members of a number of different communities at the same time,
which would in turn organise their base around shared values, interests and territories. The role
of the community is thus that of expanding ‘the consciousness of the citizen and their
understanding of the progressively more complex requirements of associational life’,25 and thus
increasing their capacity to act upon it. In other words, the intermediate communities are the
space where the essential content of a constitution is first conceived, elaborated and negotiated.
This is because, in Mortati’s rather emphatic account, the intermediate communities are
organised internally in such a way as to encourage each member to contribute his best, within
the limits of his capacities; to escape anonymity and acquire a personal voice; to express his own
value, that cannot be reduced to a number to be added up to a final count, but that is a soul to be
joined by other souls in a process of common elevation.26

Not only are intermediate communities the institutionalised version of the social groups Mortati
identified as being the actors of the material constitution; their capacity to collectively elevate
particular interests into a common will also closely resonates with the process of creation of a fine
politico.
And yet, the material presence of intermediate communities did not, in itself, guarantee the
realisation of the contenuto proprio of the Italian constitution: technical instruments had to be
put in place to make democratic participation effective and institutionalised. These technical
instruments amounted to a series of institutional mechanisms, to be added to the text of the
constitution, which would give individuals the practical means to act according to the values
and strategies developed in the intermediate communities and, in so doing, shape the orienta-
tion and priorities of the state. These can be divided in two groups, the first pertaining to the
workings of representative democracy, the second relating to practices inspired by direct
democracy.
The technical instruments relying on representation embraced the idea that popular partici-
pation had to be mediated by some sort of political expertise. The most important of such
institutions was the political party. Mortati dedicated much of his work to the study of the
modern party and concluded that it acts as the institutional arm of intermediate communities
and, although different from them, is their loudspeaker. For parties to be successful, however,

24
C. Mortati, La persona, lo stato e le comunità intermedie (Edizioni RAI, 1959), 84.
25
Ibid., 141.
26
Ibid., 83.

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 Constitution in the Material Sense 99

Mortati believed that they should exist in a system of proportional representation. Majoritarian
systems would give excessive powers to the relatively larger party, thus debilitating the pluralism
that was so fundamental to the representation of all social groups, and the corresponding
intermediate communities. To further connect the political party to the relevant social group,
Mortati argued in favour of practices of intra-party deliberative democracy, as well as public
deliberation in the context of party primaries to elect leaders and set the party’s political agenda.
In line with Mortati’s preference for a proportional system, he campaigned in favour of propor-
tional electoral laws, which would make each single vote count and accurately mirror the
composition of society in social groups and intersecting intermediate communities, thus guar-
anteeing as extensive a representation of the complexity of the material constitution as possible.27
Amongst the technical instruments inspired by direct democracy, Mortati referred to the right of
petition, the right to initiate a law-making process and the right to organise referenda. These, in
his view, would have given intermediate communities the possibility of exercising direct influ-
ence upon the formation and realisation of the fine politico, even beyond or against the work of
elected representatives. The referendum, in particular, appeared to Mortati like a truly desirable
way of making sure that the formal constitution would be kept up to date with the changing
material constitution. Following in the footsteps of Carré de Malberg, Mortati argued that the
referendum could create two ‘organs of will’, one made of the citizens and the other comprising
the elected politicians. These instruments, ‘far from being a redundant duplication, are suitable
means to make people’s unmediated participation to supreme political decisions effective’.28 As
a result, all these ‘technical instruments’ gave citizens, organised through intermediate commu-
nities, the means to act upon the direction of the state, to orient it according to their political
visions. The existence of these instruments is thus key, according to Mortati, not only to realise
the democratic fine politico of the new Italian constitution, but also to give space to the forces
active in the material constitution, so as to give them the possibility of imprinting their will and
political vision upon the formal legal text of the constitution.

5.4 CONCLUSION

The theory of the constitution in the material sense, with its related emphasis on the institution-
alisation of popular participation, is the defining feature of Costantino Mortati’s legal and
political thought. Not only did it give shape to his early intuition that, to understand the source
of legal normativity, it is necessary to go beyond the formal text of the constitution and look for
the ‘grey area’ where law and politics meet, it also allowed him to describe and explain the
complex set of material relations that underpin the constitution and give meaning to its political
orientation. Although not alone, Mortati has certainly been amongst the most influential mid-
century European thinkers to reject legal positivism and its formalistic approach to consti-
tutional theory and shift the attention toward the social and political meaning of the consti-
tution. This move, I believe, remains meaningful today, as an inspiration for anyone interested
in understanding the sources of constitutional normativity as well as a heuristic tool to make
sense of the politics of constitution-making and constitutional change.

27
It should be noted that, later in his life, Mortati changed his mind and moved his preferences away from proportional
representation in favour of majoritarian systems.
28
Mortati, Studi sul potere costituente e sulla riforma costituzionale dello stato, 91. See also C. Mortati, ‘Significato del
referendum’ (1960) I Rassegna parlamentare 63.

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 6

The Material Constitution of the Dual State

Lars Vinx

6.1 INTRODUCTION

The term ‘constitution’ is ambiguous. We often use it in ways that imply that to have a
constitution is a contingent characteristic of a state. Phrases like ‘the constitutional state’ suggest
that a state may or may not be constitutionally ordered. There is another sense of ‘constitution’,
however, according to which it is essential for a state to have a constitution. In any securely
established state there must be rules, whether these are merely customary or codified, that confer
and delimit the powers of the key institutions of a state. Such rules will determine, for instance,
how legislative power can be validly exercised and by whom, how it relates to the executive
power of government and to the authority of the courts, and what authority the legislator and the
government have over individual members of society.1
The German-language public law theory of the nineteenth and early twentieth century
originally took the term ‘material constitution’ to refer to the second of the two senses of the
term ‘constitution’ just distinguished.2 The material constitution, thus understood, may take the
form of a formal constitution, that is, of a set of organisational norms and provisions about
individual rights that are laid down in a constitutional document and protected by a rule of
constitutional amendment. But a polity’s constitution can also be purely material, in cases where
those accoutrements of formal constitutionalism are absent.3
This paper will discuss the applicability of the notion of material constitution to National
Socialist Germany in the 1930s. If every state must have a material constitution, and if Nazi
Germany was a state, then Nazi Germany must have had a material constitution. But did Nazi
Germany have a material constitution? I will argue that it did not.
My chapter will begin with a discussion of Ernst Fraenkel’s famous description of Nazi
Germany as a ‘dual state’, composed of a ‘prerogative state’ interacting with a ‘normative state’.4

1
See J. Gardner, ‘Can There Be a Written Constitution?’, in J. Gardner (ed.), Law As a Leap of Faith: Essays on Law in
General (Oxford University Press, 2012), 89.
2
Compare H. Heller, Staatslehre, G. Niemeyer, ed., 6th edn. (Mohr Siebeck, 1983), 309–13 and G. Jellinek, Allgemeine
Staatslehre (O. Häring, 1914), 505–39.
3
For the distinction between material and formal constitution see H. Kelsen, Allgemeine Staatslehre (Springer, 1925),
251–53. Further discussion in L. Vinx, ‘Hans Kelsen and the Material Constitution of Democracy’, Jurisprudence 12
(2021) 466.
4
E. Fraenkel, The Dual State: A Contribution to the Theory of Dictatorship (Oxford University Press, 1941). On
Fraenkel’s Dual State, see J. Meierhenrich, The Remnants of the Rechtsstaat: An Ethnography of Nazi Law (Oxford
University Press, 2018); D. G. Morris, Legal Sabotage: Ernst Fraenkel in Hitler’s Germany (Cambridge University Press,

100

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 Material Constitution of the Dual State 101

The dual state thesis suggests, I will argue, that Nazi Germany did not have any constitution at
all. It was governed, instead, by a form of permanent dictatorship that relied on remnants of
legality for purely prudential reasons but that did not constitute a genuine constitutional order.
I will go on to consider an objection to the claim that Nazi Germany did not have a material
constitution. Carl Schmitt claimed that there are three basic types of jurisprudential thought
(normativism, decisionism, and concrete order thought) that correspond to three basic elements
of legal order (norms, decisions, and concrete or institutional orders).5 Translated into Schmitt’s
terminology, Fraenkel’s dual state thesis describes Nazi Germany as a combination of a residual
normativism (the normative state) with a legally unfettered decisionism (the prerogative state).
This analysis, Schmitt would likely have claimed, is deficient since it considers only two of the
three basic elements of juristic thought and legal order. The material constitution of Nazi
Germany, Schmitt and his followers argued in the 1930s, was neither grounded in a norm nor in
a decision. It was an expression, supposedly, of a concrete social order, capable of providing
adequate legal justification for the judicial decisions that Fraenkel’s Dual State denounces as
lawless acts of dictatorship.6
Fraenkel, having studied Schmitt’s relevant works carefully, anticipated this line of reply to his
dual state thesis. The second part of The Dual State contains an insightful but neglected rebuttal
of Schmitt’s concrete order thought.7 This rebuttal, I will argue, helps us to understand the
limitations of material constitutionalism.

6.2 THE DUAL STATE

The Nazi takeover of power in Germany in the course of 1933 and 1934 had the appearance of a
legal process. The key steps of the Machtergreifung, in particular the suspension of fundamental
rights in the wake of the Reichstag fire and the enactment of the Enabling Act that transferred
legislative power to Hitler, were designed to give the impression that they had taken place in
accordance with the relevant norms of the Weimar Constitution.8
The near-unanimous consensus opinion among legal historians is that the Machtergreifung
was not legal.9 Some contemporary commentators had their own misgivings about the apparent
legality of the Nazi seizure of power. Carl Schmitt agreed that the Machtergreifung had been
legal, but he vehemently rejected the hypothesis of legal continuity. Schmitt argued that the
Machtergreifung, though legal in form, had been revolutionary in substance. The parliamentary
elections of March 1933, Schmitt held, had been a plebiscite on the introduction of a new
constitution.10
Still, as revolutions go, the Machtergreifung was a rather peculiar affair. Power had been
transferred to the new regime through a small number of carefully constructed legal tweaks.

2020); J. C. Suntrup, ‘Between Prerogative Power and Legality – Reading Ernst Fraenkel’s The Dual State as an
Analytical Tool for Present Authoritarian Rule’ (2020) 11 Jurisprudence 335.
5
C. Schmitt, Über die drei Arten des rechtswissenschaftlichen Denkens [1934] (Duncker & Humblot, 1993).
6
C. Schmitt, Staat, Bewegung, Volk. Die Dreigliederung der politischen Einheit (Hanseatische Verlagsanstalt, 1933).
For an attempt to outline the constitutional law of Nazi Germany that followed Schmitt’s theoretical lead, see E. R.
Huber, Verfassungsrecht des Grossdeutschen Reiches (Hanseatische Verlagsanstalt, 1939).
7
Fraenkel, Dual State, 139–49.
8
K. D. Bracher, W. Sauer and G. Schulz, Die nationalsozialistische Machtergreifung: Studien zur Errichtung des
totalitären Herrschaftssystems in Deutschland 1933–1934 (Springer, 1962), 31–168.
9
C. Gusy, Die Weimarer Reichsverfassung (Mohr Siebeck, 1997), 459–63; H. Dreier, ‘Die deutsche Staatsrechtslehre in
der Zeit des Nationalsozialismus’, in H. Dreier, Staatsrecht in Demokratie und Diktatur. Studien zur Weimarer
Republik und zum Nationalsozialismus, M. Jestaedt and S. L. Paulson, eds. (Mohr Siebeck, 2016), 197–201.
10
Schmitt, Staat, Bewegung, Volk, 5–11.

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 102 Lars Vinx

Even Schmitt had to concede that this approach had been necessary for the Nazi seizure of
power to work. The minimal disruption to established legality in the course of the
Machtergreifung, he observed, had allowed the bureaucracy to continue to function.11 The rule
of law had nevertheless been put at the disposition of the new regime. The legal constraints on
legislative and executive power that had been imposed by the Weimar Constitution did not bind
the new regime.
Fraenkel agreed that the Weimar Constitution was no longer in force. He described the
Reichstag fire decree of 28 February 1933 as the ‘constitutional charter of the Third Reich’.12 The
decree had been issued by Hindenburg, who was then still the President of the Reich, pursuant
to his authority under article 48 of the Weimar Constitution.13 On its face, the decree might thus
have been regarded as deriving its legal force from the Weimar Constitution. To say that the
decree had come to function as a constitutional charter was to reject the hypothesis of
legal continuity.
Fraenkel’s argument against the assumption of continuity is developed, in the first part of The
Dual State, by way of a painstaking analysis of a large number of judicial decisions in 1930s Nazi
Germany that, in upholding administrative decisions of dubious legality, made appeal to the
decree of 28 February. The courts, Fraenkel was able to show, interpreted the decree in a way
altogether incompatible with the hypothesis of continuity.14
The decree of 28 February suspended a number of basic rights protected by the Weimar
Constitution (habeas corpus, the freedom of opinion and press, the freedom of association and
assembly, the secrecy of postal communication, and the protection against warrantless searches
and seizures). According to the constitutional doctrine that had prevailed in the Weimar years,
the President’s powers of dictatorship under article 48 did not include a power to suspend or to
otherwise violate constitutional rights not explicitly listed as suspendable in article 48.15 Judges in
Nazi Germany nevertheless held that the decree licensed infringements of constitutional rights
that had not been and could not be suspended.16
The courts, for instance, upheld ‘the dissolution of the German branch of Jehovah’s
Witnesses’, by decree of the Minister of the Interior, though article 137 of the Weimar
Constitution, which guaranteed the freedom of religious belief and practice, had not been
and could not be suspended.17 The minister’s decree was held to have the force, under the
Enabling Act, to override a constitutional right. The preamble of the decree of 28 February had
stated that the purpose of the suspension was to allow the executive to mount a successful
defence against ‘communist acts of violence endangering the state’. But the decree was routinely
invoked to suppress activities that had no relation to communist activity. Members of a Catholic
youth group that had gone on hiking trips were punished, for instance, by appeal to the decree of
28 February, for having violated an order issued by a local administrator that had prohibited
activities of youth groups not affiliated with the Nazi party.18 Organisational activity not

11
Ibid., 7–8.
12
Fraenkel, Dual State, 3.
13
See Bracher et al., Die nationalsozialistische Machtergreifung, 75–88.
14
Fraenkel, Dual State, 9–103.
15
R. Grau, ‘Die Diktaturgewalt des Reichspräsidenten’, in G. Anschütz and R. Thoma (eds.), Handbuch des Deutschen
Staatsrechts (Mohr Siebeck, 1932), vol. II; G. Anschütz, Die Verfassung des Deutschen Reichs vom 11. August 1919, 14
ed. (Georg Stilke, 1933), 275–96.
16
Compare I. Müller, Furchtbare Juristen. Die unbewältigte Vergangenheit der deutschen Justiz (Edition Tiamat, 2014),
60–65.
17
Fraenkel, Dual State, 15.
18
Ibid., 17–18.

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 Material Constitution of the Dual State 103

controlled by the party was seen to undermine the integrity of the Volksgemeinschaft, the
national socialist people’s community. The interpretive practice of the courts, in short, treated
the decree of 28 February as part and parcel of a new constitutional order.
Fraenkel, however, did not accept Schmitt’s view that the Machtergreifung had been a
revolution, that is, that it had succeeded in founding a new legal order that possessed a
legitimacy of its own. According to Fraenkel, the Nazi takeover had been nothing more than
an ‘illegal coup d’état’.19 The Machtergreifung, Fraenkel surmised, could not have been
successful without the veneer of legitimacy provided by the assumption of legal continuity.
The Nazis were accordingly concerned, he observed, to maintain the fiction that Germany was
still a state governed by the rule of law and to conceal from the wider public that the regime had
empowered itself to compromise the operation of the remnants of legality at its legally unfettered
discretion.20
The powers claimed by the Nazis, then, had no basis in the Weimar Constitution, but no new
constitution had been put in place. Instead, constitutional order had come to be replaced by a
permanent dictatorship. Fraenkel acknowledged that dictatorship can be legitimate in the
defence of an existing constitution. It might be argued, perhaps, that dictatorship, as ‘sovereign
dictatorship’, can also be a legitimate means to establish a new constitution.21 But the Nazis,
Fraenkel pointed out, did not employ the means of dictatorship for the purpose of the conser-
vation or construction of a constitution.
The National-Socialist coup d’état consisted in the fact that the National-Socialists, as the
dominant party in the government, (1) did not prevent but rather caused the infringement of
the Rule of Law, (2) abused the state of martial law which they had fraudulently promoted in
order to abolish the Constitution, and (3) now maintain a state of martial law despite their
assurances that Germany, in the midst of a world corrupt with inner strife, is an ‘island of
peace’.22

The dual state thesis points out that the governance of Nazi Germany still did rely, in large part,
on established legality. A normative state, governed by law, continued to exist. But the agents of
the Nazi regime, of the prerogative state, were at liberty to disregard that normative order and to
intervene by the use of extra-legal, dictatorial measures whenever they saw fit.23 The resulting
dictatorial power, however, was not used to build a new constitutional order but simply to secure
the permanent ascendancy of the Nazi party, which was unable or uninterested (or both) in re-
establishing the rule of law. The dual state was thus constitutionally groundless. It did not derive
any genuine legitimacy from the Weimar Constitution, by whose abuse it had been established,
and which it disregarded in practice. Neither, however, did the dual state possess a recognisable
legitimating ground of its own. Though the agents of the prerogative state had usurped the de
facto power to draw the boundary between rule by law and rule by discretion, the prerogative
state, as Fraenkel’s analysis makes clear, was dependent on what remained of the normative state
in at least two crucial ways. It required a sufficiently dependable operation of the law to keep the
economy running and it drew a good part of its perceived legitimacy from the appearance of
continuing respect for legality.24
19
Ibid., 3–6.
20
Ibid., 38–40.
21
C. Schmitt, Dictatorship. From the Origin of the Modern Concept of Sovereignty to Proletarian Class Struggle,
M. Hoelzl and G. Ward, trans. (Polity Press, 2014), 112–31.
22
Fraenkel, Dual State, 10.
23
Ibid., 14–46.
24
Ibid., 171–87.

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 104 Lars Vinx

Did the dual state have a material constitution? Fraenkel’s claim that the decree of
28 February was the constitutional charter of the Third Reich might be taken to suggest that
the content of the material constitution of Nazi Germany can be identified with the key decrees
and acts empowering the Nazi regime that were put in place in 1933 and 1934. The fraudulent
use of the decree of 28 February 1933 had given rise, according to Fraenkel, to the duality
between the normative and the prerogative state. The Nazi government, led by Hitler, had also
been vested, by the Enabling Act, passed on 24 March 1933, with a power to make laws, and the
act, which was passed in the form of a constitutional amendment to the Weimar Constitution,
explicitly stated that laws made by the new government that contravened the Weimar
Constitution were nevertheless to be regarded as valid. Other, later pseudo-legal acts completed
the seizure of power, in particular the unification of the offices of Prime Minister and President
in Hitler’s hands on 2 August 1934.25
But did these norms play the role of a material constitution in 1930s Germany? There are at
least two reasons, reasons which are implicit in Fraenkel’s analysis, to reject that claim. The real
powers to which the agents of the prerogative state laid claim, as we have seen, went far beyond
the powers conferred by the explicit content of the supposed constitutional laws of Nazi
Germany. The decree of 28 February, the supposed constitutional charter of the Third Reich,
cannot be said to have offered a legal regulation of the interactions of the normative and the
prerogative state. The claim that the Enabling Act was the material constitution of Nazi
Germany, or at least a part thereof, is equally problematic.26 To affirm that claim is to argue
not merely that laws or decrees issued by Hitler and his underlings were, in fact, recognised to
have the force of law in 1930s Germany. It is to argue that the Enabling Act, which was put in
place by the use of the Weimar Constitution’s procedures for amendment, authorised Hitler and
his underlings, in the first place, to make laws. But that view was rejected by Schmitt and most
other Nazi legal theorists, for the obvious reason that it would have suggested the hypothesis of
legal continuity and potentially imposed legal limitations on the Führer’s authority.
The conclusion to be drawn from these observations is that it would be wrong to say that the
decree of 28 February and the Enabling Act (together with other comparable laws or decrees)
functioned as the material constitution of 1930s Nazi Germany. The enactments in question did
not constitute, regulate, or validate public power in Nazi Germany. At best, they offered a pale,
pseudo-legal reflection of the actual distribution of de facto authority. Fraenkel’s dual state thesis
thus leads to the conclusion that Nazi Germany had neither a formal nor a material constitution.
That Nazi Germany had no formal constitution follows from the rejection of the hypothesis of
legal continuity, given that the Nazis never enacted a new formal constitution.27 And if norms
such as the decree of 28 February and the Enabling Act cannot be regarded as the material
constitution of Nazi Germany, we seem forced to concede that Nazi Germany had no consti-
tution at all, either formal or material, and should therefore be considered to have been an a-
constitutional entity that failed to qualify as a state, a conclusion that has indeed been drawn by

25
For a lucid overview from a Nazi perspective see E. Huber, Verfassungsrecht, 11–57.
26
Some authors in Nazi Germany did take the view that the Weimar Constitution was still valid and that Hitler’s
authority continued to depend on it. The view is discussed (and dismissed) in Huber, Verfassungsrecht, 46–52, and it
was a minority view among Nazi public lawyers that lost attraction as Nazi dictatorship wore on. See M. Stolleis,
Geschichte des öffentlichen Rechts in Deutschland. Weimarer Republik und Nationalsozialismus (C. H. Beck, 2002),
316–18.
27
Compare Huber, Verfassungsrecht, 54–55, who argued, accordingly, that the constitution of Nazi Germany was not ‘a
constitution in the formal sense, as it was characteristic of the 19th century’.

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 Material Constitution of the Dual State 105

some historians of Nazi Germany, who have argued that the system was held together by nothing
more than the shifting ties of persons and competing networks to Hitler.28

6.3 THE MATERIAL CONSTITUTION AS CONCRETE ORDER

In 1934, Carl Schmitt published a short monograph entitled The Three Types of Juristic
Thought.29 On its face, this text is a contribution to legal theory. It takes up questions that had
animated some of Schmitt’s earlier legal-theoretical work, in particular in Statute and Judgment
(1912)30 and Political Theology (2022).31 In these earlier works, Schmitt had emphasised that the
legitimate applicability of a legal norm presupposes a situation of social normality and he had
criticised the view, accordingly, that stable and predictable legality can be guaranteed by the
existence of a system of general statutory norms alone. Legal practice, Schmitt had argued,
cannot provide for the social presuppositions of its own functioning. It is dependent on a
sovereign or constitutional guardian endowed with the power to suspend the operation of
rule-based legality and to use dictatorial measures to create or restore a situation of
social normality.
Schmitt did not abandon this view in The Three Types of Juristic Thought. But his renewed
presentation of his legal theory in 1934 was characterised by a shift in emphasis, one that was
intended to offer a response to the claim that Nazi Germany lacked a legal order. In his earlier
jurisprudential essays, Schmitt had been concerned to emphasise the need for a political
authority capable to take a decision on the exception. In Weimar, Schmitt had played out a
Hobbesian ‘decisionism’ against the ‘normativism’ of the nineteenth-century advocates of the
liberal notion of the rule of law. A legal order, Schmitt had argued, rests on a decision, not on an
ultimate rule. The Three Types of Juristic Thought supplements this dualist picture with a third
element. A legal order, Schmitt now claims, is composed not merely of norms and decisions. It
also contains what Schmitt calls a ‘concrete order’.32
A concrete order, Schmitt explains, consists of the arrangement of social institutions that must
underpin the functioning of the law as a system of general norms. Such institutions include, for
instance, marriage and the family, the Church, informal structures of social authority, the social
relations that structure the workplace, etc. Appealing to Duguit and Santi Romano, Schmitt now
argues that the presupposition of social normality, which he had always argued was a condition

28
See Peter Hüttenberger, ‘Nationalsozialistische Polykratie’ (1976) 2 Geschichte und Gesellschaft 417. Constitutional
theorising was itself drawn into the resulting competition for the Führer’s favour and attention. See P. Caldwell,
‘National Socialism and Constitutional Law: Carl Schmitt, Otto Koellreutter and the Debate over the Nature of the
Nazi State, 1933–1937’ (1994) 16 Cardozo Law Review 399. I owe this reference to Michael Wilkinson.
29
Schmitt, Über die drei Arten.
30
C. Schmitt, ‘Statute and Judgment’, in C. Schmitt, Carl Schmitt’s Early Legal-Theoretical Works, L. Vinx and S. G.
Zeitlin, eds. and trans. (Cambridge University Press, 2021), 39–155.
31
C. Schmitt, Political Theology. Four Chapters on the Concept of Sovereignty, G. Schwab, trans. (University of Chicago
Press, 1985).
32
For further analysis of Schmitt’s concrete order thought, see M. Croce and A. Salvatore, The Legal Theory of Carl
Schmitt (Routledge, 2013); and M. Croce and M. Goldoni, The Legacy of Pluralism. The Continental Jurisprudence of
Santi Romano, Carl Schmitt, and Costantino Mortati (Stanford University Press, 2020), 99–135. These recent
discussions give an incomplete picture of Schmitt’s concrete order thought, in portraying it as a disinterested scholarly
contribution to an institutionalist jurisprudential tradition. Schmitt’s concrete order thought had political intentions
that should not go unnoticed. It was meant to provide legitimation for judicial attempts to re-interpret inherited
statutory norms so as to bring them into line with Nazi ideology. See B. Rüthers, Die unbegrenzte Auslegung. Zum
Wandel der Privatrechtsordnung im Nationalsozialismus (Mohr Siebeck, 2017); a shorter summary in B. Rüthers,
Entartetes Recht. Rechtslehren und Kronjuristen im Nationalsozialismus (C. H. Beck, 1989), 54–98.

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 106 Lars Vinx

of the existence of legal order,33 ought to be understood in institutional terms. Stable and
legitimate legal normativity must be grounded in a framework of established and accepted social
practices. Legal rules can serve to concretise such practices by way of formal regulation, and thus
facilitate and enhance their operation, but they are ultimately dependent, for their own
functioning, on social custom which they cannot themselves create.
The theory of concrete order opens up a novel way to argue that Nazi Germany had a
material constitution. According to the theory of concrete order, the legal rules that we hold to
be constitutional are dependent on underlying political institutions, that is, on shared and
accepted understandings, conventions, and practices that determine the distribution of political
authority, at least in broad outline, even before it is given more precise form by constitutional
laws. In The Three Types of Juristic Thought, Schmitt was concerned to argue that Nazi
Germany had a material constitution, so understood.34
Schmitt, as has been pointed out already, distinguished between three fundamental forms of
juristic thought which he took to correspond to the three basic elements of legal order.35 There
is a form of legal thought, according to Schmitt, that emphasises the centrality of general legal
norms and that conceives of the rule of law as compliance, on the part of the state, with pre-
announced general rules.36 This ‘normativist’ approach contrasts with decisionism, as we have
seen, which emphasises the origin of legal order in political decisions. Normativism, Schmitt
argued, abstracts from the presupposition of normality that conditions the legitimate applicabil-
ity of general legal norms. Decisionism, which Schmitt associates with Hobbes, reacts to the
problem of anarchy that might ensue from such lack of attention to the presupposition of social
normality. A truly sovereign decision, Schmitt avers, responds to a condition of complete
anarchy, to a situation where there are no accepted institutional underpinnings for legal order.
Pure decisionism presupposes a complete disorder and, to end that all-out disorder, all that
matters is that a sovereign decision is taken, not what decision that is.37
Schmitt’s claim, which echoes the earlier Political Theology, that a sovereign decision ‘springs
from normative nothingness’38 need not be interpreted as an endorsement of nihilism.
A sovereign decision is necessary, Schmitt should be taken to argue, where there is no
underlying concrete social order. A sovereign decision decides, in the face of comprehensive
anarchy, what concrete order is to be put in place. It cannot, therefore, be portrayed as a decision
that draws its legitimacy from the fact that it defends some already existing concrete order.
A truly sovereign decision is not an act of constitutional guardianship, not even if the consti-
tution is identified with concrete order. Still, a sovereign decision is always a decision for some
concrete order or other which is to be established by it. Schmitt’s description of sovereign
decision, then, does not rule out that such a choice might be guided by ideals and values, a
notion of good social order. And Schmitt seems to concede that the early modern absolutist state
did succeed in the endeavour, at least for a time, to establish order from comprehensive anarchy.
But Schmitt is wary, in 1934, of the view that the constitutional situation in Germany ought to
be addressed from a decisionist point of view. It is noteworthy that Schmitt and his followers

33
Schmitt, Political Theology, 13.
34
Schmitt, Staat, Bewegung, Volk.
35
Schmitt, Über die drei Arten, 7–33.
36
Ibid., 10–13.
37
Ibid., 24.
38
Ibid.

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 Material Constitution of the Dual State 107

pointedly avoided portraying Hitler as a Hobbesian sovereign.39 This avoidance made good
theoretical sense. The ideological self-presentation of the Führer did not fit into a decisionist
mould. Hitler presented himself as the charismatic embodiment of the Volksgemeinschaft, the
racially defined people’s community. Though the powers he claimed were as legally unlimited
as those of an absolute sovereign, their legitimating basis lay in the claim that the Führer’s
decisions were to be regarded as the authentic expression of the substantive character and
identity of the German people. Hitler did not present himself as a political demiurge, creating
a new social order from scratch. He pretended to be the mere voice, however infallible and
providentially ordained, of a social collective that undoubtedly had had its own history before
the Führer had taken over.40 For that claim to make sense it was necessary to at least pretend that
the Führer’s pronouncements had a communal anchor, that they referred back to German
society’s existing practices and institutions.
The third fundamental type of juristic thought postulated by Schmitt in 1934 – concrete order
thought, that is, an emphasis on the fundamentality of institutional order for the law – therefore
appeared to offer a more suitable defence of the legitimacy of Nazi governance than Hobbesian
decisionism.41 Nazi Germany, Schmitt suggested, did not find itself in a state of complete
anarchy that might have required a demiurgic sovereign intervention. It already had a concrete
order, a material constitution, and the legal constitution of Nazi Germany, as given voice by the
Führer’s pronouncements, was to be understood as the expression of that concrete order.42
Fraenkel’s critique of Nazi governance, to recall, argues that the judicial and administrative
decision taking, in a dual state, becomes divorced from clear and predictable statutory program-
ming. But why, or so Schmitt might have replied, should such a weakening of the standard of
congruence of legal rule and official act be seen to indicate a breakdown of legal order or be
held to be undesirable? The statutory rules that were ‘read down’ in the courts of Nazi Germany,
or disregarded by the agents of the prerogative state, had been put in place, after all, by a corrupt
parliamentary process that, in Schmitt’s view, was to be expected to produce substantively
arbitrary norms.43 For Schmitt, the judicial decisions of the 1930s that Fraenkel denounced as
tyrannical for their lack of compliance with statutory norms were attempts to reconnect legal
practice to the concrete order of German social life, the true substance of law.
Let me set the stage for Fraenkel’s reply to this line of reasoning by offering a short excursus
into the work of Ernst Rudolf Huber, one of Schmitt’s doctoral students of the Weimar period,
who authored a voluminous treatise on the constitutional law of Nazi Germany (the only such
work produced in Nazi Germany) that aims to work out the implications of the claim that the
constitution of Nazi Germany is to be seen as a concrete order.44
Huber agrees with Schmitt’s rejection of the hypothesis of legal continuity and insists that the
Machtergreifung has put in place a new constitution.45 The view that the Weimar Constitution
is no longer in force implies, Huber points out, that there is no longer a constitution in the

39
In his infamous justification of the murder of Ernst Röhm and his associates, Schmitt portrays Hitler not as sovereign
but rather as the supreme judge (‘oberster Gerichtsherr’) of the German people who realises the pre-existing right of
the people. See C. Schmitt, ‘Der Führer schützt das Recht’, in C. Schmitt, Positionen und Begriffe im Kampf mit
Weimar – Genf – Versailles 1923–1939 (Duncker & Humblot, 1994), 227–32.
40
Huber, Verfassungsrecht, 194–99.
41
Schmitt, Über die drei Arten, 13–20.
42
Schmitt, Staat, Bewegung, Volk, 32–46.
43
C. Schmitt, The Crisis of Parliamentary Democracy, E. Kennedy, trans. (MIT Press, 1985); C. Schmitt, Legality and
Legitimacy, J. Seitzer, trans. (Duke University Press, 2004).
44
Huber, Verfassungsrecht.
45
Ibid., 46–52.

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 108 Lars Vinx

formal sense. The constitution of Nazi Germany must be a flexible as opposed to a rigid
constitution.46 It is possible, nevertheless, to develop an account of the constitutional law of
Nazi Germany, Huber argues, and altogether wrong to portray Nazi Germany as a permanent
dictatorship.47 The distinction between laws that have constitutional standing and laws that do
not, Huber claims, is to be drawn by appeal to the substance of concrete order. The core of the
constitution of Nazi Germany consists of a number of fundamental principles which Huber
claims are implicit in the political life of German society.48
True to the methodology of concrete order thought, Huber then proceeds to show that the
material constitution of Nazi Germany grows spontaneously from a number of basic social
institutions and practices. But the institutions he describes as forming the material constitution
of Nazi Germany cannot be said to be as clearly defined and as securely rooted in history and
practice as an appeal to the idea of concrete order would seem to require.
Huber’s presentation of the structure of the political order of Nazi Germany, to highlight one
prominent instance of the problem, takes the form of an extended discussion of the principle of
leadership (Führerprinzip).49 Huber goes to great lengths to argue that the principle of leader-
ship has nothing to do with arbitrary tyranny. Leadership, according to Huber, connotes a
trusting relationship between a leader and his follows, characterised by voluntary and uncondi-
tional loyalty on the part of the follower, which is reciprocated, on the part of the leader, by
responsible governance in the interest of the community.50 But of course, leadership is to be free
from any formal legal control as well as from organised mechanisms of political accountability.
Hitler’s authority is not to be reduced to the formal constitutional authority of the different
political offices of the Weimar Constitution (Prime Minister and President) that he had
managed, in the process of the consolidation of Nazi power, to unite in his hands. Hitler,
according to Huber, was supreme legislator, head of the executive and highest judge of the land
in virtue of his providentially ordained leadership of the German people and not the other way
around.51
Whatever one may think of Huber’s account of the principle of leadership, the institution of
leadership was certainly not traditional or widely recognised in German society before the Nazis
took power. The observation that the Machtergreifung had had to rely on manipulations of
existing constitutional legality to succeed strongly suggests that an appeal to the notion of
leadership could not, by itself, have legitimated the Nazi’s seizure of power. It is difficult,
therefore, to credit Huber’s claim that the supposed new constitution expressed an existing
concrete order of German political life.
Huber, like Schmitt, denied that Hitler was a sovereign. The Führer, as the voice or embodi-
ment of a political community that had existed before he came to power, and that was supposed
to continue to exist after his demise, did not possess the demiurgic power, for Huber, to put a
new concrete order in place. Huber goes so far as to imply fairly openly that the Führer lacked
the authority to take decisions that contravened the concrete order of German society.52 But
such attempts to construct constitutional limitations on Hitler’s leadership were difficult to
square with the view, on which Huber insisted equally emphatically, that the leader, in a state

46
Ibid., 56–57.
47
Ibid., 210–11.
48
Ibid., 46–57.
49
Ibid., 194–286.
50
Ibid., 195–99.
51
Ibid., 230–34.
52
Ibid., 56.

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 Material Constitution of the Dual State 109

based on the principle of leadership, must enjoy all but absolute powers and be free from any
kind of formal accountability.53 For all practical intents and purposes, the material constitution
of the German people was what the Führer declared it to be.54

6.4 FRAENKEL ON CONCRETE ORDER THOUGHT

Fraenkel’s assessment of Schmitt’s claims about the material constitution of Nazi Germany did
not reject the view that the functioning of legal order is dependent on underlying social
institutions. The claim that ‘the law actually being enforced in a given situation is not found
in statutes but in the legal customs practiced’ by members of a society, Fraenkel pithily
remarked, ‘is not especially new in the sociology of law in Germany’.55 Eugen Ehrlich, to
whom Schmitt himself had appealed in one of his early legal-theoretical works, had made the
same point a long time ago.56 What was novel about Schmitt’s concrete order thought, in 1934,
Fraenkel observed, was ‘not the “concrete theory of order” as such but its association with the
concept of “community”’.57
What Schmitt needed to claim was not merely that social groups and associations tend to
spontaneously bring forth their own, inchoate law and at times without the assistance or
direction of the legal apparatus of the state. He needed to claim that German society as a whole,
the Volksgemeinschaft, the people’s community, as a community of communities, could lay
claim to the status of an autochthonous social institution or concrete order. That claim,
Fraenkel argued, was not merely false. It was meant to conceal the decisionist character of
Nazi governance:
A critical analysis of Schmitt’s theories reveals that, according to the theory of concrete order, the
concrete communities are not the primary sources of law. If they were, then every concrete
group, so long as it constitutes an orderly whole, would have to be regarded as equivalent to a
concrete community order. But if this were the case, Schmitt’s theory would logically imply a
liberal theory of group autonomy. But this conclusion does not follow because Schmitt’s
‘concrete theory of order’ really contains a decisionist element connected with the conception
of ‘community.’ Only those groups are to be regarded as bearers of the ‘concrete order’ to which
the character of ‘community’ is granted by National-Socialism.58

National socialist governance did not accord the status of genuine communities, of social groups
pregnant with institutional order worth preserving, to all existing associations. Many, perhaps
most, of the legal cases analysed by Fraenkel in The Dual State concern the repression of social
groups, of concrete orders, that were seen not to fit into the supposed material constitution of the
Nazi Volksgemeinschaft: independent labour unions, religious groups, youth organisations,
political parties other than the Nazi party, etc. For the encompassing people’s community to
amount to a coherent concrete order, German social life had to be coercively homogenised,
without regard to the constraints of the rule of law. But this need for coercive homogenisation
entails that German society did not have a ready-made concrete order, available to be expressed
in acts of leadership embodying a pre-existing shared identity. The concrete order of the

53
Ibid., 230.
54
Legal historians have pointed out that the resulting ‘indifference to form’ made doctrinal legal analysis next to
impossible. See Dreier, ‘Die deutsche Staatsrechtslehre’, 231–40; Stolleis, Geschichte des öffentlichen Rechts, 316–25.
55
Fraenkel, Dual State, 142.
56
Schmitt, Statute and Judgment, 139, 147–49.
57
Fraenkel, Dual State, 142.
58
Ibid., 143.

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 110 Lars Vinx

Volksgemeinschaft, rather, had to be coercively constructed and, for that construction to begin, a
choice had to be made between different available visions of proper concrete order.
The Nazis opted to try to turn Germany into a hyper-authoritarian racial ethnocracy. This
choice, as Fraenkel points out, was not just morally abhorrent. It had no firm basis in existing
concrete social order.59 The political practices of Nazi Germany, such as they were, rested on an
unacknowledged decision, but on one that, unlike the acts of sovereignty performed by the early
modern absolute state, could not have been justified by appeal to generalisable interest, like the
Hobbesian concern with the provision of the social conditions of individual survival. The
terrible disorder that was to be prevented by Schmitt’s invocation of concrete order as the basis
of Hitler’s claim to leadership was not that of a state of nature but the prospect of having to live in
a pluralist society.

6.5 MATERIAL CONSTITUTIONALISM?

Nazi Germany lacked a material constitution, whether the notion is understood to refer to a set
of rules that establish a clear distribution of political competences or to a ‘concrete order’ of
social life whose institutions underpin the law. Contemporary proponents of material constitu-
tionalism60 will perhaps shrug their shoulders and reply that this result is of little interest to
contemporary efforts to make use of the idea of material constitution. The Nazis, they might
argue, made bad use of the idea of material constitution, but the approach can be given a legal
pluralist reading that gets civil society out from under the oppressive hand of the state.
This response to Fraenkel’s analysis, I would like to suggest by way of conclusion, would be
too facile. Fraenkel’s critique of concrete order thought gives rise to a general challenge to the
notion of a material constitution. Let me conclude by outlining that challenge.
I do not dispute the sociological observation that gives rise to the theory of material consti-
tution – the claim that a formal legal order is dependent, for its predictable functioning, on
underlying social practices and institutions. I am happy to concede that the question of the
social conditions of stable legal order is an important one, which ought to be carefully investi-
gated by legal sociologists and political scientists. My claim is that attempts to invoke the idea of
material constitution in legal argument are bound to face the dilemma that Fraenkel identified
in Schmitt’s employment of the notion of concrete order.61
A society’s explicit constitutional law will either be in tune or be out of tune with underlying
shared social practices and understandings. In the first case, the material constitution will
remain legally invisible, as there is no need to invoke the material constitution to decide how
to go on. What is more, tensions between a society’s explicit constitutional law and underlying
social practices may appear in a benign form. Social institutions may have developed in ways
that have made some formal constitutional law obsolete and there may be broad social

59
Ibid., 188–208.
60
See M. Goldoni and M. Wilkinson, ‘The Material Constitution’ (2018) 81 Modern Law Review 567. Goldoni’s and
Wilkinson’s use of the term ‘material constitution’ follows Mortati. See C. Mortati, La costituzione in senso materiale
(Giuffrè, 1940).
61
Here is one of countless examples from Nazi Germany of the use of the notion of material constitution in legal
argument (see Rüthers, Die unbegrenzte Auslegung, 166–68): In 1930s Nazi Germany, Jewish tenants were denied the
legal protections against eviction to which they were statutorily entitled and which ‘Aryans’ continued to enjoy. The
Courts argued, in flagrant violation of the statutory law Nazi Germany had inherited from the Weimar Republic, that
tenants formed part of a concrete order, the ‘community of the house’, and Jews, due to their racial otherness, could
not belong to that particular concrete order, and were therefore not entitled to the statutory protections
against eviction.

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 Material Constitution of the Dual State 111

agreement as to how to adapt formal law to changes in social circumstances. But tensions
between the formal constitution and its material basis need not take this harmless form. It may
be, rather, that different and antagonistically opposed forms of social life, competing concep-
tions of good social order, come to clash with one another, as was the case in 1930s Germany.
In that latter scenario, appeals to a supposed material constitution will turn out to be deeply
problematic, at least if they aim to elevate one of the contending conceptions of social order into
society’s supposed material constitution, with the intent to endow it with a surplus of legitimacy.
There are no non-arbitrary grounds to privilege one of the contending understandings of
concrete order, at least from the point of view of the theory of material constitutionalism. The
theory of the material constitution, after all, does not provide any normative guidance as to how
the choice is to be taken. It appears to promise, rather, that a coherent and accepted material
constitution is already there, grounded in social fact and waiting to be recognised by the law.
The appeal to a material constitution, under circumstances of deep and antagonistic pluralism,
will not help us to escape decisionism. It will merely conceal the choices that are taken and
shield those who manage to make their choices prevail from having to meet a burden
of justification.
Schmitt’s response to the absence of a widely accepted concrete order of Germany society was
to exclude those who disagreed with him, as internal enemies, from what he took to be the
political community of Germans.62 That is too easy a way of making the claim that one’s nation
already possesses a coherent material constitution, waiting to be expressed in acts of charismatic
leadership, come out true. This is not to say that there may not be valuable descriptive,
diagnostic or critical uses of the notion of material constitution. Schmitt, however, invoked
the material constitution as the ground of the legitimacy of formal legality. It is this legitimating
use of the notion of material constitution that should be rejected.

62
L. Vinx, ‘Carl Schmitt’s Defence of Sovereignty’, in D. Dyzenhaus and T. Poole (eds.), Law, Liberty and State:
Oakeshott, Hayek and Schmitt on the Rule of Law (Cambridge University Press, 2015), 96–122.

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 7

‘A Certain Shadowy Totality’

In Search of the Material Constitution of the United States

Rob Hunter

[I]t is precisely the immersion in the concretions that allows us to move beyond the merely factual.1

7.1 INTRODUCTION

The study of the constitution of the United States has made little progress since the publication
of W. E. B. Du Bois’ Black Reconstruction in 1935.2 Analysing the legislative debates leading up
to the drafting of the Fourteenth Amendment in the aftermath of the Civil War, Du Bois
explicitly critiqued the fetishised ‘constitutional metaphysics’ that inhibited most participants’
capacities for apprehending constitutional reality:3 ‘with incantation and abracadabra, the
leaders of a nation tried to peer back into the magic crystal, and out of a bit of paper called
the Constitution, find eternal and immutable law laid down for their guidance forever and ever,
Amen!’4 The constitution – manifestly antidemocratic, transparently racist and designed and
intended to accommodate slavery and to protect private property – had plainly disintegrated.
Four years of industrialised warfare and the collective rebellion of Black slaves had seen to that.
And yet virtually all of those who drafted, debated or voted on the Reconstruction Amendments
persisted in claiming that the constitutional order had been neither suspended nor disrupted.
Du Bois understood, of course, that such performances had a purpose. They ensured that the
democratisation of American society was limited, tentative and vulnerable. The constitutional
renovation that took place after Appomattox was quickly effaced and smoothed over. The
Fourteenth Amendment was even de-fanged by judicial fiat in 1873.5 What Du Bois dubbed
‘abolition-democracy’6 was suppressed not just through the institutional and social demolition of
the fledgling democracies in the southern states, but also through the concerted restoration of
many aspects of antebellum constitutionality. The rapid destruction of the first genuine attempt
at institutionalising democracy in the United States was carried out under the banner of
constitutional continuity – the banner, that is, of the priority of constitutional abstractions over
1
T. W. Adorno, Philosophical Elements of a Theory of Society (Polity Press, 2019), 11.
2
W. E. B. Du Bois, Black Reconstruction: An Essay toward a History of the Part Which Black Folk Played in the Attempt
to Reconstruct Democracy in America, 1860–1880 (Harcourt, Brace and Company, 1935).
3
A. Powers, ‘Tragedy Made Flesh: Constitutional Lawlessness in Du Bois’s Black Reconstruction’ (2014) 34 Comparative
Studies of South Asia, Africa and the Middle East 106.
4
Du Bois, Black Reconstruction, 267.
5
Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873).
6
Du Bois, Black Reconstruction, 83 ff.

112

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 ‘A Certain Shadowy Totality’ 113

historical social reality. For neither the first nor the last time, white supremacy draped itself in
the garlands of constitutional fidelity.7
The slippery divergences among constitutional rhetoric, constitutional myth and constitu-
tional politics during and after Reconstruction suggest that neither constitutional text nor
constitutional doctrine can serve as reliable guides to apprehending constitutionalism as a set
of historically-specific practices. Du Bois evinced a subtle understanding of this problem in his
critique of the revivification of antebellum constitutionality. This cannot be said of many of
those who came after him, however. Constitutional metaphysics continues to pervade consti-
tutional culture in the United States today. It is a signal example of the ‘reified authority’8 that is
constitutive of the domination and unfreedom characteristic of contemporary society. It natur-
alises the racialised hierarchies,9 omnipresent violence10 and structural (i.e., abstract and
impersonal) domination11 that have been, and still are, constitutive of contemporary society.
American constitutional theory is marked by a continued indulgence in constitutional meta-
physics, rather than the self-reflexive critique of the social relations that make it possible. Many
contemporary theorists treat constitutional norms and meanings as self-subsistent and socially
autonomous. They would deny such a characterisation, of course; in Hartian terms, the rules of
recognition12 that they propose are not merely formal but incorporate normative or practical
considerations as well. And yet such rules occlude and inhibit the apprehension of constitution-
ality as an ensemble of practices, concepts, and categories that are mutually constitutive with
society as a whole.13
US constitutional theory, in other words, is distinguished by a widely-shared commitment to
understanding constitutionalism as a ‘legal technology for structuring state power’,14 not as a
complex of thought and practice that both posits and is manifested in definite social relations.
This can be seen in most theorists’ inattention to the mutually-constitutive character of the
seemingly-distinct spheres of politics and economics; to the violence and domination through
which constitutional law is made and reproduced; and to the imbrication of the American
constitutional order with the totality of world market relations. If constitutionalism is to be
apprehended in its historical specificity – rather than in normative prescriptions for how it
should be ordered – then most American constitutional theory will be of little help.
Apprehending the constitution as an ensemble of determinate social relations that are the actual
content of the forms of historically definite structures and processes is a task best accomplished
through recourse to critical theory (understood as a critique of contemporary society’s essential
determinations or ‘social forms’15). Such a task does not simply presuppose the adequacy of
liberal legality or the anteriority of legal norms.16 An adequate critique along such lines would

7
Cf Powers, ‘Tragedy Made Flesh’.
8
C. O’Kane, ‘Reification and the Critical Theory of Contemporary Society’ (2021) 8 Critical Historical Studies 57.
9
R. M. Smith, ‘Beyond Tocqueville, Myrdal, and Hartz: The Multiple Traditions in America’ (1993) 87 The American
Political Science Review 549.
10
R. M. Cover, ‘Violence and the Word’ (1986) 95 Yale Law Journal 1601.
11
T. Smith, Beyond Liberal Egalitarianism: Marx and Normative Social Theory in the Twenty-First Century (Brill, 2017),
110–30.
12
H. L. A. Hart, The Concept of Law, 2nd ed. (Oxford University Press, 1997), 94–110 and passim.
13
R. Hunter, ‘Marx’s Critique and the Constitution of the Capitalist State’, in P. O’Connell and U. Özsu (eds.),
Research Handbook on Law and Marxism (Edward Elgar, 2021), 190–208.
14
A. Bâli and A. Rana, ‘Constitutionalism and the American Imperial Imagination’ (2018) 85 University of Chicago Law
Review 257.
15
Smith, Beyond Liberal Egalitarianism, 73.
16
M. Postone, ‘Critique, State, and Economy’, in F. Rush (ed.), The Cambridge Companion to Critical Theory
(Cambridge University Press, 2004), 165–93. Critical theory is concerned with the inverted and antagonistic social

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 114 Rob Hunter

have the potential to destabilise the constitutional metaphysics derided by Du Bois and to open
up the possibility of achieving fuller and deeper explanations of the United States as a polity.
This chapter examines several strands of American constitutional theory. Several early
attempts – by Charles Beard, Karl Llewellyn and Louis Hartz – provide instructive examples;
any attempt to theorise the constitution’s historical specificity must begin by examining them.
However, the main contenders in contemporary theory – originalism and living
constitutionalism – do not illuminate many of the historically specific features of constitution-
ality in the United States. Moreover, most forms of US constitutional theory succumb to
‘constitutional fetishism’17 and treat constitutional forms, meanings or ideals as self-subsistent,
natural or timeless. Those constitutional theories that do acknowledge the irreducibly social
character of constitutionalism – specifically, recent contributions to originalism and to living
constitutionalism – nevertheless rest on contradictory foundations. The former hypostatises
constitutional meanings as trans-historically valid abstractions; the latter is predicated on a claim
for the ever-possible perfectibility of the constitution. Neither can fully affirm that constitutional
meanings are always mediated by context and theory; both are ill-equipped to confront the
determinate features of American constitutionalism without imposing anterior normative frame-
works upon them. Despite originalism’s emphasis on the purported facts of fixed constitutional
meanings and despite living constitutionalism’s emphasis on the dynamics of political struggle
and public opinion, both accounts remain ensnared by constitutional fetishism.

7.2 THE SOCIAL CONSTITUTION OF THE MATERIAL CONSTITUTION

I propose that the concept of the ‘material constitution’18 is best developed as part of a form-
analytic approach to theorising the state. The ‘materiality’ in question is that of determinate and
historically specific relations among social individuals (I do not have in mind a reductive or
economistic materialism that treats unmediated ‘interests’ as brute facts). The recognition of the
constitution as an historically specific ensemble of practices, concepts and categories is con-
trasted with the notion of a constitution consisting of self-subsistent abstractions. Understanding
the constitution as it appears in history requires that we refrain from begging questions with
respect to its particular content and social appearance.
A polity’s actual constitution – consisting of an ensemble of practices, concepts and categor-
ies – is an appearance of the form of the state. The state itself is the historically specific politico-
juridical form of definite social relations.19 The constitution is the appearance – that is, the
specific historical existence – of that form in particular practices, in actual institutions, and in
conceptually-mediated modes of acting, thinking, and knowing. To understand the constitution
of a polity is to understand definite social activity, both as it appears in history and as it is
mutually constitutive with the particular concepts and categories that mediate it. To understand
the constitution is to apprehend real social individuals’ thought and action. It is a matter of the

world of modernity, an adequate understanding of which is possible only through the apprehension of its historically
specific social forms through the critique of political economy. For the latter, see M. Heinrich, An Introduction to the
Three Volumes of Karl Marx’s Capital (Monthly Review Press, 2012); W. Bonefeld, Critical Theory and the Critique of
Political Economy: On Subversion and Negative Reason (Bloomsbury, 2014); Smith, Beyond Liberal Egalitarianism.
17
F. L. Neumann, The Democratic and the Authoritarian State: Essays in Political and Legal Theory (Free Press, 1957),
199.
18
M. Goldoni and M. Wilkinson, ‘The Material Constitution’ (2018) 81 Modern Law Review 567.
19
A. Neupert-Doppler, ‘Society and Political Form’, in B. Best, W. Bonefeld, and C. O’Kane (eds.), The SAGE
Handbook of Frankfurt School Critical Theory (SAGE, 2018), vol. III, 816–33; W. Bonefeld, ‘On the State as
Political Form of Society’ (2021) 85 Science & Society 177.

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 ‘A Certain Shadowy Totality’ 115

critique of contemporary society as it exists, not the normative prescription of society as it might
be. In the case of the United States, such a critique must necessarily account for and proceed
from the structuration of society through capitalist production and exchange relations, racism
and settler-colonialism and integration with the world market.20 Indeed, it must proceed from
the recognition of the observations that Du Bois stated plainly and that most subsequent students
of the constitution have ignored.
Constitutions appear in history through the continuous and contingent activity of social
constitution. By ‘social constitution’ I refer to the contradictory and antagonistic processes
whereby the reproduction of society ‘manifests itself in the form of’ fetishised (that is, seemingly
natural) social forms and categories that mediate subjects’ thought and action; such forms ‘assert
themselves behind the backs of the acting subjects’ who themselves give those forms determinate
reality in their own thought and action.21 (I do not refer to approaches to constitutional theory
that treat constituent power as an ongoing and immanent feature of established constitutional
orders.22) It is with reference to the concept of social constitution that a polity may be understood
as an appearance of a social form, the determination of which is found in the activity of real
social individuals. To describe a constitution as socially constituted is to refer to the determinate
reality of concepts that both mediate and are reproduced by definite and historically-specific
social relations. Constitutional documents do not themselves cause the historical specificity of
determinate social relations. Instead, constitutionality qua categories, concepts, and practices is
constituted through a continuous and contradictory ‘process of becoming’.23 It is reproduced
through the activity of political subjects along with the simultaneous (and typically depoliti-
cising) mediation of social relations by constitutionality.24
In contrast, most American constitutional theory is distinguished by the special attention
given to constitutional review of legislation – a judicial prerogative with a central role in the
political development of the United States.25 As such, US constitutional theories tend to be
either formalist, textualist or ‘normativist’26 in character. This is in no small part due to the
construction of constitutionality as a fundamentally jurisprudential domain. The entrenchment
of judicial supremacy – pursued in the defence of the agendas of particular political coalitions,
and generally supported by successful national coalitions, especially as they are expressed
through presidential politics27 – is accompanied by the continued gravitational pull of the
‘counter-majoritarian difficulty’.28 An obsession with paradox attends much of the activity of
US constitutional theorists who seek to reconcile majoritarian legitimation with the acutely
antidemocratic features of the formal constitution.29
US constitutional theory does little to investigate or unsettle the reification and hypostatisation
that subtend constitutionalism as a cultural practice. It is still as fetishistic as it was in Du Bois’s

20
An adequate understanding of constitutionalism is possible only through attending to the critique of capitalism as
abstract social domination. See Hunter, ‘Marx’s Critique’.
21
Bonefeld, Critical Theory, 21.
22
P. Blokker and C. Thornhill (eds.), Sociological Constitutionalism (Cambridge University Press, 2017).
23
Goldoni and Wilkinson, ‘Material Constitution’, 581.
24
On depoliticisation and the reproduction of constitutionality, see Hunter, ‘Marx’s Critique’.
25
K. E. Whittington, Repugnant Laws: Judicial Review of Acts of Congress from the Founding to the Present (University
Press of Kansas, 2019).
26
M. Loughlin, ‘The Concept of Constituent Power’ (2014) 13 European Journal of Political Theory 218.
27
K. E. Whittington, Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and
Constitutional Leadership in U.S. History (Princeton University Press, 2007).
28
A. M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Bobbs-Merrill, 1962), 16–17.
29
N. Sultany, ‘The State of Progressive Constitutional Theory: The Paradox of Constitutional Democracy and the
Project of Political Justification’ (2012) 47 Harvard Civil Rights–Civil Liberties Law Review 371.

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 116 Rob Hunter

day. It lacks an adequately developed vocabulary for the apprehension of constitutionalism as the
activity of real social individuals. To hear the practices and concepts of constitutionalism
described in terms of the real appearances of definite social relations may come as a shock to
‘those for whom the concepts of the bourgeois social sciences (“society”, “norms”, “equilib-
rium”, “legitimacy” etc.) are so familiar that their reality is almost tangible’.30 But the concepts
that populate constitutional thought are not autonomous ontological constituents of our world.
They are not simply illusory, but they are certainly neither natural nor self-subsistent – as so
many constitutional theorists suppose them to be. They may be explained, understood and
critiqued only with reference to the broader array of social relations of which they a part. I now
turn to the consideration of some early attempts to contribute to such a critical project.

7.3 BEARD, LLEWELLYN AND HARTZ

This section surveys three thinkers from the first half of the twentieth century – Charles Beard,31
Karl Llewellyn32 and Louis Hartz33 – who departed from conventional accounts of American
constitutionalism. The objects of their inquiries were neither constitutional provisions nor
doctrines. Beard pursued a relatively rare approach to understanding the constitution, viewing
it as the product of social conflict rather than deliberation over principles and institutional
design. But his analysis was ‘materialist’ only in the most limited and reductionist sense of the
term, as I argue in this section. Llewellyn, in turn, gave a rough-hewn but perceptive articulation
to the notion of the ‘living constitution’. He remained focused on the pragmatics of judicial
review, but he emphasised that the constitution is identical neither with the constitutional text
nor the extant body of doctrine. Finally, Hartz placed a greater emphasis on political thought
than either Beard or Llewellyn, who were preoccupied with economic interests and judicial
decision-making, respectively. Hartz’s explanation of American political culture – in terms of an
historically invariant liberalism – attended to the articulation of politics through categories and
modes of thought, but it did not offer explanations in terms of definite social relations.
‘Beard’s method was unrefined in details’;34 he focused on the economic and sectional
interests of the framers themselves.35 His account, as well as Hartz’s monochromatic portrait
of a liberal polity, are inadequate causal accounts of constitutional practice (the creation and the
reproduction of constitutionality); Llewellyn’s rather more modest argument did not even
attempt to provide such an account. Precisely because they sought to offer critical explanations
of the constitution, however, all three warrant more attention than is customarily given to them
in contemporary constitutional theory.
Beard described the constitution as ‘an economic document’36 rather than as a politico-
philosophical document. The interests of the framers determined the drafting and ratification of
the constitutional document. For Beard, the political content of that document – and the

30
S. Clarke, ‘Marxism, Sociology, and Poulantzas’s Theory of the State’, in S. Clarke (ed.), The State Debate
(Macmillan, 1991), 85.
31
C. Beard, An Economic Interpretation of the Constitution of the United States [1913] (Free Press, 1986).
32
K. Llewellyn, ‘The Constitution as an Institution’ (1934) 34 Columbia Law Review 1.
33
L. Hartz, The Liberal Tradition in America: An Interpretation of American Political Thought since the Revolution
(Houghton Mifflin Harcourt, 1955).
34
R. Hofstadter, ‘Beard and the Constitution: The History of an Idea’ (1950) 2 American Quarterly 195.
35
‘Beard occasionally seemed to be charging the Framers with lining their own pockets . . . At other times, however, he
suggested only that the Framers advanced the economic interests of the class to which they belonged . . .’. M. J.
Klarman, The Framers’ Coup: The Making of the United States Constitution (Oxford University Press, 2016), 377.
36
Beard, Economic Interpretation, 152 ff.

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 ‘A Certain Shadowy Totality’ 117

procedural chicanery through which it was created and ratified37 – represented a victory for
financial and commercial élites. Far from being a principled compromise, the creation and
ratification of the constitution amounted to ‘a genteel scam’38 – an anti-democratic measure
taken by the holders of specific kinds of wealth in order to secure their property and profits
against policies that might threaten them. The framers’ fear of democracy was best understood
through the lens of ‘economic determinism’, which Beard considered ‘as nearly axiomatic as any
proposition in social science can be’.39 He held that such an analytic frame is a necessary
corrective against ‘the juristic view’ that imagines that the constitution is ‘the work of the whole
people’ and ‘bears in it no traces of the party conflict from which it emerged.’40
The term ‘party conflict’ reveals the limits of Beard’s argument, which was constrained by his
methodological individualism. He averred that ‘no movement by a mass of people can be
correctly comprehended until that mass is resolved into its component parts’.41 Moreover, by
restricting his focus to a conflict between ‘parties’, Beard’s analysis occluded the broader social
conflict of which that particular party conflict was only one particular instance. He indefensibly
effaced slavery in his account; by failing to analyse slavery with precision and sustained
emphasis, he also failed to provide an adequate account of the creation of the constitution as
a victory for the possessors of wealth rather than for the members of sectional parties.42
Moreover, his critique was limited to the constitutional text, its drafting, and its ratification; he
was not concerned with actual historical constitutional practice. But Beard’s argument remains
valuable as an early example of critical (rather than celebratory) constitutional analysis. It is
limited and incomplete; but these limits must be surpassed, rather than used as an excuse for
dismissing critical constitutional scholarship.43 Who will deny that the US constitution is ‘based
upon the concept that the fundamental private rights of property are anterior to government and
morally beyond the reach of popular majorities’?44 But this is not enough to ground a critique of
the constitution, not least because it misses so much of what distinguishes constitutional practice
in the United States.
Llewellyn counted Beard among those students of politics and law who were more attentive to
their actual practice than their formal specifications.45 Llewellyn attempted to manifest this
attentiveness by distinguishing between constitutionalism in an institutional sense and ‘mere
working government’; he held that the former is a ‘penumbra’ of beliefs, understandings, and
conventions that accumulates (and may, perhaps, dissipate) over time and through practice.46
The metaphor of an institution contrasts sharply with the conventional American conception of
a constitution as a textually-specified framework or body of rules. Llewellyn advanced a distinct

37
Ibid., 239–52.
38
W. Hogeland, Founding Finance: How Debt, Speculation, Foreclosures, Protests, and Crackdowns Made Us a Nation
(University of Texas Press, 2012), 6.
39
Beard, Economic Interpretation, 15, n. 1.
40
Ibid., 11.
41
Ibid., 253.
42
Cf S. Lynd, ‘On Turner, Beard and Slavery’ (1963) 48 Journal of Negro History 235.
43
Beard has been the target of ‘an aggressive, largely successful effort . . . to discredit and dismiss him’. Hogeland,
Founding Finance, 6.
44
Beard, Economic Interpretation, 324.
45
Llewellyn, ‘Constitution as an Institution’, 2.
46
Ibid., 26 ff. It is interesting to note that Llewellyn used the term ‘penumbra’ to denote a relatively determinate
ensemble of practices and understanding, while Hart later used the term to describe a region of legal indeterminacy
outside the perimeter of ‘a core of certainty’. Hart, Concept of Law, 123. The term has also had a chequered history in
judicial decision-making; see L. J. Sirico Jr., ‘Failed Constitutional Metaphors: The Wall of Separation and the
Penumbra’ (2011) 45 University of Richmond Law Review 459.

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 118 Rob Hunter

criterion for recognising constitutional content: continuous practice, not textual fidelity or
normative prescription, is the modality through which constitutional content is determined.
For Llewellyn, the constitution as an institution does not obtain historically in the form of a fixed
body of rules or a web of power relations, but rather in ‘a certain shadowy totality’47 – a dynamic
yet path-dependent pattern of continually-developing constitutional meaning. This totality may
not be identified with any text. It is nevertheless socially determinate and its development exerts
a tendential influence on judicial outcomes. In Llewellyn’s sketch, such development falls
within the penumbra of the living and unwritten constitution that is non-identical with the
textual constitution. Our recognition of the actuality of such relations does not necessarily give
us interpretive guidance in hard cases, but it does give us good reason to believe that judges do
not rely solely on textual materials when making decisions.
Llewellyn may be glossed as saying that a polity is constituted socially, not textually. The social
constitution of reality is necessarily antagonistic and contradictory. Institutions may persist, but
that persistence is reproduced through conflict and contradiction; the ramifications for the
determinacy of constitutional meaning are obvious. But contingency and conflict do not efface
determinacy altogether. Llewellyn’s penumbra is no less real for having been constituted
through conflict. Llewellyn argued that the United States ‘have [an unwritten] Constitution,
and that nobody can stop their having such a Constitution, and that whether anyone likes that or
not, the fact has been there for decades . . .’48 Llewellyn’s narrow focus on the juridical – and a
fortiori his conception of social constitution as a mere process of institutionalisation – renders his
account inadequate as a material theory of constitutionalism. Even so, his insight that constitu-
tionality is made and re-made through contestation and conflict is generative and compelling.
Hartz emphasised the politically-constitutive role of concepts, but he did not understand them
to be historically-specific and determinate categories mediating thought and social behaviour.
That is, he did not understand them to be constituted through definite historical processes of
conflict and antagonism. Instead, he offered a ‘“single factor” analysis’49 of the American polity,
characterised by an absent feudal past and a pervasively liberal political culture (among its élite,
at least, to which his ‘single factor’ analysis was largely restricted). His argument hypostatises
liberalism and effaces political subjects other than normative citizens of the settler-colonial
polity: propertied white men. Lacking an account of how liberalism was and is socially
constituted, Hartz could not offer an adequate explanation of how and why it came to dominate
and define American politics. Unlike Beard, Hartz recognised the centrality of racism and
slavery to the American political tradition; but even these are treated primarily as concepts
standing to one side of historical conflict. Violence rarely intrudes in Hartz’s account, and even
when it does it is quickly brushed aside – as, for example, when he describes the antebellum
United States as ‘a land where liberalism had destroyed nothing, unless it was the society of the
Indians’.50 He even describes the Civil War not in terms of violence and destruction but in terms
of ‘the strange agonies the Southerners endured trying to break out of the grip of Locke and the
way the nation greeted their effort’51 – a telling contrast with Du Bois’s own account of the
struggle for abolition.

47
Llewellyn, ‘Constitution as an Institution’, 8.
48
Ibid., 2.
49
Hartz, Liberal Tradition, 20.
50
Ibid., 152.
51
Ibid., 177.

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 ‘A Certain Shadowy Totality’ 119

7.4 ORIGINALISM AND ITS DISCONTENTS

Despite their attentiveness to certain aspects of constitutional practice, both strands of contem-
porary American constitutional theory – originalism and living constitutionalism – have moved
further away from Beard’s, Llewellyn’s or Hartz’s attentiveness to constitutionalism as a form
taken by definite social relations. Originalism rests on a paradoxically ahistorical conception of
constitutional meaning. Meanwhile, living constitutionalism emphasises constitutional prac-
tice – but it imposes exogenous normative standards in order to distinguish valid constitutional
changes from invalid departures from what Llewellyn called the ‘certain shadowy totality’ of
established practice.

7.4.1 Originalism
Originalism is grounded in the contention that constitutional meanings are trans-historically
stable and interpretively recoverable. It is intimately linked to conservative efforts to re-shape the
contours of the American state (particularly its administrative apparatus) during and beyond the
second half of the twentieth century.52 It is a ‘political practice’ whose ‘ascendancy’, according to
two prominent critics, ‘does not reflect the analytic force of its jurisprudence, but instead
depends upon its capacity to fuse aroused citizens, government officials, and judges into a
dynamic and broad-based political movement.’53
A contemporary cohort of ‘new originalists’ emphasises public constitutional meaning over
the original intentions of constitutional framers or the putative plain meaning of the consti-
tutional text.54 They focus on the publicity of provisions’ original meanings at the moment of
their ‘fixation’ through writing and ratification.55 The particular intentions of individual framers
do not disclose constitutional meanings. Such a task requires investigating historical facts about
speakers, utterances, and their political contexts. Many contemporary originalists also acknow-
ledge that ‘[u]ncertainty and indeterminacy are inherent in the originalist approach to consti-
tutional interpretation’.56 Accordingly, they distinguish between constitutional interpretation57 –
the discernment of original public meanings – and constitutional construction58 – the elabor-
ation of constitutional meaning (and its translation into constitutional provisions and insti-
tutions) in instances of vagueness or ambiguity. Judicial review should be guided by the
canons of interpretation, not the vagaries of construction. Interpretation is neither mechanical
nor purely procedural; it is a hermeneutic encounter, the outcome of which must not be
imagined to be foreseeable or foreordained. Nevertheless, judicial review takes as its object –
so new originalists argue – the relatively fixed, public meaning of the constitutional text. The

52
S. M. Teles, The Rise of the Conservative Legal Movement: The Battle for Control of the Law (Princeton University
Press, 2012); A. Hollis-Brusky, Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution
(Oxford University Press, 2015); P. Baumgardner, ‘Originalism and the Academy in Exile’ (2019) 37 Law and History
Review 787.
53
R. Post and R. Siegel, ‘Originalism as a Political Practice: The Right’s Living Constitution’ (2006) 75 Fordham Law
Review 549; cf. C. TerBeek, ‘“Clocks Must Always Be Turned Back”: Brown v. Board of Education and the Racial
Origins of Constitutional Originalism’ (2021) 115 American Political Science Review 821.
54
K. E. Whittington, ‘The New Originalism’ (2004) 2 Georgetown Journal of Law & Public Policy 599.
55
L. B. Solum, ‘The Interpretation-Construction Distinction’ (2010) 27 Constitutional Commentary 116.
56
K. E. Whittington, ‘Originalism: A Critical Introduction’ (2013) 82 Fordham Law Review 403.
57
K. E. Whittington, Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review (University
Press of Kansas, 1999).
58
K. E. Whittington, Constitutional Construction: Divided Powers and Constitutional Meaning (Harvard University
Press, 1999).

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 120 Rob Hunter

normatively defensible role of judicial review involves the interpretive determination of meaning
in order to enforce institutional boundaries and protect individual rights.
Originalism does not apprehend constitutional practice as a moment of a social totality that is
suffused by violence, domination and subordination. Moreover, originalists have been largely
untroubled by historiographical objections to the narrowness of originalism’s historical vision.59
It is true that new originalist theories could only be the products of a post-Realist legal academy
in which ‘the interpenetration of law and politics’ is an accepted fact.60 Few new originalists
would deny ‘the truism that judges make law’.61 Nevertheless, contemporary originalists’
acknowledgement of the mutual constitution of law and politics is a thin one; they still abstract
institutional conflict from social conflict. Moreover, originalism casts constitutional meanings as
autonomous abstractions. As such, it cannot apprehend the constitution as both mediating – and
socially constituted through – antagonism and contradiction.

7.4.2 Living Constitutionalism

Originalism’s opponents insist on recognising ‘a living Constitution which completes, alters, aye,
and overrides the Document’.62 Since the advent of the Warren Court,63 living constitutionalists
have engaged in the defensive64 justification of left-liberal judicial interventionism.65 They
attempt to show that the unwritten constitution supersedes the written constitution but is
nevertheless compatible with or presupposed by the values implicit in the written constitution
(the enforcement of which is often understood in terms of moral perfectibility or ‘redemption’,
not textual fidelity).66 It is reasonable to characterise this project as ‘a mood and an anxiety’,
rather than a method.67 It is not Whiggish, in other words; after all, to describe the constitutional
order as living is to acknowledge that it may die.68
Living constitutionalism elevates Llewellyn’s ‘certain shadowy totality’ above the documentary
constitution. The former must guide interpretive practice, while the latter can neither
adequately describe the salient features of contemporary constitutional practice nor explain
the histories of struggle and contestation through which it was made. But living constitutionalists
lack a fixed interpretive anchor; they can only point to departures from consensuses that are
controverted and contested – essentially and necessarily so. They cannot propound consistent
methods for distinguishing between those constitutional innovations that are popularly author-
ised and those that are not. Recourse to contractarian theories of political consent only deepens

59
C. TerBeek, ‘The Search for an Anchor: Living Constitutionalism from the Progressives to Trump’ (2021) 46 Law &
Social Inquiry 860. A forceful statement of the historiographical objection may be found in J. N. Rakove, Original
Meanings: Politics and Ideas in the Making of the Constitution (Vintage Books, 1996).
60
S. M. Griffin, American Constitutionalism: From Theory to Politics (Princeton University Press, 1998), 18.
61
N. Duxbury, ‘Faith in Reason: The Process Tradition in American Jurisprudence’ (1993) 15 Cardozo Law Review 636.
62
Llewellyn, ‘Constitution as an Institution’, 2.
63
Cf L. A. Powe, The Warren Court and American Politics (Belknap Press, 2000).
64
J. M. Balkin, Living Originalism (Harvard University Press, 2011), 125.
65
Notable contributions to this literature include B. Ackerman, We the People: Foundations (Belknap Press, 1991); B.
Ackerman, We the People: Transformations (Belknap Press, 1998); B. Friedman, The Will of the People: How Public
Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution (Farrar, Straus and Giroux,
2009); D. A. Strauss, The Living Constitution (Oxford University Press, 2010).
66
J. M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011).
67
E. J. Leib, ‘The Perpetual Anxiety of Living Constitutionalism’ (2007) 24 Constitutional Commentary 370.
68
Cf J. M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020).

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 ‘A Certain Shadowy Totality’ 121

the problem of fetishism.69 Living constitutionalists must either make recourse to fetishistic
patterns of political thought, such as natural law or hypothetical consent, or else abandon the
teloi of living constitutionalism – in exchange, perhaps, for the commitments of ‘popular
constitutionalism’70 or the contemporary ‘law and political economy’ movement.71 Originalists
simply deny the actuality of any shadowy totality; but living constitutionalists can only gesture at
it, rather than isolate its determinate content.

7.5 ORIGINALISM AND LIVING CONSTITUTIONALISM AS

CONSTITUTIONAL FETISHISMS

Du Bois would have had little patience with today’s dominant theories, which cannot be said to
have built upon the contributions of Beard, Llewellyn or Hartz. Both originalism and living
constitutionalism, even in their most sophisticated forms, remain theories of constitutional
metaphysics. Neither furnishes sufficient theoretical materials for the apprehension of the
constitution as a socially constituted ensemble of practices, concepts and categories. Despite
its notable gains in sophistication – and tendencies toward convergence or at least comple-
mentarity with certain accounts of living constitutionalism72 – originalism cannot ground an
adequate account of the US constitution. The chief objects of originalist theory are not political
struggles or settlements themselves, but ‘fixed’ meanings that are specified – with lesser or greater
degrees of determinacy – in the constitutional text and are held to codify the content of political
settlements. As such, originalism is necessarily counterposed to the apprehension of constitution-
ality as the specific form of appearance of definite social relations. It is predicated on the trans-
historical recoverability of meanings (either subjective or public); it is ultimately defensible only
on the basis of insisting on the adequacy of conceptions of meaning and reference that largely
predate the twentieth century73 (although that would at least be consistent with a constitutional
theory that presumes that early modern political theory is adequate for describing the inverted
and contradiction-laden contemporary social world).
We are now far from the paths trodden by Beard or Llewellyn – let alone by Du Bois.
Originalism is defensible only on the basis of disavowing ‘the contribution of society and the
contribution of the real world’ to ‘the determination of reference’.74 To the extent that it is
predicated on the adequacy of the fixation thesis, originalism is a curiously ahistorical – even
antihistoricist – theory of the historical translation of meaning.75 What sincere originalist could
affirm Wittgenstein’s statement that ‘words only have meaning in the stream of life’?76
Originalists adhere to the claim that at least some meanings – constitutional meanings among
them – are essentially untransformed by discursive encounters. As such, they argue for the
persistence of specific abstractions even in the absence of their reproduction through socially

69
G. Kay, ‘Right and Force: A Marxist Critique of Contract and the State’, in M. Williams (ed.), Value, Social Form and
the State (Macmillan, 1988), 115–33.
70
M. Tushnet, Taking the Constitution Away from the Courts (Princeton University Press, 2000); L. D. Kramer, The
People Themselves: Popular Constitutionalism and Judicial Review (Oxford University Press, 2004).
71
J. Britton-Purdy, D. S. Grewal, A. Kapczynski and K. S. Rahman, ‘Building a Law-and-Political-Economy Framework:
Beyond the Twentieth-Century Synthesis’ (2020) 129 Yale Law Journal 1784.
72
Balkin, Living Originalism; Whittington, ‘Originalism: A Critical Introduction’.
73
Whittington, Constitutional Interpretation, 88–109.
74
H. Putnam, ‘Meaning and Reference’ (1973) 70 The Journal of Philosophy 711.
75
J. Gienapp, ‘Historicism and Holism: Failures of Originalist Translation’ (2015) 84 Fordham Law Review 935.
76
L. Wittgenstein, Last Writings on the Philosophy of Psychology, G. H. von Wright and H. Nyman, eds., C. G.
Luckhardt trans. (University of Chicago Press, 1996), vol. I, §913.

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 122 Rob Hunter

constitutive processes of antagonism and contestation. Moreover, unlike the ‘real abstraction’ of
capital mediating contemporary society, the abstractions that originalism concerns itself with –
constitutional meanings – are essentially contested concepts, not socially objective categories.77
They are not, in other words, historically specific forms of appearance of determinate social
relations. Instead, they are normative statements about how social relations ought to be ordered.
Any conceivable new originalist synthesis – combining the fixation thesis, on the one hand, and
the insistence on the diachronic interpretability of synchronic public meanings, on the other – is
unstable and ultimately untenable. Even if it is granted that the indeterminacy of the meaning of
legal texts is bounded,78 the meaning of any particular text cannot serve as an adequate explan-
ation of the struggles that preceded its inscription, nor as a guide to its application to future cases.
The originalist conception of the constitutional order abstracts constitutional meanings from
their dynamic historical contexts and presents them as anterior to, rather than constituted
through, social relations. This is fetishism of the first order.
Living constitutionalism fares no better. New originalists at least attempt to grapple with the
social character of meaning. Such an attempt does not ultimately succeed, inhibited as it is by
the commitment of originalists (old and new) to the fixity and (relative) determinacy of
meaning – such that originalists trade in hypostatised meanings shorn of specific social contexts.
Living constitutionalism, by contrast, is always already fetishistic. The notion of the living
constitution requires the imposition of particular normative standards – even if they are
exogenous to political practice as it actually obtains in history – in order to determine which
constitutional changes are democratically authorised and which are ephemeral (and hence non-
authoritative or, indeed, invalid). Originalists are more able than living constitutionalists to tell
stories about democratic justification for judicial review – within the US context, that is, in
which popular sovereignty is the default normative anchor for democratic legitimacy. One need
not grant the truth of originalists’ premises (particularly regarding meaning and translation, but
also regarding the adequacy of popular sovereignty as a theory of political justification) in order
to acknowledge that they have presented a coherent (if not convincing) story of how democratic
publics authorise constitutional creation and change – that is, by writing things down. Living
constitutionalists cannot offer such a parsimonious protocol for institutionalising constituent
power. Even so, new originalists are unable to adequately apprehend constitutional reality as a
result of their commitment to the absolute anteriority of constitutional norms with respect to
social practice. Living constitutionalists are at least motivated by an awareness of ‘the entangle-
ment of facts and value’.79
Originalists and living constitutionalists both draw pictures of American society that Du Bois
would recognise as caricatures. They ask questions that Beard would dismiss as trivial and
Llewellyn would regard as distractions. The originalist conception of constitutional meaning
cannot serve as an adequate picture of what settlements have been achieved or even what has
been struggled over.80 Living constitutionalists imagine that either settlements are self-justifying
and self-enforcing or that their having been achieved is an authoritative reason against contesting

77
On real abstraction see C. O’Kane, ‘The Critique of Real Abstraction: From the Critical Theory of Society to the
Critique of Political Economy and Back Again’, in A. Oliva, Á. Oliva and I. Novara (eds.), Marx and Contemporary
Critical Theory: The Philosophy of Real Abstraction (Palgrave Macmillan, 2020), 265–87. On social objectivity, see
Bonefeld, Critical Theory, 54–60 and passim; P. Mattick, Theory As Critique: Essays on Capital (Brill, 2018), 79–85 and
passim.
78
L. B. Solum, ‘On the Indeterminacy Crisis: Critiquing Critical Dogma’ (1987) 54 University of Chicago Law Review
462.
79
H. Putnam, The Collapse of the Fact/Value Dichotomy and Other Essays (Harvard University Press, 2002), 28–45.
80
B. Ackerman, ‘The Living Constitution’ (2007) 120 Harvard Law Review 1737.

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 ‘A Certain Shadowy Totality’ 123

them. In neither instance, however, do we have an adequate account of the US constitution.

Originalist fixation and constraint are inevitably poor guides to understanding how or through
what processes and antagonisms a polity is actually constituted. Living constitutionalism,
meanwhile, is actively at odds with the actual US constitution. It holds some struggles up as
discharging authoritative settlements and others as illegitimately threatening constitutional
democracy. Originalists trade on a crabbed and exclusionary conception of democracy that
posits a singular ‘people’ (one that is throttled by the dead hand of the past, no less). But living
constitutionalists must simply resort to question-begging, contractarian theories of political
justification. And both approaches trade on fetishistic understandings of institutions. That is,
they tend to treat institutions (formal and non-formal) as self-subsistent or natural, rather than as
particular forms of appearance of social reality – the constitutive processes of which cannot be
identified with either the formal constitution or the normative constitution.

7.6 CONCLUSION

Critiquing the formal constitution of a polity does not necessarily get us any closer to a critique
of the polity itself. What does the formal constitution reveal, and what does it efface, about the
make-up of the American polity as an ensemble of material social relations? What were the
social relations that made possible, and both mediated and were presupposed by, the consti-
tutional categories and concepts of American constitutionalism? How did they change and
develop through the antagonism – the brutality and barbarism – at the heart of the American
state-building project? Du Bois’s rejection of constitutional metaphysics prompts such questions,
but few American constitutional theorists seem interested in answering them. American consti-
tutional theorists have been unable to give definite and coherent shape to Llewellyn’s ‘certain
shadowy totality’ of practices, beliefs and understandings. They will remain unable to do so as
long as they fail to take seriously and learn from the tentative steps taken by earlier scholars
toward an adequate understanding of constitutional reality.
More fundamentally, after almost a century, we are no closer to answering Du Bois’s
challenge. We can gesture at what an adequate response would look like. The constitution of
the United States, considered as an historically specific appearance of the form of the state, is
distinguished by, inter alia, capitalist relations of production and exchange; anti-indigeneity and
settler-coloniality; ascription to racialised and gendered hierarchies of domination, exclusion,
and extermination; and the articulation of domestic governance with global relations of circula-
tion and accumulation. But these cannot be explained on the basis of the hegemonic modes of
constitutional thought in the contemporary United States. Doing so requires the further
development of the critical concept of the material constitution.

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 8

The Material Constitution in Greek Constitutional Thought

Nikolas Vagdoutis

8.1 INTRODUCTION

The origins of the concept of the material constitution can be traced back to Costantino Mortati.
He is the ‘founding father’ of the term ‘constitution in the material sense’, used in his
monograph La Costituzione in senso materiale (1940).1 With this concept, Mortati distanced
himself from a legal formalism that ‘is unable to conceive of the legal order as a substantive
coherent unity’.2 On the contrary, his concept of the material constitution aimed at the consoli-
dation of a substantive political unity, and this could not be achieved through a concept of the
constitution as a set of norms.3 This unity was provided by the ruling political party or, in his
post–Second World War theory,4 by the dominant political forces in a multiparty system and
their fundamental aims. The ‘ruling party’ was the ‘privileged holder of constitutional values’5
and guaranteed the unity in the legal order and, therefore, the unity of the state. The aims of the
political parties had, therefore, ‘an immediate legal value’,6 being the ordering principles of the
constitution. Hence, Mortati’s material constitution had a legal – and not solely a sociological –
character.7 The material constitution was ‘a source of validity’ and a ‘condition of effective
implementation’ of the formal constitution.8 It ‘prevails’, therefore, over the latter.9
Mortati’s concept of the material constitution was introduced into Greek constitutional
thought in the 1980s. However, material approaches to the constitution were developed in
Greek constitutional thought even before this period. This chapter will explore these approaches

This chapter is part of my completed post-doctoral research at the Aristotle University of Thessaloniki (School of Law).
1
M. La Torre, ‘The German Impact on Fascist Public Law Doctrine – Costantino Mortati’s Material Constitution’, in
C. Joerges and N. Singh Ghaleigh (eds.), Darker Legacies of Law in Europe: The Shadow of National Socialism and
Fascism over Europe and its Legal Traditions (Hart, 2003), 305.
2
Ibid., 310.
3
M. Goldoni and M. Wilkinson, ‘The Material Constitution’ (2018) 81 Modern Law Review 576.
4
M. Croce and M. Goldoni, The Legacy of Pluralism: The Continental Jurisprudence of Santi Romano, Carl Schmitt,
and Costantino Mortati (Stanford University Press, 2020), 169–70.
5
La Torre, ‘German Impact’, 316.
6
Ibid., 314. As Mortati argued, ‘the political parties act . . . as an autonomous source of validity of the legal order, a factor
and mechanism necessary to ensuring the order’. Ibid.
7
Ibid., 327.
8
Ibid., 314.
9
Ibid.

124

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 Material Constitution in Greek Constitutional Thought 125

by distinguishing three chronological periods: (a) the interwar period in which a sociological
concept of the constitution was developed by Alexandros Svolos; (b) the period after the end of
the Greek civil war, in which there was no common stance toward a material approach to the
constitution among Greek constitutional theorists: George Daskalakis developed a normative
approach to the material constitution under the influence of Rudolph Smend and Carl Schmitt,
which was criticised by Aristovoulos Manessis and (c) the period after the fall of the dictatorship,
in which there was a revival of material understandings of the constitution through the theories
of Manessis and Antonis Manitakis. As will be demonstrated, they developed both a sociological
and a juristic understanding of the material constitution, influenced more by Nicos Poulantzas’
state theory than Mortati’s concept of the material constitution. This chapter will follow that
division and proceed in three parts.

8.2 THE INTERWAR PERIOD: SVOLOS’ SOCIOLOGICAL APPROACH OF

THE CONSTITUTION

The Greek constitutional theorist who was the first to develop a material understanding of the
constitution was Alexandros Svolos (1892–1956). He was the most significant constitutional theorist
in the interwar period,10 ‘with social-democratic political leanings’.11 Although he did not deploy
the term ‘material’ constitution, he followed a ‘sociological approach’,12 exploring the social reality
that lies behind the 1927 Greek republican constitution and its principle of popular sovereignty.13
His approach was influenced by Rudolf Smend’s Integrationslehre and Smend’s idea that the State
is not a static entity but is in the constant process of dynamic renewal, living through ‘un plebiscite
de tous les jours’.14 He followed Smend’s relation of the state to a dynamic social life because
otherwise the nature and the activity of the state would not be understood, and the state would
remain a ‘dead object’.15 As a consequence, he delved into a ‘research on social forces, mainly
regarding representative democracy’, which ‘is literally a research on polity’.16
However, he did not follow Smend’s normative aim of integrating the citizens into the state,17
which was considered as a ‘unified experience’ and a ‘totality of values’.18 On the contrary,
Svolos’ theory stood in contrast to Smend’s communitarian theory, based on his sociological
observation of the absence of a homogeneous people in a society riddled with (predominantly if
not exclusively) class conflict.19 Based on this observation, Svolos argued that behind the
constitutional principle of popular sovereignty exists a multi-class society.20 This led to his

10
Svolos held the Chair of Constitutional Law at the University of Athens in 1929. However, he only served for a few
years because he was fired four times from this position, the last being in 1946. This dismissal had been preceded by
the fact that he served in 1944 as a President of the Political Committee of National Liberation [ΠΕΕΑ] which was the
government created by the National Liberation Front [ΕΑΜ] during the resistance.
11
S. Ploumidis, ‘Corporatist Ideas in Inter-war Greece: From Theory to Practice (1922–1940)’ (2014) 44 European History
Quarterly 61.
12
A. Svolos, Το νέον Σύνταγμα και αι βάσεις του πολιτεύματος [1928] (Εκδόσεις Αντ. Σάκκουλα, 2008), e΄, 88.
13
According to article 2 of the 1927 Greek constitution ‘All the powers derive from the Nation, exist for the Nation . . .’.
14
Svolos, Το νέον Σύνταγμα, 103.
15
Ibid.
16
Ibid.
17
S. Korioth, ‘Rudolf Smend: Introduction’, in A. J. Jacobson and B. Schlink (eds.), Weimar: A Jurisprudence of Crisis
(University of California Press, 2002), 210.
18
R. Smend, ‘Constitution and Constitutional Law’ [1928], in A. J. Jacobson and B. Schlink (eds.), Weimar:
A Jurisprudence of Crisis (University of California Press, 2002), 230.
19
Svolos, Το νέον Σύνταγμα, 87.
20
Ibid., 85.

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 126 Nikolas Vagdoutis

argument that the general will is a ‘fiction’ and that the ruling power of modern democracies
cannot be based on a unity called ‘the people’ but ‘is mostly the will of a [social] group’.21 This
group is ‘usually’ the one that has ‘economic power’.22 In other words, the economic-social
power of capital has a severe impact on the formation of the state will, whereas the masses hold
the ‘impotent power of universal suffrage’.23
This dominance of the ‘bourgeoisie’ and the lack of social solidarity is one of the main reasons
for the crisis of parliamentarism and of democracy in Europe in the early 1930s.24 Svolos’
material understanding of the constitution leads him to stress the necessity of social democracy
for overcoming this crisis.25 His concept of social democracy draws from the tradition of Weimar
social democracy. He argues for a ‘démocratie socialisante’26 through the state by referring,
among others, to the state theories of Heinrich Cunow, Karl Renner and Hans Kelsen, namely
theories according to which the state is considered to be transformable and is deemed as an
apparatus that could lead to socialism.27 According to Svolos, the indication that the state is
being transformed in this direction of a ‘popular state’ [Volksstaat] – that is Ferdinand Lasalle’s
notion of the state, which inspired the aforementioned theories28 – could be seen by the
electoral rise of the socialist and the communist parties across Europe in this period.29
However, the suggested path to social democracy was centred less on parliamentary repre-
sentation than on ‘professional representation’.30 More concretely, from 1921, Svolos proposed an
‘Economic Senate’ that would be comprised equally of labour and capital and would have –
unlike the predominantly consultative role of the Reich Economic Council in Weimar – a
legislative role along with the parliament.31 He considered this institutional form as necessary to
oppose the impact of the bourgeoisie on the democratic state and to express ‘in a more honest
and authoritative way the wills of the society’.32 It would dissolve the fiction of the general will
and would adjust representation to the existing social reality of interwar organised capitalism that
‘made inevitable the absorption of the individual to a social group’.33 Parliamentary representa-
tion was considered as part and parcel of individualism – that is the ‘ideological flag of
liberalism’ – because it was grounded in individual voters and on a free mandate and did not

21
Ibid., 84–88.
22
Ibid., 88.
23
Ibid., 167.
24
A. Svolos, Η αναθεώρησις του Συντάγματος (Η Θέμις, 1933), ιθ΄, κα΄.
25
Ibid., κ΄–κγ΄. Svolos’ argumentation seems quite similar to Heller’s call for ‘social Rechtsstaat’ in H. Heller,
‘Rechtsstaat oder Diktatur’ (1987) 16 Economy and Society 141.
26
A. Svolos, Le travail dans les constitutions contemporaines (Librairie du Recueil Sirey, société anonyme, 1939), 22.
27
Svolos, Το νέον Σύνταγμα, 106–17. Kelsen referred approvingly to Lassalle, Cunow and Renner, among others. He took
a favourable view of Renner’s analysis according to whom the ‘germ of socialism is to be found today in all the
institutions of the capitalist state’ and that the state is the ‘lever to socialism’. H. Kelsen, ‘Marx oder Lassalle’ (1925) 11
Archive für die Geschichte des Sozialismus und der Arbeiterbewegung 261–98, especially 270–75. The affinities between
Kelsen’s political theory and the reformist side of Weimar social democracy have been demonstrated in N. Vagdoutis,
‘Hans Kelsen and Carl Schmitt in Weimar: A Riddle of Political Constitutionalism’, PhD thesis, University of
Glasgow (2018), 226–32. See also C. Herrera, ‘La théorie politique de Kelsen et le socialisme réformiste’ (1998) 84
ARSP: Archiv Für Rechts- Und Sozialphilosophie / Archives for Philosophy of Law and Social Philosophy 195.
28
Lassalle had conceived the state as ‘the big association of the poorer classes’. This phrase was cited approvingly by
Kelsen in his ‘Marx oder Lassalle’, 293 and by Svolos, Το νέον Σύνταγμα, 116.
29
Svolos, Το νέον Σύνταγμα, 116–17.
30
Ibid., 195–203, 208–10.
31
Ibid.
32
Ibid., 166.
33
As Svolos argued, ‘the new form of economic life made inevitable the absorption of the individual to a social group’.
This new form comprised of ‘trusts’, ‘cartels’, ‘professional and economic organizations’, etc. Ibid., 128–31, 170.

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 Material Constitution in Greek Constitutional Thought 127

conform to the existing social reality, which was comprised of ‘economic and professional
organizations’.34 So, liberal parliamentarism did not adequately represent the social interests
of the various social groups.
Svolos’ suggestion for professional representation derived, therefore, from his analysis
regarding the multi-class society and the dominance of the bourgeoisie on political representa-
tion in conditions of organised capitalism. As a result, he ended up arguing for a ‘syndicalism’
based on professional representation – under Duguit’s influence – because this sort of
syndicalism would, first, express in a more democratic way the various social interests that are
concealed through the ‘fiction’ of a general will.35 So, his argumentation aims at giving political
expression to social pluralism. Second, his suggestion also indicated a corporatist–functional
dimension since he argued that such an institutional form would achieve a substantive equilib-
rium among social forces.36 It was, nevertheless, a ‘societal’–democratic type of corporatism and
not a ‘state’–authoritarian one,37 given Svolos’ emphasis on the independence of unions from
state power, on their ‘voluntary participation’ in the Economic Senate and on ‘freedom of
assembly’.38 Hence, he opposed the ‘dictatorial’ stato corporativo that existed in Italy.39
Moreover, his corporatism cannot be identified with Duguit’s ‘corporatist syndicalism’40 because
Svolos’ notion of substantive equilibrium does not underplay social conflict – as Duguit’s
concept of social solidarity does.41 Equilibrium instead emerges out of the prior expression of
different class interests.42 Besides, whereas Duguit despised class struggle, Svolos argued that
professional representation is the explicit recognition of class struggle.43 However, it remains
unclear how professional representation – given its composition – could be combined with the
aim of socialism that Svolos endorsed.
Finally, the material analysis of Svolos remained mainly at the sociological level, namely at
the level of social reality that lies behind the formal democratic constitution, its principle of
popular sovereignty and the institutions through which this principle is expressed. He neither
discarded the normative character of the formal constitution nor attributed any normative
character to social reality. His material understanding of the constitution is an explanatory study
of the socio-political forces rather than a method for the interpretation of the constitution.
Svolos’ material analysis of the constitution was therefore different from those developed by

34
Ibid.
35
On this, Svolos followed Kelsen’s and Duguit’s deconstruction of the general will. Ibid., 83–88, 105.
36
Ibid., 210, 331. He argued that professional representation would ‘create . . . an entirely different form of democracy,
which will be based . . . on a substantive equilibrium of social forces’.
37
See Schmitter’s typology of corporatism, in P. C. Schmitter, ‘Still the Century of Corporatism?’ (1974) 36 The Review
of Politics 103.
38
Svolos, Το vέον Σύνταγμα, 195–97.
39
Ibid. See also Ploumidis, ‘Corporatist Ideas in Inter-war Greece’, 61.
40
As Laborde described Duguit’s theory. C. Laborde, Pluralist Thought and the State in Britain and France, 1900–25
(Palgrave Macmillan, 2000), 101.
41
As Laborde writes with regards to Duguit’s theory, ‘social solidarity was an ‘efficient fiction’ which underplayed social
tension’. Ibid., 113.
42
Svolos’ thinking was closer to Duguit’s corporatism during the early 1920s. This is visible in his preface to the
translation of Duguit’s Le droit social, le droit individuel et la transformation de l’État (1908), which is a book that
Svolos had translated into Greek in 1923. In this preface, Svolos proposed an ‘economic representation of the social
classes’, arguing that the organisation of the social classes should be based ‘not on struggle and violence, as the
Marxists wish’ but ‘on social solidarity’. A. Svolos, ‘Πρόλογος’ [Preface], in L. Duguit, Το Κοινωνικόν Δίκαιον, το
Ατομικόν Δίκαιον και η μεταμόρφωσις του Κράτους (Ελευθερουδάκης, 1923), ii–iii. See also Ploumidis, ‘Corporatist Ideas
in Inter-war Greece’, 74.
43
Svolos, Το νέον Σύνταγμα, 197.

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 128 Nikolas Vagdoutis

Smend and Mortati, according to which a normative function of the constitution is to integrate
society.44 In fact, Svolos’ sociological approach indicated how the democratic constitution – and
its principle of popular sovereignty – turns into a relatively sham constitution to the extent that it
does not provide for a pluralist expression of antagonistic social interests. Hence, he argued for a
change of the 1927 Greek constitution in the direction of creating an Economic Senate that
would be entirely composed of representatives of professional organisations. Although he did not
define in detail its competences, he insisted that it should have at least the same legislative role
that the Senate already had under the 1927 Greek constitution.45

8.3 THE ‘GUIDED DEMOCRACY’ PERIOD AND ITS DIVERGENCE: FROM

THE CRITIQUE OF A MATERIAL APPROACH OF THE CONSTITUTION TO
ITS DEFENCE

After the end of the Greek civil war in the late 1940s, there was a regime of ‘weak democracy’ or
‘guided democracy’, namely ‘the deeply original phenomenon of an authoritarian regime . . .
built under the auspices of a democratically organized parliamentary state’.46 During this period,
and more specifically from 1952 until the colonels’ dictatorship in 1967, there was a dual
constitutional system. First, formal constitutional legality according to the 1952 Greek
constitution. This constitution had a conservative character given that it established monarchical
democracy (whereas the 1927 constitution was republican). However, it was not dictatorial and it
also included politically liberal features to an extent, even though it is considered as a ‘step
backwards’ from the liberal constitutional tradition that had existed in Greece since the 1864
constitution,47 due to its ‘ethnocentric ideological flavor’.48 Secondly, there was also a parallel
constitutional order in force – the ‘para-constitution’, as it came to be known.49
The para-constitution was comprised of constituent acts and parliamentary resolutions that
were promulgated after the occupation and before the 1952 constitution, mostly during the civil
war (1946–49).50 These exceptional measures were imposed by the winners of the civil war and
remained in effect after the 1952 constitution came into force due to a parliamentary resolution
of 29 April 195251. The significant point is that many of the measures that comprised the ‘para-
constitution’ opposed the formal 1952 constitution. These measures entailed a severe restriction
of civil rights and political liberties, such that ‘. . . the rights of free speech, free association and so
on were enjoyed mainly by the non-communists, and particularly the ethnikophrones (those who

44
Smend, ‘Constitution and Constitutional Law’, 240.
45
Svolos, Το νέον Σύνταγμα, 209–10. The 1927 Greek constitution was the only Greek constitution during the twentieth
century that established a Senate. However, only 18 out of the 120 Senate members were representatives of professional
organisations. On the contrary, Svolos suggested that the Senate should be composed merely of such representatives.
Regarding the Senate’s competences under the 1927 Greek constitution, it had a legislative role, but the parliament
prevailed in cases of disagreement. However, the Senate’s consent was essential for a constitutional revision (Article
125). See Ploumidis, ‘Corporatist Ideas in Inter-war Greece’, 61. See also N. Alivizatos, Το Σύνταγμα και οι εχθροί του
(Πόλις, 2011), 265
46
C. Tsoukalas, ‘The Ideological Impact of the Civil War’, in J. O. Iatrides (eds.), Greece in the 1940s. A Nation in Crisis
(University Press of New England, 1981), 320.
47
This is argued by Alivizatos, Το Σύνταγμα και οι εχθροί του, 366–72.
48
I. Tassopoulos, ‘The Golden Dawn Case: An Exercise in “Constitutional Dismemberment” and Constitutional
Continuity’, Constitutional Change Blog (2021), available at: www.constitutional-change.com/the-golden-dawn-case-
an-exercise-in-constitutional-dismemberment-and-constitutional-continuity/, last accessed 21 July 2022.
49
N. Alivizatos, Οι πολιτικοί θεσμοί σε κρίση: 1922–1974. Όψεις της ελληνικής εμπειρίας (Θεμέλιο, 1983), 536–600.
50
Ibid., 536–42.
51
These measures were definitively abolished in 1975 (law 233/1975). Alivizatos, Το Σύνταγμα και οι εχθροί του, 499.

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 Material Constitution in Greek Constitutional Thought 129

think “patriotically”, who are “nationally-minded”)’.52 Moreover, thousands of communists were

exiled to concentration camps. So, according to this dual constitutional system, there was, on the
one hand, the 1952 Constitution and, on the other hand, the para-constitution that applied to the
internal enemy, namely to those considered as non-ethnikofrones. The fact that the para-
constitution was in force – even though it contravened the formal constitution that was supposed
to be the source of the legal order – signified the ‘dissolution of the distinction between the legal
and the political sphere’ as Drossos writes.53
This political and constitutional context is important in order to grasp the critique of a
material understanding of the constitution offered by Aristovoulos Manessis (1922–2000),54
who was an influential constitutional theorist during the post-civil war period. He criticised
those approaches that ‘in contrast with the legal definitions that are deemed “static” and . . .
“formalistic” develop “dynamic” theories that define the substantive constitution in a way that
will take into account the “living” and ever changing reality’.55 Manessis’ fear was that, through a
distinction between formal and substantive constitution, there would be a dissolution of the
distinction between the legal and the political sphere. This dissolution would undermine the
formal constitution and would be advantageous at a political level for the rulers because they
would have the power to interpret constitutional legality according to their own perception of
the ‘living’ reality.56
On the basis of this analysis, Manessis opposed Smend’s theory, according to which ‘the
constitution is the legal order of the state, or more precisely, of the life through which the state
has its reality – namely of its integration process’.57 In Smend’s definition, the formal
constitution is underplayed in favour of a vague ‘ontological’ concept of the constitution.58
This is evidently indicated in Smend’s phrase that the meaning of the constitution can change
without being ‘bound by the requirements of the development of a prescriptive law’.59
Moreover, Manessis rejected Schmitt’s ‘positive concept’ of the constitution as the ‘complete
decision over the type and form of the political unity’.60 Schmitt had distinguished this positive
concept of the constitution (named as ‘Constitution’) from the formal one (named as ‘individual
constitutional laws’).61 The former was based on ‘the concrete existence of the politically unified
people [and] is prior to every norm’,62 meaning that it prevailed over the latter.
According to Manessis, both Schmitt’s and Smend’s theories are based on ‘ontological’,63 and,
therefore, non-legal concepts of the constitution. On the contrary, Manessis argued that there is
a ‘political importance’ in the formal constitution, which is the prevention of the arbitrariness of

52
N. Mouzelis and G. Pagoulatos, ‘Civil Society and Citizenship in Postwar Greece’, in F. Birtek and T. Dragonas
(eds.), Citizenship and the Nation-State in Greece and Turkey (Routledge, 2005), 88–89.
53
Y. Drossos, Δοκίμιο Ελληνικής Συνταγματικής Θεωρίας (Εκδόσεις Αντ. Σάκκουλα, 1996), 371.
54
Manessis held the chair of Constitutional Law at the Aristotle University of Thessaloniki in 1965. He was fired from his
position during the dictatorship. Between 1970 and 1974 he taught Public Law at the University of Amiens in France.
After the fall of the dictatorship, he taught again at the Aristotle University. In 1981 he became a Professor of
Constitutional Law at the University of Athens.
55
A. Manessis, Αι εγγυήσεις τηρήσεως του Συντάγματος, τ. Ι΄ (Το Νομικόν, 1956), 62.
56
Ibid., 63.
57
Smend, ‘Constitution and Constitutional Law’, 240.
58
Manessis, Αι εγγυήσεις τηρήσεως του Συντάγματος, τ. Ι, 63.
59
Smend, ‘Constitution and Constitutional Law’, 240. See Manessis, Αι εγγυήσεις τηρήσεως του Συντάγματος,τ. Ι, 63.
60
C. Schmitt, Constitutional Theory [1928] (Duke University Press, 2008), 75.
61
Ibid.
62
Ibid., 166.
63
Manessis, Αι εγγυήσεις τηρήσεως του Συντάγματος,τ. Ι, 64.

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 130 Nikolas Vagdoutis

the rulers.64 The political reason for this approach can be easily deduced: he tries, in this way, to
defend constitutional legality as written in the 1952 Constitution against a concept of the
constitution that would legitimise the para-constitution.
At the same time, Manessis was opposed to the Greek constitutional theorist George
Daskalakis (1912–94), who was influenced by Smend’s and Schmitt’s concepts of the consti-
tution. Daskalakis was one of the four Habilitants of Carl Schmitt during the period 1934–44 at
the University of Berlin.65 After he left Germany, Daskalakis became a Professor of Introduction
to Public and Constitutional Law at Panteion University in Athens from 1943–81. Daskalakis
developed an understanding of the constitution not solely as a legal text but as the medium of
integration. Hence, he agreed with Smend’s concept of the constitution as a system of integra-
tion,66 arguing that the constitutional order ‘appears as the medium of state and social integra-
tion. It tries to harmonize every moment and to adjust various contradictory tendencies and
views, ideologies and interests, groups and people in the line of the whole . . .’.67 Moreover, he
suggested a concept of the constitution as ‘The Plan of Plans’, which would establish the
fundamental aims that people will pursue.68 These aims constitute the ‘basic decisions – [this
is where Schmitt’s influence is also revealed] for the formation of the future social and economic
structure of α people . . .’.69
Manessis showed that this concept has political ramifications. He emphasised that, for
Daskalakis, the ‘governmental directions and decisions for drawing up the [1949] long-term
economic program for the economic recovery of Greece’ – in the context of the 1948 European
Recovery Program – had a ‘constitutional content’ that would bind not only the governments in
power but also the parliament.70 Daskalakis conceived the aims of this economic program as the
‘economic constitution’ of the country that is in effect for ‘all the political parties and social
classes’; it is a ‘common national aim’.71 He concludes that this program is the ‘sine qua non
element of the Constitution-Plan’.72
It becomes evident that Daskalakis’ conception of the constitution attributes a normative
character to a political and economic program. There is an ideological element here in that the
conflictual social reality is elided through Daskalakis’ argument that this program represents a
‘common national aim’. So, through his material conception of the constitution, the people are
presented as a homogeneous entity and the governmental plan prevails over the formal consti-
tution (and, therefore, over the parliament’s decisions).
In the light of the dual constitutional system that was in effect, Manessis justifiably rejected
this concept. He argued that it would render the content of the formal constitution uncertain
and, as a consequence, it would be not clear whether the activities of the state organs were in
accordance with the constitution or not.73 In this way, the rights of the ruled would be
threatened. As a result, he held fast to his formalist approach.

64
Ibid., 76–78.
65
His unpublished Habilitation was examined by Schmitt himself and Emge in 1938. Reinhard Mehring, Carl Schmitt:
A Biography (Polity Press, 2014), 331, 352.
66
Smend, ‘Constitution and Constitutional Law’, 248.
67
G. Daskalakis, ‘Η αναθεώρησις του συντάγματος και το νόημα του συντακτικού έργου’, in Επιστημονική Επετηρίς της
Ανωτάτης Σχολής Πολιτικών Επιστημών 1949–50 (Πάντειος, 1950), 609–709, 687.
68
Ibid., 681.
69
Ibid., 682.
70
Ibid., 683–84; Manessis, Αι εγγυήσεις τηρήσεως του Συντάγματος,τ. Ι, 64.
71
Daskalakis, ‘Η αναθεώρησις του συντάγματος’, 684.
72
Ibid., 684.
73
Manessis, Αι εγγυήσεις τηρήσεως του Συντάγματοςτ. Ι, 65.

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 Material Constitution in Greek Constitutional Thought 131

8.4 THE METAPOLITEFSI PERIOD: REVIVAL OF MATERIAL APPROACHES

OF THE CONSTITUTION UNDER THE INFLUENCE OF POULANTZAS’
STATE THEORY

The fall of the dictatorship in 1974 was followed by the metapolitefsi, as it came to be known (this
term means, literally, regime change). In this period, Greek constitutional theorists explored not
only how the constitution could guarantee the rights of the ruled – given that the para-
constitution was no longer in effect – but also how the constitution relates to socio-political
forces. Hence, there was a development of material approaches to the constitution, influenced
by Poulantzas’ state theory.
The first to attempt such an approach was Manessis. On the one hand, he continued to level
critique against value-laden concepts of the constitution as ‘system of values’ or as an ‘order of
values’ such as those developed in post-war Germany at a theoretical level and in the case law of
Bundesverfassungsgericht.74 He still opposed, therefore, the conflation between ‘is’ and ‘ought’
that he considered as the consequence of these value-laden theories to the extent that these
values compose a ‘value system’ that differentiates itself from the formal constitution and prevails
over the latter’s normative character.75 He thought that these theories have an ‘ideological
function’ in that they ‘attribute a substantive unity’ in the constitution beyond its provisions.76
In this way, they establish a ‘transcendental legitimacy’ that prevails over formal legality.77 This
undermines the normative character of the formal constitution and puts political liberties in
danger.78
However, on the other hand, Manessis shifted from his formalist approach (that, as seen in
Section 8.3, served a political purpose) to a material understanding of the constitution, without
side-lining the formal constitution. This material understanding was developed at two levels: a
sociological and a juristic one. Regarding the sociological level, he developed the idea of the
constitution as the ‘condensed legal expression of the relation of socio-political forces that exists
at a given time in a given social formation’.79 This meant the rejection of an instrumental view
of the constitution – namely its conception as an instrument of an ‘imposition’ of the will of the
rulers – and the adoption of a conception of the constitution as a ‘field of socio-political
antagonisms’.80
This materialist approach was influenced by Poulantzas’ concept of the state as ‘a strategic
field’ (instead of a ‘monolithic bloc’).81 Namely, the state is considered neither as a ‘thing–
instrument’ in the hands of the ruling class nor as an entity that is fully autonomous from class
struggle.82 It is the ‘specific material condensation of a relationship of forces among classes and
class fractions’.83 Manessis, like Poulantzas, argued that ‘the state will is neither identified
necessarily . . . with the will of the class that is dominant at the economic level nor . . . of the

74
These were based on the concept of ‘free democratic basic order’. A. Manessis, Συνταγματικό Δίκαιο Ι (Σάκκουλας,
1980), 174–75.
75
Ibid., 175.
76
Ibid.
77
Ibid.
78
Ibid., 175–76.
79
Ibid., 166.
80
Ibid., 170.
81
N. Poulantzas, State, Power, Socialism (Verso, 1980), 138.
82
Ibid., 129.
83
Ibid.

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 132 Nikolas Vagdoutis

class that is dominant at the political level’.84 Based on this, Manessis argued that contemporary
constitutions ‘usually express a compromise between opposing socio-political forces’ and he
referred to the Weimar constitution, the 1948 Italian constitution and the 1975 Greek consti-
tution as examples.85
In terms of historical context, the 1975 Greek constitution does not seem at first glance to be a
compromise constitution, given that, in contrast with the 1948 Italian constitution, it was voted
merely by the deputies of New Democracy [Νέα Δημοκρατία], which had obtained 54.37% of the
popular vote in the 1974 elections. The entire opposition abstained from voting because of its
disagreement with the so-called super-prerogatives that the new Constitution allotted to the
President of the Republic (e.g., he had the power to dissolve the parliament under certain
circumstances).86 Although these prerogatives were never used until the 1986 constitutional
revision (in which they were significantly curtailed, almost cancelled), there was a widespread
fear that they would be a ‘hidden para-constitution’ that would oppose the popular will.87
Despite that, this constitution was also shaped (to an extent) by the suggestions of the
opposition parties.88 This was evident from the fact that it definitely established parliamentary
democracy and did not opt for a semi-presidential system, and mainly from its ‘social-democratic
inspired’ section on economy seen especially in article 106 of the Constitution.89 According to
this article, ‘[par. 1] . . . the State shall plan and coordinate economic activity in the Country,
aiming at safeguarding the economic development of all sectors of the national economy’.
Moreover, the state can even nationalise enterprises under certain circumstances (par. 3–6). So,
Manessis was not wrong to argue that this constitution was a compromise constitution, at least to
an extent, in the sense that it expressed not only the will of New Democracy but a certain
balance of forces.
Poulantzas’ relational state theory ‘allowed’ Manessis to analyse the 1975 Greek constitution as
a compromise constitution and, conversely, the content of this constitution fitted into his
(influenced by Poulantzas) analysis of the constitution. Hence, although Manessis was also
influenced by Svolos’ theory – according to which the state will is usually determined by the
social group that has economic power,90 (see Section 8.2) – his sociological approach of the
constitution is more relational.
At the same time, Manessis’ analysis of the constitution captures the dynamic relationship
between the living political reality and the formal constitution through his concept of ‘consti-
tutional reality’.91 This is where his juristic account of the material constitution becomes visible.
Constitutional reality, according to Manessis, is ‘the real way in which the constitution is
implemented, namely the real meaning that the constitution takes when implemented’.92
This constitutional reality signifies, therefore, the ‘dialectical unity between constitutional
provisions and political reality’.93 However, his material understanding of the constitution is
quite reductive at this level in the sense that constitutional reality seems determined merely by

84
Manessis, Συνταγματικό Δίκαιο Ι, 71–72.
85
Ibid., 167–68.
86
Alivizatos, Το Σύνταγμα και οι εχθροί του, 500.
87
N. Alivizatos, ‘Greek Constitutionalism and Patterns of Government’, in K. Featherstone and D. Sotiropoulos (eds.),
The Oxford Handbook of Modern Greek Politics (Oxford University Press, 2020), 112.
88
Alivizatos, Το Σύνταγμα και οι εχθροί του, 500.
89
Ibid., 501.
90
Manessis, Συνταγματικό Δίκαιο Ι, 66.
91
Ibid., 181.
92
Ibid.
93
Ibid., 182.

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 Material Constitution in Greek Constitutional Thought 133

those who implement the constitution (legislature, administration, courts). As he writes, consti-
tutional reality is political reality but ‘as it functions regulated by the constitutional provisions
and by their concretization that is made by the ordinary legislator, the administration and the
courts’.94 So, political parties, social movements and other factors (e.g., ideas) are not considered
to be factors that could play a role in constitutional ordering.
The dialectical relation between political reality and constitutional norms is captured in a
more developed way by Antonis Manitakis (b. 1944), a student of Manessis and his successor at
the Chair of Constitutional Law in Thessaloniki.95 He was the first to introduce Mortati’s
concept of the material constitution into Greek constitutional thought.96 Manitakis himself
developed a concept of the material constitution using the term ‘real constitution’, which is the
term used by Ferdinand Lassalle. Lassalle was the first to distinguish between the ‘real’ and the
‘formal’ constitution. The real constitution is, according to Lassalle’s definition, ‘the relation of
forces actually existing in the country’.97 It is based on various forces (such as the head of state,
the judiciary, the stock exchange, etc.) and it is clearly superior to the formal constitution that is
considered a ‘piece of paper’.98 Lassalle’s real constitution does not have any normative charac-
ter (in contrast with Smend’s, Schmitt’s and Mortati’s concepts); it is merely sociological.
Moreover, his account of the constitutional order does not recognise the autonomy of the
constitution. This is evident in his phrase that ‘constitutional questions are not fundamentally
questions of right, but questions of might’.99 Hence, his concept of the constitution is ‘overde-
termined by politico-economic forces and dynamics’.100
Although Manitakis used the term ‘real constitution’, he understood the real constitution, on
the one hand, in terms close to Mortati in that he conceived it not as an empirical fact but as
having a normative force (unlike Lassalle). As he wrote, the real constitution ‘expresses a
complex of power relations and ideas that contains a normative force and belongs . . . to the
sphere of “ought” and not to the sphere of “is”’.101 The normative character of the real consti-
tution is seen ‘when the acts of the state institutions and of the people meet with the provisions of
the formal constitution’, producing in this way a ‘normative force’.102 So, Manitakis did not
develop a merely sociological account of the material constitution. Moreover, similarly to
Mortati, the real constitution is grounded in political forces and in their aims.
However, on the other hand, Manitakis’ material understanding is also different in that he
conceives Mortati’s theory of the material constitution as leaning toward an ‘instrumental’
concept of the constitution.103 Manitakis identifies Mortati’s concept of the material constitution

94
Ibid.
95
Antonis Manitakis was appointed Professor of Constitutional Law at the Aristotle University of Thessaloniki in
1982 and he has been an Emeritus Professor since 2012.
96
It was firstly introduced in his book A. Manitakis, Συνταγματικό Δίκαιο, τ. Ι (Σάκκουλας, 1987), 65–75. However,
Manitakis’ concept of the real constitution was more developed in his book A. Manitakis, Ερμηνεία του Συντάγματος
και λειτουργία του Πολιτεύματος (Αντ. Σάκκουλας, 1996), 161–99.
97
F. Lassalle, On the Essence of Constitutions (1862). Available at www.marxists.org/history/etol/newspape/fi/vol03/no01/
lassalle.htm, last accessed 21 July 2022.
98
Ibid.
99
F. Lassalle, ‘The Deliverers of the Constitution’, in Voices of Revolt, Vol. III: Speeches of Ferdinand Lassalle
(International Publishers, 1927), 40.
100
M. Goldoni, ‘Introduction to the Material Constitution: Traditions and Constitutive Elements’, Legal Form (2018),
available at: https://legalform.blog/2018/02/09/introduction-to-the-material-constitution-traditions-and-constitutive-
elements-marco-goldoni/, last accessed 21 July 2022.
101
Manitakis, Ερμηνεία του Συντάγματος και λειτουργία του Πολιτεύματος, 179–80.
102
Ibid., 180.
103
Ibid., 184.

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 134 Nikolas Vagdoutis

with Carl Schmitt’s positive concept of the constitution, considering them both as ‘instrumental’
because they understand the constitution as based on a fundamental will (in Schmitt’s case) or
on the aims of the dominant political forces104 (in Mortati’s case).105 On the contrary, Manitakis
seems to conceive the real constitution in more relational terms, which is also due to the
influence of Poulantzas.
This becomes evident in Manitakis’ argument that the real constitution cannot be identified
merely with the fundamental aims of the dominant political forces but is also an outcome of
social and political forces that are opposed to them. The oppositional forces have an impact both
on the original content of constitutional provisions and on their meaning during their imple-
mentation.106 Hence, he defined the real constitution as
the complex of fundamental principles and rules that, regardless of whether they are explicitly
written in the constitutional text or can be deduced from this latter, constitute at a given moment
the substantive core of a particular legal order . . . expressing aims or values of the dominant
political and social forces or reflecting the resultant of values of antagonistic forces. This
complex of principles and rules is in effect and is implemented because it conforms to a
collective political and social consciousness that . . . determines the real meaning of consti-
tutional provisions . . .107

Manitakis’ notion of a collective political and social consciousness – which is central to his
concept of the real constitution – is, therefore, not identified with the aims of the dominant
political forces but also considers oppositional political forces and, crucially, social forces. These
latter seem neglected in Manessis’ concept of ‘constitutional reality’, due to his focus on those
who implement the constitution.108 They also seem marginalised in Mortati’s concept of the
material constitution due to his emphasis on political parties. Moreover, in contrast with
Mortati, Manitakis’ concept of the real constitution does not have an ‘originalist’ perspective,
but a ‘historical–evolutionary’ one.109 This is because the collective consciousness is not only
determined by the aims and values of the political forces that were dominant during the
‘constitution-making process’ (as in Mortati’s theory), but is formed in a dynamic process.110
The main example that Manitakis gives concerns the inactivation of the presidential prerogatives
during the decade 1975–85, due to the fact that the parliamentary forces never invoked these
prerogatives, accepting in practice a monistic parliamentary system.111 The 1986 constitutional
revision ‘ratified’ at a formal level the existing real constitution.112
Manitakis’ concept of the real constitution is ultimately not far from Lassalle’s definition of
the real constitution. But it is not limited to Lassalle’s sociological conception. For Manitakis,
the collective consciousness has an impact on the constitutional order only through the

104
Manitakis does not draw a distinction between Mortati’s thought during the fascist period and his post–Second World
War thought. In fact, he examined Mortati’s post–Second World War version of the material constitution, according
to which the material constitution is grounded in the aims of the dominant political forces. Ibid.
105
Ibid.
106
Ibid., 185–86.
107
Ibid., 198.
108
Ibid., 182.
109
C. Anthopoulos, ‘Το Σύνταγμα πίσω από το Σύνταγμα: Ιστορία και Κριτική της Έννοιας του Πραγματικού
Συντάγματος’, in Το Σύνταγμα εν Εξελίξει. Τιμητικός Τόμος για τον Αντώνη Μανιτάκη (Σάκκουλας, 2019), 175–209, 188.
110
Ibid.
111
Manitakis, Ερμηνεία του Συντάγματος και λειτουργία του Πολιτεύματος, 170.
112
Ibid., 171.

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 Material Constitution in Greek Constitutional Thought 135

‘mediation’ of the ‘principles and rules of the [formal] constitution’.113 So, the real constitution is
not conceived as fully autonomous from the formal constitution. Otherwise, the normative force
of the constitution would be undermined. This differentiates Manitakis’ concept of the material
constitution from theories that identify the constitution with political reality (such as Griffith’s
concept of the political constitution).114

8.5 CONCLUSION

It has been demonstrated that a material understanding of the constitution has developed in
Greek constitutional thought since the interwar period, initially from a sociological perspective
but later from a juristic perspective as well, especially during the metapolitefsi. Manitakis’
concept of the material constitution has been the most sophisticated approach that has adopted
such an understanding.115 Its significance is that it captured as an object of juristic knowledge the
dynamic relation between the formal constitution and the socio-political forces without con-
cealing the element of social conflict that exists in modern, capitalist societies. Hence, his theory
distinguishes itself from other conceptions of the material constitution that emphasised the
consolidation of political unity (namely Smend’s, Schmitt’s and Mortati’s conceptions).116
This conflictual element is important because, where it is elided, the material constitution
runs the danger of playing an ideological function, concealing social conflict and opposing its
political expression as it takes place through formal democratic constitutions (such as the
Weimar constitution that guaranteed a certain political expression of social conflict). In this
way, it would legitimise authoritarian transformations of the constitutional order by a ruling
political force at any moment in the name of a substantive political unity. For instance,
Schmitt’s theory of the constitution legitimised the transformation of the Weimar constitutional
order from a parliamentary to a presidential regime in the early 1930s.117 This is the main reason
why Greek constitutional theory – and notably Manessis, with Manitakis to a lesser extent – has
been relatively cautious about a material understanding of the constitution. In light of the para-
constitution that was instrumentalised in Greece during the post-civil war period, the fear
remains that the concept of the material constitution may be used to justify departure from
formal constitutional norms.

113
As Manitakis argued, the real constitution is ‘neither a hyper-constitution . . . nor a para-constitution but [is] the living
voice . . . and the condensed expression of the principles and rules that are included anyway in the formal consti-
tution’. Ibid., 180, 188.
114
Ibid., 181. According to Griffith, ‘the constitution is no more and no less than what happens’. See J. A. G. Griffith,
‘The Political Constitution’ (1979) 42 Modern Law Review 1, 19.
115
During the last years, Manitakis seems to have set aside this concept of the material constitution. Analysing the
constitutional aspects of the Greek financial crisis, he has adopted instead the notion of ‘adaptability’, arguing that the
Greek constitutional order proved to be ‘resilient’ during the crisis due to its ‘adaptability to both the multiple
demands of the European integration process and the “real” coercive forces of the globalized market economy’. See
more in his article Manitakis, ‘The Impressive Resilience of the Greek Constitution in the Current Financial Crisis in
Europe’, in L. Papadopoulou, I. Pernice and J. Weiler (eds.), Legitimacy Issues of the European Union in the Face of
Crisis, Dimitris Tsatsos in Memoriam (Nomos, 2017), 217–30. See also Anthopoulos, ‘Το Σύνταγμα πίσω από το
Σύνταγμα’, 194.
116
However, as Loughlin shows, ‘Mortati criticized both the decisionist theory of Schmitt and Smend’s communitarian
theory, in each case claiming that such theories are unable to maintain stability: The former because it highlights the
necessity of decision without institutional constraint, and the latter because “the people” as an existential entity are
riven by conflict and can never form a homogeneous group’. M. Loughlin, Foundations of Public Law (Oxford
University Press, 2010), 397. See also La Torre, ‘German Impact’, 310–11.
117
Vagdoutis, ‘Hans Kelsen and Carl Schmitt in Weimar’, 129–212. This is also argued in M. Wilkinson, Authoritarian
Liberalism and the Transformation of Modern Europe (Oxford University Press, 2021).

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 9

The Constitution As Social Compromise

Hybrid Constitutionalisation and the Legacy of Wolfgang Abendroth

Kolja Möller

In the post-war era, constitutional theorist Wolfgang Abendroth elaborated a sophisticated

approach to the democratic constitution as a social ‘compromise’.1 He argued that the
German Basic Law (Grundgesetz) did not constitutionalise either a liberal-capitalist or a socialist
order but instead transferred these issues to democratic decision-making. Abendroth mainly
drew on Articles 20 and 28 which defined the Bundesrepublik as a ‘democratic and social federal
state’ and ascribed constituent power to the people (‘All state authority is derived from the
people’). To Abendroth, these articles represented a clear commitment to the welfare state as a
‘structural principle of constitutional law’2 which emanated from a class compromise between
organised labour and the ruling class. The result was an open situation in which the existing
social order remained at the disposal of democratic will-formation. In the words of Abendroth,
the ‘societal and economic order is subjugated to being shaped by those organs which represent
the self-determination of the people’.3 In bringing this interpretation of the Basic Law to the fore,
Abendroth participated in foundational constitutional conflicts in post-war Germany.
A left-leaning legal scholar, Abendroth assumed a chair of political science at the University of
Marburg in the 1950s. Previously – from the 1920s to the 1940s – he had been a public
intellectual and political activist, socialised in the ‘middle-currents’ of the Weimar republic’s
workers movement – most notably the ‘Communist Party Opposition’ (KPO) which aimed at
establishing pro-democratic united front policies between the social-democrats and the com-
munists. He was incarcerated from 1937 to 1941 and then, at the end of the Second World War,
fought against fascism as a partisan in Greece.
In the 1950s, Abendroth became famous through his controversy with Ernst Forsthoff, a
disciple of Carl Schmitt. Forsthoff, in contrast to Abendroth, interpreted the Grundgesetz as a
liberal rule of law constitution which did not have a ‘specific social content’.4 Forsthoff argued
that the ‘social norms’ should be seen as ‘programmatic sentences’. He denied their legal status
by arguing that they are located in the ‘forecourt of current constitutional law’.5 Abendroth

1
W. Abendroth, ‘Zum Begriff des demokratischen und sozialen Rechtsstaates im Grundgesetz der Bundesrepublik
Deutschland (1954)’, in M. Buckmiller, J. Perels and U. Schöler (eds.), Gesammelte Schriften Band 2 (Offizin, 2008),
354.
2
Ibid., 339.
3
Ibid., 341.
4
E. Forsthoff, ‘Begriff und Wesen des sozialen Rechtsstaats (1954)’, in E. Forsthoff (ed.), Rechtsstaatlichkeit und
Sozialstaatlichkeit (Wiss. Buchgesellschaft, 1968), 185.
5
Ibid., 169.

136

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 The Constitution As Social Compromise 137

emerged in a difficult position: though he was initially elected to the board of the Vereinigung
deutscher Staatsrechtslehrer, the conservative members refused to hear his 1953 report on the
‘Concept and essence of the social constitutional state’. While Forsthoff could enter the stage to
make his case, Abendroth was subsequently marginalised. However, in the long run, his
approach appeared to score some late victories: in recent judgements on social benefits, the
Federal Constitutional Courts partly adhered to Abendroth’s position. It interpreted the welfare
state as a constitutional principle which commits political legislation to guarantee ‘material
preconditions’ for ‘participation in societal, cultural and cultural affairs’.6 And only recently,
echoing Abendroth’s claim that the economic sphere is open to societal intervention, it obliged
the state to safeguard ‘life and health’ against the ‘threats from climate change’ and to engage in
‘internationally oriented action in favor of global protection of climate’ in order to achieve the
1.5 C target of global warming.7
In this chapter, the contribution reconstructs Abendroth’s approach to the constitution as
social compromise, clarifies its historical background and asks for its potential with regard to
current challenges of constitutionalisation. In Section 9.1, it will be demonstrated how the
concept of ‘balance of social forces’ was used in the context of the labour movement in Austria
and Germany in order to approach constitutional issues. This is expanded in Section 9.2, where
the contribution turns to an investigation of Abendroth’s theory of social compromise. In Section
9.3, it is argued that this approach can make sense of the subsequent evolution of
constitutionalism and international law after the Second World War. However, its main
weakness consists in the focus on the central role of industrial labour within social conflicts:
the constitutional compromises were often affected or even shifted by unforeseen agents of
change which exceeded the sphere of blue-collar workers. Finally, Section 9.4 addresses how
Abendroth’s approach can be used in order to refine current attempts to re-establish a ‘balance of
social forces’ through either hybrid constitutionalisation (sociological constitutionalism) or
counter-institutions (plebeian constitutionalism).

9.1 THE BALANCE OF SOCIAL FORCES

Abendroth’s approach relied on long-standing background assumptions about the relationship

between constitutional forms and social structures. It is important to recall that the theoretical
debates in the labour movement of the 1920s and 1930s foreshadowed his theory of constitutional
compromise.8 In the aftermath of the revolutions in 1918, new constitutions had been established
in Germany and Austria. The labour movement participated in the constitution-making pro-
cesses and was successful in establishing social rights and economic co-determination.9
However, there was lively discussion about how to make sense of these new arrangements.
In the Austrian case, the social-democrats Hans Kelsen and Karl Renner, who both took part
in drafting the constitutional document, interpreted the constitution from a basically procedur-
alist perspective. To them, the advent of parliamentary legislation provided the framework for a
dynamic interplay of government and opposition and this had to be seen as the prime ground for

6
BVerfG, Urteil des Ersten Senats, 9 February 2010.
7
BVerfG, Beschluss des Ersten Senats, 24 March 2021.
8
For a genealogy of the discussion on the Rechtsstaat, see C. Maier, ‘The Weimar Origins of the Westgerman
Rechtsstaat, 1919–1969’ (2019) 62 The Historical Journal 1069.
9
For an overview see R. Dukes, The Labour Constitution: The Enduring Idea of Labour Law (Oxford University Press,
2014), 36 ff.

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 138 Kolja Möller

social democratic action.10 The leader of the Austrian Social Democratic Party and intellectual
Otto Bauer took a slightly different stance and reconstructed the constitution as emanating from
a ‘balance of class forces’.11 Thus, the constitution must be seen as depending on a social
substrate, namely the balance between the labour movement and the ruling class in which
‘neither the bourgeoisie nor the proletariat is able to dominate the state’.12 In the Austrian case,
the social democrats had renounced the introduction of socialism through civil war and abided
by a strategy of defensive violence.13 According to Bauer, the constitution of 1920 reflected an
undecided and open status of societal development which was committed neither to liberal
capitalism nor to socialism.
In Germany, critical constitutional thought echoed Bauer’s approach with regard to the
Weimar constitution: the critical legal theorist Franz L. Neumann, a member of the first
generation of the Frankfurt School, used the notion of soziale Rechtsstaat in his constitutional
interpretation and highlighted its progressive character.14 Otto Kirchheimer, another important
figure of the early Institut for Sozialforschung, argued that the ‘precondition of formal democ-
racy’ consists in ‘an approximate balance of classes in their struggle’.15 He observed that, within
the emerging executive of the Weimar Republic, a ‘sphere of direction’ (attached to the ruling
class) confronted ‘a sphere of distribution’ in the administration of social and economic affairs.16
Widespread reliance on the notion of a ‘balance of social forces’ was not accidental. Friedrich
Engels already utilised this notion in his meditations on historical evolution. He modified uni-
directional schemes of development by arguing that there are long periods ‘when the warring
classes are so nearly equal in force that the state power, as apparent mediator, acquires for the
moment a certain independence in relation to both’.17 Admittedly, the transfer of these motifs to
constitutional thought, as endorsed by Bauer, Kirchheimer, Neumann and – later – Abendroth,
was controversial. It was discussed and attacked both by more formal approaches to the consti-
tution as well as by the radical left, which saw every constitution under the sway of bourgeois
rule. However, it was the starting point for a distinct approach to constitutionalism which
embraced a decisive strategic option: if the constitution brings a compromise to the fore, a
‘double strategy’ is plausible which aims at shifting the balance of class forces in the shadow of a
consciously endorsed constitutional compromise.18 The hope was that the compromise could

10
Karl Renner, who is now mainly known for his path-breaking works on the public dimension of private law,
considered state and law to be ‘technical means’ which could be employed for a vast range of ends, see: K. Renner,
‘Probleme des Marxismus (1916)’, in H. Sandkühler and R. De La Vega (eds.), Austromarxismus: Texte zu “Ideologie
und Klassenkampf” (Europäische Verlagsanstalt, 1970), 296; see, in a similar vein, H. Kelsen, Sozialismus und Staat:
Eine Untersuchung der politischen Theorie des Marxismus [1920] (Wiener Volksbuchhandlung, 1965), 170 ff.
11
O. Bauer, ‘Das Gleichgewicht der Klassenkräfte (1924)’, in H. Sandkühler and R. De La Vega (eds.), Austromarxismus:
Texte zu “Ideologie und Klassenkampf” (Europäische Verlagsanstalt, 1970), 79–97.
12
Ibid., 79; see also Kelsen’s critique of Bauer: H. Kelsen, ‘Otto Bauers politische Theorien (1924)’, in G. Mozetic (ed.),
Austromarxistische Positionen (Hermann Böhlaus Nachf., 1983), 212; on the debate in general, A. Scott, ‘Introduction
to the Kelsen–Bauer Debate on Marxist State Theory and the Equilibrium of Class Forces’ (2021) Thesis Eleven 72.
13
See the reflections in O. Bauer, The Austrian Revolution (L. Parsons, 1925).
14
F. L. Neumann, ‘Die soziale Bedeutung der Grundrechte in der Weimarer Verfassung (1930)’, in F. L. Neumann
(ed.), Wirtschaft, Staat, Demokratie: Aufsätze, 1930–1954 (Suhrkamp, 1978), 68 ff.
15
O. Kirchheimer, ‘Zur Staatslehre von Sozialismus und Bolschewismus’, in W. Luthardt (ed.), Von der Weimerer
Republik zum Faschismus: Die Auflösung der demokratischen Rechtsordnung (Suhrkamp, 1976), 35.
16
O. Kirchheimer, ‘Weimar und was dann? Entstehung und Gegenwart der Weimarer Verfassung (1930)’, in O.
Kirchheimer (ed.), Politik und Verfassung (Suhrkamp, 1964), 47.
17
F. Engels, ‘Der Ursprung der Familie, des Privateigentums und des Staats (1884)’, in K. Marx and F. Engels (eds.),
Werke Band 21 (Dietz-Verlag, 1975), 167 f.
18
See K. Möller, ‘The Red Polybius: Otto Bauer’s Theory of the Democratic Republic’ (2017) 27 Studies in Social and
Political Thought 76.

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 The Constitution As Social Compromise 139

foster a ‘socialist democracy as a form of organization for a classless socialist society’ founded ‘on
the regulative idea of a society of free-willing humans (. . .)’.19 Instead of abiding by either purely
reformist-institutional or by radical extra-institutional politics, it would be necessary to combine
both in an intelligent manner. On these grounds, theorists such as Bauer, Neumann or
Kirchheimer could envisage a peaceful transformation of society in the long-run without risking
potentially self-destructive civil-war scenarios.20
In the late 1920s, this approach was also adopted in order to make sense of the fascist surge.
Most prominently, Karl Marx’s analysis of French Bonapartism was rediscovered.21 In his text on
the ‘18th Brumaire of Louis Bonaparte’, Marx had investigated how the precarious balance of
social classes and power blocs in the revolutionary process in 1848 France opened the window of
opportunity for an authoritarian movement under the leadership of Louis Bonaparte, which
toppled the parliamentary constitution. Taking up these insights, critical constitutional thought
casted fascism as a lingering counter-possibility in the background of democratic constitutions,
since the balance of class forces could also be shifted in a regressive direction. Reform need not
necessarily pave the way for peaceful transformation, but also for regressive takeover which
could – as was the case in Fascism – destroy constitutionality as such.
Initially, Abendroth was having some reservations toward the reformist penchants of the
Austro-Marxist movement22 and became involved in the circles of an oppositional communist
current in the late 1920s. He started as a member of the communist party’s youth branch and,
later, belonged to the current which criticised the ultra-leftist orientation of the party leadership
and its endorsement of the so-called theory of social-fascism from 1928 onward.23 It considered
the social-democrats and established trade-unions as opponents. They were not seen as potential
partners in a united front strategy anymore. The foundation of the Communist Party Opposition
(KPO) in 1928 was a reaction to these tendencies. Subsequently, its adherents were excluded
from the party. Being led by influential figures such as Heinrich Brandler and August
Thalheimer, the KPO members tried to initiate broad coalitions between social democrats,
communists and the trade-unions in the late Weimar Republic.24 One of the KPO’s defining
characteristics was the fact that it drew heavily on a reinvigorated variant of Marx’s theory of
Bonapartism. Accordingly, both a possible socialist transformation as well as the defeat of fascism
had to rely on a united front approach of the labour movement. The main task consisted in
neutralising the fascist threat, neither through a mild constitutional patriotism which renounced

19
O. Bauer, ‘Demokratie und Sozialismus (1934)’, in H. Sandkühler and R. De La Vega (eds.), Austromarxismus: Texte
zu “Ideologie und Klassenkampf” (Europäische Verlagsanstalt, 1970), 113.
20
Admittedly, Neumann refrained from his optimism in the early 1930s, see C. Offe, ‘The Problem of Social Power in
Franz L. Neumann’s Thought’ (2003) 10 Constellations 211.
21
A. Thalheimer, ‘Über den Faschismus (1928)’, in W. Abendroth (ed.), Faschismus und Kapitalismus: Theorie über die
sozialen Ursprünge und die Funktion des Faschismus (Europäische Verlagsanstalt, 1972), 19–38; M. Kitchen, ‘August
Thalheimer’s Theory of Fascism’ (1973) 34 Journal of the History of Ideas 67; see also Marx’s classical text: K. Marx,
‘Der 18. Brumaire des Louis Bonaparte (1852)’, in K. Marx and F. Engels (eds.), Werke Band 8 (Dietz-Verlag, 1972),
111–207.
22
Cf. the reservations in W. Abendroth, ‘Das Programm der Austromarxisten (1926)’, in M. Buckmiller, J. Perels and U.
Schöler (eds.), Gesammelte Schriften Band 1 (Offizin-Verlag, 2008), 37–41.
23
Cf. Abendroth’s autobiographical reflections: W. Abendroth, Ein Leben in der Arbeiterbewegung (Suhrkamp, 1976), 78
ff. See also A. Diers, Arbeiterbewegung – Demokratie – Staat. Wolfgang Abendroth: Leben und Werk 1906–1948 (VSA
Verlag, 2006), 209 ff.
24
Such a split could also be observed in the social-democratic camp: In 1931, a left current with a united front approach
split from the SPD and founded the Social Democratic Labour Party (SAPD) – among its members was the later
chancellor Willy Brandt.

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 140 Kolja Möller

transformative ambitions, nor through voluntaristic mass action, but by combining the defence
of existing achievements with the quest for social transformation.

9.2 ABENDROTH’S THEORY OF CONSTITUTIONAL COMPROMISE

After being imprisoned and then having fought in Greece as partisan, Abendroth returned to
Germany and was working as a professor at the Universities of Leipzig and Jena. However, he
was critical of the repressive politics of Eastern authorities and finally ‘fled’ back to Frankfurt in
1948.25 From 1950 onward, he received a professorship at the University of Marburg and took an
active part in the establishment of political and legal sciences in post-war Germany.26 In order to
make sense of the constitutional order of the Grundgesetz, he renewed his lines of thought from
the 1920s and 1930s. In a systematic sense, his notion of constitutional compromise can be
reconstructed as a (1) norm-compromise which relies on specific notions of (2) constituent
power and of (3) social transformation.

9.2.1 Norm-Compromise
In a first step, Abendroth reconstructed central articles of the Grundgesetz as norm-compromises.
In his perspective, Article 20, which stipulates that the Bundesrepublik is a ‘democratic and social
federal state’, combines liberal rights with welfare state principles. This, again, is emphasised in
Article 28 where ‘principles of a republican, democratic and social state governed by the rule of
law’ are invoked. Further, Article 20 ascribes constituent power to the people (‘All state authority
is derived from the people’) and Article 14 allows for legislative interventions in private property
relations, even through expropriation: ‘(2) Property entails obligations. Its use shall also serve the
public good. (3) Expropriation shall only be permissible for the public good.’ To Abendroth,
these norms must be seen as compromises which open up the societal order to re-negotiation.
The ‘social and economic order’ lays at the ‘disposition of democratic will-formation of the
people’.27 Further, the norm-compromise extended to the role of mass parties and free trade
unions (Art. 21). The constitutional acknowledgement of such mass organisations indicated that
the relationship between society and the state should be arranged as vertically, where ‘society’
assumes constituent power over constituted organs. Abendroth was well aware that this was a
counterfactual assumption and one which was regularly undermined; foremost in capitalist
societies, where the state performs important functional tasks in safeguarding property relations.
However, he saw parties and trade-unions as collective agents which could inhibit these
tendencies. In the long run, these counter-powers should be able to transform society from
within the constitutional framework: ‘The Grundgesetz takes a long period into account where
existing society is converted to social democracy and has, therefore, opened up the
constitutional-legal possibility for continual intervention in the order of property relations.’28

25
Diers, Arbeiterbewegung – Demokratie – Staat, 474 ff.
26
In Marburg, he was the founder of a critical scholarship tradition: cf. L. Peter, Marx on Campus: A Short History of the
Marburg School (Brill, 2019). Abendroth was inter alia the supervisor of Jürgen Habermas ‘Habilitations’-thesis ‘On the
Structural Transformation of the Public Sphere’ in 1961. In the Frankfurt circles of the Institut für Sozialforschung,
Max Horkheimer considered Habermas to be politically too much on the left. This is why Habermas finally
transferred his Habilitations-procedure to Marburg.
27
Abendroth, ‘Zum Begriff des demokratischen und sozialen Rechtstaates’, 346.
28
Ibid., 345.

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 The Constitution As Social Compromise 141

9.2.2 Constituent Power and Background Conditions

The constitutional compromise, however, was not only a norm compromise. It had to be seen as
a coupling of social forces and a determination of their respective intercourse in society. One
can make sense of it as the coupling of two processes of constitutionalisation. The first is the
constitutionalisation of norm-compromise in the written constitution. But it relies on a second
process of constitutionalisation in the societal sphere. Here, the self-constitutionalisation of
parties and trade-unions is decisive because it creates the conditions of possibility for the
compromise and is necessary in order to subsequently maintain it.29 In that regard,
Abendroth’s work echoes the theory of Bonapartism mentioned in Section 9.1: as the ruling
classes tend to introduce authoritarian answers in response to recurring crises and social
inequality, the self-constitutionalisation of subaltern powers is a necessary prerequisite for
neutralising these dynamics. Abendroth started from the assumption that ‘either the formal
democracy of state institutions extends to the social democracy of society (. . .) or the economic
power-holders of partial interests in society strip off the democratic form of political organisation
(. . .) and leave the liberal tradition behind’.30 Large groups of society will be intrigued by
‘irrational actions and movements with a decisionistic character’ which are instigated by ‘parts of
the economic ruling classes’.31
Abendroth’s approach diverges from corporatist constitutionalism: trade-Unions and labour
parties not only advance the particular interests of members and voters related to the economy,
they also assume a universalist role in establishing the constitution and defending it against
authoritarian takeovers. They must be seen as the ‘natural guardians of democracy’.32 The
densest expression of this argument can be identified in Abendroth’s thoughts on the right to
strike. To him, strike activities do not only revolve around the particular interests of employees,
but bring to the fore that the ‘workers represent with their interests at the same time the general
interest of democracy (. . .)’.33 Hence, the ‘democratic character’ of a ‘formally democratised
parliamentary system’ hinges upon ‘forces’ which are themselves ‘democratic’ and are, in
particular, ‘eager to defend the democratic content and the democratic structural elements of
the formal constitution’ by ‘extra-parliamentary’ action.34
From the perspective of the distinction between pouvoir constituant and pouvoir constitué,
one has to start from the assumption that constituent power is mainly located in the second
process of self-constitutionalisation – it is here that the social substrate can be found which either
prevents democracy from being undermined by authoritarian takeovers or induces the social
energy which pushes for societal transformation. It is important to note that, in order to play out
as constituent power, parties and trade-unions must demonstrate a certain autonomy vis-a-vis the
constituted norm-compromise: strikes and autonomous activities which not only address the
corporate sphere but the social whole are vital as they set the interplay of constituent and
constituted powers in motion. Most importantly, they remind the constituted organs and ruling

29
W. Abendroth, ‘Demokratie als Institution und Aufgabe (1954)’, in M. Buckmiller, J. Perels and U. Schöler (eds.),
Gesammelte Schriften Band 2 (Offizin, 2008), 412 ff.
30
W. Abendroth, ‘Zur Funktion der Gewerkschaften in der westdeutschen Demokratie (1952)’, in M. Buckmiller, J.
Perels and U. Schöler (eds.), Gesammelte Schriften Band 2 (Offizin, 2008), 222.
31
W. Abendroth, ‘Die politische Wissenschaft unter dem besonderen Gesichtspunkt der Staatslehre (1952)’, in M.
Buckmiller, J. Perels and U. Schöler (eds.), Gesammelte Schriften Band 2 (Offizin, 2008), 218.
32
Abendroth, ‘Zur Funktion der Gewerkschaften’, 229.
33
W. Abendroth, ‘Der Kampf um das Streikrecht (1953)’, in M. Buckmiller, J. Perels and U. Schöler (eds.), Gesammelte
Schriften Band 2 (Offizin, 2008), 310.
34
Abendroth, ‘Demokratie als Institution und Aufgabe (1954)’, 413.

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 142 Kolja Möller

classes that not only reformist, but also radical change remains a possibility. Hence, the role of
unions and mass parties cannot be restricted to democratic deliberation in society. Their role is
also to provide forceful background conditions understood in terms of latent but available
courses of action which influence the calculus of decision-making in strategic interaction.
Constituent power is not only a matter of democratic legitimation, but also of substantive and
transformative options which threaten to disempower the constituted organs and elites.

9.2.3 Social Transformation

While in the 1920s the young Abendroth was still hesitant with regard to the Austro-Marxist
strategy of peaceful transformation, he revived this tradition in the 1950s. Starting out from the
norm-compromise (1) and extending it to a conception of constituent power (2), Abendroth also
addressed the pertinent challenge of social transformation (3). The role of constituent power was
not restricted in his account merely to correcting constituted powers and, thereby, to conserving
the social compromise. He hinted at the possibility of an encompassing social transformation as
well. A revolution in the literal sense, which changes power and property relations, can be
pursued from within the framework of the constitutional compromise. Accordingly, the hier-
archy between constituted powers of the state and constituent powers could be reversed without
suspending the constitution:
In the hands of the workers, political democracy can be expanded to a social democracy through
changes in the legal order, through the systematic transmission of the principle of democratic
equality and democratic will-formation to economy and society by law, where the state loses its
repressive character and transforms itself into the common self-management (Selbstverwaltung)
of the social process.35

In sum, Abendroth’s theory of constitutional compromise re-located notions of democracy,

constituent power and revolution by connecting them to the structure of capitalist societies.
Most importantly, Abendroth argued that state, society and the capitalist economy are consti-
tuting different social spheres.36 Taking up the Marxist legacy, he started from the assumption
that these spheres are functionally connected to each other since only their interplay can
provide for societal regulation by – at the same time – being crisis-ridden through internal
contradictions. Abendroth took a nuanced stance: on the one hand, he was clear that typical
affinities between the state apparatus and the ruling class constitute an obstacle to the social
transformation he envisaged. However, on the other, he saw the constitutional nexus as a
fertile ground for subaltern social forces to re-enter the circuits of rule and to fundamentally
transform them.

9.3 THE EVOLUTION OF SOCIAL COMPROMISE: FROM

INTERNATIONAL LAW TO NEOLIBERAL CONSTITUTIONALISM

It needs to be acknowledged that Abendroth elaborated his constitutional theory in the age of
industrial capitalism. The decisive class divide, for Abendroth, was located in the industrial

35
This is how Abendroth envisaged the aims of the social democratic party in his alternative proposal to the SPD’s
Godesberger Programm from 1959: W. Abendroth, Antagonistische Gesellschaft und politische Demokratie
(Luchterhand, 1967), 414.
36
Cf. how Abendroth stressed the contradiction between constitutional law and economic powers, in W. Abendroth,
‘Aufgaben einer deutschen Linken (1963)’, in M. Buckmiller (ed.), Gesammelte Schriften (Offizin, 2013), 520 ff.

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 The Constitution As Social Compromise 143

sphere and was articulated by strong labour parties and trade-unions with mass membership.
Though he published selective attempts to transfer his approach to European integration and
international law,37 he took the nation-state as the central unit of constitutionalisation. However,
it is possible to generalise some of his assumptions and make fruitful use of them when it comes
to reconstructing the evolution of constitutional compromises. In the post-war era, being influ-
enced by Roosevelt’s ‘New Deal’ in the United States and anti-fascist popular front approaches,
constitutional orders were committed to both civil and social rights and kept the question of
whether the societal order is liberal-capitalist or socialist open.38 This is true for post-war
constitutions in Western Europe as well as for international law and the foundation of the
United Nations. They were characterised precisely by the compromise that
Abendroth investigated.
However, Abendroth’s theory tends to be too static to trace the evolution of these comprom-
ises because it resurrects an enduring ‘war of position’ (Gramsci) between organised industrial
labour and the ruling classes. As the subsequent development of constitutional compromises
demonstrates, the overall approach has to be reformulated in more dynamic terms: modern
societies are capitalist societies. But capitalist societies are – as already observed by Marx –
functionally differentiated: They establish an interplay of different social systems, most notably
the economy, politics and law. In this interplay, each system reproduces itself in a self-referential
and dynamic manner. Not least, the political and legal system are formally detached from the
economy.39 However, in this ensemble the capitalist economy exerts a structural dominance as
law and the political state are configured in a way that guarantees the self-reinforcing process of
capital accumulation. Since social systems (re)-produce their own contradictions between
dominant and subaltern social forces, antagonistic conflicts spread beyond the industrial sphere
and the capital/labour divide. The ‘causal nexus of functional differentiation and class struggle,
of functional disorder and legitimization crisis’ is not reducible to the economic sphere, rather
‘one should take the conflict of capital and labour as a paradigm case for the critical analysis of
other functional spheres of modern society’.40
Admittedly, the appeal of ‘class’ as a category stemmed not only from highlighting economic
domination, but from determining a societal force which is able to lever the blockades of social
evolution through its functional role within industrial production. However, historically, other
well-organised social groups and labouring classes established effective alliances which trans-
formed the course of social evolution by drawing on contradictions such as those between the
global north and the global south or between men and women. Following these insights, there is
a compelling case to re-specify the notion of class in terms of subaltern social forces. This
dynamisation can be observed in the subsequent evolution of constitutional compromise from
the 1960s onward. In western societies of that period not only blue-collar workers, but civil rights
and black power movements, student groups, feminists and new working classes were able to
instigate a democratisation of society. They challenged dominating structures in families,
schools, companies and political institutions and paved the way for a radical reformism: the

37
See, for an overview, A. Fischer-Lescano and G. Stuby, ‘Wolfgang Abendroth und das Völkerrecht’, in A. Fischer-
Lescano, J. Perels and S. Thilo (eds.), Der Staat der Klassengesellschaft: Rechts- und Sozialstaatlichkeit bei Wolfgang
Abendroth (Nomos, 2012), 237–56.
38
See H. Brunkhorst, Critical Theory of Legal Revolutions (Bloomsbury Academic, 2014), 83 ff.; S. Kott, Organiser le
monde: Une autre histoire de la guerre froide (Seuil, 2021), 35 ff.
39
See the differentiation of ‘organised forms’ in law, politics and the economy in Marx early writings: K. Marx, ‘Kritik
des Hegelschen Staatsrechts (1843)’, in Marx-Engels-Werke Band 1 (Dietz-Verlag, 1972), 232.
40
Brunkhorst, Critical Theory of Legal Revolutions, 76.

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 144 Kolja Möller

balance of forces was not unilaterally changed in favour of industrial labour, as envisaged by
Abendroth. Rather, a more pluralistic scenery of social conflict could be observed. Nevertheless,
in many countries, substantive shifts toward democratisation in fields such as the educational
systems, the family and the economy took place and a strengthened bargaining power of trade-
unions was emerging. Even the radical groups could be considered as playing a vital role for this
shift. They provided the necessary background scenarios which threatened existing office-
holders, and, at least in part, created windows of opportunity for progressive reformers.41
It is worth noting that the evolution of constitutional compromises extended to international
law as well. The two covenants on civil rights and political rights and economic, social and
cultural rights from 1966 reflected the balance between liberalism and socialism. But, again, the
compromise was shifted from an unexpected direction. The successes of anti-colonial national
liberation movements, which aimed for self-determination at a distance from both western
capitalism and real-existing socialism, transformed the scene. Though pursuing different
national pathways, the countries of the global south established international coordination with
a view to effectuate changes in world politics, most notably against the attempt of powerful
nations to exert dominance through foreign military interventions, economic exploitation and
neo-colonial dependencies.42
Countries in the global south engaged in a constitutional politics in the vein suggested by
Abendroth and combined an institutional strategy with a quest for social transformation. The so-
called non-aligned countries had established the United Nations Conference on Trade and
Development (UNCTAD) in 1964 and organised themselves as the ‘Group of 77’. The group
was able to constitute a majority in the UN’s General Assembly. It pushed the resolution on a
‘New Economic International Order’ in 1974 which aimed at dissolving the dominance of
former colonial powers and establishing more sustainable pathways of economic development.43
It made constructive use of the UN General Assembly, constructed its own institutions and
brought its own interpretation of international law to the fore. However, the Group of 77 con-
ceived of itself as representing the world’s masses and dispossessed and, thus, as constituent
power against the former colonial countries. The NIEO resolution stated: ‘The developing
countries which constitute 70 per cent of the world’s population, account only for 30 per cent of
the world’s income. It has proved impossible to achieve an even balanced development of the
international community under the existing international economic order.’44 An influential
figure of the non-aligned bloc, the international lawyer Mohammed Bedjaoui, saw the move-
ment as a forerunner of the whole world community by proposing a ‘new world-wide legal,
economic and political order, based on the integrated development of the whole earth and on
the right to progress of all peoples’.45 The Charter of Economic Rights and Duties of States
echoed these ambitions.46 It was called for ‘Joint consideration of and concerted action
41
See, for example, in the case of Germany how even the progressive circles of the liberal party FDP (which entered a
coalition with the social-democrats in 1969) considered themselves as depending on the scene of social movements
and reform forces, cf. R. Appel and M. Kleff, Grundrechte verwirklichen, Freiheit erkämpfen – 100 Jahre
Jungdemokrat*innen (Academia-Nomos, 2019), 137 ff.
42
J. Bockman, ‘Socialist Globalization against Capitalist Neocolonialism: The Economic Ideas behind the New
International Economic Order’ (2015) 6 Humanity: An International Journal of Human Rights, Humanitarianism,
and Development 109.
43
UN Declaration on the Establishment of a New International Economic Order, Res. 3201, 1974.
44
Ibid.
45
M. Bedjaoui, Towards a New International Economic Order (Presses Universitaires de France, 1979), 13; see also U.
Özsu, ‘“In the Interests of Mankind as a Whole”: Mohammed Bedjaoui’s New International Economic Order’ (2015)
6 Humanity: An International Journal of Human Rights, Humanitarianism, and Development 129, 131.
46
UN Charter of Economic Rights and Duties of States, General Assembly Resolution 3281, 1974.

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 The Constitution As Social Compromise 145

regarding international economic problems’ in order to take steps in the direction of a ‘just and
rational development of all parts of the world’.47 This project had already resonated in the
speech of Chilean President Salvador Allende before the UNCTAD in 1972. Here, Allende
argued that ‘our community is not homogeneous, but divided up into peoples that have grown
rich and peoples that have remained poor’.48 In his speech, Allende invoked ‘us, the peoples of
the third world’ and accused the ‘affluent countries’ of pursuing their selfish interests with
‘bulldog tenacity’.49
The obstacles faced by the non-aligned bloc also reflected Abendroth’s diagnosis of consti-
tutional politics. Starting out from existing international law, the non-aligned bloc achieved new
norm-compromises and engaged with the institutional structures of the UN. As an organic
intellectual of the international free trade system warned: ‘The catalogue of development-
political demands as e.g. formulated in the Charter of Algier (1967) and the action program of
Lima (1971) by the trade-union-like organized Group of 77 leads to an overall revolutionary
revision of traditional international economic law from the viewpoint of development pol-
icies.’50 However, this shift was ultimately thwarted by a counter-revolution from above – a
danger that Abendroth already elaborated on in his thoughts about the risk of Bonapartist
seizures of power. Once social transformation becomes a possibility, ruling classes are likely to
renege on the compromise and establish less democratic modes of political rule. With economic
globalisation already under way, neoliberals were able to ally with political forces in different
countries such as Chile, the United States, Germany or the United Kingdom and propagate
their world-view. In sum, the quest for a ‘New Economic International Order’ was undermined
from the 1980s onward through a distinct constitutional project as meticulously demonstrated in
recent studies on the advent of neoliberalism.51
The central ambition of the neoliberal turn was to undermine socialist tendencies by
shielding central tenets of capitalist society – such as private property and investment – from
democratic intervention, and, thereby, destroy the social compromise that Abendroth had
reconstructed. In scholarly debates, this turn was investigated as a ‘new constitutionalism’ which
was successful in providing a framework for a transnational neoliberal order by dint of insti-
tutions such as the IMF, the WTO and the ICSID.52 As Agustin Menendez recounts in
Chapter 25, neoliberalism also became hegemonic in the EU’s constitutional development with
the affirmation of private property as the sovereign value of European law, which becomes a
powerful external constraint that constitutes, disciplines and fragments public power.

9.4 ABENDROTH BEYOND ABENDROTH: NEW DIRECTIONS IN

CONSTITUTIONAL THEORY

In the last decade, the pitfalls of the neoliberal project became more and more visible. The
constitutional compromise was wrecked, the ‘new constitutionalism’ was unable to establish
societal cohesion and sharp crisis tendencies were constantly revealed, ranging from the

47
Ibid., Preambule.
48
S. Allende, ‘Address at the Inaugural Ceremony’, in UN Documents, Proceedings of the United Nations Conference on
Trade and Development, Third session Santiago de Chile (United Nations, 1973), 349.
49
Ibid., 349, 350.
50
E. Petersmann, ‘Die Dritte Welt und das Wirtschaftsvölkerrecht’ (1976) 36 Zeitschrift für ausländisches öffentliches
Recht und Völkerrecht 492, 496.
51
Q. Slobodian, Globalists: The End of Empire and the Birth of Neoliberalism (Harvard University Press, 2018), 263ff.; see
also T. Biebricher, The Political Theory of Neoliberalism (Stanford University Press, 2018).
52
S. Gill and C. A. Cutler, New Constitutionalism and World Order (Cambridge University Press, 2014).

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 146 Kolja Möller

financial crisis in 2008 and the crisis of democratic representation to the incapacity to mitigate
climate change. In constitutional theory, the ‘new constitutionalism’ was conceived of as taking
up to the legacy of ‘authoritarian liberalism’; a distinct constitutional approach which was
highlighted by conservative and neo-liberal circles in the 1930s and 1940s. It aimed at
shielding private property, financial markets and the distribution of wealth from democratic
intervention through the use of constitutional constraints and de-parliamentarisation of decision-
making.53 Since its hey-day in the 1990s and 2000s, the authoritarian liberalism of our time,
obviously, became more and more crisis-ridden and faced a broad range of reaction patterns: on
the one hand, attempts to safeguard its neoliberal kernel from re-negotiation were even exacer-
bated, for example, in the context of the Euro-Crisis from 2009 to 2013.54 On the other hand, this
kernel was recalibrated or even undermined – not the least in the light of new types of
geopolitical conflict and the apparent need for public investment in order to keep the economy
running.55
Against this backdrop, it is not surprising that new directions in constitutional theory are
investigating the potential of compromise and constitutional hybridity.56 This is an important
tendency because it re-orients the debates on overcoming the democratic deficits of the
neoliberal era. At least in constitutional theory, the struggles for inter- and transnational
constitutionalism largely revolved around issues of procedural legitimation. The questions of
whether to distribute competencies at the national, the supra- and/or the transnational level and
how to design legitimate procedures were hotly debated.57 From the perspective of social
compromise in the vein of Abendroth, one would take a different starting point and ask not
only how to apply democratic procedures in general, but how to embed them in the larger
background conditions of societal co-evolution so that they contribute to inhibiting domination
and, potentially, transforming constitutional orders.
In the contemporary world, this perspective has recently and compellingly been advanced by
variants of ‘plebeian’ and ‘sociological’ constitutionalism. Taking its cue from the early modern
thought of Niccolò Machiavelli, plebeian constitutionalism draws on a materialism of political
power.58 Accordingly, societies are split between the rulers and the ruled, which are driven by
the competing umori. While the few who rule are driven by their hunger for domination,
Machiavelli observed that the many tend to adhere to a different social psychology – they gather
around the opposite affect of not being ruled.59 Hence, nurtured by the few’s hunger for
domination, constitutional orders are always characterised by the danger of ‘systemic corruption’
from above, which can be defined as ‘a form of political decay that manifests itself as an

53
See M. Wilkinson, Authoritarian Liberalism and the Transformation of Modern Europe (Oxford University Press,
2021), 25 ff.; G. Chamayou, The Ungovernable Society: A Genealogy of Authoritarian Liberalism (Polity Press, 2021),
204 ff.
54
Wilkinson, Authoritarian Liberalism, 215 ff.
55
See, e.g. for the case of the WTO: E. Petersmann, ‘The WTO Legal and Dispute Settlement Systems in Times of
Global Governance Crises’, in J. Cheng-Chia (ed.), A New Global Economic Order (Brill, 2021), 84–118.
56
G. Teubner, ‘Quod Omnes Tangit: Transnational Constitutions without Democracy?’ (2018) 45 Journal of Law and
Society 5; C. Vergara, Systemic Corruption: Constitutional Ideas for an Anti-Oligarchic Republic (Princeton University
Press, 2020).
57
See, e.g., A. Peters, ‘Dual Democracy’, in J. Klabbers, A. Peters and G. Ulfstein (eds.), The Constitutionalization of
International Law (Oxford University Press, 2009), 263–341; M. Kumm, ‘The Cosmopolitan Turn in
Constitutionalism. An Integrated Conception of Public Law’ (2013) 20 Indiana Journal of Global Legal Studies 605.
58
J. P. McCormick, Machiavellian Democracy (Cambridge University Press, 2011).
59
For the competing umori, see N. Machiavelli, The Prince [1532] (University of Chicago Press, 1998), 39; N.
Machiavelli, Discourses on Livy [1532] (University of Chicago Press, 1996), 16.

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 The Constitution As Social Compromise 147

oligarchization of power in society’.60 In order to oppose this type of corruption, the plebeian
current in constitutional theory stresses the importance of counter-institutions which ‘empower
common people against the powerful few (. . .)’.61 Thus, a hybrid constitutionalisation must be
established which allows the many to control the elites through ‘(. . .) class-specific popular
empowerment, and elite-constraining institutions’.62 Again, taking up the materialist tradition,
these analyses start from a ‘complex examination’ which ‘conceives of the constitution as an
embedded set of norms that can be adequately grasped only if we integrate the political,
economic, and social spheres into the analyses of forms of higher-law’.63
However, the co-evolution of the political, the economic and other social spheres must be
addressed. Admittedly, Machiavelli drew on the umori of different social classes and, for that
reason, has always been considered as a materialist avant la lettre.64 But it needs to be noted that
he was a child of early modernity and committed to a cosmological worldview where society is
ordered around constant proportions. As analysed, however, from the nineteenth century
onward, societies are evolving, leaping forward, regressing backward, overcoming and negating
themselves or even breaking down; they are in constant motion. They are not stratified, but
functionally differentiated societies. Though Machiavelli’s observations may be to some extent
timely when it comes to contest clear tendencies of oligarchisation, the overall setup of modern
societies does not consist of clearly demarcated class-segments (wealthy versus normal people)
which are either repressed or expressed within the constitutional order. Most importantly, it is
characterised by a combination of complex social systems and the dominance of the capitalist
economy where conflicts between the many and the few are proceeded. Hence, one needs to
engage with the paradoxes and contradictions of law, politics and the economy and how they are
formally detached from each other while being constitutionalised as a mutually reinforcing
systemic set-up of capitalist society.65
To overcome a static materialism, what must be investigated is how social conflict is
constituted and reproduced through abstraction and dynamism within social systems. Even
Marx always stressed the importance of this aspect in his inquiries into the ambivalence of
plebeian movements. Though he was a political activist in the 1840s who sympathised with
revolutionary circles, he was suspicious of French insurrectionism for exactly this reason: as
these movements replicated the symbolic inventory of the French Revolution and confined
themselves to an insurrection from ‘below’, they were not able to take the emerging conflicts of
modern society into account and, most prominently, its political economy. Marx feared that ‘the
proletariat will squander its energies – at least in the initial stages of the movement – in senseless,
futile uprisings that will be drowned in blood’.66 Thus, one has to analyse a complex process of
co-evolution which not only revolves around the vital interests of ‘normal people’, but also

60
Vergara, Systemic Corruption, 2.
61
Ibid., ix.
62
McCormick, Machiavellian Democracy, 16.
63
Vergara, Systemic Corruption, 106.
64
See L. Althusser, Machiavelli and Us (Verso, 2011); A. Gramsci, ‘Anmerkungen zur Politik Machiavellis’, in K.
Borchmann and W. F. Haug (eds.), Gefängnishefte – kritische Gesamtausgabe (Argument-Verlag, 1991), 1532–622.
65
See, e.g., how critical systems theory conceives of capitalism: ‘In such a view, “capitalism” characterizes not only the
functioning of the economic system, but a (historic) system formation, a very distinct situation of interdependence
between the systems of politics, economy and law in the world’s societal ensemble of institutions’: A. Fischer-Lescano,
‘Critical Systems Theory’ (2012) 38 Philosophy and Social Criticism 3, 7. See also the approach to capitalism as
functionally differentiated society, in: D. Schecter, Critical Theory and Sociological Theory: On Late Modernity and
Social Statehood (Manchester University Press, 2019).
66
K. Marx, ‘Kritische Randglossen zu dem Artikel “Der König von Preußen und die Sozialreform. Von einem Preußen”
(“Vorwärts!” Nr. 60) (1844)’, in Marx-Engels-Werke Band 1 (Dietz-Verlag, 1976), 407.

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 148 Kolja Möller

around economic innovation, cultural change, productive forces and administrative and tech-
nocratic non-popular passive revolutions and negative externalities. Admittedly, to confront the
few in order to overcome the oligarchy can serve as a plausible political strategy. However, it
must disclose how the co-evolution of constitutionalism and society actually operates. Therefore,
it can encounter practical problems when it comes to identifying transformative potential which
does not correspond to the many/few-divide but shifts the balance of class forces from unex-
pected directions (see Section 9.3).
What still needs to be addressed is how compromises interact with the existing arrangement of
social systems. While drawing on hybridity as well, sociological constitutionalism has high-
lighted this dimension. It takes its cue from systems theory and observes that societies undergo an
increased functional differentiation in the passage to transnational constitutionalism.67 In that
perspective, increasingly, global social systems tend to carry out their own particular consti-
tutional regimes in fields such as the world economy, world politics, world health, etc. The call
for hybrid constitutionalisation sneaks in because of the lingering tendency of these regimes
toward self-referential closure and rationality-maximisation to the detriment of their respective
social environment. From that perspective, systemic corruption and elite dominance are not
identified as emanating from clearly demarcated social classes. Rather, it is assumed that each
regime tends to totalise its rationality and expand its communicative media: this is not only true
for the capitalist economy in the transnational economic regime (‘money’), but also for the
expansionary logic of the sciences (‘truth’) or of the political system (‘power’). The respective
rationalities should be domesticated through regime-specific communicative counter-cycles. It
is assumed that ‘democratization cannot be realized as a guarantee for the identity of rulers and
ruled. But it can be realized as a guarantee for forceful organized dissent which challenges the
decisions of power-holders effectively (. . .)’.68
However, organised dissent must be re-specified in view of the fragmented structure of
constitutional regimes and in order to react adequately to the respective expansionary tenden-
cies. It can be seen as a plurality of contestations which calls ossified communicative self-
reference into question. In sociological constitutionalism, these counter-cycles mostly stem from
civil societal protest movements and transnational governance regimes. But such cycles are
limited since they may not revoke functional differentiation which, in that perspective, amounts
to a normative conception that allows the emergence of a plurality of social communication
spheres. On these grounds, it is assumed that over-politicisation can also trigger a totalising
dynamic, no less destructive than the regimes’ universalising urge.69 Though this is a nuanced
approach to the co-evolution of constitutionalism and social structure, it aims at taming
constituent powers’ holistic dimension. Abendroth‘s approach reminds us, however, that the
constitutional compromise relies on holistic threats such as scenarios of revocation and trans-
formation which can be seen as a pre-condition of adequate hybridity.70 This counts even for a
central conception of sociological constitutionalism: the functional differentiation of liberal
western societies. From an orthodox systems-theoretical perspective, functional differentiated
societies are characterised by the interplay of constituted social systems which do not guarantee
for the full inclusion of the individual in all systems but offers inclusionary perspectives through

67
G. Teubner, Constitutional Fragments: Societal Constitutionalism and Globalization (Oxford University Press, 2012);
A. Fischer-Lescano and G. Teubner, ‘Regime-Collisions: The Vain Search for Legal Unity in the Fragmentation of
Global Law’ (2004) 25 Michigan Journal of International Law 999.
68
Teubner, ‘Quod Omnes Tangit’, 13.
69
Teubner, Constitutional Fragments, 55.
70
K. Möller, ‘From Constituent to Destituent Power Beyond the State’ (2018) 9 Transnational Legal Theory 32.

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 The Constitution As Social Compromise 149

the welfare state. Nevertheless, it needs to be noted that this type of embedded liberalism was
connected to potentially de-differentiating background conditions.
Taking up insights about the evolution of social compromise (Section 9.3) and new directions
in constitutional theory (this section), one could argue that what was true for constitutional
compromises in the post-war era may also be true for our contemporary world: the struggle for
new compromises hinges upon the re-invigoration of constituent power and background
scenarios. As the insights into the evolution of social compromise demonstrated, transformative
options which pave the way for hybrid constitutionalisation may emerge in forms which neither
correspond directly to the many/few distinction (plebeian constitutionalism) nor mirror func-
tional differentiation (sociological constitutionalism) but emanate from unexpected places.
While the quest for new types of transnational constitutional compromise are already under
way and the ecological crisis becomes more and more pressing, Abendroth’s legacy can be used
as a starting point which connects the efforts for a global ‘New Deal’ to basic tenets of consti-
tutional theory – thereby integrating in the calculus that the challenge cannot be reduced to
correct the existing courses of constitutional evolution, but to overcome systemic blockades in
order to achieve social transformation.

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 10

‘Self-Justifying Law of Constitutional Law’

The Material Constitution in Rudolf Wiethölter’s Critical Systems Theory

Gunther Teubner

10.1 MORTAL SINS

Avaritia, superbia, contentio, curiositas, concupiscentia oculorum – should overcoming these

mortal sins of the Middle Ages be a key to Rudolf Wiethölter’s concept of a material consti-
tution? Indeed, this is my thesis – but only under the condition that the drastic re-evaluation of
the old deadly sins in the process of forming modern constitutionalism is considered
consistently.

10.1.1 Re-evaluation
What counted in the Middle Ages as the mortal sins of individuals, which – minded by the
pastoral discipline of the Catholic Church – determined the salvation/damnation of souls, was
radically re-valued during the Renaissance. For one, mortal sins became admirable individual
virtues.1 More importantly, though, deadly sins were transformed into autonomous social insti-
tutions, each seeking to perfect a single idée directrice. Avaritia, the vice of miserliness and greed
for worldly wealth and profit, described by Augustine as the root of all sins,2 transformed into a
praiseworthy virtue, at the latest since the Medici of Florence. Ultimately, avaritia became one
of the great social institutions: the modern profit-driven economy, touting value maximisation
above all.3 Since Machiavelli, superbia has no longer been a mortal sin but rather the princes’
primary virtue as the lust for power; meanwhile, it has become the leading motive for actions in
the autonomous political system. Galileo’s insatiable curiositas was still condemned by the
Church as hubris, but appreciated by his contemporaries as the privilege of man and had
meanwhile become the core of the institution of science as it liberated itself from pope and

Translated from German by Jacob Watson. For their critical, constructive comments my thanks go out to Gotthard
Bechmann, Pasquale Femia, Andreas Fischer-Lescano, Roman Guski, Bertram Lomfeld and Anton Schütz. The texts by
Rudolf Wiethölter are quoted/cited from the anthology, M. Amstutz and P. Zumbansen (eds.), Recht in Recht-
Fertigungen: Ausgewählte Schriften von Rudolf Wiethölter (Berliner Wissenschafts-Verlag, 2014), as far as they are
reprinted there, under the abbreviation RW, the title of the essay, the year of publication and the page, otherwise under
their original publication.
1
This is a generalisation of Blumenberg’s famous thesis that in the Renaissance a reinterpretation of curiositas from a
vice into a virtue took place, only by which did the modern institution of science become possible, H. Blumenberg,
The Legitimacy of the Modern Age (MIT Press, 1986), 229 ff.
2
T. Aquinas, Summa Theologiae (Eyre & Spottiswoode, 1964), Question 118.
3
More on this in: N. Asfour, The Cultural Perspective of Wrongful Enrichment Law: A Study in Comparative Poetics
(Hart, 2013), 56 ff, 60.

150

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 ‘Self-Justifying Law of Constitutional Law’ 151

emperor.4 Michelangelo’s concupiscentia oculorum, his boundless ‘lust of the eye’, was no longer
damning but revered. Meanwhile, he liberated autonomous art from its dependence on the
Church. And finally, contentio, disagreement, and the desire to argue became the excellent
rhetorical art of the jurist; meanwhile, it spread, following Accursius and his Bolognese col-
leagues, advancing into the autonomous system of law throughout Europe.
Thus began the (in)famous take-off of the West, which started in Italy during the Renaissance,
to build its momentous dynamic: with this double transformation, with the re-interpretation of
former mortal sins into individual virtues and – more importantly – with their social institutional-
isation in the great autonomous universes of meaning, in science, art, politics, economy and law.5
The basis for their productive forces to be unleashed in modern Europe was that each realised its
particular rationality in exclusivity without considering other rationalities. This almost paradoxical
multiple unifunctionality of autonomous spheres of action set the direction for Europe’s unique
path because it enabled cultural excellence in each of these action systems.6
But deadly sins remain deadly sins! In the late modern era, the destructive tendencies of the
institutions built upon them can be experienced in all their severity. The excesses of avaritia,
superbia, contentio and curiositas are mirrored in the excesses of modern functional systems. The
systemic excesses of politics, the economy, law, science and technology and digitality appear
internally in ruthless rationality maximisation and externally in colonising expansion. It becomes
almost a collective addiction, that is, the repetition and multiplication of a self-damaging social
behaviour despite the keen knowledge of its harmful effects.7 And the global economisation,
politicisation, scientification and juridification of society are driven simultaneously in divergent
ways, with disastrous consequences for ecology in the broadest sense, that is, for the natural
world, for society and for individuals.8

10.1.2 System Crises

For Rudolf Wiethölter, these self-damaging pressures of repetition and multiplication
(Steigerungszwänge) in social systems has led to ‘deadly “system crises”’.9 He does not see its
origin solely in the uncontrollable autonomy of the capitalist economy, as is the widespread
view, but in the highly driven functional differentiation itself, which ends in an uncontrollable
momentum of the various functional systems. This culminates in the battle over the glamour
and misery of modernity. ‘Social theories, as evolutionary theories, at any rate, agree that modern

4
The servitude of technology to theory, the almost symbolic rank of the telescope for the self-affirmation of theoretical
curiosity, required a spiritual breakthrough from the boldness of the proclamation that Galileo was to carry out, see
Blumenberg, Legitimacy, 229ff.
5
In his comment on this text, Anton Schütz argued that the concept of sin in its foundational role for autopoiesis is the
most relevant pillar of modernity. It opens a new access to Luhmann’s distinction of social and psychic systems:
‘Psychic sins are social conditions for functioning systems’.
6
In-depth historical analysis of functional differentiation, N. Luhmann, Gesellschaftsstruktur und Semantik I–IV
(Suhrkamp, 1980–96).
7
On collective addiction, G. Teubner, ‘A Constitutional Moment? The Logics of “Hit the Bottom”’, in P. F. Kjaer, G.
Teubner and A. Febbrajo (eds.), The Financial Crisis in Constitutional Perspective: The Dark Side of Functional
Differentiation (Hart, 2011), 4–42.
8
On the pressure of repetition and multiplication (Steigerungszwang) in functional systems, N. Luhmann, Theory of
Society (Stanford University Press, 2013), vol. II, 95; R. Stichweh, ‘Towards a General Theory of Function System
Crisis’, in P. F. Kjaer, G. Teubner and A. Febbrajo (eds.), The Financial Crisis in Constitutional Perspective: The Dark
Side of Functional Differentiation (Hart, 2011), 54 ff; H. Rosa, ‘The Speed of Global Flows and the Pace of Democratic
Politics’ (2005) 27 New Political Science 445.
9
RW, ‘Arbeit und Bildung’ [1989], 281 f.

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 152 Gunther Teubner

developments are linked to system divisions, exclusions and differentiations. The extent and
effect of such differentiations are the heart of the matter.’10 For Wiethölter, the ‘deadly system
crises’ are the most urgent constitutional problem of modernity. For the (ir-)rational differenti-
ation of society’s constitution generates the insight that ‘with growing rationality in ever smaller
and more distantly decentralised units, the irrationality of the “whole” grows all the more’. Yes,
modernity suffers a ‘historical curse’ because the extreme differentiation of the social
constitution has taken place historically in such a way that a synthesis of society as a whole, a
‘reasonable identity for modern societies’, can no longer be grasped.11
And precisely with this in mind, Wiethölter – beyond his analyses of constitutional history –
lays out the blueprint for his constitutional utopia, designed to take up the struggle against
modernity’s mortal sins, against the self-destructive tendencies of social divisions.12 Two distinct
phases are discernible in Wiethölter’s ideas about a future social constitution. In the first phase,
in his ‘political theory of law’, he develops the programme of a material constitution, that is, an
‘economic constitution as social constitution’. In the second phase, after his long march through
the three dominant social theories of modernity, he turns toward a ‘critical systems theory’,
which, however, he sharply positions against Niklas Luhmann’s functionalist systems theory.
Even if he is sceptical about overloaded expectations of critical systems theory,13 he sympathises
with it in his ‘vision as productive utopia’. ‘Selbstgerechtes Rechtsverfassungsrecht’ or ‘self-
justifying law of constitutional law’ – this is how Wiethölter enigmatises his vision. Its two main
elements of a novel ‘reciprocity’ and an ‘impartial partiality’ are no less enigmatic. How, if at all,
can these enigmatic terms be deciphered? And what prospects do they open up to future work
on such an ambitious constitutional programme?

10.2 POLITICAL THEORY OF LAW

Early Wiethölter’s answer to the systemic crises described above was: a fundamental transform-
ation of the much too narrowly conceived economic constitution of the Federal Republic of
Germany – ‘economic constitution I’ – into a comprehensive societal constitution – ‘economic
constitution II’:
‘I, myself, am working on it under the heading of a “political theory of law”. Such a political
theory of law deals with a unity of labour, economic and social constitution as an object of
interest in socio-historical development theories of the law’.14

Early Wiethölter sought such socio-historical development theories in the context of the
Frankfurt school of critical theory as the basis for a renewed constitution of society, thus reacting
to a precarious situation of post-Marxist legal theory he had so lucidly analysed. Especially in his
radical critique of liberal law, he was always aware of the disaster of current Marxist legal
theories, which urgently seemed to him in need of a comprehensive reorientation. If the result
of historical transformations is not to abandon these theories, then the attempts of successor
theories – such as critical theory, poststructuralism, critical legal studies, globalisation critique –
to rethink the law would have to try a completely new construction.15

10
RW, ‘Wissenschaftskritische Ausbildungsreform’ [1982], 544.
11
RW, ‘Sozialwissenschaftliche Modelle im Wirtschaftsrecht’ [1985], 250.
12
RW, ‘Zur Argumentation im Recht’ [1995], 172.
13
R. Wiethölter, ‘Der Reform-Planer’, in D. Hart, F. Müntefering and F. Steinmeier (eds.), Wissenschaft, Verwaltung
und Politik als Beruf (Nomos, 2015), 21.
14
RW, ‘Vom besonderen Allgemeinprivatrecht zum allgemeinen Sonderprivatrecht’ [1983], 224.
15
R. Wiethölter, ‘Arbeit und Bildung’, in R. Erd (ed.), Kritische Theorie und Kultur (Suhrkamp, 1989), 375.

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 ‘Self-Justifying Law of Constitutional Law’ 153

But how? The early Wiethölter formulated a ‘juridical negativism’ that sought to critique the
law in terms of its social conditionality by demythologising traditional jurisprudence.16 For such
a radical critique of law, Wiethölter sought to broaden law’s relevant social basis drastically and
to seek it not only in the economy but also in other social dynamics. His constitutional analysis
focused on economic processes but, above all, it turned to underlying political conflicts to power
struggles in politics and society. The critique of law then became essentially political criticism or
criticism of social power asymmetries that have a lasting effect on the current constitution of
the law.
For the early Wiethölter, the legal form, especially legal doctrine, which perceives itself as
autonomous, was only a façade behind which the actually relevant politico-economic processes
determine the dynamics. His brilliant 1968 ideological critique of the law garnered international
recognition.17 In fact, it isolated him in the German legal establishment, for he staged a
merciless ‘unmasking of a German idolatry’, in which many cryptic formulations in law were
nothing but ‘closed loops, empty formulas, alibis, taboos, pathetic and ethical transfigurations,
even artificial camouflages with which naked politics are covered up’. This is why he developed
his ‘political theory of law’ that sought with sharp polemics to tear down the façades of the liberal
legal doctrine, which consisted in ‘gigantic, radiant empty formulas, mere tautologies, in short:
fictitious justifications, in empty talk’. And in the name of political reason, Wiethölter called for
an exit from self-inflicted faith in legal doctrine. The politicisation of private law ought to
succeed, he recommended, through the law’s ‘connection to hypotheses and methodologies of
social (more precisely: democratic) theory’.18

10.3 ‘ECONOMIC CONSTITUTION I, II’

This is the reason why Wiethölter was relentless in searching for the constitution behind the
constitution. Neither philosophy nor the humanities could offer the compass, but only social
theory. Sharply disputing prevailing jurisprudence, he advocated for a ‘material theory of the
constitution as a theory of society’.19 From the outset, he theorised a strictly relational concept of
the constitution. A material constitution cannot simply be understood as a corpus of higher-
ranking legal norms but rather as a dynamic interaction between social relations and legal
relations, more precisely as ‘the transformation of social relations into legal relations via legal
principles, norms, guidelines, programs’.20 It is important to note: an active transformation, not a
reflection, not a derivation, not a determination. Yet Wiethölter always emphasised the political
economy’s dominance, according to which constitutions are primarily temporary compromises
in ongoing class struggles, historical group conflicts, and political power contestation. Only
secondarily, a constitution is a corpus of higher-ranking legal rules. Without finally resolving the
controversy between class theory and conflict sociology, Wiethölter identified historically

16
The explicit self-description as juridical negativism can be found in R. Wiethölter, ‘Recht und Politik: Bemerkungen
zu Peter Schwerdtners Kritik’ (1969) Zeitschrift für Rechtspolitik 155, 158.
17
R. Wiethölter, Rechtswissenschaft (Fischer, 1968). For a debate in the English-speaking world: D. Kennedy,
‘Comment on Rudolf Wiethölter’s “Materialisation and Proceduralisation in Modern Law” and “Proceduralisation
of the Category of Law”’, in C. Joerges and D. M. Trubek (eds.), Critical Legal Thought: An American–German
Debate (Nomos, 1989), 511–24.
18
Wiethölter, Rechtswissenschaft, 9 f, 17 f, 26, 28 f.
19
RW, ‘Thesen zum Wirtschaftsverfassungsrecht’ [1977], 49. For the recent debate on a material constitutional theory,
which continues this tradition, see M. Goldoni, ‘Introduction to the Material Study of Global Constitutional Law’
(2018) 8 Global Constitutionalism 71.
20
RW, ‘Thesen zum Wirtschaftsverfassungsrecht’ [1977], 48.

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 154 Gunther Teubner

different class and group compromises that form the all-determining societal constitution behind
the legal constitution. While in nineteenth-century constitutional monarchism, a compromise
between the nobility (monarchy) and the bourgeoisie had founded the constitution of the
German empire, the Weimar Constitution struck a compromise between different forces.
Capital and labour negotiated the Stinnes-Legien Agreement, and the social democracy and
the old elites of the empire produced the Ebert-Groener Pact.
And for the Federal Republic of Germany, he diagnosed a peculiar constitution behind the
constitution,
. . . a Basic Law of the Basic Law (Grundgesetz) . . . novel – nonbinding–binding – behavioural
‘contracts’ of institutionally and organisationally influential power representatives (‘state’ –
‘enterprise’ – ‘trade unions’ – ‘Bundesbank’ – ‘antitrust office’ etc.), less in the manner of
concerted actions, planning councils, conversational rounds than in the manner of word-rich
and silent mutual notifications of expectations and behaviour.21

Thus, it was not the formal rules of the democratic and social constitutional state that formed the
Federal Constitution of Germany primarily. Instead, neo-corporatist power compromises
between rival classes, social groups, strata, organised interests and collective actors dictated the
constitution.
If constitutions have emerged as historical compromises of ‘social power constellations’
forming the interaction between social relations and legal relations, then it would no longer
be plausible to restrict the constitution to the political state constitution. Yet, constitutional
lawyers still emphatically advocate doing so today.22 At the very least, the constitution of the
economy would have to be recognised as independent of the state constitution – economic
constitution I. What is more, Wiethölter considered it necessary to merge the latter into a more
comprehensive ‘unity of labour, economic and social constitution – economic constitution II’.
Its task was to create a ‘political obligation of the economy to act in the public interest’.23 And in
his commitment to the constitutions of science and higher education, it finally became apparent
that Wiethölter presented a constitutional concept that refers to all sectors of society.24 This
applied both to his constitutional diagnoses and to his ideas of a future societal constitution. And
for Wiethölter, as well as for his fellow campaigner Jürgen Habermas, the final goal was
politicising and democratising society in all its sectors:
Politicisation does not mean that we have to start from scratch this process in science and
universities, but simply, that we bring the existing politicisation of science and universities . . .
into their legitimate constitution. We need to succeed in this democratic constitutional project
not only for universities, for example, but also for the economy, corporations, the press, etc., if
we are to succeed in our main task, namely the constitutionalisation of political society as a
whole.25

21
Ibid., 49.
22
D. Grimm, ‘The Achievement of Constitutionalism and Its Prospects in a Changed World’, in P. Dobner and M.
Loughlin (eds.), The Twilight of Constitutionalism? (Oxford University Press, 2010); M. Loughlin, ‘What Is
Constitutionalisation?’, in P. Dobner and M. Loughlin (eds.), The Twilight of Constitutionalism? (Oxford
University Press, 2010).
23
RW, ‘Position des Wirtschaftsrechts im Sozialstaat’ [1965], 298. Obviously, the background is the debate in the
Weimar Republic on economic and labour constitutionalism. For an excellent analysis, R. Dukes, The Labour
Constitution: The Enduring Idea of Labour Law (Oxford University Press, 2014).
24
RW, ‘Begriffs- oder Interessenjurisprudenz’ [1977], 385 ff.
25
RW, ‘Anforderung an den Juristen heute’ [1969], 535 f. On Wiethölter’s assessment of the Bremen university experi-
ment, Wiethölter, ‘Der Reform-Planer’, 22 ff.

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 ‘Self-Justifying Law of Constitutional Law’ 155

10.4 CRITICAL SYSTEMS THEORY

From the ‘social constitution’, in which society determines the law, to the ‘self-justifying
constitutional law of the law’ (‘selbstgerechtes Rechtsverfassungsrecht’), in which law is con-
demned to radical autonomy – these are the changes in Wiethölter’s later thinking about a
material constitution in a nutshell. From the ‘fateful year 1974’, in which the conservative turn in
the German government destroyed all his hopes for the reform of universities and legal
education, Wiethölter retreats from activist political practice and reorients his focus toward
constitutional theory. From this time on, he continuously exposed law to three major social
theories: critical philosophy, systems sociology and institutional economics.

10.4.1 Social Theory Conflicts

Wiethölter avoids making a definitive decision regarding the conflict between these rival social
theories. Instead, he practices ‘transversality’, a procedure developed in contemporary philoso-
phy to deal with today’s discourse plurality that followed the catastrophe of the grands récits.26
For Wiethölter, the old European ‘theory triunity against all intermediate (“societal”) powers’,
that is, the unity of bourgeois political philosophy, political economy and political sociology,
had collapsed. Therefore, a single universal theory of society can no longer exist under the new
conditions of extreme social divisions. What remains is only the unsolvable conflict between
several equally originary theories of society. They live in a contradictory coexistence based on
the collisions of different social rationalities. Wiethölter fends off the claim to totality of each of
the three theories. He accepts their intrinsic legitimacy, their conflicts, as well as
their interdependence.
This conflict between social theories poses the real challenge for constitutional theory.
Despite personal sympathies for Habermas’ discourse theory, Wiethölter scrupulously maintains
equal distance from all three. But the transversal approach does not at all amount to a non-
binding, anything-goes relativism. Neither does Wiethölter lay claim to a super-theory that
would eliminate the differences between the theories; instead, he marks a mysterious void
within the triangle of social theories. Only such a suspension space, within which the validity
claims of rival theories cancel each other out, creates the freedom to pose the question: ‘Do we
have the right to bring the law to trial?’27 Upon re-entry of the three theories, there opens up an
imaginary space for legal theory, which Wiethölter maximises to develop the law of
constitutional law.
Wiethölter sets his hopes on mutual irritation, indeed on the reciprocal learning opportunities
posed by the rival theories. But he does not allow this metaprocess to be determined one-sidedly
by the logic of either rational discourse, autopoiesis or the market. His breathless to-and-fro
translations of constitutional questions into the languages of discourse theory, systems theory and
economic institutionalism are to be understood as such learning processes. The course of these
translations ought to yield some normative surplus value that makes it possible to formulate
constitutional principles which do justice to today’s historical situation. And only for the time
being, only on an experimental basis does he recommend searching for the initial distinction in

26
W. Welsch, Vernunft: Die zeitgenössische Vernunftkritik und das Konzept der transversalen Vernunft (Suhrkamp,
1996).
27
RW, ‘Ist unserem Recht der Prozeß zu machen?’ [1989], 55.

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 156 Gunther Teubner

critical theory in order to connect it in its own light with the other theories, with systems theory
and institutional economics, as consequential distinctions. Again and again, he emphasises the
provisional nature of this decision when he sees the relationship between the theories in the fact
that they mutually illuminate each other’s blind spots.

10.4.2 Reception and Critique of Systems Theory

Critique of functionalist reason – this is the common struggle that Wiethölter and Jürgen
Habermas wage against the destructive tendencies of modernity, against its legacy of deadly sins
and at the same time against its apologists. Both authors have in common a theoretical
programme in which they transplant diverse elements of functionalist systems theory into their
concepts but then expose the adopted elements internally to an uncompromising critique from
which they emerge radically transformed.
Wiethölter soon breaks free of Habermas’ monumental theoretical architecture to pursue
more experimental and daring trains of thought. Habermas incorporates systems theory in such a
way that he always constructs two social worlds, each with a different action logic, and then
opposes them to each other in an almost Manichaean style. The conflict of functionalist reason
versus discourse normativity, Habermas submits, is historically realised in a dualism of system
evolution. Functional imperatives collide in their evolution with normative developments.
Parallel to functional differentiation, Habermas observes a movement from several normative
levels of justification to discursive rationality. The dualism is repeated in the conflicts between
system versus life-world and in the collisions of function systems of action with normative areas
of life. The dualism reappears even within one system, namely the law, in the tension of law as
institution versus law as medium.28
Wiethölter cannot accept such sharp territorial boundaries, with the help of which the
normative world can shield itself from the functional imperatives of the systemic world,
which in turn proves to be resistant to normative criticism. Especially for the economy, which
Habermas no longer cares about, Wiethölter is looking for a constitution that proves norma-
tively demanding. Critical potential must be uncovered, especially within the economy.
Across all systems, functionalist reason ought to be pried apart from within. He is looking
for opportunities for a social normativity that has a subversive effect under systemic condi-
tions. A new possible legal order could only be an ‘autopoietic non-system’ that constantly
breaks through the routinised self-fulfilment of autopoiesis. This will ‘bring chaos into
order’29 – precisely in its deconstructive double meaning. This permanent nervous irritation
of fixed legal concepts distinguishes Wiethölter’s version of a critical systems theory from
Habermas’ rigorously constructed theory of communicative action. Avaritia, superbia,
contentio – Habermas puts the functionalist mortal sins into deportation custody to protect
the vulnerable discursive worlds. But Wiethölter puts up the ‘good fight’ against the deadly
sins in all areas of society.

28
J. Habermas, The Theory of Communicative Action, Vol. 2: Lifeworld and System – A Critique of Functional Reason
(Beacon Press, 1987), 454 ff (on system/life world, evolution, separation of areas of action), 365 ff (on law as institution/
medium).
29
R. Wiethölter, ‘Just-ifications of a Law of Society’, in O. Perez and G. Teubner (eds.), On Paradoxes and
Inconsistencies in Law (Hart, 2006), 72. Systems theory would emphasise that even after such an obstruction a new
autopoietic system would always emerge, just as modern art has remained an autopoietic system after all obstructions.

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 ‘Self-Justifying Law of Constitutional Law’ 157

10.5 THE LAW OF CONSTITUTIONAL LAW

(RECHTSVERFASSUNGSRECHT)

10.5.1 Law’s Radical Autonomy

Wiethölter now develops the idea of the law of constitutional law whose, as he says, ‘pointe it is
to propose that systems theory be taken radically seriously as the leading theory of society’.30 But
why systems theory of all things? Wiethölter learned from Hegel, Marx and Bloch that utopias
must not simply be good alternatives to bad reality. Instead, they must build on recognisable
developmental trends in society and exploit the opportunities they present to draw up a realistic
vision of the future and promote their realisation with thoughtful political strategies. And for
Wiethölter, it is systems theory that provides the most advanced analyses of these development
trends. At the same time, however, he wields the critical sting from within against functionalist
systems theory in order to transform it into a critical systems theory from a normative perspective.
Wherein exactly does the criticality of Wiethölter’s version of a critical systems theory materialise
in relation to Luhmann’s functionalist systems theory? And how is it reflected in his concept of
the constitution?
The enigmatic concept of a ‘self-justifying law of constitutional law’ marks the spectacular
turn in Wiethölter’s constitutional thinking. Whereas in the past he had clearly prioritised the
constitution behind the constitution, that is, the social power compromises over constitutional
norms, now, in his confrontation with social theories, he almost inversely emphasises the high
autonomy of law, but nevertheless continues the search for a material constitution: ‘Perhaps in
the emancipation of such law from the law in the rival social theories, which probably does not
(yet) seem outdated as “other than law” or “other law”, lies a step towards the opportunity of
realisation of an “other of the law”, . . .’. And then it comes out: ‘“Law” would then not be
bowing to social theory designs, but itself be one, and therefore at any rate not “system”, not
“discourse”, not an “undertaking”.’31 This astonishes friends and enemies alike. It is astonishing,
for one, that Wiethölter now ascribes a high degree of autonomy to the operations of the law vis-
à-vis its social correlates. Such autonomy is more radical than the mere ‘relative autonomy’ of
law as critical social theory and uncritical legal sociology think alike. By no means should it be
confused with the formalist autonomy of legal doctrine in the usual sense. Autonomy now
means: The obstinacy of an area of social action whose identity is constituted not merely by
norms, principles and doctrines, but rather foremost by its practice of dispute – by legal
decisions, legislation, contract, judgement, academic controversies, political struggles – which
generate a phenomenal inner world of the law.
Likewise, it is astonishing that Wiethölter no longer looks outside the law, in social theory or
philosophy, for the all-determining guiding theory. While early Wiethölter used to argue
passionately for integrating jurisprudence and doctrine into a comprehensive social science,
he is now experimenting surprisingly with the opposite idea, namely that law itself produces an
independent theory of society (sic!). Not just a theory of law, but a theory of society as a whole!
To ensure that the law’s own theory of society does not slide into the formalist self-sufficient legal
doctrine, judicial ideology, and professional self-evidence, confrontation with the three major
social theories is needed. These three external observers permanently provoke autonomous law

30
RW, ‘Zur Regelbildung in der Dogmatik des Zivilrechts’ [1992], 152 (emphasis added). For the differences between
Luhmann and Wiethölter: G. Teubner, ‘Dealing with Paradoxes of Law: Derrida, Luhmann, Wiethölter’, in O. Perez
and G. Teubner (eds.), On Paradoxes and Inconsistencies in Law (Hart, 2006), 41–64.
31
Wiethölter, ‘Just-ifications’, 73.

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 158 Gunther Teubner

with incongruent perspectives. Legal doctrine, which has been captive to professional pressures,
will thus gain the freedom to react to the irritations caused by the excess potential of the social
theories. The effect is an opening to self-modification. In this confrontation, autonomous law
itself becomes one of the noteworthy parts of society, whose potential for reflection is greater
than that of society as a whole, as Gotthard Günther has described it.32 Wiethölter’s juridical
utopia is developed out of the reflective potential of law itself and not from that of sociology
or philosophy.
Such an enlightened, legally innate ‘societal theory design’ relies above all on an increased
autonomy of law’s operations and self-descriptions. Thus, the development of modern law is no
longer to be understood as a mere epiphenomenon of more fundamental social processes.
Instead, it is to be seen as an independent process of social autonomy – and simultaneously a
process of alienation – within the framework of a capitalist society. Its course and its results are
now to be understood primarily from the inherent logic of the law and only secondarily from its
indirect but massive references to the intrinsic logic of the economy, politics, culture, etc.

10.5.2 Critique of Juridical Functionalism

So far, he is in consensus with systems theory. But the more Wiethölter emphasises the
autonomy of law and, in strict parallel, the autonomy of other social systems, the more gravely
he calls out their deadly sins. His critique of their ruthless rationality maximisation and of their
equally ruthless expansion beyond their limits is fundamental. To the extent that ‘law as law’ has
indeed ‘emancipated itself radically towards self-determination and has uncoupled itself both
from legal subjects and from (social) morals’, he says, it commits a mortal sin when – as the
current legal doctrine, especially in Germany, does – it bitterly resists new feedback with
‘externality, normativity of socio-historical legitimations, structures, codes’. Wiethölter’s prescrip-
tion for a material constitution is the exact opposite: The law itself must now actively seek new,
resilient ties back to society precisely because it has gained such a high degree of autonomy.33
The same applies to the relationship between law and other systems, especially the economy.
The more they have decoupled themselves from social needs in their highly driven momentum,
the more they would need external controls, particularly by law. When the law is confronting
problems of world society – financialisation of social reproduction, ecological catastrophes,
dangers of reproductive medicine, exclusion of entire population groups – all this as a result
of worldwide functional differentiation, law acquires a new task in its relation to other autono-
mous social systems.
But it is precisely in confronting this major problem that the theory of autopoietic systems
fails – this is Wiethölter’s primary criticism of Luhmann. Almost cynically, Luhmann plays
down the central problem of modernity, the urgently needed integration of an extremely divided
society.34 Worse still, according to Wiethölter, Luhmann wrongly denies even the possibility of
an orientation toward the public good and accordingly the opportunities to contribute to the
integration of an extremely divided society. Instead, he leaves it – and herein lies the scandal – to
the economy of all things to secretly bring about society’s integration. According to Wiethölter’s
devastating verdict, functionalist systems theory re-integrates the ‘totality of differentiations into

32
G. Günther, ‘Cybernetic Ontology and Transjunctional Operations’, in G. Günther (ed.), Beiträge zur Grundlegung
einer operationsfähigen Dialektik (Meiner, 1976), 249–83.
33
RW, ‘Zur Argumentation im Recht’ [1995], 169 f.
34
Luhmann speaks of integration with irony as a ‘concept of despair’ whose overwhelming urgency he simply doubts.
Instead, he describes modern society as ‘over-integrated’: Luhmann, Theory of Society, 16.

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 ‘Self-Justifying Law of Constitutional Law’ 159

the “economy of society”’. It thus legitimises a highly questionable ‘unity of “economy” and
“law” to which systemic autonomy, positivity, self-reference as autopoiesis are accredited’.35 But
that would be nothing other than economic totalitarianism, which awards avaritia social
primacy.

10.5.3 Reciprocity/(Im-)partiality
Wiethölter’s normatively hotly charged vision of the material constitution is built up directly on
Luhmann’s cold, functional analysis because, as pointed out in Section 10.5.2, he sees it as the
most advanced diagnostics of today’s society. Wiethölter’s two principles of the law of consti-
tutional law – reciprocity and partial impartiality – are, therefore, a direct reaction to the
functional differentiation of society. Simultaneously, though, they aim at the crucial common
good, totally neglected by systems theory. Admittedly, both principles hardly have anything to do
with their traditional meaning. An attempt to decipher them would no longer understand
reciprocity as mutual balancing of two individual interests in the synallagmatic contract.
Instead, it would imply the reciprocal productive and solidary interconnection of distant areas
of social autonomy. Wanting to create contractual justice via singular judicial corrections, as
lawyers with an alternative vision of private law entertain, then appears as an almost naive
recourse to outdated concepts of a single, self-balanced legal relationship or of the autonomy of
the bourgeois subject. That indeed would be the false utopia that suffers from a lack of social
adequacy. Instead, what is sought in today’s society is an adequate compensation of asymmet-
rical individual relations, which creates solidary relations via a long detour across several system
boundaries. Obviously, Wiethölter thus goes far beyond Parsons’ ideas of exchange relations
between social systems and beyond Luhmann’s analyses of their mutual complementarity and
limitation.36 He is concerned with normative reciprocity of the welfare state as a social equilib-
rium between partial autonomies, which links the autonomy of functional, large-scale systems
and that of individuals, collectives, institutions and organisations in their mutual solidarity. As a
thoroughly normative concept, such society-wide reciprocity is reminiscent of Durkheim’s
organic solidarity, which he had understood as a reaction to the social division of labour. In
its normative charge, it distances itself from Luhmann’s relatively pale concept of structural
coupling.
Impartial partiality: Through this second, openly paradoxically formulated principle of the law
of constitutional law, Wiethölter again concurs with systemic diagnoses of law in modern society
but subsequently distances himself from systemic concepts of autonomy. ‘“Autonomy” was in
fact never anywhere a guarantee of decentralised and sectoral “general good” but itself a party, to
which one releases activities only at the cost of “objectively justified” criteria, venues kept open
and fairness procedures kept to, in short, “relative impartiality” and the capacity for universalisa-
tion.’37 If one wants to decipher this paradoxical (im-)partiality, one should see the role of the
law against the deadly sin excesses of functional systems neither in directly intervening with their
self-regulation nor in establishing a mere framework order. Instead, it should be the task of the
law to aid in releasing the normativity potential already latent within the area of social
autonomy – a kind of maieutic. In clear contrast to Luhmann’s sociology, which in cool

35
RW, ‘Ist unserem Recht der Prozeß zu machen?’ [1989], 64 f.
36
On intersystemic relations: T. Parsons and N. J. Smelser, Economy and Society: A Study in the Integration of
Economic and Social Theory (Routledge, 1956), 70 ff; Luhmann, Theory of Society, 6 ff.
37
RW, ‘Zum Fortbildungsrecht der (richterlichen) Rechtsfortbildung’ [1988], 471.

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 160 Gunther Teubner

indifference celebrates its supposedly impartial distance, Wiethölter’s law of constitutional law
consciously adopts the partiality perspective in the normative legal discourse. The impartial
constitution would then be partial in a three-fold sense: Partial to the standards of normativity
developed within the law, which impartially are applied to the social systems. But also partial
toward the normative standards of the social systems themselves, for which law takes sides in
conflict cases to solve disputes impartially. And finally, partial toward ‘society as society’, one of the
strangest enigmas with which Wiethölter counterfactually holds on to the concept of society in
modernity, although he explicitly insists on the destruction of this very concept in modernity.38

10.5.4 Collisions of Constitutions

10.5.4.1 Constitutional Pluralism

Luhmann’s constitutional concept suffers a further critique when confronted with Wiethölter’s
‘society as society’. Luhmann’s insistence on the constitutional monopoly of the state consti-
tution is untenable in Wiethölter’s eyes. As is well known, Luhmann argues against the
extension of the political constitution to the whole society, against the horizontal effect of
constitutional rights in non-state sectors, against the economic constitution and against societal
constitutionalism, as represented by David Sciulli and Reinhart Koselleck. In addition, for
Luhmann, a transnational equivalent for the national constitution as a coupling of politics
and law does not exist.39 Certainly, Wiethölter counters, one must accept systems theory’s
insight that the constitution must be conceived strictly relationally as structural coupling of
law with non-legal processes. But to limit law’s coupling exclusively to the political system of the
nation-state, as Luhmann and the prevailing doctrine in constitutional law still do, is for
Wiethölter an unacceptable reduction of the constitutional project. He opposes this with a
material constitution, in his words, a ‘society-as-society constitution’: ‘Society as society consists
of . . . not merely the “democratic” aggregation of human citizens but also a variety of “organ-
ised” institutionalisation for decisions, communication and educational processes.’40 Should
one then, like Reinhart Koselleck or Otfried Höffe, adopt a comprehensive constitution for
society as a whole – or potentially even a world constitution – as a normative unity? Or should
one opt for a diversity of constitutional sites? Wiethölter advocates, again in opposition to
Luhmann, for the second option, for transnational societal constitutionalism in the ‘struggle
for the (international) social order as legal constitution’.41 He opts for constitutional pluralism,
for a multitude of social institutions to be legally constitutionalised. Indeed, he describes this as
probably the ‘most exciting prospect for hope’ that a constitutional law of the law is beginning to
develop ‘conflict-of-laws principles for law versus morality, law versus politics, law versus the
economy etc., or more exactly and more generally, law as a “structural coupling” of “life-world
systems”’.42 Thus, Wiethölter identifies not only the state constitution but also the economic
constitution (national as well as international), the constitution of science and other function
systems, as well as the constitution of multinational corporations, universities and other formal
organisations and even the constitution of global supply chains43 and other networks, each

38
Ibid., 158; RW, ‘Zur Argumentation im Recht’ [1995], 183; Wiethölter, ‘Just-ifications’.
39
N. Luhmann, Law as a Social System (Oxford University Press, 2004), 487 f; Luhmann, Theory of Society, 430, fn. 356.
40
RW, ‘Zur Regelbildung in der Dogmatik des Zivilrechts’ [1992], 158.
41
RW, ‘Begriffs- oder Interessenjurisprudenz’ [1977], 374 ff.
42
RW, ‘Zur Argumentation im Recht’ [1995], 185.
43
RW, ‘Begriffs- oder Interessenjurisprudenz’ [1977], 374, 417 ff; RW, ‘Anforderung an den Juristen heute’ [1969], 535 f.

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 ‘Self-Justifying Law of Constitutional Law’ 161

understood as a coupling of social institutions with the law. In Wiethölter’s constitutionalism,

the legal focus is now finally geared toward a radical pluralism of social autonomies. At odds
with the obsolete dichotomy of private versus public law, multiple material constitutions,
national as well as international in a meta-conflict law, regulate the relation of law to different
social autonomies as a fusion of the law’s global economic constitution with international
private law.

10.5.4.2 Constitutional Governance of Social Autonomy

This may decipher a first dimension of the enigmatic ‘self-justifying law of constitutional law’
(selbst-gerechtes Rechts-Verfassungs-Recht).44 It is obviously a concept with multiple layers of self-
reflexivity. Its simultaneous use of genitivus subjectivus and genitivus objectivus brings law and
constitution into multi-dimensional self-referential relations. They culminate in ‘self-justifying
praxis-games’ (selbstgerechte Praxisspiele). In this first dimension, constitutional law decides
whether the coupling relationship of each of the social sub-areas with the law meets the
requirements of reciprocity and partial impartiality. This implies the relationship between the
law and the autonomy of a social system and it entails the problem, ‘if and how “autonomy” can
be taken seriously as self-determination and, nevertheless, can become suitable as essential
externalisation (control), not as external determination, but as a possible help in situations of
impossible self-help, not unlike “counselling” help and “compatibility’ therapy outside the
law”.45 Thus, it is the task of the law to guarantee the autonomy of social processes in the first
place through constitutive rules to exercise effective external control through limitative rules.
This means at once protecting its integrity from false politicisation or economisation.

10.5.4.3 Collision Rules for Constitutions

Early Wiethölter already hinted at the second dimension of the law’s constitutional law in
speaking about the necessity of a meta-constitution as a constitution for the constitution. He later
modified this under the conditions of constitutional pluralism more precisely as the meta-law of
conflicting legal constitutions. Such a meta-constitutional law is supposed to offer a resolution of
conflicts between the various constitutions of politics, economy, science and formal
organisations.46
Here the typical Wiethölter way of thinking about conflict of laws comes into play. He
extrapolates from private international law and tries to make it fruitful for other areas of law,
especially for constitutional law. It is no longer only a matter of dealing with conflicts between
national legal systems but also generalising conflict law thinking. Wiethölter applies it now in
conflicts between other norm complexes, areas of law, legal institutions, state and social consti-
tutions, but also for conflicts between the rationalities of different social systems and even
between rival theories of society. With this double recourse to rich historical experiences of
both international private law on the one hand and of massive social conflicts of rationality on
the other, it is possible to prioritise such a generalised conflict of law in the juridical reconstruc-
tion of social contradictions. In Wiethölter’s conflicts of law, however, the social contradictions

44
Wiethölter, ‘Just-ifications’.
45
RW, ‘Zum Fortbildungsrecht der (richterlichen) Rechtsfortbildung’ [1988], 476.
46
RW, ‘Zur Argumentation im Recht’ [1995], 185.

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 162 Gunther Teubner

do not appear as such, but rather in a specifically juridical transformation. This complicated
process translates society’s real contradictions (Realwidersprüche) into conflicts of different
constitutions. Social conflict dynamics are now exposed to the law’s obligation to make deci-
sions, which calls for suitable fora, procedures and criteria. Concepts of conflict sociology are
translated into a doctrine of conflict law (connection, qualification, referral, renvoi, ordre public,
alignment, internal and external decision-making harmony).
Therefore, the law of constitutional law must be understood in this second dimension as the
law governing conflicts between constitutions. It adjudicates collisions between different
national constitutions but, more importantly, conflicts between social rationalities, which
articulate themselves legally as conflicts between different social constitutions – those of the
economy, politics, science, education, information media. Here again, Wiethölter goes beyond
his initial reception of a systems theory element – conflicts between functional systems – with its
critical-normative transformation. The conflicts are not equanimously left to blind evolution, as
Luhmann would see it, but instead transformed into a legal issue to be decided via suitable fora,
procedures and criteria.

10.5.4.4 Ordre Public

Finally, a third dimension, hidden in Wiethölter’s law of constitutional law, refers to the already
mentioned ‘society as society’, which collides with the partial rationality of the diverse function
systems. Wiethölter judges the mere compatibility of the function systems, as envisaged by
Luhmann,47 as entirely inadequate. Instead of compromising only between partial rationalities,
a constitutional conflict law would have to seek its orientation toward an ordre public for society
as a whole. Wiethölter’s efforts are directed toward a material constitution of ‘society as society’,
in the form of a constitutional theory which, as he says, works as ‘a thorn in the flesh of socio-
historical development’.48
For Wiethölter, ‘society as society’ should not be seen as a separate social sphere in contrast to
the state, ‘. . . but rather as a space of cultural reproductions, of social identities, of successful
socialisation. In society as society, it is not the “whole person” who is legally at home, but rather
his participatory role, function, decision-making, education, which each constantly requires
definition . . .’.49
Wiethölter thus criticises functionalist systems theory because it dilutes the concept of society
down to the mere sum of all communications that operate internally with the distinction
between self-reference and other-reference. He contrasts it with a normatively highly charged
concept of society. This accepts the systems theory division of the whole person initially into
mutually closed off processes of consciousness and social communication. Under such radical-
ised conditions of alienation, however, the society-as-society constitution must stand all the more
for liberation toward freedom against bondage, ‘which speaks in the name of either the rule of
objective reason, majority will, or liberal individual rights’.50 ‘Self-justifications of societal law’51
produce a constitution of the whole of society, which, however, is not meant as a uniform
constitution of world society but rather as a material meta-constitution for conflicts within
constitutional pluralism.

47
Luhmann, Theory of Society, 6 ff.
48
RW, ‘Franz Böhm (1895–1977)’ [1989], 87.
49
RW, ‘Zur Regelbildung in der Dogmatik des Zivilrechts’ [1992], 158.
50
RW, ‘Franz Böhm (1895–1977)’ [1989], 81.
51
Wiethölter, ‘Just-ifications’, 65.

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 ‘Self-Justifying Law of Constitutional Law’ 163

10.5.4.5 A Culture of Conflict

‘Self-justifying law of constitutional law’? The self-referential dynamics of object-norms and
meta-norms unfolding in the three dimensions described in Section 10.5.4.4 culminate in a final
self-referential loop. The ultimate formula of ‘self-justification’ (Selbstgerechtigkeit) cuts off the
infinite regress of seeking ever higher norms and meta-norms, refusing Kelsen’s Grundnorm as
well as Luhmann’s contingency formula. Wiethölter transfers the question of justice in the law
of constitutional law to the manifold circular relationships of substantive norms and collision
norms that are realised in the social practices (!) of the disputes over colliding norms. Such, as
Wiethölter calls them, ‘self-justifying praxis games’ would be realised in a future ‘law of conflict
culture’ as ‘admission of different partial cultures, of course within limits’.52 Such praxis games
would have to transcend the narrow boundaries of the law, but not in the direction of religious
transcendence of otherness, instead, in the direction of the immanence of a quasi-therapeutic
relationship which is oriented more toward the healing normativity of medicine than toward
juridical logic of injury and restoration.53 Wiethölter openly admits to the question of what this
search for an immanent transcendence of law could mean: ‘[That] is the numinosum, and each
numinosum has a fascinosum and also a tremendum. That is what the theologians are saying’.54

10.6 CONTINUATION

But how, finally, can Wiethölter’s work on the material constitution be further developed?

10.6.1 Various Pathways

In recent years, several attempts have been made to detach Wiethölter’s concept of the law of
constitutional law from its national context and to make it fruitful for the current transnational
constitutionalisation.55 In the future, the principles of society-wide reciprocity and partial
impartiality will be a challenge for constitutionalist studies. The law of constitutional law can
also provide an impetus for the recent debates on the digital constitution and ecological
constitutionalism.56 In other contexts, Wiethölter’s ideas on conflict of laws have already set a
precedent, revealing the deep structures of simple legal norm conflicts in a wide variety of areas
and opening up possible solutions that leave the old conflict norms of lex posterior, lex superior,
etc. far behind. And critical systems theory has experienced a clear resonance in both national
and international debate. It has successfully broken open the hardened fronts of the Habermas/
Luhmann controversy and found a connection to post-structuralist theories.57

52
RW, ‘Politik und Aufklärung’ [1988], 493.
53
Wiethölter, ‘Just-ifications’, 75.
54
RW, ‘L’essentiel est invisible pour les yeux’ [2013], 189.
55
A. Fischer-Lescano, ‘Luhmanns Staat und der transnationale Konstitutionalismus’, in M. Neves and R. Voigt (eds.),
Die Staaten der Weltgesellschaft: Luhmanns Staatstheorie (Nomos, 2007), 99–113; D. Wielsch, ‘Gesellschaftliche
Transformation durch subjektive Rechte’, in A. Fischer-Lescano, H. Franzki and J. Horst (eds.), Gegenrechte: Recht
jenseits des Subjekts (Mohr Siebeck, 2018), 141–64.
56
On digital constitutionalism: E. Celeste, Digital Constitutionalism: The Role of Internet Bills of Rights (University
College Dublin, 2020). On ecological constitutionalism: A. Cardesa-Salzmann and E. Cocciolo, ‘Global
Governance, Sustainability and the Earth System: Critical Reflections on the Role of Global Law’ (2019) 8
Transnational Environmental Law 437.
57
A. Fischer-Lescano, ‘Critical Systems Theory’ (2012) 38 Philosophy and Social Criticism 3; A. Philippopoulos-
Mihalopoulos, ‘Critical Autopoiesis and the Materiality of Law’ (2014) 27 International Journal for the Semiotics of
Law 389.

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 164 Gunther Teubner

10.6.2 Real Contradiction in Law

Another promising line of research seems to me to lie in Wiethölter’s reinterpretation of one of
Karl Marx’s basic concepts. He claims that the fundamental real contradiction
(Realwiderspruch) of law is between productive forces and relations of production – so far, so
underwhelming, but here it comes! – not of the economy, but of the law itself. How’s that?
A legally innate ‘dialectic of legal productive forces and legal relations of production’? Against
Marx, with Marx and beyond Marx – here, the late Wiethölter pursues his approach of a radical
autonomy of law and seeks to generalise the contradiction logic assumed by Marx only in the
economy and to re-specify this logic within the law itself.
Wiethölter tries to identify a real contradiction between productive forces and relations of
production that are innate to the law. Thus, he rejects Marx’s thesis of law as a superstructure.
Instead, he seeks to demonstrate that the contradictory dynamics, which Marx located exclu-
sively in the economy, exist within the law itself. Then – in contrast to most critical legal
theories – the legal form is no longer a mere façade that obscures relevant processes in the
political economy. Instead, a fundamental contradiction immanent in the law itself drives a
transformative dynamic independent of the economy. And the utopia of the law of constitutional
law would have to build on the fundamental contradictions inherent in the law itself.
One obvious option would be to carry this idea further and to understand the innate relations
of production as legal relations as well as to identify the legally relevant productive forces,
possibly in the correlation of communication media and social norms. My proposal, however,
goes in a different direction, namely to try an analogy to the economy in law, the analogy to the
worst of all deadly sins, to avaritia – to the economic profit principle itself.

10.6.3 Societal Surplus Values

The critique of capitalist society is then no longer directed solely at the profit principle within
the economy. Nor is it merely directed against the expansion, pushed by neo-liberal fanatics, of
the economic profit principle into non-economic areas of society, threatening all social activities
to produce a monetary profit or else be done away with altogether. Instead, it criticises a different
kind of society-wide expansion of the capitalist logic. The very belonging to a function system
forces every operation to generate a surplus value – but explicitly non-monetary – beyond its
immediate production of meaning. In politics, non-monetary surplus value means that every
policy decision needs to create a surplus of political power simultaneously. In science, successful
research in the various subject areas, which is constrained by reputation maximisation, is only
recognised as relevant if it generates a surplus of generalisable, applicable knowledge. In law, the
courts are under the obligation to produce a normative surplus value, that is, norms that can be
generalised for the future, over and above the concrete decision in a dispute. Legal acts need to
reproduce and, if possible, to increase juridical normativity. This is the reason why in the famous
parable ‘Return of the Twelfth Camel’, it is crucial that the khadi formulates his decision in such
a way that the twelfth camel – the juridical normativity which guarantees acceptance – is not
only used to resolve the concrete case but at the same time can be returned to the khadi.58 And
here, too, exploitation is at play – namely of those people who are actually interested merely in

58
For an interpretation of the parable, see G. Teubner, ‘Alienating Justice: On the Social Surplus Value of the Twelfth
Camel’, in D. Nelken and J. Pribán (eds.), Law’s New Boundaries: Consequences of Legal Autopoiesis (Ashgate, 2001),
21–44.

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 ‘Self-Justifying Law of Constitutional Law’ 165

the success of their concrete legal dispute but who nevertheless have to muster the extra energy
that generates the surplus values of new resources of normativity for future use that emerge from
their dispute59 and, more generally, that enables the law to reproduce and even increase its
capacity to create acceptance in law and society.
In the language of systems theory: The orientation of a function system toward its societal
surplus-value means constant pressure to co-produce a surplus of its mediality, beyond the actual
production process, which only in the economy is monetary profit. The surplus of the system’s
own communication medium – money, power, law, knowledge – arises in the reflexive
application of operations to further operations. In a reflexive process, not only are the usual
follow-up operations made possible but, at the same time, each one’s own ability to operate is
restored or even increased.60 If this is established as a criterion of self-regulation in various
systems, then the surplus production becomes the driving dynamics of the expansion imperatives
in modern society.61 The production of societal surplus value, which serves to reproduce or even
increase each system’s own communication medium, is by no means simply to be confused with
a constant increase in performance, with output maximisation, according to the motto ‘Higher,
further, faster’. Defining social surplus exclusively as strengthening the communication medium
distinguishes a systemic concept of surplus from other attempts to describe all kinds of bypro-
ducts of production as social surplus.62
It is by no means immediately apparent why communication media, in particular, should be
held responsible for the ubiquitously perceptible pressure of increase caused by function
systems. The unique contribution of communication media in their area of application consists
precisely in creating the motives (!) for the fact that communication expectations are also and
especially accepted against resistance. They have the ‘function of making the acceptance of a
communication expectable in cases in which rejection is likely’.63 The motivational power
inherent in communication media thus proves to be the actual motor for the uncanny growth
constraints, which each of the function systems develops endogenously out of itself. It is also the
exclusive aim of surplus production to restore and increase communication media
wherever possible.
The motivational power of communication media does not directly influence psychological
states; instead, it twists social constructions that get by with the assumption of corresponding
states of consciousness. Communication media, therefore, primarily shape the formation of
social motives and, at best, have an indirect effect on individual intrapsychic decision-making.
Here, then, lies the origin of the – understood in this way by media theory – will to power, to
money, to law, to truth. Communication media force the individual from the outset in Max
Weber’s ‘Housing of Future Bondage’, which is understood here as the overwhelming motiv-
ational pressure created by each one-dimensionally oriented communication medium to pro-
duce added value. However, the individual is then subject not exclusively to the profit
compulsion of the capitalist economy, which one usually has in mind as the cause of such
dynamics, but also to other surplus constraints, that is, the power pressures of politics, the

59
N. Luhmann, ‘The Unity of the Legal System’, in G. Teubner (ed.), Autopoietic Law: A New Approach to Law and
Society (de Gruyter, 1988), 12–35, 23.
60
This generalises Luhmann’s theses on the profit principle of the economy for other function systems, idem, Die
Wirtschaft der Gesellschaft (Suhrkamp, 1988), 55 ff.
61
The production of surplus value is indeed the object of desire for a collective addiction which is institutionalised in
various function systems, see Teubner, ‘A Constitutional Moment?’.
62
Usually associated with positive social policy ambitions, e.g., M. H. Moore, Recognising Public Value (Harvard
University Press, 2013).
63
Luhmann, Theory of Society, II, IX.

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 166 Gunther Teubner

knowledge pressures of science and technology, the novelty pressures of information media, the
digitisation pressures of the online world and the standardisation pressures of law.
At the same time, it becomes possible to determine more precisely the different social forms of
social surplus values than via the mere separation of economic, cultural and social phenomena
(as in Bourdieu’s capital concepts). Only when contributing to the function of the social system
is ‘generated’ beyond the immediate activity and its meaning64 does this count as a medial added
value that acts as a criterion of self-regulation, as a recursive principle of the self-legitimation of
systemic operations. This applies to payment operations of the economy no differently than it
does to dispute decisions in law, policy decisions in politics, epistemic operations of science or
curative interventions in medicine, possibly also for digital operations in cyberspace.
The society-wide pressure to produce surplus value does not aim at skimming off the surplus
value for private use, as in the conventional understanding of profit. It is not at all about the
antagonism between public production and private appropriation; on the contrary, it is precisely
about a detachment from private motives. An orientation toward societal surplus makes it
possible to detach oneself from the reciprocity of simple exchange relationships and instead
establish reciprocity relationships throughout society. Pressure to make a profit generalised in
this way is then in substance a system-immanent ‘taxation’ of every operation for the fulfilment of
the system’s function: monetary surplus in the economy for securing future needs, normative
surplus of concrete dispute adjudication in law for norm production in society, power surplus of
policies as generalised resources for future political decisions, surplus knowledge for the forma-
tion of theories in science and surplus medical value of individual operations for the develop-
ment of the health sector.

10.6.4 Societal Surplus Values as a Constitutional Problem

At this point, at the latest, it becomes clear that massive pressures to produce various surplus
values are a constitutional problem of the highest order. The surplus orientation is, after all, the
actual driving idée directrice in both economic and non-economic institutions of a capitalist
society, which is responsible for its productive dynamics, but especially for its destructive effects.
It gives the respective system operations a formal goal that overlays, limits, dominates and
ultimately falsifies their substantive goal. But how should the constitution deal with the excessive
ambivalence of ubiquitous surplus production? Surplus restrictions? Changes to profit distribu-
tion? Collectivisation of the non-monetary generation of profit? Liberation from the societal
pressure toward profit maximisation? If the compulsion to siphon off surplus value is structurally
rooted everywhere throughout society, albeit in different forms, then it is obviously no longer
sufficient to make a fundamental decision under economic constitutional law for or against a
profit-driven economy. Hopes for the abolition of private property and the elimination of the
monetary profit orientation are in vain because the destructive tendencies of non-monetary
profit maximisation in other systems, especially in science, technology and, of course, politics,
would remain completely unaffected.
The way constitutions deal with diverse societal surplus productions would have to be
conceived more carefully than any simple prohibition strategy would do. One suggestion could
be – horribile dictu – economic experiences with external societal pressures on commercial
enterprises, which are currently being exerted in the direction of monetary profit generation.

64
See N. Luhmann, ‘Organisationen im Wirtschaftssystem’, in N. Luhmann (ed.), Soziologische Aufklärung 3: Soziales
System, Gesellschaft, Organisation (Westdeutscher Verlag, 1981), 390–414, 401 ff.

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 ‘Self-Justifying Law of Constitutional Law’ 167

This is because the concrete design of surplus generation and distribution is not solely left up to
the companies but instead imposed externally by a triad of surplus transfers: returns, taxes and
employee wages. Various collective actors force the companies to achieve a monetary surplus
beyond mere production and direct them how they distribute it to different beneficiaries: the
state skimming off taxes, the trade unions fighting for wages and working conditions, the capital
owners collecting the residual profits for their risk exposure, and the companies themselves
reinvesting. And constitutional law plays a prominent role here because various social consti-
tutions provide for the legal protection of such pressures: financial constitution, property consti-
tution and labour constitution. Constitutional changes that influence the economic profit
principle, such as state participation in companies, taxation for non-fiscal purposes or workers’
co-determination, have arisen in the past quite regularly and are topical again for the future
given the more recent criticism of capitalism. In view of new, increased inequalities, the task of
politics and law to reduce ‘parasitic’ profit siphoning excesses, especially of the capital owners, is
likely to come into sharp focus again. What will be seen as parasitic in these new attempts should
be the surplus skimming that exceeds the required (!) motivation for generating surplus value.
Would it be worthwhile for a law of constitutional law, in the way Wiethölter formulates it, to
learn from such experiences in the economic constitution? Can we free them from the tight
corset of economic, monetary profit and make them fruitful in numerous areas of life for a
political-legal direction of non-monetary surplus productions? Instead of direct interventions, the
external pressures could indirectly work toward a changed – possibly ecological – orientation of
the various societal surplus outputs in ‘partial impartiality’. The role of law would be to
institutionally promote a society-wide reflection on various societal surplus values, both their
production and distribution, in ‘society-wide reciprocity’, including the normative surplus values
of law itself. Left to their own devices, the systemic surplus productions will only follow their
tunnel vision, focusing on maximising their own function. External pressures from civil society,
from politics and law should induce them to become ecologically sensitive and to include the
effects on nature, society and people in their decision-making. Would such pressures be the
appropriate dealing with the modern equivalents of old mortal sins – avaritia, superbia,
contentio, concupiscentia oculorum?

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 part ii

Challenges

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 11

The Material Constitution and Imperialism

Eva Nanopoulos*

In their pathbreaking article on the ‘Material Constitution’, the editors of the present volume called
for constitutional theory to pay attention to the ‘material conditions for the emergence and
development of a constitutional order, and the material changes that prompt the suspension or
modification of formal constitutional norms’.1 Goldoni and Wilkinson defined the material context
as the ‘basic political and social conditions of possibility of constitutionalism and the dynamics of
constitutional change’.2 My aim in this chapter is to argue that those conditions and dynamics must
be grounded in the genesis and development of capitalism and that this by necessity implies an
engagement with imperialism or, to be more precise, of capitalist imperialism3 defined as a global,
Western-led, gendered and racialised system of domination and exploitation inherent to capitalism.
Such engagement both broadens and narrows the outlook of ‘orthodox’ approaches to consti-
tutional law. Foregrounding imperialism moves us beyond the premise that constitutional forms
are purely ‘domestic’ phenomena and hence expands the discipline’s spatial coordinates. Yet, by
breaking with a transhistorical reading of constitutionalism and constitutions – amenable to
change to fit modern conditions but ultimately grounded in nature and reason – it also
simultaneously restricts its temporal coordinates.
Redrawing the boundaries of the field through the lens of the material imperial constitution
not only contributes ‘new insights’ to the discipline but also questions its own complicity in the
emergence, development and contemporary reproduction of capitalist imperial relations.
Elision of the international domain and of the historical context are part and parcel of a process
of self-legitimation of liberal constitutionalism. Together, they form the bedrock of a ‘consti-
tutional mythology’ that perpetuates the idea of the constitution as a great civilisational achieve-
ment and its spread as an ongoing march toward universal freedom and emancipation.
This complicity is not unique to constitutional law or indeed to law as such. Methodological
nationalism and positivism pervade all fields of the humanities and the social sciences and have
helped sever their connections to imperialism. But ‘decolonial’ efforts have been almost non-

*
I would like to thank the editors not only for their insightful comments, but also for their patience in a difficult phase. I
would also like to thank Tanzil Chowdhury for reading and commenting on an earlier draft, as well as Rob Knox, for
the many lively (and endless!) discussions on race and capitalism.
1
M. Goldoni and M. A. Wilkinson, ‘The Material Constitution’ (2018) 81 Modern Law Review 567, 568.
2
Ibid.
3
The notion of ‘capitalist imperialism’ acknowledges the fact that there existed previous forms of pre-capitalist
imperialism, such as the Roman Empire. In this chapter, however, I use the term ‘imperialism’ as ‘capitalist
imperialism’ and the term ‘imperial constitution’ as ‘capitalist imperial constitution’.

171

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 172 Eva Nanopoulos

existent in constitutional scholarship,4 even as work in other areas – from political5 and social6
theory, to international relations7 and international law8 – has brought to light the imperial
underpinnings of several key constitutional concepts.
At the same time, it is not sufficient merely to incorporate the ‘external’ or ‘international’
dimensions of constitutional law (i.e., to consider the ways in which the state engages with the
outside world). Nor is it sufficient to uncover the imperial ‘legacies’ of constitutional ideas,
concepts, law or practices in the hope of some historical redemption of the discipline.
A materialist engagement with imperialism instead demands that we approach the material
conditions that shaped the ‘emergence and development of constitutional orders’ as inherently
transnational, binding people and places across territorial boundaries, and hence that we
consider how the global imperial context shaped constitutional developments from within.
And it also requires historical specificity, an attention to the multiple and changing forms that
imperialism takes within constitutional law across time, up to the present day.
To illustrate some of the connections between constitutionalism, constitutional law and
imperialism, I draw on select examples from British and French imperialism. The English
and French revolutions (alongside the American) continue to provide the main reference points
for constitutional history; the constitutional corpus that emerged from them continues to supply
the core tenets of Western liberal constitutionalism; and their constitutional laws and practices
offered models for constitution-building across the world.9 In both cases, the dominant histori-
ography has elided their relationship to imperialism, even as they were primary sites of capitalist
development and, throughout their history, among the largest European empires. British
history,10 including constitutional history,11 for example, continues to be told mainly as an
‘island story’, divorced from the history of the British Empire, while contemporary finance-
based British imperialism remains under-investigated.12
These examples will be used to illuminate the imperial context in which ‘modern’ consti-
tutional law emerged and developed (Section 11.1), the conceptual contradictions and material
tensions that this created (Section 11.2) and the ways in which imperialism continues to structure
contemporary constitutional orders (Section 11.3). Constraints of space, however, mean that
certain topics could not be covered.
First, the analysis leaves out important aspects of the dialectical and co-constitutive relation-
ship between constitutional law and imperialism whose erasure has been key to sustaining the
‘constitutional mythology’ and which any more systematic analysis of the imperial constitution
would need to recover and theorise.
One such aspect is the connection between constitutional law and processes of internal
colonisation. The chapter engages with the notion of ‘imperial boomerang’, that is, the effects

4
For exceptions see, e.g., J. Tully, ‘Modern Constitutional Democracy and Imperialism’ (2008) 46 Osgoode Hall Law
Journal 46.
5
E.g., R. Shilliam, Decolonizing Politics: An Introduction (Polity Press, 2021).
6
E.g., G. Bhambra and J. Holmwood, Colonialism and Modern Social Theory (Polity Press, 2021).
7
E.g., A. Anievas and K. Nişancıoğlu, How the West Came to Rule: The Geopolitical Origins of Capitalism (Pluto Press,
2015).
8
E.g., A. Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge University Press, 2005).
9
M. Koskenniemi, ‘Sovereignty, Property and Empire: Early Modern English Contexts Theoretical Inquiries in Law’
(2017) 18 Theoretical Inquiries in Law 355, 356.
10
D. Armitage The Ideological Origins of the British Empire (Cambridge University Press, 2000).
11
T. Poole, Reason of State: Law, Prerogative and Empire (Cambridge University Press, 2015).
12
T. Norfield, The City: London and the Global Power of Finance (Verso, 2016).

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 Material Constitution and Imperialism 173

‘of imperialism upon the homeland’.13 But it does not consider constitutional law’s entangle-
ments with settler colonialism14 or various other forms of ‘domestic colonies’,15 even if numerous
former colonies went on to reproduce the colonial mindset and practices to rule over their
indigenous populations. Neither do I systematically cover the influence of inter-imperial
rivalries and wars, notwithstanding the considerable demands they often placed on
constitutional structures.
Another is the crucial contribution of the colonised to the emergence and development of
liberal constitutional law. Although I offer glimpses of how events in the colonies and resistance
by colonial societies prompted key constitutional changes, I do not build a sustained critique of
the ‘Caliban’ model, the assumption that, in their fight for emancipation, anti-colonial move-
ments used ideas first developed in the metropolis, rather than directly contributed to what are
today taken as purely Western constructs.16 Neither do I consider the various constitutional
experiments that emerged out of anti-colonial movements committed to an anti-imperial
constitutionalism. Much of constitutional law’s mythology is sustained by the writing of liberal
constitutionalism as a universal, rather than distinctively European and particularistic, set of
ideas. Yet, faced with the limits and contradictions of Western constitutionalism and consti-
tutions produced by their entanglement with imperialism, beginning with Haiti,17 non-Western
revolutions produced ideas and documents that proposed far more radical visions of freedom,
equality, and self-determination.
Second, the investigation will highlight some of the ways in which race structured the
relationship between imperialism and constitutional law, looking at how different forms and
processes of racialisation – of attributing social meaning to particular human characteristics
that are deemed natural or fixed as a basis for differentiation and hierarchisation – and their
attendant constitutional forms evolved at different stages in the evolution of capitalist imperi-
alism, from its emergence as colonial capitalism, to nineteenth- and twentieth-century
imperialism and to its contemporary global neoliberal form, playing different roles in the
valorisation of capital18 under each of these configurations. In doing so, it views race, like class,
not as an epiphenomenal form, but as a material relation of expropriation, exploitation and
domination which is built into capital’s contradictory tendency to expand, universalise and
homogenise, as much as to produce difference between people and territories, building on
and transforming old patterns of stratification as well as creating new ones.19 And I call the
racial (imperial) constitution the set of constitutional laws, practices and discourses that
constitute and reproduce the racialised differentiational basis of capitalist imperial relations.
Yet, the question of the relationship between imperialism, racism and constitutionalism
demands far greater theorisation and a fuller exposition of the connections between consti-
tutional law and imperialism would also require an examination of gender, alongside race and
class exploitation and oppression.20

13
H. Arendt, The Origins of Totalitarianism (Harcourt, 1973), 155.
14
A. Rana, The Two Faces of American Freedom (Harvard University Press, 2014).
15
B. Arneil, Domestic Colonies: The Turn Inward to Colony (Oxford University Press, 2017).
16
P. Gopal, Insurgent Empire Anticolonial Resistance and British Dissent (Verso, 2020).
17
E.g., C. L. R. James, The Black Jacobins: Toussaint l’Ouverture and the San Domingo Revolution (Penguin, 2001).
18
R. Knox, ‘Valuing Race? Stretched Marxism and the Logic of Imperialism’ (2016) 4 London Review of International
Law 81.
19
For a recent discussion, see N. Tzouvala, Capitalism As Civilisation: A History of International Law (Cambridge
University Press, 2021).
20
S. Federici, The Caliban and the Witch: Women, the Body and Primitive Accumulation (Penguin, 2021).

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 174 Eva Nanopoulos

11.1 HISTORICAL CONNECTIONS: WELCOME TO THE DARK SIDE

11.1.1 The Colonial Dawn of the Modern Constitution

‘The discovery of gold and silver in America’, Marx famously wrote, ‘the extirpation, enslave-
ment, and entombment in mines of the indigenous population of that continent, the beginnings
of the conquest and plunder of India, and the conversion of Africa into a preserve for the
commercial hunting of black skins, are all things that characterize the dawn of the era of
capitalist production’. These ‘idyllic proceedings’, he continued, were ‘the chief moments of
primitive accumulation’.21 And so were they chief moments in the birth of modern constitution-
alism and constitutions.
Marxist historiography has long pointed to the connections between the eighteenth-century
revolutionary wars that led to the birth of the modern constitution and the development of
bourgeois society.22 In England, the revolution was precipitated by changes to property relations
and the consolidation of a distinct bourgeoisie. In France, it played a crucial role in capitalist
development, even if capitalist forms of labour already existed under the absolutist state.
Yet capitalist development was never a purely internal process. Historically, dispossession,
colonialism, chattel slavery, the slave trade, merchant capital and imperialist wars all played key
roles in the genesis of capitalism and the development of capitalist social relations.
Theoretically, these were not archaic processes that kick started but otherwise lay ‘outside’ the
logic of capital accumulation. Instead, they were embedded in circuits of commodity produc-
tion and exchange23 and were critical to the valorisation of capital. Their seeming opposition to
capitalist social forms – economic compulsion, wage labour, formal equality – denoted a general
characteristic of capital, whose expansionary logic, already highlighted by Marx and Engels in
the Communist Manifesto and developed in later theories of imperialism, did not tend toward
the universalisation of capitalist social relations, but toward the production of difference,24 with
racial distinctions playing a key role in value extraction in the colonies.25 The de-valued labour
of the black slave, for example, served to produce cheap commodities, whilst the triangular slave
trade worked to channel profits back to Europe.
This global imperial context was crucial to capitalist development in both France and Britain.
The colonisation of the Americas and the slave trade played key roles in the industrialisation of
Britain.26 Although France had lost several of its colonies to Britain after the Seven Years War, its
colonial empire, particularly St Domingue and its thriving sugar production, remained crucial
to its economic development.27 Likewise, competitive pressures generated by British industri-
alisation and inter-imperial rivalries all contributed to creating the conditions for the revolution-
ary break with French absolutism. And it was crucial to the emergence of modern
constitutionalism and constitutional law.

21
K. Marx, Capital Volume I, B. Fowkes, trans. (Penguin, 1990), 915.
22
e.g., N. Davidson, How Revolutionary Were the Bourgeois Revolutions? (Haymarket, 2012).
23
Marx himself viewed slavery capitalism as a form of capitalism. See, e.g., J. B. Foster, H. Holleman and B. Clark,
‘Marx and Slavery’ (2020) 72 Monthly Review 3.
24
F. Fanon, The Wretched of the Earth (Grove Press, 1963), 40.
25
On the race form as a constitutive feature of the value form, see S. Salam, ‘Limits of the Black Radical Tradition and
the Value-form’, PhD thesis, City University of New York (2019).
26
E. Williams, Capitalism and Slavery [1944] (University of North Carolina Press, 1994).
27
M. Covo, ‘Race, Slavery, and Colonies in the French Revolution’, in D. Andress (ed.), Oxford Handbook of the French
Revolution (Oxford University Press, 2015), 292–93.

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 Material Constitution and Imperialism 175

The social forces of the revolutionary process and the constitutional settlements which they
reached were shaped as much by domestic class antagonisms as they were by imperial interests.
In England, for example, support for the Crown included the old merchant elite ‘associated with
the East India Company, who depended on it for control of trading routes’28 in the Levant.
Numerous patents and charters were granted by the Crown using the royal prerogative between
1579 and 1732 for the purposes of establishing the colonial settlements of the Atlantic region.
Capitalist support for Parliament, on the other hand, included a class of new merchants
‘excluded from the state monopoly privileges and connected to the rising colonial trades in
the Americas’.29 The revolutionary period would eventually culminate in the constitutional
primacy of Parliament. But this did not displace the power of the Crown, particularly over
colonial matters, and the resulting division of labour between the Crown and Parliament, which
lives on today, testified to the centrality of empire to British constitutionalism. Parliament took
on an increasingly interventionist stance in matters of imperial trade, but colonies continued, in
large part, to be established under the royal prerogative: the Crown ensured the expansion of the
Empire, Parliament its exploitation.
The Enlightenment ideas on which these forces build and that would form the backbone of
liberal constitutionalism – autonomy, liberty, equality, limited government, the rule of law and
human rights – were born out of the colonial encounter. One example is Lockean constitution-
alism. The purpose of government and constitutional law, for Locke, was the protection of
natural property rights:30 men entered society to enjoy ‘their properties in peace and safety’ and
these were to be secured by a set of ‘laws established in that society’ and to ‘govern even the
legislative [power] itself’.31 Locke’s theory played a key role in England, where the primacy of
Parliament marked the emergence of a constitutional order that tied political sovereignty to the
protection of private property,32 but also in the development of liberal constitutional ideas of
limited government and the rule of law.
More than any of his contemporaries, Locke explicitly rooted his theories in capitalist
principles of accumulation and competition.33 Private property did not arise from mere use or
occupation of the land (i.e., use value) but instead fell on those most able to improve the land
and to extract, through money, the greatest profit from it (i.e., through the production and
maximisation of exchange value). Nor did it need to be bestowed on the direct producer: it
could accrue to the ‘master’ who put others’ labour to productive use. Crucially, in Locke’s
theory, the appropriation of labour and the pursuit of profit do not appear as selfish or exploit-
ative endeavours. To the contrary, by increasing the overall wealth of the community, private
property and capital accumulation are the means through which to make the most of what God
naturally and equally bestowed on all humans to the benefit of society as a whole. As such, they
exercise a broader social function that justified protection through the law.34
Although concerns pertaining to the consolidation of bourgeois society in England were not
irrelevant, Locke’s theories were mainly designed to support the colonial project in North
America. His understanding of property legitimised dispossession and settlement in conditions

28
Anievas and Nişancıoğlu, How the West Came to Rule, 195.
29
Ibid., 195.
30
L. Ward, The Politics of Liberty in England and Revolutionary America (Cambridge University Press, 2004), 15.
31
J. Locke, Second Treatise of Government, P. Laslett, ed. (Cambridge University Press, 1988), para 134.
32
Koskenniemi, ‘Sovereignty, Property and Empire’.
33
E. M. Wood, Empire of Capital (Verso, 2003).
34
See further on the specific function of law, S. Graf, The Humanity of Universal Crime (Oxford University Press, 2021),
66–72.

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 176 Eva Nanopoulos

where land was already occupied by native populations. His emphasis on the improvement of
land and the maximisation of exchange value allowed for a distribution of natural property rights
based on a comparison between native use and imperial use according to capitalism’s ‘laws of
nature’, which essentially corresponded to the standards of the emerging English system of
capitalist agrarian production. Judged to be ‘wasteful’ of the natural resources God vested in
native lands, native occupation could not prevent colonial appropriation. In addition, Locke
took the ‘absence of monetisation’ as evidence that the natives still lived in the state of nature35 –
‘in the beginning’, said Locke, ‘all the world was America, and more so than that is now; for no
such thing as money was anywhere known’.36 In the absence of authority securing private
property rights, the British had a right, if not a duty, to assume political authority.
Both economic dispossession and political domination, moreover, built on assumptions about
civilisation that gave expression to capital’s logic of differentiation and would contribute to the
development of distinctively capitalist ideas of ‘racial superiority that rendered race contingent
on specific forms of labour’, property relations as well as political and legal organisation. As
Bhandar shows, while biological conceptions of racism had yet to be fully developed, Locke
equated capitalist British uses of land with civilised use and established legally protected private
ownership of the kind emerging in Britain as a pre-condition for civilisation and hence for legal
subjectivity: ‘those who were not productive and industrious cultivators of land (or landowners,
or engaged in commercial ventures of some kind) were deemed to be uncivilised and in need of
improvement as much as their waste lands were’.37 As Western domination consolidated, the
connections between law, property and civilisation would lead to a more explicit mobilisation of
Western constitutionalism as a tool of colonial domination. Collapsed with their Western
iteration,38 constitutional constraints were taken as markers of European superiority and their
absence in the colonies as a sign of backwardness and a basis for denying indigenous sovereignty.
When imported back into the imperial metropolis and translated into constitutional practice,
these ideas were not emptied of their colonial logic. The constitutional settlement that emerged
out of the Glorious Revolution was based on the same assumptions about land use and
subjecthood as those that shaped colonial social relations. These found their most salient
expression in the enclosure movement of the eighteenth century, which dramatically acceler-
ated the separation of the population from their means of subsistence. Here too, expropriation
was premised on a distinction between productive and unproductive uses of land based on the
logics of improvement and profit maximisation. Here too, it involved brutal methods. And here
too, it was constructed around racialised understandings of land and personhood in which
private ownership became a pre-condition for civilisation. The ‘boomerang effect’ extended well
beyond processes of dispossession. Marx often spoke of the slave-like conditions of capitalist
production and Losurdo extended the analogy to the political sphere. On condition that race is
not understood ‘in the purely ethnic sense’, he writes, ‘the society which emerged in England
from the Glorious Revolution was configured as a sort of “master-race democracy”’. Liberties
were so gravely infringed and inequalities so ‘marked and insuperable that “each class assumes
the aspect of a distinct race”’.39 The parallels between the colonial and the domestic contexts

35
O. Ulas Ince, Colonial Capitalism and the Dilemmas of Liberalism (Oxford University Press, 2018), 7.
36
Locke, Second Treatise of Government, para. 49.
37
B. Bhandar, Colonial Lives of Property Law, Land, and Racial Regimes of Ownership (Duke University Press, 2018),
47.
38
See, e.g., Article 16 of the Virginia Declaration of Rights 1776: ‘[a]ny society in which the guarantee of rights is not
assured nor the separation of powers determined has no form of constitution.’
39
D. Losurdo, Liberalism: A Counter-History (Verso, 2011), 123–24.

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 Material Constitution and Imperialism 177

would continue to shape capitalist development throughout its history, reaching its most
dramatic expression with the European fascist state, which applied to the white man ‘colonial
procedures which until then had been reserved exclusively for the Arabs of Algeria, the coolies of
India, and the blacks of Africa’.40 In that sense, modern constitutionalism not only emerged out
of the colonial experience and played a key role in constituting and justifying imperial social
relations; the colonies also acted as a laboratory where its ideas and practices were developed,
tested and re-imported into the imperial metropolis.

11.1.2 The Consolidation of the Imperial Constitution

As empires expanded and constitutionalism took a stronger hold on social and political life over
the course of the nineteenth and twentieth centuries, the relationship between constitutional
law and imperialism deepened. The emergence of finance capital and its relentless drive for new
markets prompted dramatic levels of colonial expansion and inter-imperial rivalries. Their high
point, the scramble for Africa, brought almost the entire African continent under Western rule.
Materially, the shift from the export of commodities to the exportation of capital required further
processes of dispossession and the destruction of native forms of subsistence and cultures. At the
same time, in the colonies, various forms of coerced labour and slavery persisted, despite the
latter’s abolition. Ideologically, racism and liberal imperialism consolidated and support for
Empire grew.41 Imperial expansion, it was thought, fostered national glory, identity and unity,
tempered social discontent and class antagonism, and helped to secure order and freedom in the
imperial metropolis. Imperialism, in other words, became a political and cultural, as much as
socio-economic, imperative.
This conjuncture left its imprint on the constitutional developments of the period. In the
United Kingdom, the consolidation of a positivist and absolute conception of parliamentary
sovereignty over conceptions of limited sovereignty rooted in natural law, was essential to
imperial expansion and unity, particularly in conditions of increased territorial and personal
differentiation. Parliament’s exclusive ability to change and remake the law, Dicey stressed,
enabled ‘the easy incorporation of new territories, the adoption of varied political arrangements
appropriate for the Empire’s different peoples and rapid responses to internal or external
threats’.42 Similarly, the shift from a jurisdictional to a jurisprudential understanding of the
common law as a ‘rationally organized’ body of principles and rules operating under the aegis of
the rule of law rather than tied to the jurisdiction of the courts,43 served as an important
racialised justification for Empire and for thwarting rival imperial claims. England’s ‘spirit of
legalism’, unmatched, so it claimed, by any other European power, was evidence of the
superiority of the Anglo-Saxon race and its rightful authority to extend its rule beyond its
borders.44
In post-revolutionary France, imperialism was implicated in the continuous refashioning of
the French Constitution and the French State. Between the eighteenth and twentieth centuries

40
A. Cesaire, Discourse on Colonialism (Monthly Review Press, 1972).
41
See J. Pitts, A Turn to Empire: The Rise of Imperial Liberalism in Britain and France (Princeton University Press, 2005);
Alexis de Tocqueville, Writings on Empire and Slavery, J. Pitts, trans. and ed. (Johns Hopkins University Press, 2001).
42
D. Lino, ‘Albert Venn Dicey and the Constitutional Theory of Empire’ (2016) 36 Oxford Journal of Legal Studies 751,
755.
43
Poole, Reason of State, 11.
44
D. Lino, ‘The Rule of Law and the Rule of Empire: A. V. Dicey in Imperial Context’ (2018) 81 Modern Law Review
739.

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 178 Eva Nanopoulos

the Constitution was amended over 10 times and its form fluctuated between monarchism,
republicanism and Bonapartism. Each corresponded to different phases and configurations of
French imperialism. The dictatorial State and constitution – Bonapartism45 – for example, was
designed to enable dramatic territorial ambitions and/or expansion of the Empire, including
within Europe, in contrast to other periods of contraction, of more informal forms of imperial
domination or of colonial domination outside of Europe.46 On the other hand, even during the
Napoleonic eras, in France too the constitution was put to the service of Empire. Constitutional
republican values were integrated in an ideology of French uniqueness according to which
French imperialism was designed to export the French model across the world. The ‘mission
civilatrice’ hardly reflected the violence of Empire on the ground. Yet not only did it justify
Napoleon’s expansionist policies, it also provided a basis to France’s claim of an allegedly
superior right of colonisation.
As is clear from these examples, the relationship between constitutional law and imperial
ventures always took and will take different constitutional forms across time and space, even
within the imperial core. These differences reflected both different constitutional traditions and
differences in the nature and complexion of different imperial periods and projects. Britain’s
unwritten constitution generally allowed for greater flexibility and incremental development and
its Empire was relatively more stable and continuous. In both cases, however, constitutional law
played a key role in constituting and legitimising new forms of exploitation and domination and
in securing them against claims by other imperial powers.

11.2 TENSIONS AND CONTRADICTIONS: IMPERIALISM AND THE

RACIAL IMPERIAL CONSTITUTION

11.2.1 The Racialisation of the Imperial Constitutional Order

The imperial dimensions of constitutionalism and the constitutional processes that they
informed, however, gave rise to tensions and contradictions. Chief amongst them was the
disjuncture between the professed universalism of constitutional values and the particularism
of the constitution’s material reality of (racialised) difference and hierarchy.
This tension was central to the debates and struggles that shaped the various constitutions
adopted in France from 1791 to 1795. The ‘mulattos’, an increasingly affluent class of free men of
colour, and the black slaves demanded legal recognition, that is, that the imperial constitution
live up to its promise of liberty and equality for all. It was not until Napoleon’s counter-
revolution and the death of Toussaint Louverture, the face of the Haitian revolution, that the
black population realised the limits of this strategy and the necessity to break not only from
slavery, but also from their imperial master. The white settlers, by contrast, demanded auton-
omy, including over matters of colonial trade and, crucially, the status of non-whites. One
faction, in other words, fought for universalism, the other for differentiation. And these were
divided along both class and racial lines.
In the early revolutionary phase, these contradictions were solved in favour of the colonists.
The 1791 constitution made the colonies part of the French empire but excluded them from the

45
Although the term implies a somewhat mistaken analogy between the first and the second Napoleonic regimes and
between the First and Second French Empires.
46
D. Todd, ‘An Imperial Nation-State: France and its Empires’, in P. F. Bang, C. A. Bayly and W. Scheidel (eds.), The
Oxford World History of Empires (Oxford University Press, 2021), Vol. 2, 941–63.

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 Material Constitution and Imperialism 179

scope of application of the constitution. This solution preserved the revolutionary ‘project of
constructing national legal and institutional uniformity’,47 thwarting settlers’ demands for
distinct laws and institutions. But the inapplicability of the French Declaration of the Rights
of Man and of the Citizen enabled the continuation of the plantation system. The Declaration
thus sanctioned not only social inequality in civil society, as Marx famously highlighted,48 but
also formal political inequality: the colonised were members but not citizens of the
Imperial Republic.
This position changed in 1794, but the abolition of slavery hardly reflected a newfound
commitment to the humanity and equality of the colonised. Even among the radical fringes
of the revolution, imperial interests and rivalries prevailed. Prior to 1794, Robespierre had
advocated for the legal recognition of the mulattos as equal citizens to preserve, rather than
undermine, slavery and the Empire. The settlers argued recognition would weaken slaves’
submission to their authority. Robespierre retorted that failure to do so would on the contrary
unify people of colour against their white oppressor. His argument, as Aimé Césaire points out,
effectively called for prioritising the class struggle over the racial struggle: the settlers had to
abandon their racial prejudice – given their ‘mixed’ descent, one member of the national
assembly had stressed, the mulattos shared after all some of the attributes of the white race49 –
and seek them out based on their common interests in slave production. And it was also a
technique of divide and rule: a means to prevent insurrection. By 1794, however, the conditions
had changed. Faced with the mounting slave revolt and the war with England, the defence of
the Empire now mandated that slaves be recognised and enlisted to fight the English and that
the slave trade, which was key to British dominance, be dismantled.
The prevalence of imperial interests found direct expression in law. By the time of the 1795
constitution, the differential basis of colonial capitalism had found a more specific articulation
in the French legal order. References to slavery in legislation had disappeared. Slavery was
formally abolished on the metropolitan territory and the maxim ‘les lois se taisent’ (the laws
remain silent) reflected the revolutionaries’ awareness that the institution of slavery contradicted
both the letter and the spirit of the French Declaration and risked destabilising the foundations
of the revolutionary project. Influenced by the growing prevalence of scientific racism, restric-
tions on the rights of black people began instead to be framed in terms of race rather than
status.50 Unsurprisingly, given those conditions, the 1795 constitution would become the excep-
tion in France’s constitutional history: emancipation was among the first of the revolutionary
gains to be reversed by the Bonapartist coup and no constitution ever wholly or unquestionably
applied to the colonies.
For Aimé Césaire, the legal exclusion of the slave reflected the disjuncture between the
emerging political and legal forms of metropolitan bourgeois society on the one hand, and those
prevailing in the system of slave production in the colonies on the other. Capitalist production in
the metropolis was evolving toward wage labour and assumed legal freedom and equality. Slave
production positioned the slave as an object of production and assumed unfreedom and
inequality. Its universal language notwithstanding, liberal freedom’s symbiotic relation with
capitalism confined its application to those parts of civil society that had been integrated in

47
M. F. Spieler, ‘The Structure of Colonial Rule during the French Revolution 1789–1802’ (2009) 66 The William and
Mary Quarterly 365, 365.
48
K. Marx, ‘On the Jewish Question’ [1844], in. K. Marx, Early Writings, R. Livingstone and G. Benton trans. (Penguin,
1992), 211–41, although political equality was far from realised, even in the ‘free State’ of bourgeois society.
49
A. Césaire, Toussaint Louverture: La Révolution Française et le Problème Colonial (Club Français du Livre, 1960), 103.
50
S. Peabody, ‘Race, Slavery, and the Law in Early Modern France’ (1994) 66 The Historian 501.

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 180 Eva Nanopoulos

capitalist social relations, to the exclusion of pre-capitalist social relations. But once we see
slavery as an inherent part of the logic of capital, legal exclusion and differentiation appear not as
archaic legal forms, but as constitutive features of modern constitutionalism. The ‘double
movement’ of the French Enlightenment and constitutionalism – its tendency ‘to incorporate
and comprehend alongside’ its tendency to ‘cultural and ethical singularity or uniqueness’,51 in
other words, found its material underpinnings in the development of capitalist imperialism with
race, as a legal construct, emerging to constitute, rationalise and reproduce a system of valorisa-
tion based on difference.
Reading slavery as evidence of the exclusionary and discriminatory logic of modern (imperial)
constitutionalism also brings nuance to existing accounts of its historical entanglement with
Empire. In his important study, Fradera draws a distinction between what he calls ‘imperial
constitutions’ and ‘colonial constitutions’.52 The first, which is illustrated by the 1795 consti-
tution, emerged in the revolutionary period, and was characterised by universality and unity:
nation-state and the empire were one, governed by a single constitutional order. The second
gained ground after the Bonapartian Constitution of 1799 and was defined by separateness:
nation-states and their empire were distinguished and governed by a dual constitutional order,
one for the metropolis, another, if any, for the colonies. As we shall see, the nineteenth century
did mark a shift in the legal technologies and ideology of Empires. But the handling of slavery in
the French revolution warns against drawing any sharp divide between these two phases and
models. The spirit of the 1795 constitution was never realised in the figure of the slave, whose
subordination remained essential to the plantation regime. This disavowal may have been
formally achieved by means other than the constitution (i.e., legislative or administrative
measures) and it may have operated through the category of ‘race’ rather than ‘slave’. But even
from a purely positivist perspective, it was still regarded as a ‘valid’ interpretation of the consti-
tution and thus compatible with its claims to equality. From that perspective, we could
characterise Fradera’s first phase of ‘imperial constitutionalism’ as a period marked by the
gradual racialisation of the constitutional order, whereupon race, as a legal category, appeared
in legislation to reconcile the unitary structure of the constitution with the particularism of its
material basis and the second phase of ‘colonial constitutionalism’ as a period marked by the
personal and geographical dislocation of the constitution, where racialised difference is consti-
tutionalised, albeit not explicitly on racial grounds. In both cases, however, we have legal
differentiation and, in that sense, both types of constitutions could be seen as racial imperial
constitutions, that is to say as constitutional orders designed to operationalise and organise
racialised social relations of exploitation and domination, even as they do so through different
legal techniques.

11.2.2 The Constitutionalisation of (Racialised) Difference

Throughout the nineteenth and twentieth centuries, the contradictions at the heart of the
imperial constitution deepened, leading to increased struggles. Colonies entered endless cycles
of violence. The American and Haitian revolutions had stripped imperial powers of any illusion
that the irrational native will submit to their will, fuelling increased repression, anti-colonial

51
S. M. Agnani, Hating Empire Properly: The Two Indies and the Limits of Enlightenment Anticolonialism (Fordham
University Press, 2013), 14.
52
J. M. Fradera, The Imperial Nation: Citizens and Subjects in the British, French, Spanish, and American Empires,
R. MacKay, trans. (Princeton University Press, 2018).

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 Material Constitution and Imperialism 181

resistance and yet more brutal responses. In the metropolis, a growing labour movement not
only criticised colonial excesses but began to formulate alternative non-bourgeois visions of
internationalism that substituted cooperation for the exploitation and domination of capitalist
imperialism. Its most radical fringes, such as the Communards, identified their own struggle
with anti-colonial movements, from the Algerian fight against metropolitan France to the Indian
and Irish revolts in the British Empire.53 As other ‘undesirables’ before them, many were
deported to the colonies and would come to face the reality of colonial violence directly.
These tensions fed into constitutional debates. Dicey, for example, became increasingly
concerned with how to reconcile the principles of British constitutionalism with the goal of
maintaining imperial unity. Parliamentary sovereignty and the wide discretionary powers of self-
government conferred upon settler colonists were crucial to the imperial project. But they raised
real prospects of abuse, which undermined the Empire’s apparent commitment to the rule of
law and fuelled resistance to imperial rule. In that sense, he concluded, ‘British constitutional
structures and principles could both help and hinder imperial unity’.54
New constitutional concepts, practices and institutions emerged to accommodate these
contradictions, which, if anything, brought constitutionalism and the formal constitution closer
to their imperial material underpinnings. One example is the development of emergency laws.
Up until then, legal institutions associated with forms of ‘extraordinary’ legality – the dictator-
ship; martial law etc. – were either reserved for times of war or applied mainly to military
personnel.55 It is in the colonies, and in that period of colonial unrest, that more ‘modern’
versions of emergency, applicable in times of formal peace, were fashioned and developed.
Another example is the consolidation of modern forms of citizenship based on an exclusionary
bond tied to the territorial unit of the nation state by birth or filiation, which emerged out of the
need to distinguish between coloniser and colonised.
These constitutional developments found their sources in a new consensus that the metro-
polis and the colonies could not be governed by the same set of laws. The settler colonial project
required that the constitution be extended to the colonies: ‘Settlers must encounter a “perfect
image of their homeland” in Algeria’, Tocqueville emphasised, ‘or they would never stay’.56 But,
he was quick to add, the law must not be the same for all.57 Algeria thus became a laboratory for
the experimentation of differentiation. The 1848 constitution of the Second Republic made
Algeria an integral part of France. But, in practice, a range of laws and administrative acts
created both territorial and personal distinctions, resulting in dual juridical, political and
administrative systems and a multiplicity of legal personhoods characterised by different attri-
butes that departed from the principles and rights of the French Declaration.58 At its heart was
the distinction between French citizens and French subjects, which reached its climax with the
adoption of the 1881 Code de l’Indigénat completing the process of emptying colonial person-
hood of any substance.59 Similar developments shaped the evolution of the British Empire.60

53
K. Ross, Communal Luxury: The Political Imaginary of the Paris Commune (Verso, 2016), 57.
54
Lino, ‘Albert Venn Dicey’, 767.
55
M. Neocleous, ‘From Martial Law to the War on Terror’ (2007) 10 New Criminal Law Review 489.
56
Pitts, in de Tocqueville,Writings on Empire, xxiii.
57
O. Le Cour Grandmaison, ‘L’Exception et la Règle: Sur le Droit Colonial Français’ (2005/4) Diogène 42, 54.
58
O. Le Cour Grandmaison, De l’Indigénat – Anatomie d’un ‘Monstre’ Juridique: le Droit Colonial en Algérie et dans
l’Empire Français (Zones, 2010).
59
Spieler, ‘Structure of Colonial Rule’, 368.
60
On emergency rule, see, e.g., N. Hussein, The Jurisprudence of Emergency: Colonialism and the Rule of Law
(University of Michigan Press, 2004). On citizenship, see, e.g., N. El-Enany, Bordering Britain: Law, Race and
Empire (Manchester University Press, 2020).

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 182 Eva Nanopoulos

Initially, at least, different reasons were put forward to ‘solve’ the contradiction that differenti-
ation produced for imperial ideology, which assumed colonial subjects could develop laws and
institutions comparable to their enlightened rulers and that it was the imperial power’s moral
duty to see them through this civilising process. One was that colonial societies were not ready to
benefit from the principles of civilisation and that repression and differentiation were a neces-
sary, albeit transitory and temporary, step designed to pacify local populations and develop their
capacity to embrace Western values and laws. On paper, for example, the régime de l’indigénat
was originally limited to seven years.61 Another was that colonial societies had to be treated
differently because they differed in terms of their cultures, political practices and social and
moral conventions. Civilisation, then, not only pre-supposed pacification, but the destruction of
native culture, traditions and institutions, which acted as impediments to the development of the
colonised. These two lines of argument sometimes operated together: it was because of racialised
cultural and other differences that the native was not yet ready for successful assimilation.
With time, however, differentiation became entrenched. In the British Empire, indirect rule
became far more widespread in non-white colonies, and by 1900, ‘association’ substituted
‘assimilation’ as the principle defining the relationship between the French Republic and its
colonies. In both contexts, emergency rule became the norm and, as differentiation received
more specific articulation in the ideology of Empire,62 so did the racial assumptions on which it
was based. Because of their inferior attributes, it was claimed, equality of treatment would be
both detrimental to the native, who was incapable of exercising such rights, and unfair for society
as a whole, as it would ignore natural differences in aptitude and talents.63
In many accounts, differentiation is legally captured as an ‘anomalous legal zone’, ‘a perman-
ent state of exception’ or a ‘monstrous derogatory regime’64 which departed from the imperial
constitution. Yet, not only do these characterisations underestimate the material basis of
differentiation, but as we saw, legally, it had already received expression in the post-revolutionary
settlement and emergency rule was never an exclusive attribute of the nineteenth century.
Analytically, moreover, they might not do full justice to the distinctively legal character of
differentiation. If we take seriously the fact that these states were never ‘nation-states’ who had
‘empires’ but ‘imperial states’,65 perhaps a better analogy to other legal architectures and artefacts
would be those of the settler colonial state. Constitutionally, differentiation would take the form
of two different yet co-extensive legal regimes that do not oppose each other as ‘norm’ and
‘exception’ but that represent two different moments, two normal facets of the constitution that
are part of its racialised basis and logic of differentiation. Indeed, it is telling that one of the most
vocal proponents of separateness was Tocqueville, whose writings on Algeria essentially contain
a blueprint of the settler colonial project. Although Le Cour Grand Maison remains within the
frame of the exception, his notion of the Republican Imperial Constitution66 captures this co-
constitutive relation well: juridically, imperialism is not a departure from or in contradiction
with the Republican Constitution but part of its constitutive logic.

61
I. Merle, ‘Retour sur le Régime de l’Indigénat: Genèse et Contradictions des Principes Répressifs dans l’Empire
Français’ (2002) 20 French Politics, Culture & Society 77.
62
M. Mandani, Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism (Princeton University
Press, 1996).
63
Le Cour Grandmaison, De l’Indigénat.
64
Ibid.
65
Bhambra and Holmwood, Colonialism and Modern Social Theory, 34.
66
O. Le Cour Grandmaison, La République Impériale. Politique et Racisme d’État (Fayard, 2009).

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 Material Constitution and Imperialism 183

In that sense, we can indeed distinguish between a phase of unity and assimilation, and a
phase of separateness and exclusion in the evolution of the (racial) imperial constitution.
Materially, pressure on the formal constitution to cement differentiation increased as Empires
expanded, racialised territorial and personal differentiation intensified and resistance to empire
and cross-racial forms of solidarity based on the common experiences of exploitation and
oppression grew. Ideologically, the constitutionalisation of colonial difference became far more
acceptable as support for the Empire grew, as national identity solidified, as justifications for
distinguishing between the races developed and as constitutional law matured, allowing for the
emergence of constitutional forms capable of containing the contradictions of capitalist imperi-
alism. Yet, constitutional assimilation and differentiation are not opposing facets of the modern
constitution but different expressions of its material underpinnings of racialised difference at
different historical conjunctures.

11.3 CONTEMPORARY MANIFESTATIONS: FROM COLONIAL LEGACY TO

IMPERIAL PRESENT

Contemporary constitutions continue to carry the marks of their colonial past. The present
account showed some of the processes and contexts through which constitutional concepts, laws
and practices that linger in the present, from the doctrine of Parliamentary Sovereignty to the
French Declaration, were shaped by the colonial encounter. Others have offered more compre-
hensive accounts of the colonial origins of other key constitutional categories67 such as ‘citizen-
ship’68 or ‘reason of state’.69 In some cases, the vestiges of Empire bear even more visible
manifestations. The 14 British Overseas Territories and the French DOM-TOM are all territorial
or administrative inheritances of Empire. Several are still listed as non-self-governing territories
by the UN and their constitutional structures confirm the thesis of ‘colonial continuity’.
Notwithstanding important constitutional variations, for example, both the Crown and
Parliament retain considerable executive and legislative powers over the BOTs.70
But the contemporary connections between constitutional law and imperialism can hardly be
reduced to the old remembrances of Empire. As a social relation that operates both within and
across national borders, capitalist imperialism can hardly be reduced to the colonial form.
Already in Lenin, who developed one of the first Marxist theories of imperialism, we see that
imperialism did not presuppose formal political and territorial control.71 Finance capital may
find it ‘most “convenient”’ and derive the ‘greatest profit’ from the establishment of colonies
which ‘alone gives the monopolies complete guarantee against all contingencies in the struggle
against competitors’. But being ‘such a great . . . force in all economic and in all international
relations’, he continued, it was ‘capable of subjecting . . . to itself even states enjoying the fullest
political independence’. Since then, political Marxism has placed even greater emphasis on
market dependency as the distinguishing feature of capitalist imperialism when compared to
other forms of empire, which instead depended on extra-economic force for the extraction of
surplus value.72 While violence and coercion remain central to capital accumulation, these

67
P. F. Scott (ed.), The Constitutional Legacies of Empire (2021) 71(2) Northern Ireland Legal Quarterly.
68
El-Enany, Bordering Britain.
69
Poole, Reason of State.
70
H. Yusuf and T. Chowdhury, ‘The Persistence of Colonial Constitutionalism in British Overseas Territories’ (2019) 8
Global Constitutionalism 157.
71
V. Lenin, Imperialism, the Highest Stage of Capitalism [1917] (Penguin, 2010).
72
Wood, Empire of Capital.

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 184 Eva Nanopoulos

analyses make clear that colonialism was but one manifestation of capitalist imperialism and
hence of the imperial constitution.
One difficulty in seeking out the constitutional manifestations of contemporary capitalist
imperialism is that theories of imperialism vary in their understanding of (a) capital’s ‘laws of
motion’ (what is sometimes termed the ‘logic of capital’); (b) the role of the state (what is
sometimes termed the ‘logic of territory’)73 and (c) the relationship between the two, including
in terms of the relevance of national imperialisms and geopolitical rivalries, with significant
implications for how we might broach contemporary constitutional developments. In addition,
while the globalisation of capitalist imperialism has been accompanied by a globalisation of the
imperial constitution, given the variety of constitutional arrangements in place across the globe,
any investigation of the specific constitutional forms of contemporary imperialism will require
far more empirical work into individual constitutional orders. Space prevents a full engagement
with those questions, but two general and partly contradictory tendencies of the present phase of
neoliberal capitalist imperialism and the imperial constitution can be highlighted that illustrate
the enduring connections between constitutional law and imperialism, their impact on consti-
tutional developments, as well as the tensions to which they give rise.
Under the dominance of finance capital, the imperatives of valorisation (i.e., the profit
motive) and competition have led to a significant expansion of capitalism across space, social
spheres and modes of being.74 At the same time, capitalist expansion has not meant universal-
isation and homogenisation. On the contrary, deepening market fundamentalism and competi-
tion in the present phase of global neoliberal imperialism have produced increased levels and
changing patterns of racialised differentiation and exclusion, along both old and new geograph-
ical and personal lines. Previous tendencies of capital concentration, uneven development,
unequal divisions of labour both between and within countries, as well as the production of
surplus populations and forms of un-waged labour have accelerated while new forms of
‘accumulation by dispossession’75 and over-exploitation have emerged, deepening racialised
international and domestic inequalities. National imperialisms, moreover, persist, even if they
are subject to the dominance of US capital. Imperial decline since the fall of Empire has not
undermined the United Kingdom’s position as a leading international actor in production,
commerce, and particularly finance, which it uses, alongside its military power and intelligence
capacity, to appropriate value and resources from dominated countries.76 The concept of
‘Franceafrique’ similarly captures the endurance of French imperialism, with the FCA franc –
the name for two currencies used in a number of former French colonies in West and Central
Africa – and military interventions continuing to ensure economic exploitation and political
domination. New forms of regional imperialism (e.g., the EU), moreover, have emerged, which
have either complemented or produced tensions with pre-existing forms of imperialism, as the
example of Brexit shows. All of these have produced their own dynamic of capitalist expansion
and differentiation, further complicating the spatial and personal fault-lines of
neoliberal imperialism.
These processes played a key role in contemporary constitutional developments. The
globalisation of capitalist imperialism has gone hand in hand with the universalisation of the

73
See, e.g., B. S. Chimni, International Law and World Order: A Critique of Contemporary Approaches, 2nd ed.
(Cambridge University Press, 2017).
74
R. Luxemburg, The Accumulation of Capital [1913] (Routledge, 2003). Luxemburg sees the need to realise surplus
value and under-consumption as the key driver of imperial expansion.
75
E.g., D. Harvey, The New Imperialism (Oxford University Press, 2003).
76
Norfield, City, 23.

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 Material Constitution and Imperialism 185

constitutional form and increased dominance of constitutional law over other political and
social forms. Post-colonial societies following decolonisation all emerged as constitutional states
and adopted written constitutions. Beginning in the 1990s, many of them, alongside post-
communist states, underwent further processes of neoliberal constitution-building and reform.
Everywhere, including in the imperial core, a legal constitutionalism foregrounding the rule of
law and fundamental rights has overshadowed liberal values of democratic self-government. In
the United Kingdom, for example, the absolute and positivist nature of parliamentary
sovereignty has been increasingly challenged by a common law constitutionalism rooted in
the rule of law and policed by the courts.77
Constitutionalisation and juridification were key to enabling the spread and deepening of
imperial social relations, helping to open up new markets and to create the conditions for
finance-led accumulation. Law and constitutional law have always been central to the consti-
tution and reproduction of capitalist social relations78 and classic Marxist theories of imperialism
had already (implicitly) predicted that the export of capital prompted by finance capital would
require the export of capitalist social relations and, hence, of constitutional structures. Law plays
a particularly critical role in neoliberal ideology and practice79 as a tool for creating the
conditions of the competitive market order and for insulating economic power from
political struggles.
At the same time, the growing cleavage between universalism and particularism produced
increased tensions and struggles, drawing constitutional law ever more closely into the work of
differentiation and exclusion. Constitutionalisation in the Global South has been both selective
and coercive, leaving near to no control over the economy and departing from liberal constitu-
tionalism’s alleged commitment to democratic self-government. In the ‘advanced’ West, exclu-
sionary conceptions of citizenship solidified and served to organise disparities between different
forms of racialised labour. Everywhere, resistance to (imperial) neoliberalisation was met with
the growing securitisation and militarisation of the state and the constitution. Emergency rule
became the ordinary mode of governing surplus populations on the back of new constitutional
categories such as ‘national security’. The constitutional separateness and duality of earlier
phases has been transformed into multiple spatial fault lines, with the border and the distinction
between ‘citizen’, ‘migrant’ and ‘illegal migrant’ playing key roles in the ordering and reproduc-
tion of a racialised division of labour. Much like the ‘slave’ of the colonial period or the ‘coolie’
of nineteenth-century imperialism, migrants, particularly undocumented migrants, provide a
source of de-valued cheap labour, which is critical to the valorisation of capital.
Some of these developments have resulted from membership in international organisations or
various forms of international intervention and/or have tracked similar trends at the international
level. The constitutional neoliberalisation of Iraq, for example, was achieved through military
occupation, whilst constitutional reforms in the Global South and later the European periphery
were orchestrated by international institutions under the aegis of the International Monetary
Fund. But it would be a mistake to attribute them exclusively to international law.
Constitutional law and international law have always played complementary and increasingly
co-productive roles in the reproduction of imperial social relations, the transfer of powers to
supra-national organisations being but one example of the ways in which constitutional law

77
More generally on the empowerment of courts, see R. Hirschl, Towards Juristocracy: The Origins and Consequences of
the New Constitutionalism (Harvard University Press, 2004).
78
Wood, Empire of Capital, 16–17.
79
E.g., H. Brabazon (eds.), Neoliberal Legality: Understanding the Role of Law in the Neoliberal Project (Routledge,
2017).

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 186 Eva Nanopoulos

performs its functions of constituting, de-politicising and de-democratising imperial social

relations. If anything, the persistence, if not revival, of the national constitutional form notwith-
standing the globalisation of capital and the transnationalisation of the constitution points to its
centrality to the reproduction of imperial social relations. Not only does the repressive apparatus
of the national constitutional state have greater coercive means at its disposal to ensure the
stability of imperial social relations, but it might also be better equipped to do imperialism’s work
of differentiation. While hierarchy and inequality are by no means alien to the international
order,80 international law formally at least aspires to universality. National constitutional orders,
by contrast, are, by definition, ‘bounded’ and their constitutive categories – citizenship, national
security, etc. – enable it to organise differential access to resources, rights and privileges, as well
as guard against internal and external threats to transnational imperial relations.
As in earlier phases, racialised assumptions have underwritten differentiation and sought to
contain the growing gap between the promise and practice of modern constitutionalism. The
constitutional neoliberalisation of post-colonial societies built on old colonial justifications
about the ‘immaturity of the people and their lack of readiness for democracy’, whilst the
external imposition of the constitution and/or denial of substantive sovereignty echoed the
premises of the civilising mission.81 Similar assumptions migrated back to the West82 as
justification for the practices of the (racial) security state83 and for limiting democratic partici-
pation. At the same time, neoliberal processes of racialisation have been far harder to discern.
The language of civilisation has been superseded by a discourse of ‘modernisation’ and ‘devel-
opmentalism’, whilst the discrediting of scientific racism and the alleged colour-blindness of the
market have produced new forms of ‘neo-racism’ structured around fixed essentialised under-
standings of culture, nationality or religion. The connection between culture and civilisation are
clear in neoliberal thought, including in Hayek’s writings, for whom the adoption of Western
cultural values, by force if necessary, was a precondition for the market order.84
We might therefore begin to identify yet a new, and rather more complex, stage in the inter-
relationship between constitutionalism, constitutional law and imperialism,85 although far more
research would be needed to delineate its key characteristics. With decolonisation, the formal
links between constitutional law and imperialism have, for the most part, been severed (or rather
transferred to supra-national and international systems of law). This, however, has not marked
the death of the ‘imperial constitution’. On the contrary, the universalisation of the (neoliberal)
constitutional form could be read as the universalisation of the racial ‘imperial constitution’ in
the sense that all constitutions are materially shaped by imperial social relations. Formally, unity
is maintained through the coordination and mediation of constitutional orders by international
legal processes while the constitution continues to organise differentiation along both geograph-
ical and personal lines, which are defined by a number of variables, including the position of the
state, groups and/or individual bodies in the global division of labour.

80
E.g., G. Simpson, Great Powers and Outlaw States: Unequal Sovereigns in the International Legal Order (Cambridge
University Press, 2004).
81
N. Sultany, Law and Revolution: Legitimacy and Constitutionalism After the Arab Spring (Oxford University Press,
2017), 189.
82
J. Van Vossole, ‘Framing PIGS: Patterns of Racism and Neocolonialism in the Euro Crisis’ (2016) 50 Patterns of
Prejudice 1.
83
A. Kundnani, ‘The Racial Constitution of Neoliberalism’ (2021) 63 Race & Class 51.
84
Ibid.
85
I deliberately avoided labelling this a ‘third stage’, as one could identify other intermediate stages between Fradera’s
second stage of imperial constitutionalism and the present phase of (imperial) neoliberal constitutionalism.

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 Material Constitution and Imperialism 187

That stage, however, is precarious. The global neoliberal incarnation of the imperial racial
constitution has intensified the contradictions at the heart of the constitution. Imperial neoli-
beralisation has not only deepened inequalities and eroded the social and political fabric: instead
of securing unity, the colour-blind imperial constitution has also contributed to the polarisation
of society along geographical, cultural and identity lines. As a result, in many places, consti-
tutional struggles have morphed into a crisis, for many an existential crisis, of (neo)liberal
constitutionalism. In some places, such as Iraq, such struggles descended into civil wars between
sectarian groups and the breakdown of the state. Elsewhere in North Africa or the Middle East
they led to revolutions.86 In some of the ‘advanced’ ‘civilised’ Western countries, like Britain,
they have led to constitutional rupture. Everywhere, liberal constitutionalism is in decline. With
this crisis, the imperial boomerang has come full circle, returning to its point of origin, for, from
the very inception of modern constitutionalism, its aims and practices were as much about
deconstruction as they were about construction.

11.4 CONCLUSION

Orthodox Eurocentric accounts of constitutionalism and constitutional law see the birth of
modern constitutions as the product of processes internal to Europe, whereupon an increasingly
enlightened civil society broke with the shackles of feudalism, absolutism and their attendant
legal forms. This chapter aimed to show how ‘modern’ liberal constitutionalism and consti-
tutions were born out of the blood and violence of empire and how they continue to be
implicated in the reproduction of racialised relations of domination and exploitation. If coloni-
alism is the dark side of modernity, it is also always the dark side of constitutionalism, which has
contributed as much to global inequality as it has to processes of liberation and emancipation.
Much remains to be done to decolonise the field of constitutional law, theory and history and
the introduction suggested some of the lines of inquiry that such an endeavour would require.
Ultimately, however, this chapter argued that the answer is not merely to recover constitutional
law’s international dimensions or imperial legacies. Rather, it lies in a systematic materialist
account of the historical and contemporary relationship between racial imperial capitalism and
formal constitutions. And this is how such a project can make a distinct contribution to a
‘decolonisation’ of the field, one that goes beyond the work of deconstruction, critique and
redemption toward an understanding of constitutional law with reconstructive and potentially
transformative effects. The point, to borrow from Marx, is not merely to interpret the imperial
racial constitution, the point is to change it.

86
Sultany, Law and Revolution.

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 12

The Material Constitution of Federations

Signe Rehling Larsen

One would be hard pressed to find anything written about the material constitutions of
federations, at least explicitly in those terms. This entry, therefore, does not purport to provide
an overview of any existing literature. Rather, it presents one way of thinking about the material
constitution of federations. In The Constitutional Theory of the Federation and the European
Union, I argue that the federation should be understood as a discrete form of political association
on a par with, though distinct from, political modernity’s two other significant forms of political
association, namely, the empire and the state.1 The federation is a political union of states
founded on an interstate agreement of constitutional nature, a federal compact, that does not
absorb the Member States into a new state. It is characterised by a double political existence and
the internal absence, contestation or repression of sovereignty. A federal constitution, therefore,
should not be understood as a ‘form of government’ comparable to, for example, a presidential or
parliamentary system, nor is it a governing ideology, comparable to, for example, liberalism or
republicanism. The federation, borrowing biological taxonomy, is not a ‘species’ of the state but
a different ‘genus’ in the ‘family’ of political associations. The question for this chapter then is
what it means to think about the material constitution of the federation as a discrete form of
political association? What are the ‘ordering forces’2 of the federal constitution in a material
sense? How are they different from those of the state?

12.1 THE FEDERATION AS A FORM OF POLITICAL ASSOCIATION

Within constitutional theory, it is relatively uncontroversial to argue that no constitution can be

properly understood unless one goes beyond a mere formal analysis of the document called ‘the
Constitution’. Even the preeminent written constitution – the American Constitution – cannot
meaningfully be reduced to the text of the Constitution and its formal amendments.3
A constitution cannot be reduced to the sum of constitutional laws; even Hans Kelsen admitted
as much.4 This can be expressed in terms of the difference between the written constitution and

1
S. R. Larsen, The Constitutional Theory of the Federation and the European Union (Oxford University Press, 2021).
2
M. Goldoni and M. Wilkinson, ‘The Material Constitution’ (2018) 81 Modern Law Review 567, 569.
3
B. Ackerman, ‘The Living Constitution’ (2007) 120 Harvard Law Review 1737.
4
H. Kelsen, General Theory of Law and State, A. Wedberg, trans. (Harvard University Press, 1945), 124–25. H. Heller,
‘The Nature and Structure of the State’ (1996) 18 Cardozo Law Review 1139, 1212 expressed this succinctly: ‘No written
constitutional instrument contains all foundational norms, and every constitution also contains law which cannot
count as foundational from the standpoint of a systematic political analysis.’

188

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 Material Constitution of Federations 189

the ‘real’, ‘substantive’ or ‘material’ constitution. As this book bears witness to, there is no
consensus on what it means to think about the constitution in this latter sense. Nevertheless,
the importance of thinking of the constitution beyond a written document – in one way or
other – is even more evident for the theory of the federation than the theory of the state. This is
because the constitutional nature of the federation can only be discerned if one goes beyond a
mere formal analysis. This has to do with the origins of federations.
A federation is a permanent union of two or more states that have come together in order to
further their common goal of self-preservation. A federation is therefore founded on an inter-
state agreement, a federal treaty or federal compact (Bundesvertrag).5 From a formalistic
perspective, therefore, the federation belongs to the world of international law. Nevertheless,
the federal compact is not an ordinary international law treaty because it gives birth to new
political order, the Union, and transforms the constitutions of the contracting states by giving
them the new status of ‘Member States’.6 The federal compact is therefore also a constitutional
contract or a constitutional treaty (Verfassungsvertrag) that relies for its authority on the will of
the constituent powers of all the Member States.7 Birth and transformation are two dynamic
‘ordering forces’ of the federal constitution. The federal compact is constitutional because it
founds a new legal and political order to which the contracting states henceforth belong and
subject themselves in a way, and to the degree, that they can no longer be described as fully
‘sovereign’. The constitutional nature of the federation can thus only be discerned if a more
political or material perspective on the constitution is applied.

12.2 BIRTH AND TRANSFORMATION

The federal compact is a special kind of contract, a ‘status contract’ in Carl Schmitt’s terms,
because it grants the contracting parties a fundamentally new status by integrating them in a new
concrete order. A status contract differs from other contracts because it founds an ‘enduring life
relation’ that integrates a person or a political entity into a total order that is not reduceable to
concise individual relations and that cannot simply be terminated at will.8 In a structurally
similar manner to a more common status contract, namely marriage, a federation relies on a
status contract between the federating states. This contract establishes a new comprehensive
status and encompasses the states in their entirety and, beyond the merely individual, contract-
ual obligations, alters them fundamentally by giving them a new status.9 In this way, the
federation establishes a constitution in a material sense, independently of whether there is any
document known as the ‘Federal Constitution’.10

5
C. Schmitt, Constitutional Theory, J. Seitzer ed. (Duke University Press, 2008), 114; C. Schönberger, ‘European
Citizenship as Federal Citizenship: Some Citizenship Lessons of Comparative Federalism’ (2007) 19 European
Review of Public Law 112.
6
O. Beaud, Théorie de la fédération (Presses universitaires de France, 2007), 132; Schmitt, Constitutional Theory,
398–99.
7
Schmitt, Constitutional Theory, 114; Schönberger, ‘European Citizenship as Federal Citizenship’, 112.
8
Schmitt, Constitutional Theory, 385.
9
For a comparison of marriage as a status contract with the federal compact as a status contract, see C. Hughes,
Confederacies: An Inaugural Lecture Delivered in the University of Leicester 8 November 1962 (Leicester University
Press, 1963), 12. Fittingly, Brexit has often been described as a ‘divorce’. For example, the financial settlement in the
Brexit withdrawal agreement was nicknamed the ‘Divorce Bill’ (formally the Agreement on the withdrawal of the
United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy
Community, OJ 2019 No. C384 I/01).
10
For example, the German Confederation (1815–66) and the Swiss Confederation (1814–48) each relied on a federal
compact (Bundesvertrag) and neither had any formal documents entitled ‘the federal constitution’. Neither does the

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 190 Signe Rehling Larsen

Similarly, the constitutional transformation of the Member States will not necessarily manifest
itself in a change of any constitutional laws. The constitutional change is to the material
constitutions of the Member States, which might, or might not, be expressed in a formal
constitutional amendment. Independently of whether any formal constitutional change takes
place, the act of federating entails a transformation of what Schmitt called the constitutions of
the Member States in the ‘positive sense’, namely ‘the concrete content of the fundamental
political decisions on the entire manner of the existence of the state’.11 By federating, the states
become members of another political community, the Union, that constitutes an autonomous
source of law, which will have a direct effect in the Member States and, as a rule, take primacy
over Member State law. After they have come together in a new Union, the Member States are
no longer the same as they were before.
At the very minimum, this means that the material constitution of the Member States
specifying ‘the rules which regulate the creation of the general legal norms’12, or the ‘rule of
recognition’13, will be amended because the Union constitutes an additional source of domestic
law. Whether this is guaranteed in a formal constitutional amendment or not, the federal
constitution, in this way, is also a component of the individual constitutions of the Member
States.14 The Member States have to create a constitutional ‘gateway’ through which Union
authority can be exercised and guarantee in constitutional terms that domestic law conforms
with Union law. From a formal perspective, this can be done in the form of ordinary statute.
Nevertheless, in a material sense, this will lead to a change in the constitutions of the Member
States and ‘open’ their statehood to the Union.15
Beyond this ‘legal’ constitutional transformation of the Member States’ material constitutions
(a transformation of the norms regulating the production of general norms), becoming a
Member State entails a more fundamental ‘political’ transformation because the dialectical
relationship between governors and governed that lies at the heart of state sovereignty16 is
relativised.17 The Member States’ ‘total political situation’, in Herman Heller’s words,18
is transformed.
Federal citizenship provides a clear example of how the constitution of a federation leads to a
transformation of the political relationship between governors and governed in the Member
States.19 When states come together in a federation, they will each have their own citizenship.
By giving birth to the new Union, however, they create a new form of citizenship, Union
citizenship, that does not supersede the citizenship of the Member States but exists in parallel to
it. Federal citizenship is per definition dual citizenship, consisting of the citizenship of the

EU have a formal written constitution. Nevertheless, within EU law scholarship, it is relatively well established that
the EU is constitutional even though it relies on a treaty.
11
Schmitt, Constitutional Theory, 384.
12
Kelsen, General Theory of Law and State, 124.
13
H. L. A. Hart, The Concept of Law, L. Green ed., 3rd ed. (Oxford University Press, 2015).
14
Schmitt, Constitutional Theory, 385.
15
It is, for example, no coincidence that the 1972 European Community Act was termed a ‘constitutional statute’ by the
UK Supreme Court in R (Miller) v. Secretary of State for Exiting the European Union [2017] UKSC 5. Though
formally an ordinary statute, in political and material sense, this act was part of the UK constitution until it was
repealed as part of the Brexit process.
16
M. Loughlin, The Idea of Public Law (Oxford University Press, 2003), chapter 5.
17
In the context of the EU, this argument is made by C. J. Bickerton, European Integration: From Nation-States to
Member States (Oxford University Press, 2012), chapter 2.
18
Heller, ‘Nature and Structure of the State’, 1195.
19
For a comprehensive theory on federal citizenship, see C. Schönberger, Unionsbürger: Europas föderales Bürgerrecht
in vergleichender Sicht (Mohr Siebeck, 2005).

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 Material Constitution of Federations 191

Member States and that of the Union. In young federations, Union citizenship might not be
created as a formal status but the material rights inherent in Union citizenship will tend to be
protected, most importantly the federal ‘right to have rights’.20 The citizens of a Member State
will have the right to live in another Member State and be treated as a quasi-citizen of that
Member State.
The core of Union citizenship is the rights of free movement and the right to non-
discrimination on the basis of nationality.21 This will be subject to some conditions, often that
the mobile citizens are not an economic burden on the host Member State; and political rights
will often be excluded. That being said, Union citizenship creates a new status for the citizens of
a Member State that allow them to ‘escape’ their own state, if they so wish, and enjoy most of the
rights of citizenship in another Member State.22 Union citizenship, therefore, is a form of
‘interstate citizenship’ that displaces the binary of the state between national and alien with a
tertiary distinction between citizen of a Member State, citizen of the Union and non-Union
foreigner. Citizenship is a good example of the fundamental difference between the public law
structure of a federation and that of a state. Union citizenship is derived from Member State
citizenship, at least in young federations, and, as such, the dual citizenship statuses that exist
alongside one another in a federation are interdependent.23 Nevertheless, Union citizenship also
represents the independent political existence of the Union as distinct from the political
existence of its Member States. A federation leads to the constitution of a new institutionalised
political relationship between the Union and its citizens, namely, the nascent federal nation.24 In
this way, a new relationship of political representation, a new ‘imagined community’, comes into
existence and with it emerges a new source of political authority.25
When states come together in a federation, they give birth to a new political entity, the Union,
which they then govern themselves through as Member States. The federation is a genuinely
political community that, despite being a creation of the Member States, cannot be reduced to
the sum of its parts. The limits of such an ‘international’ or ‘intergovernmental’ interpretation are
clearly visible from the fact that even when federal decisions have to be made unanimously and
all the Member States have a veto, they still differ from decisions made under international law.
This is because the federal decision, as a rule, needs no ratification by the individual Member
States. Exactly because the Member States have made the federal constitution a part of their
own constitutions in the material sense, they are directly bound in public law terms by the

20
H. Arendt, The Origins of Totalitarianism, A Harvest Book (Harcourt Inc, 1994), chapter 9.
21
Schönberger, ‘European Citizenship as Federal Citizenship’.
22
This argument has been made in the context of the EU by F. De Witte, ‘Emancipation through Law?’, in L. Azoulai,
E. Pataut and S. Barbou (eds.), Constructing the Person in EU Law: Rights, Roles, Identities (Hart, 2016). In the context
of the United States, the same argument has been made by G. Gerstle, Liberty and Coercion: The Paradox of American
Government from the Founding to the Present (Princeton University Press, 2018), 70: ‘As long as one could choose one’s
state, one could live as one wished’.
23
This is, for example, the case for EU citizenship and Swiss citizenship that to this day is derived from cantonal
citizenship. In the United States, the derivative nature of federal citizenship was transformed with the 14th
Amendment that ensured that anyone born in the US territory would be a citizen of the United States and that state
citizenship could be derived from that status, see Schönberger, ‘European Citizenship as Federal Citizenship’.
24
Larsen, Constitutional Theory of the Federation, 116–17; O. Beaud, ‘The Question of Nationality within a Federation:
A Neglected Issue in Nationality Law’, in R. Hansen and P. Weil (eds.), Dual Nationality, Social Rights and Federal
Citizenship in the U.S. and Europe: The Reinvention of Citizenship (Berghahn Books, 2002), ch. 14.
25
B. Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism (Verso, 2006). A. de
Tocqueville, Democracy in America (Penguin, 2003), 193, ‘The government of the Union rests almost entirely upon
legal fictions. The Union is an idealized nation which exists, as it were, only in men’s imagination and whose scope
and limitations are revealed by understanding alone’.

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 192 Signe Rehling Larsen

decision made by the Union.26 The federal compact gives birth to an autonomous legal order
and a new source of law. By coming together in a federation, the Member States constitute an
autonomous public authority which is directly binding on them without further ratification.
After they have become Member States and for the duration of their membership, the
federating states can no longer meaningfully be understood in accordance with the theory of
the external and internal sovereignty of the state: ‘Once they have come together in a federation,
the Member States are no longer truly sovereign states, nor are they strangers to one another’.27
The Member States of a federation do not relate to their fellow Member States (primarily) via
public international law, but rather via the laws of the Union: federal public law. They cannot,
for example, rely on international law mechanisms such as state retaliation to enforce the federal
compact. A federation leads to the renunciation of self-help of the Member States vis-à-vis one
another.28 Nor will the Member States retain complete control of their internal affairs: ‘in the
interest of the security of the federation, a federation cannot ignore the domestic affairs of its
Member States. Every federation leads to interventions’.29 There are no internal affairs of the
Member States, however sensitive, that cannot become a matter of common concern of the
Union at large and subject to a federal intervention.30 If the security of the Union as a whole is at
risk, a federal intervention into the Member States’ domestic affairs is always a possibility. In this
way, the Union can act as a genuine political community in the interest of protecting its security
and survival – ultimately even if this infringes upon the political self-determination of its
Member States – in the name of the people of the Union.31
That the Union is a genuinely political community, however, does not mean that it is a new
‘super-state’ existing ‘above’ the Member States.32 The Member States are not dependencies or
administrative regions of the federation and the public authority of the Union is governed by
fundamentally different forms of constitutional principles than the state. To understand the
constitutional foundations and dynamics of power and authority of the Union, we need to
examine the purposes for which it was created.

12.3 THE DOUBLE TELOS

Why do states federate? After all, as we have seen, being a Member State entails a constitutional
transformation in a way and to the degree that Member States cannot be meaningfully
understood to enjoy full sovereignty. If that is the case, why do states want to constitute a federal
union among themselves? From a historical perspective, states have come together in federations
because they have found it difficult to maintain their own political existence or autonomy.

26
Schmitt, Constitutional Theory, 401.
27
Beaud, Théorie de la fédération, 230 (my translation).
28
Schmitt, Constitutional Theory, 388.
29
Ibid., amended translation.
30
Larsen, Constitutional Theory of the Federation, chapter 5. See also E. R. Huber, ‘Bundesexekution und
Bundesintervention: Ein Beitrag zur Frage des Verfassungsschutzes im Deutschen Bund’ (1953) 79 Archiv des
öffentlichen Rechts 1.
31
Larsen, Constitutional Theory of the Federation, chapter 5. See also H. Lokdam, ‘“We Serve the People of Europe”:
Reimagining the ECB’s Political Master in the Wake of Its Emergency Politics’ (2020) 58 Journal of Common Market
Studies 978.
32
The American Founding is a case in point. As pointed out by M. M. Edling, Perfecting the Union: National and State
Authority in the US Constitution (Oxford University Press, 2020), 68, not even the revolutionary nationalists at the
Constitutional Convention ‘showed any interest in dissolving existing states (. . .) by 1787, all states, large and small,
had become reified entities in the American political imagination. Citizens owed their primary allegiance to the state
government and supported the union as a means to protect the independence and interests of their states’.

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 Material Constitution of Federations 193

When a number of smaller states are under threat from a military or economic power, often a
neighbouring empire, federations can come into existence between these states for their mutual
welfare and/or security. They come together under the ‘compulsion of defence and economic
needs’.33
In substantive terms, the aims of the federation are welfare and/or warfare; two expressions of
the general principle of ‘salus populi’. At the most fundamental level, the federal telos is
therefore to perpetuate the political existence of the Member States.34 What this entails,
however, changes historically and varies from federation to federation. As a consequence, all
federal systems are unique. The federation, however, is not merely committed to maintaining
the political existence of the Member States but also its own political autonomy and existence.
When states federate, they express a will to live together and to treat each other as equal
members of a new political community, the common Union. The federation is a genuine
political community with an inside and an outside. It has a double telos planted in it with the
federal founding: the will to preserve the states as autonomous and the will to live together in a
common union.
This is grounded in the ‘peculiar sentiment’ that is at the origins of all federations: the wish to
live together but without being one and the wish of remaining autonomous but without being
completely separate from one another. In the words of Albert Venn Dicey, the inhabitants of the
federating states ‘must desire union, but must not desire unity’.35 Dicey’s argument is that if there
is no desire for union, there is no basis for the constitution of a federation. However, on the other
hand, if there is a desire not merely for union but for unity, this will be more adequately
expressed in the creation of a unitary constitution, a unitary state. It is only in the case of the
peculiar wish for union without unity that the proper political foundations for the creation of a
federation pertain.
Because of the will to unite without unity, the federal telos is always characterised by an
internal tension or contradiction between its two opposite ends. Martin Diamond expressed this
internal contradiction between the ‘federal ends’ in the following terms: ‘One end is always
found in the reason why the member units do not simply consolidate themselves into one large
unitary country; the other end is always found in the reason why the member units do not
choose to remain simply small wholly autonomous countries.’36 The federation is always
committed simultaneously to unity and diversity, transformation and conservation, the past
and the future. These are centripetal and centrifugal ordering forces that pull the federation
in opposite directions. These contradictory political forces are at the heart of all federations
precisely because the federation is a new political existence constituted in order to perpetuate
the political existence of its constitutive parts.
The most fundamental constitutional question for the federation is thus how these contradict-
ory forces can be stabilised. How can a constitutional balance between the Union and the
Member States be protected? In On Revolution, Hannah Arendt describes the question of the
political balance as the most important problem for the American founding fathers. The task of

33
R. R. Bowie, ‘The Process of Federating Europe’, in A. W. MacMahon (ed.), Federalism: Mature and Emergent
(Doubleday & Company, 1955), 493. See also C. F. Friedrich, ‘Federal Constitutional Theory and Emergent
Proposals’, in A. W. MacMahon (ed.), Federalism: Mature and Emergent (Doubleday & Company, 1955); W. H.
Riker, Federalism: Origin, Operation, Significance (Little, Brown and Company, 1964), 12 ff.
34
This was a central argument advanced by the Federalist before the ratification of the 1787 Constitution of the United
States, see C. D. Matson and P. S. Onuf, A Union of Interests: Political and Economic Thought in Revolutionary
America (University Press of Kansas, 1990), 137 ff.
35
A. V. Dicey, Introduction to the Study of the Law of the Constitution (Liberty Fund, 1982), 75–76.
36
M. Diamond, ‘The Ends of Federalism’ (1973) 3 Publius 129, 130.

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 194 Signe Rehling Larsen

the constitution, she writes, was the ‘erection of a system of powers that would check and
balance in such a way that the power neither of the union nor its parts, the duly constituted
states, would decrease or destroy one another’.37 For the federation to persist, both kinds of
political existence must continue next to each other. ‘The mark of the federation’, Christoph
Schönberger writes ‘is therefore a precarious condition of equilibrium, a state of uncertainty’.38
That the political balance between the Union and the Member States is at the very heart of all
federations was acknowledged by Carl Schmitt who wrote: ‘The Member States are not simply
subordinated, subjects of the federation, nor is the federation subordinated to and subject to
them. The federation exists only in this existential connection and in this balance.’39 The
question is how can the federal balance be maintained? How can the federal constitution allow
for the coexistence of two forms of political existence, the Union and the Member States,
without one destroying the other? How can the contradictory ordering forces of the federation –
toward unity and diversity, transformation and conservation, the past and the future – be
stabilised?

12.4 CONSTITUTIONAL BALANCE

The most prevalent answer to this question is good constitutional design. Is it not possible merely
to solve the problem by creating a proper legal system with a prudent division of power between
the Union and the Member States? As long as the Member States control ‘sensitive issues’ and
the Union is merely concerned with accomplishing the ‘mission’ for which it was created, the
federal telos, can the federal balance not be maintained? This is the alluring promise of an
‘institutional fix’ that characterises much of federal theory – as well as theories of European
integration. The problem is that it is based on the flawed premise that the federation is a static
rather than a dynamic order. The ‘static interpretation’ relies on the constitutional principle that
a federation, in contrast to a state, cannot give itself a new constitutional purpose; it is not legally
‘omnicompetent’.40 Its powers are enumerated, and hence limited.41 The power and authority of
the Union is always bound to this foundational purpose, the federal telos. The aims of the
federation are what justifies and limits the authority of the Union. The Union is only meant to
have the authority granted to it by the Member States.
Nevertheless, exactly because of its teleological orientation, the federation is characterised by
a dynamic form of constitutional ordering that tends to be expansive. The federal constitution is
oriented toward the future and has as a core aim to bring something into existence: ‘a more
perfect union’42 or an ‘ever-closer union’.43 On a more concrete level, federal constitutions that
have an economic content, an ‘economic federation’, will tend to have as a federal aim the
creation of a single internal federal market.44 These ‘limited’ competences, such as the US
37
H. Arendt, On Revolution (Penguin, 2006), 143.
38
C. Schönberger, ‘Die Europäische Union als Bund: Zugleich ein Beitrag zur Verabschiedung des Staatenbund-
Bundesstaat-Schemas’ (2004) 129 Archiv des öffentlichen Rechts 81, 105 (my translation, original emphasis).
39
Amended translation of Schmitt, Constitutional Theory, 388.
40
Beaud, Théorie de la fédération, 348.
41
In the EU, this is expressed in terms of the principle of conferral, see Article 5 of the Consolidated version of the Treaty
on European Union, OJ 2016 No. C202/13.
42
Preamble to the 1787 American Constitution.
43
Preambles to the Consolidated version of the Treaty on European Union, OJ 2016 No. C202/13 and the Consolidated
version of the Treaty on the Functioning of the European Union, OJ 2016 No. C202/47.
44
See especially M. Forsyth, Union of States: The Theory and Practice of Confederations (Leicester University Press,
1981); R. Schütze, From International to Federal Market: The Changing Structure of European Law (Oxford University
Press, 2017).

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 Material Constitution of Federations 195

‘Commerce Clause’ or the EU’s internal market competence, can be relied on in order to
expand the power and authority of the Union.45 Moreover, the federation tends to be granted the
powers necessary to achieve its constitutional aims.46 This is sometimes known as the doctrine of
‘implied powers’.47
Because of the dynamic constitutional ordering of the federation, the formal division of power
might not reflect the material division of power between the Union and the Member States.48
The material balance of power between the Union and the Member States in which the actual
federal constitution resides might, and often will, shift significantly over time without the
constitutional division of power necessarily being formally amended.49 Such an expansion can
be challenged as a matter of law by political or judicial scrutiny of whether the measures used in
fact are ‘necessary’ and ‘proper’ or ‘proportionate’.50 Such challenges, however, tend to be
relatively ineffective because the principle of necessity tends to be an enabler rather than a
bulwark of political power as all necessity politics shows: ‘he who wills the end, must also will the
means’. Neither can the principle of ‘proportionality’ stem the exercise of governmental
authority if the federation is faced with an existential crisis, which will render this principle
meaningless. In questions of life and death, what means are deemed ‘disproportionate’? This is
not to say that constitutional design is unimportant but merely that it is not sufficient to protect
the federal balance.
A response to this predicament is sometimes to attempt to institutionalise a ‘neutral’ guardian
of the constitution, a federal supreme court, that can protect the constitutional balance between
the Union and the Member States.51 The problem with this response is that it assumes that the
constitutional orders of the Union and the Member States are a part of one monist hierarchical
system of legal norms. For Kelsen, as for many others, the only difference between the federation
and the unitary state is the degree of centralisation.52 This is a comforting assumption, because,
if that were the case, it would suggest that the ‘correct’ balance can always be struck by a federal
constitutional court on legal grounds.

45
R. Schütze, ‘Limits to the Union’s “Internal Market” Competence(s)’, in L. Azoulai (ed.), The Question of
Competence in the European Union (Oxford University Press, 2014), 215–33. For the expansion of the power and
authority in the United States, see Gerstle, Liberty and Coercion; B. Ackerman, We the People II: Transformations
(The Belknap Press of Harvard University Press, 1998).
46
An example is the ‘Necessary and Proper Clause’ of the American Constitution, Article I, Section 8. In the EU, this is
stated in Article 6(4) of the TEU: ‘The Union shall provide itself with the means necessary to attain its objectives and
carry through its policies’.
47
In the United States, this was asserted in McCulloch v. Maryland, 17 US 316 (1819). The paradigmatic EU case is Case
C-22/70, Commission of the European Communities v. Council of the European Communities [1971] ECR 263
(ERTA case).
48
See, e.g., Riker, Federalism, 81–84.
49
Heller, ‘Nature and Structure of the State’, 1184, made this point in regard to perpetual transformation of the internal
power relations of the state in the production of ‘the unit and order of the state as organization and constitution’.
Given the material dynamic of the federation, the asymmetrical relations among the Member States may lead to
imbalances or even relations of domination, as when a single state is dominant in a hegemonic federation, see M.
Wilkinson, Authoritarian Liberalism and the Transformation of Modern Europe (Oxford University Press, 2021),
223–29.
50
In the EU, such a debate is currently taking place in the judicial confrontation between the German Constitutional
Court and the European Court of Justice over the question of whether the ECB made an adequate proportionality
assessment, see Case C-493/17, Weiss and Others [2018] ECLI:EU:C:2018:1000; BVerfG, Judgment of the Second
Senate of 05 May 2020 – 2 BvR 859/15.
51
H. Kelsen, ‘Kelsen on the Nature and Development of Constitutional Adjudication’, in L. Vinx (ed.), The Guardian of
the Constitution: Hans Kelsen and Carl Schmitt on the Limits of Constitutional Law (Cambridge University Press,
2015), 66, 72–75.
52
Kelsen, General Theory of Law and State, 316.

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 196 Signe Rehling Larsen

However, this misses a fundamental characteristic of the federation, namely that the feder-
ation is a pluralist not a monist legal order. It is characterised by multiple constitutional orders
that stand in a heterarchical relationship to one another and enjoy a relative autonomy.53 From
the perspective of the Member States, the Union only has the powers that they have granted to it
in the federal treaty. Its powers are enumerated and, hence, limited. This means that the
Member States also have a valid claim to be the ultimate guardian of the constitution in order
to police this limit and ensure that Union institutions do not act ultra vires.
This has to do with the ambiguous constitutional foundations of the federation in an interstate
agreement of constitutional nature. The federation relies on a federal compact between the
Member States. This compact or treaty, however, is also constitutional because it gives birth to a
new constitutional order and transforms the Member States constitutionally. In a conflict
between a Member State and the Union, a valid argument can be advanced either on behalf
of the Member States stressing the foundations of the federation in a compact or treaty or on
behalf of the Union stressing the foundations of the federation in a constitution. Today, such
contestation takes place in the EU; however, it is by no means the first federation where this has
happened. Contestation of federal authority is a feature of all (young) federations.54
In the antebellum United States, these arguments were put forward, respectively, by the
seventh Vice President of the United States, John C. Calhoun and the Senator of Massachusetts,
Daniel Webster. Calhoun argued that the United States was founded on a compact between
sovereign states and the constitution was ‘as a compact, binding on them; – but only as such’.55
Sovereignty, Calhoun argued, remained with the states and their peoples, rather than with the
Union or the people of the United States: ‘There is, indeed, no such community, politically
speaking, as the people of the United States, regarded in the light of, and as constituting one
people or nation’, Calhoun declared.56 The citizens of the United States, Calhoun argued, did
for that reason owe their ultimate allegiance to the states rather than the Union. As part of their
sovereignty, they had the right to judge on the constitutionality of federal law and, if necessary, to
nullify it. In this way, the states had an effective veto power over federal legislation.57 Daniel
Webster, however, saw Calhoun’s arguments as a dangerous threat to the unity and stability of
the Union and its constitutional foundations: ‘could anything’, Webster declared, ‘[be] more
preposterous, than to make a government for the whole Union, and yet leave its power subject,
not to one interpretation, but to thirteen or twenty-four interpretations?’58 Today, we are again
faced by these questions in the constitutional confrontation between the European Court of
Justice and the German Constitutional Court.59

53
In the EU, this view is held by constitutional pluralists. For an overview, see M. Avbelj and J. Komárek, Constitutional
Pluralism in the European Union and Beyond (Hart Publishing, 2012).
54
L. Goldstein, Constituting Federal Sovereignty: The European Union in Comparative Context (Johns Hopkins
University Press, 2001).
55
J. C. Calhoun, ‘A Discourse on the Constitution and Government of the United States’, in R. K. Crallé (ed.), The
Works of Calhoun Volume 1: A Disquisition on Government and a Discourse on the Constitution and Government of
the United States (Steam Power-Press, 1851), 129 (original emphasis).
56
Ibid., 162.
57
C. E. Merriam, ‘The Political Theory of Calhoun’ (1902) 7 American Journal of Sociology 577, 584–85.
58
Speech by Daniel Webster, as cited by T. C. Fischer, ‘Federalism in the European Community and the United
States: A Rose by Any Other Name’ (1994) 17 Fordham International Law Journal 389, 431.
59
Case C-493/17, Weiss and Others [2018] ECLI:EU:C:2018:1000; BVerfG, Judgment of the Second Senate of 05 May
2020 – 2 BvR 859/15.

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 Material Constitution of Federations 197

12.5 THE PRINCIPLE OF HOMOGENEITY

In Democracy in America, Alexis de Tocqueville maintained that a system of ‘sound laws’ would
be incapable of pre-empting conflicts between the ‘two sovereignties’ that all federations brought
face to face.60 Constitutional engineering alone, he argued, would ultimately be incapable of
diverting the peoples of the different Member States from war. But if the constitutional balance
cannot be preserved solely by legal means, how then can it be protected?
Most federal theorists agree that the constitutional balance presupposes a relative homogeneity
of all the Member States. In the Spirit of the Laws, for example, Montesquieu argued that a
federal republic ‘ought to be composed of states of the same nature’.61 If there is an existential
connection between the Member States, if they are of ‘the same nature’, then the necessary
interference in the internal affairs of the Member States does not have to be experienced as
‘foreign’ in existential terms. If the will of one is the same as the will of all, it can remain a moot
point who ultimately decides. Where there is an ‘existential connection’ between the Member
States, Schmitt writes, a federation is legally and politically possible.62
The question, of course, is what does this mean? In what ways do the Member States need to
be homogenous? Within federal theory, the answers range from the more ‘essentialist’ stress on
the need for homogeneity with regard to ‘civilisation’ and nationality to more ‘institutionalist’
answers stressing homogeneity with regard to the Member States’ form of government and their
constitutional values.63 In Schmitt’s view, however, the content of the substantive homogeneity
was insignificant: ‘There can be a national, religious, cultural, social, class, or another type of
homogeneity.’64 What mattered was that, in existential terms, it was strong enough to preserve a
political homogeneity between all the Member States.65 A substantial similarity, Schmitt
maintained, was ‘the foundation for the conformity of the concrete mode of being of the
Member States and ensures that the extreme case of conflict does not occur within the
federation’.66 If existential questions were raised, the Union and all Member States would not
make conflicting political decisions.67 If it came to war, they would not fight on opposite sides:
‘the federation cannot have an enemy that would not at the same time be an enemy of every
Member State’.68 How the political identity of the Union and the Member States was con-
structed and how the political homogeneity was maintained was of little interest to Schmitt.
From a materialist constitutionalist perspective, a pure decisionist and existentialist account of
political identity is unconvincing. The ambition of this volume on the material constitution is to
go beyond both normativism and decisionism and open the ‘black box’ of the ‘political’ by
enquiring into the material context of constitutional ordering. For example, in contrast to what
American Founding Fathers like John Jay argued, it was not due to a blessing of ‘providence’

60
The legislators, de Tocqueville, Democracy in America, 192–93 argued, can make the interaction of ‘these two
sovereignties as simple and equal as possible and is to enclose both of them into their own carefully defined spheres
of action. But he cannot meld them together into one single entity or prevent their bumping into each other at
some point’.
61
Montesquieu, The Spirit of the Laws, A. M. Cohler, B. C. Miller, and H. Stone, eds. (Cambridge University Press,
1989), bk. IX, chapter 2.
62
Schmitt, Constitutional Theory, 395.
63
For an overview, see Larsen, Constitutional Theory of the Federation, 112–26.
64
Schmitt, Constitutional Theory, 392.
65
Ibid., 394.
66
C. Schmitt, Verfassungslehre, 10th ed. (Duncker & Humblot, 2010), 376 (my translation).
67
Schmitt, Constitutional Theory, 394.
68
Ibid.

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 198 Signe Rehling Larsen

that the United States was founded by white settlers only.69 Rather it was a product of the
exclusion of Native Americans and the enslaved black population from ‘We the People’ and
hence the construction of political identity along racist lines.70 In the antebellum Republic, this
political decision on inclusion/exclusion was entrenched in the jurisprudence of the American
Supreme Court, for example in the infamous 1856 Dred Scott case. A descendant of African
slaves, the Supreme Court maintained, could not become a ‘member of the political commu-
nity formed and brought into existence by the Constitution of the United States’.71 Only after the
Civil War with the re-founding of the Republic during the Reconstruction was this decision
overturned.72
Political identity and political homogeneity, in other words, is neither determined by a
singular point in time nor is it something ‘natural’ or given. It is rather something that is
continuously being constituted. The constitution of a political community is always both of
and by the community as a collective self.73 What sets the federation apart from the state with
regard to the continual constitution of political identity is that it takes places at two interdepend-
ent levels. In a federation, nation-building takes place both at the centre and at the periphery.74
Membership in both of these political communities, the Member States and the Union, is the
product of the constitution of the political community as such; in neither is it something given.
An important lesson from the writings of Herman Heller is to think of constitutional ordering in
dialectical terms, as a productive relationship between law and politics, norm and decision, that
is constantly developing.75

69
Federalist 2 (Jay), in The Federalist Papers, L. Goldman, ed. (Oxford University Press, 2008), 14–17.
70
During the 1787 Constitutional Convention, the infamous three-fifth compromise was struck between the slave
holding southern states and the northern states on how the slave population would be counted for determining direct
taxation and representation, see The Constitution of the United States, Article I, Section 2.
71
Dred Scott v. Sanford, 60 US 393 (1856). Important cases on the constitutional status of Native Americans are
Chereokee Nation v. Georgia, 30 US 1 (1831) and Worcester v. Georgia, 31 US 514 (1832). See, also, B. Duthu,
Shadow Nations: Tribal Sovereignty and the Limits of Legal Pluralism (Oxford University Press, 2013); S. Banner, How
the Indians Lost Their Land: Law and Power on the Frontier (Harvard University Press, 2009).
72
Ackerman, We the People II.
73
H. Lindahl, ‘Constituent Power and Reflexive Identity: Towards an Ontology of Collective Selfhood’, in M. Loughlin
and N. Walker (eds.), The Paradox of Constitutionalism: Constituent Power and Constitutional Form (Oxford
University Press, 2008), 9–27.
74
M. Forsyth, ‘The Relevance of Classical Approaches’, in J. J. Hesse, V. Wright, and W. Hesse (eds.), Federalizing
Europe? The Costs, Benefits, and Preconditions of Federal Political Systems (Oxford University Press, 1996); K. C.
Wheare, ‘Federalism and the Making of Nations’, in A. W. MacMahon (ed.), Federalism: Mature and Emergent
(Doubleday & Company, 1955).
75
Heller, ‘Nature and Structure of the State’, 1201.

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 13

The Materialist Turn in Constitutional Thought

Emilios Christodoulidis

13.1 THE INSTITUTIONAL AND THE MATERIAL:

THE PROBLEMATIC VIS-À-VIS

It is remarkable, even if hardly ever raised as a problem, that in the discussion of the materiality
of the legal order it is a shortcut that furnishes the perspective, in the form of a spatial metaphor;
the shortcut organises access to the meaning of materiality, as underlying, underpinning,
undergirding. And because the metaphor is what grants access to the layering of the material
and the institutional – observe how difficult it is to sidestep the topology of levels, of layers, of
strata – the question becomes so difficult to ask: what does it mean to ‘underlie’? But the
question must be asked because materiality needs to be unfolded in the social, temporal and
material dimensions of its meaning, beyond what is ‘locked’ in the picture that keeps it captive in
its spatial positioning vis-à-vis the institutional.
The ‘picture that keeps captive’ is of course Wittgenstein’s formulation from the Philosophical
Investigations, and it is another one from the earlier Tractatus that runs usefully alongside it in
this crosscurrent of metaphors. The latter is the metaphor of the ‘ladder’, that Wittgenstein
deploys to talk about ‘learning’, and that he borrows from Kierkegaard.
My propositions serve as elucidations in the following way: anyone who understands me
eventually recognizes them as nonsensical, when he has used them – as steps – to climb beyond
them. (He must, so to speak, throw away the ladder after he has climbed up it.) . . . He must
transcend these propositions, and then he will see the world aright.1

This is intriguing when one considers that the philosophy presented in the Tractatus attempts to
demonstrate just what the limits of language are – and what it is to run up against them. In the
Tractatus these limits are unyielding. They set the contours of what can be meaningfully said,
and what beyond them must be consigned to silence. Roughly speaking, what can be said for the
early Wittgenstein – including questions of metaphysics – involves what would receive precise
answers by reference to deep principles of sentence-construction. ‘The theory of meaning must
be started again from observation of language as it is’,2 determined in its precise and complex
grammar, a ‘solution’ that as we now know was short-lived, abandoned in the later work.

1
In what may be a deliberate reference to Søren Kierkegaard’s Concluding Unscientific Postscript to Philosophical
Fragments in the penultimate proposition of Wittgenstein’s Tractatus Logico-Philosophicus (6.54).
2
S. Hampshire, Modern Writers and Other Essays (Chatto & Windus, 1969), 125.

199

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 200 Emilios Christodoulidis

If metaphor makes so spectacular an appearance in Wittgenstein’s later work it is perhaps to

track that which eludes the careful architecture and orchestration of sense-making in the
Tractatus, to track displacements and to open up vistas of meaning in the apparent untidiness
of actual communication, the moving planes of signification. This is because metaphor strains at
the deep structure of literal thought. ‘One sees . . . how graphic and immediately responsive to
his own needs [becomes] his style of writing’, comments Stuart Hampshire in 1969; ‘the free
form, without conventions of exposition, did the work of a philosophical dialogue. Visual
metaphors, natural to a designer and architect, . . . make his thought always accessible and vivid,
never altogether abstract’. And Hampshire concludes: ‘Sharply aware of a future public, he still
needed to make no concession, to adopt no public and conciliatory manner, and he would
follow only the connections that were significant to him, in a continual search, which was the
way of life that he had chosen.’3
How to make ‘accessible and vivid’ the ‘responsiveness’ to the ‘materiality question’ at the
heart of our concerns and to fashion the register on which it might be usefully asked? We will
hold on to the insight that metaphor strains at the deep structure of literal thought because, to
repeat, the ‘materiality question’ is one that is far from literally, self-evidently or readily graspable.
And if the spatial ‘layers’, the ‘strata’, etc, are indeed steps of the ladder which serve only ‘to climb
beyond them’ and ‘so to speak, throw away the ladder after climbing it’ what are we left with to
explain the relationship between the material and the institutional? At this stage let us merely
warn against a facile reading of the constitutional layer as supervenient on an underlying, true,
materiality of practice, as well as the attribution to Marxism of this layering as standard
departure. Instead, let us take up more frontally the methodological issue over the relationship
between the legal order and the underlying materiality, with an emphasis on what ‘underlying’
denotes and the crucial – even constitutive – significance of the vis-à-vis between the institutional
and the material.
I will argue that the significant insight that the materialist turn offers to constitutional thought
turns on the question of how exactly to make sense of the ‘vis-à-vis’. Against any notion that the
material and institutional are ‘coextensive’, ‘continuous’ or coincident, that the latter ‘super-
venes’ on the former, against any notion that there is an ‘interplay’ or ‘dynamic relation’ between
the two, I will argue that the materialist ‘corrective’ turns on the possibility of locating antinomy
and contradiction at their precarious juncture. For this reason, I will argue in Section 13.2, the
materialist turn in constitutional thought cannot understand constitutional formation by relying
on a governing function. Instead, by re-orienting constitutional thought to the material practices
of the political economy to which they give (or withhold) expression, the constitutional question
becomes a question over what material relations and needs are expressed, what are elided and
what are silenced. A key step in this argument involves the difficulty of conceptualising the
material constitution independently from its institutional expression. Such an ‘extraction’ away
from its institutional accommodation is a condition of tracking the points of tension; it grants
visibility to the contingency of the institutional arrangements and the possible fault lines, in
other words also of the junctures at which political action might make a difference. The middle
sections of the paper address these questions. I will conclude that a Hegelian–Marxist reading of
the material constitution, one that pivots on the notion of immanent critique, allows both
differentiation and traction between the formal and the material dimensions; moreover it
sustains the critical import of its intervention in its insistence that the ‘material’ not fold into
the ‘institutional’, that a moment of negation rather than affirmation hold the two moments

3
Ibid., 135.

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 The Materialist Turn in Constitutional Thought 201

distinct and related, in a way that foregrounds a semantics of constitutional interpretation that
opens up to democratic uses. At the level of constitutional semantics, the promise of the material
constitution is to harness constitutional thought to disagreements and conflicts that might tap
some of the deeper societal dynamics, typically by forcing re-interpretations of concepts that
carry significant political import.

13.2 ON FUNCTIONAL DEFINITIONS

We are indebted to Marco Goldoni and Mike Wilkinson for suggesting a re-orientation of
constitutional debate away from the endless dragging confrontations between ‘political’
constitutionalism and ‘legal’ constitutionalism, a distinction that for years now has served as
something of a portal into constitutional debate. This is a tired debate, they rightly comment, it
is ‘suffering a certain fatigue’, though perhaps more recently one might discern a certain re-
vitalisation as the earlier clear lines of the stand-off begin to blur: the rise of right-wing populisms
has sent ‘political constitutionalists’ to seek some degree of rights-protection to temper populist-
democratic excess, while the rise and rise of free-wheeling proportionality has forced even hard-
line exponents of ‘juristocracy’ to express some qualms about being ruled by judges. These
developments in turn have led to a proliferation and further splintering of distinctions that serve
to secure everyone some place or other in the meaningless cartography. The debate rages all the
louder the more irrelevant it becomes, its fine distinctions supercoded to the operation of
capitalism, to the barbarity of which both sides remain fully accommodating or, more precisely,
as Goldoni and Wilkinson put it well, toward which they remain mute. The discussion of the
material constitution, inaugurated in the fine paper of 2018,4 moves the debate to more fertile
democratic-theoretical ground and raises the stakes of constitutional debate considerably.
Implicit in the discussion is a normative argument against eclipsing the materiality of practices
and a suggestion about how the connection back might be reclaimed.
Here is their summary of the fascinating, important and urgent corrective that the material
turn offers to the way that constitutionalism is customarily theorised:
In short, political constitutionalism was insufficiently material. It remained mute in the face of
renewed constitutional crises and political-economic crises of the state and the inter-state system,
and impervious to the increasingly fraught nature of the social relations undergirding them.
Political and legal constitutionalists alike neglected the material conditions for the emergence
and development of a constitutional order, and the material changes that prompt the suspension
or modification of formal constitutional norms. To understand these phenomena requires
attention to the underlying material context, to the basic political and social conditions
of possibility of constitutionalism and the dynamics of constitutional change. Otherwise
constitutional theory will have little to say about the most important challenges to constitutional
ordering, whether in the shape of the existential crisis of the Eurozone, the fracturing of
the political unity of the modern state, or the return of anti-systemic political and
social movements. (568)

The key difficulty the materialist corrective comes up against is how to make sense of the
relationship between the ‘formal/institutional’ and the ‘material’ dimensions that, as stated in
Section 13.1, set the ‘political and social conditions of possibility’ for it. And the reason why this is a
conceptual difficulty is because the material terrain of what ‘underlies’ and ‘conditions’ the
constitutional, requires (conceptually) that it precede it, and yet it cannot. With Alain Pottage

4
All page references to M. Goldoni and M. Wilkinson, ‘The Material Constitution’ (2018) 81 Modern Law Review 567.

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 202 Emilios Christodoulidis

we might ask the disarming ontological question ‘the materiality of what?’,5 or more specifically ‘of
what practices?’, because it is not at all clear what field of human association is individuated as the
‘undergirding’ (remember) factuality. What material practices count or qualify as (proto-)
constitutional practices? All available answers (to what is individuated as material substratum)
seem to borrow the leading perspective from the side of the ‘institutional’. But this merely
replicates at the conceptual level the material deficit of constitutionalism. Because while granting
primacy to the institutional may of course allow us to circumvent the question-begging gesture,
and thus give an adequate lead in delineating the constitution’s ‘substratum’, it radically hedges in
what the ‘material’ corrective is meant to correct. In any case the theory of the material consti-
tution is, understandably, not prepared to concede such precedence: instead it is the institutional
that must ‘graft onto’ the material, or ‘embed’ (569) itself in it, not vice versa. Following Mortati,
‘the formal constitution is an instance of the material constitution’ (593). Or, at the very least, its
advocates insist, between the formal and the material there must be a ‘dynamic relation’. In this
appeal lies a stipulation of separate-and-related realms, one that presupposes and treats them as
coextensive. But how exactly to understand the ‘co-extensive’? We are not helped by the postula-
tion that the two levels are ‘internally and dynamically related’ if our quandary is over what
individuates each of the two, independently of each other, in the first place. The two realms have
to be identified as separate in order for them to interface, graft, converge, embed or dis-embed, and
yet this is a relation of co-implication or supervenience that appears forever conceptually to
overdetermine the (materialist) corrective it promises to introduce.
It is the ‘functional’ definition of the constitution that, for the authors, breaks the impasse: the
function of ‘ordering’ makes the levels coextensive by aligning the material and institutional ‘forces’.
In the way that Goldoni and Wilkinson put it, material conditions and relations are thus both
constituted by and constitutive of politics: the dynamic is intrinsic to constitutional ordering, as the
interface is underwritten by the fact that there is always an internal relationship between consti-
tutional order and society.6 The analysis goes on to identify ‘four ordering forces of the material
constitution’ that systematise the ‘conditions of constitutional formation and durability [that]
include political economy, political culture, social relations, religion, as well as geopolitical factors,
international relations and imperial forms of domination’ (580). To the extent that these forces and
processes ‘combine to constitute order’ they are not external to the constitution but ‘intrinsic to
constitutional ordering’,7 and form its material ‘substratum’ (584 and passim); they constitute,
remember, ‘the [social and political] conditions of the possibility of constitutionalism’ (568).
I want to stay with the methodology, rather than the content of the ‘ordering forces’, because
the argument for the ‘material constitution’ is staked on the methodological move to re-orient

5
A. Pottage ‘The Materiality of What?’ (2012) 39 Journal of Law and Society 167.
6
I quote from the paper: ‘These factors can be integrated into constitutional enquiry by placing their relation with the
constitution at the centre of analysis. Taking this approach means, for constitutional scholars, to take as matters
of juristic knowledge, geo-political, political, and social concepts which had previously been delegated – or relegated –
to other disciplines, such as sociology, international relations, and political theory. Material conditions and relations
are thus both constituted (by law and politics) and constitutive (of law and politics). The dynamic interactions among
these elements are intrinsic to constitutional ordering’ (580). ‘Since there is always an internal relation between
constitutional order and society, the constitution is conceived as a feature of political and social power. But power
here is neither an insurgent mass nor a mere abstract relation. The formation, subsistence and reproduction of society
always already entails constitutional ordering . . . But how is it ordered? And why might order turn to disorder? . . . We
consider how to organise and conceptualise the process of constitutional ordering by offering four inter-linked building
blocks of analysis: the ordering forces of the material constitution’ (580).
7
It is not just that the development of modern constitutions is shaped by these factors from the outside, as it were, as
mere irritants to an already established order. It is that they combine to constitute order itself and to condition
constitutional development through processes of re-ordering (and of disordering).

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 The Materialist Turn in Constitutional Thought 203

the constitutional gaze to the formative dimension of material practices. What achieves it is
offered here in terms of a functional definition of the constitution. It is the function of ordering
that aligns institutional and material factors, and that allows them to coalesce and cross-fertilise
around the function of ordering, all the time engaging dialectically, both mutually enabling and
limiting. The constitutional gaze finds its direction in function, that collects it as both consti-
tutional and material.
But there are problems with functional definitions: The first problem with relying on function
to define an institution is that it is undercut if there are functional equivalents. If one defines an
institution through its function and other institutions perform it, then the definition cannot
sustain the individuation of the institution. If ‘ordering’ is the defining function, and other
institutions perform it – albeit the price mechanism, the Church, cultural institutions, or the
police – then the specificity of the constitution is lost. In this context one does not need to
impress how urgent it is not to lose the constitutional achievement to the market via the ordering
function of price.8
The second problem is that it becomes very hard to thematise dysfunctionalities in the
operation of institutions functionally defined. I am referring to the kind of dysfunctionalities
that Goldoni and Wilkinson rightly worry that political constitutionalism, absent the material
dimension, remain ‘mute’ about. The problem with dysfunctionalities is that they are precisely
what functionally defined institutions are constitutively poised to miss. Because if one begins with
functionality and uses function to define constitutionality in the way in which social ‘ordering’
allows formal and material forces to run alongside each other, it becomes problematic to locate
and make sense of social forces that thwart, or potentially thwart, the smooth performance of the
function. If, that is, at the material level there are blockages and disorder – expressed as conflicts
over distributive allocations, over unmet social needs, over investment decisions, against the
destruction of labour protection – how will the constitutional function, at once both institutional
and material, make sense of them as constitutionally significant? Blockages, instead, become
typically that which is not thematised due to a loss of concepts, signs of semantic deficit, sites of
un-addressability. What is un-addressable is the main reason why a constitution remains ‘mute’.
And would it be far-fetched to suggest that the silence – the loss of concepts and the remaining
mute because of it – was not in fact perfectly functional to the ordering/governing function, both
at national and at supranational level? Remaining with the Eurozone for a minute and with the
functional definition of the constitution: did the semantic deficit and consequent un-addressa-
bility9 not allow an unprecedented level of extraction of surplus value out of the devastated states
of the periphery, and therefore was it not perfectly compatible with the governance of the
Eurozone? Was the crisis not productive to the operation? The distribution of constitutional
‘silence’ – the rendering ‘mute’ – becomes the sinister side of constitutional management, and
perfectly functional for that reason.

13.3 THE MATERIALIST CORRECTIVE; SCOPE, LIMITS, LEVERAGE

If these objections have any value, then we may have to concede the conceptual problem with
functional definitions; in the end, perhaps functional definitions sit uneasily with critical theory

8
I have made this argument in E. Christodoulidis, The Redress of Law: Globalisation, Constitutionalism and Market
Capture (Cambridge University Press, 2021).
9
I am thinking here specifically of the ‘constitutionality’ of the intervention of the ECB in the sovereign debt crisis of
Greece, the denying of liquidity and of ‘quantitative easing’, the un-addressability of that denial, of its
ersatz constitutionality.

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 204 Emilios Christodoulidis

and the impetus to harness ‘dysfunctionality’ to the attempt to make our societies more humanly
functional. What alternatives (to functional definitions of materiality) present themselves?
To answer the question, we need to return to the kind of methodological innovation that the
‘material constitution’ presents to us. The way that the question is posed shifts onto centre
ground a different set of distinctions, key to which is that between constitutional semantics and
the material structures to which they give expression. And the promise that the material consti-
tution holds is to lend visibility to that which is ordinarily missed in the way in which consti-
tutional reason closes itself off from political dynamics, contestation and conflict and immunises
itself against it. The material constitution aims to challenge the form of closure that underwrites
that immunity. The conceptual gain of the material constitution is measured on this turn toward
the interface between constitutional form and semantic on the one hand, and the materialities
that underlie them on the other.
The reason why the challenge is so steep is because, while the constitution straddles both law
and politics, it is ultimately the reduction of political dynamics to legal representations that
constitutes its achievement, not their dynamic interplay or any commitment to keeping both
sides alive in that interplay. The materiality of political practices, in civil society, in associations
and movements, in the workplace, will receive a semantic content in constitutional law in terms
of an economy of representation that, while of course holding the promise of some variation of
structure, nonetheless imposes itself as a highly redundant order. ‘Redundancy’ in its systems-
theoretical meaning, contrasts with ‘variety’ and denotes a closing down of options and contin-
gencies. Redundancy sets the limits of openness to the processes that constitutional law is
capable of addressing. This limited openness is justified in the name of stabilising societal
expectations and underwrites no less than the Rule of Law ideal. And with this we are back to
function: function that provides the justification for foreclosure, for controlled exposure to the
materialities of society, for controlled openness to contingency, and for the stemming of
destabilising dynamics.
If the terms ‘redundancy’ and ‘variety’, function, foreclosure and immunity lean this discus-
sion too far in the direction of systems theory, these methodological objections are certainly not
the exclusive domain of systems theory. From a radically different theoretical perspective, the
same set of problems is encountered in Marxism in terms of some of the more intractable
problems of theory-construction. The authors are keenly aware of the pitfalls of ‘orthodox’
Marxism and steer clear of the reductive readings that posit the material base as defining of
the institutional superstructure. There have been of course suggestions about how to temper that
uni-directionality, in the arguments about the ‘relative autonomy’ of the institutions of the
superstructure, and the economy being definitive only in the last instance, but these still do not
adequately capture the dialectical dynamic of the material- and the formal-constitutional.
Because of course Marx was insistent that the materiality of social reproduction could not occur
or be thought of independently of the constitutional function of property title and economic
rights. On these institutions depended the institutionalisation of scarcity, the reproduction of the
relations of production and the creation of profit margins. But for another reason too. The
notion of ‘formal subsumption’, so central to Marx’s argument in Capital, in fact reverses the
direction and begins with the institutional – supervening – layer as definitional of what underlies
it. Formal subsumption names the process whereby property title and economic freedoms, as
constitutionally guaranteed, take hold of labour power under capitalist valorisation. Formal
subsumption names the form of capture that allows the (commodity) form to pass itself as the
truth of the thing it subsumes; and the same logic carries over to the institutional form of
property right. Under these circumstances the predication ‘material’ of the material constitution

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 The Materialist Turn in Constitutional Thought 205

is doing no independent work. It is simply what is projected, from the institutional point of view,
as necessary (external) reference for the operation of the institution.
This is a form of capture that takes hold of social and political relations and embeds so deep
that it remains immune to the materialist corrective. Marx’s analysis of the fetish-phenomenon
associated with the commodity form is exemplary of this kind of capture. It is a form of
institutional capture that cannot be stepped behind in order that the materiality of practice
might be retrieved or that the smooth operation of the language of property and freedoms might
be tempered or disturbed, because there is no ‘behind’ to step back to. The constitution of value
incurs and is exhausted at the level of its signification by the order of capital; labour is what
capital calls forth as labour, and the collective position of labour similarly is called forth
according to what capital demands and what work it makes available. Value production is only
ever recognised at the site where it is already appropriated as the exchange value of labour;
collective labour identities are formed in a field where the availability of labour is controlled by
capital, with its investment decisions, shifts in the forms of production, use of technologies to
instil precariousness, etc. This is as blatant now as it was back then, endlessly instrumentalised,
forever renewed. What matters for our discussion is that it impacts constitutively on the kinds of
material practices and identities that can be conceived of as ‘underlying’ institutional practices.
At the limit point the capture is comprehensive, making the supervening level of constitutional
formation decisive to the point where the constitutional level always-already substitutes for the
material, and fully overdetermines the ‘layering’ as such.
This is the danger that confronts the material constitution, where the institutional level is
what gives form and calls the material level into line, to the point where it cannot perform an
independent corrective function. Marx does not go as far as stating this indictment and his
concern is only incidentally with the constitution. But the fundamental problem of the
fetish-phenomenon and the invisibility it inflicts, once posed by Marx, is then picked up and
restated emphatically in relation to law by Evgeny Pashukanis, whose profound insight of the
relation of form to content is that content is eclipsed by the form of law. Crucially, for
Pashukanis, this erasure is constitutive of law as a formal system. It is by absenting the
underlying content, the material relations of production, that law attains to its form in a
broadly similar way that in Kelsen the validity of the law collects the objective meaning of
the underlying facticity into what is formally law and what underlies its ‘purity’. What
becomes meaningful as law is what is given objective meaning at the level of legal
semantics, and the underlying materiality, the givenness of brute fact, does not impact nor
does it ‘intertwine’ with legal meaning. In this, the very gesture that organises law is the one
that excludes its material base. This of course would be the very negation of the ‘material’
constitution. For Pashukanis, law’s exclusionary function is founded on nothing but its own
ongoing articulation, immunising what may count as a possible evolution of its thematics
from any challenge that might have emerged from the material reproduction of social life or
in terms of alternative configurations of individual and collective identity. The content of
the law (the ensemble of relations of production and their effects) is eclipsed by the
formalism of the law, at both ordinary and constitutional levels: and this erasure (of material
content) is integral to the constitution of the law qua formal system. The effacement of
content by form is drawn out in striking parallel by the two theorists, in Kelsen as a function
of the purity of legal thought, in Pashukanis as a function of immunisation of bourgeois law
from the contradiction-laden terrain of social reproduction.
Of course, this radical moment of erasure of the ‘material constitution’ should not be
generalised across the whole spectrum of Marxism(s) nor of course beyond them. But already

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 206 Emilios Christodoulidis

the question of supervenience has been dealt a serious blow, as has the whole notion of the
overlaying of the institutional on the material, such that the movements of the latter are felt and
its energies transfer to the former, or such that ‘the animating movement of the material
constitution, with its cascading effects on institutions, is enabled’ (595) and, following
Lassalle, the ‘distance between constitutional form and constitutional material’ (593) somehow
crossed. How we might venture that ‘enablement’ and that improbable crossing from within
Marxist thought is something that we will return to in Section 13.4.
For now, let us stay a little longer with the materialist readings of conflicts, movements
and dynamics that remain pivotal to the invocation of the material constitution. If it is
difficult to discern what critical purchase materiality might provide for these more structural
varieties of Marxism that we have visited in this section, although arguably there still inheres
in them a conviction that the capture will be reversed and that the labour of the proletariat
will not remain domesticated in the form in which it becomes facilitative of the reproduc-
tion of capitalist structures. Here is Marx in a famous extract from the first chapter of
Capital: ‘The labour time necessary for production asserts itself like an over-riding law of
nature. The law of gravity thus asserts itself when a house falls about our ears’.10 Marx here is
expressing the faith that ‘like a law of nature’ material forces in the form of labour power will
‘over-ride’ because, ultimately, labour power, the ‘living, form-giving fire’ of the Grundrisse,
will break free of its capture and institutional containment and ride the tide of history,
forcing the demolition of the house ‘about our ears’. The problem with this formulation, as
Stephen Connelly points out,11 is that the law of gravity of course asserts itself also when the
house does not fall down. That we perceive it as ‘over-riding’ in the collapse does not mean
that it was not operating all along during the stable state. Similarly, with the constitution that
‘houses’ the material practices, conflicts and identity-forming processes of civil society: it is
just as much the realisation of bourgeois society as it is its potential undermining. The
material constitution does not, not yet, not as such, manifest the over-riding force; the
invocation of the material constitution does not as such expose the contingency of the
institutional arrangements that accommodate it or realise it. It manifests neither the junc-
tures at which political action might make a difference, nor the points of foreclosure on
which the unity of the formal constitutional order depends. Instead the accommodation
might be water-tight, with no visibility of the ‘remainder’, however insistently that visibility is
invoked. And yet the dislodging of the material constitution from its institutional accommo-
dation is a condition – even a first step in the direction – of tracking the points of tension; it
introduces a gap or ‘distance’12; it grants visibility to the contingency of the institutional
arrangements and the possible fault lines, in other words also of the junctures at which
political action might make a difference. It is to this reconstruction, and defence of the
material constitution that we turn in Section 13.4, with the emphasis on what critical
leverage it provides, on what it means to create an aperture in the constitutional situation.
And for this we will follow a semiotic route, away from the ‘structuralist’ Marx and in the
direction of his earlier philosophical work.

10
K. Marx, Capital (Penguin, 1991), Book 1, Ch. 1, s. 4.
11
Connelly writes: ‘What determines the delay in the point of destruction is the ability of the house, like the system of
exchange relations, not just to defy gravity, but use it to its advantage.’ S. Connelly, Spinoza, Right and Absolute
Freedom (Routledge, 2015), 138.
12
As Goldoni and Wilkinson put it, ‘the distance between constitutional form and constitutional material’. Goldoni and
Wilkinson, ‘The Material Constitution’, 593.

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 The Materialist Turn in Constitutional Thought 207

13.4 IMMANENT CRITIQUE AND THE CONSTITUTIONAL SITUATION

One of the most fundamental insights that Hegelian Marxism has bequeathed us is that the
categories at our disposal – the thwarted, historically poised, always provisional knowledge-set
that furnishes the reflexivity of the age, any age – do not quite give us the semantic reach that we
crave and that emancipation requires. They come in a language – of right, of identity, of
freedom – that already carries the deficit that we deploy them to overcome. It is this deficit of
the language of the formal constitution that the material corrective aims to redress. Along this
semiotic route, the materialist turn requires that the language of communication and contest-
ation carve out a space that disturbs the smooth deployment of the signifiers (right, identity,
freedom, etc.) as mobilised at the institutional level. Much is staked on this notion of
‘disturbance’. This is because signification must retain traction while at the same time re-
negotiating the incidence of the terms, two operations that are reciprocally at odds with each
other. At the one end of the spectrum, losing traction would turn key constitutional terms into
‘empty signifiers’, floating them across expanses of equivalence where they would name every-
thing and nothing at all! Look at the extension of the language of human rights agency to
corporations, or the proliferation of the language of stake-holding as democratic governance, for
obvious examples of this type of implosion of constitutional language. At the other end of the
spectrum a certain rigidity descends to curtail the open texture of constitutional language,
policing the use and confining it to prescribed uses, to the extent, of course, that such functions
can be secured. Against both extremes, at the level of constitutional semantics, the promise of
the material constitution is to harness constitutional thought to sematic disagreements that
might tap some of the deeper societal dynamics, typically by forcing re-interpretations of
concepts that carry significant political import. A politics of constitutional interpretation can
then carry the energies of the material constitution, not as a matter of course (as ‘over-riding law’)
but to the extent that political-strategic uses might be mobilised, with all the risks and the lack of
warrant that accompany such deployments.
A politics of constitutional interpretation fastens on to ‘the relative indeterminacy of the
material order’. Such ‘indeterminacy’ becomes manifest during ‘critical or conjunctural periods,
where material forces push in antagonistic directions and open up alternative paths for consti-
tutional change’ (593). A gap is prised open as the ‘distance between constitutional form and
constitutional material’. But it is ‘misleading’, argue Goldoni and Wilkinson, ‘to suggest a
dichotomy’ at this point of breach; instead ‘the relationship between the formal constitution
and the material constitution is better characterised as internal’. Now (and while this is not the
authors’ idiom) the more customary philosophical rendering of this ‘internal relationship’
reserves the term particular for instantiations in material contexts and holds the universal at
the level of formal stipulation. And if we assume that any felicitous particular instantiation of a
universal concept involves a clean subsumption of the former to the latter,13 the difference
emerges on those ‘critical or conjunctural’ occasions when the smooth process of subsumption is
upset. On these occasions a gap opens as internal to the order of the constitution, between ‘form’
and ‘material’: a gap between the language of accommodation and that which remains incon-
gruous to it. It is an asymmetry that it introduced and that persists between that which appears as
constitutional and that which appears as an imperfect instantiation, and remains resistant, too, to
the sealing over. How to understand the resistance? Only by linking it to the experiential

13
This clean subsumption is what Georg Lukacs criticised in the ‘pure reflection’ of the ‘speculative’ philosophy of Kant
and the stillness of its categories: a stasis that, for him, is the hallmark of bourgeois thought.

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 208 Emilios Christodoulidis

dimension of the material practices that engage people in their social and political lives. I would
suggest that this ‘gap’, ‘distance’ or disrupted subsumption of the material to the formal consti-
tution is best understood and thematised in terms of immanent critique.
With Hegel the relationship between ‘concrete’ particular and universal is understood in
terms of a process that brings the two into relation. Which means that the universal is mediating
and mediated by its relation to particulars. It is as mediation rather than subsumption that it
enters Marx’s thought too. The coincidence between formal and material levels is broken, a
certain ‘slack’ comes into play. A discrepancy enters where there was mere subsumption, a
discrepancy that inserts itself between material and formal levels, that can, in ‘critical or
conjunctural’ moments, tap a contradictory dynamic. The unifying formulae of constitutional
representation – and the linkages and distinctions that allow them to organise the institutional
world of law – are found wanting at these moments. Subsumption loosens its hold as the
constitutional vocabulary comes adrift. The loosening and the disconnect are felt by those
engaged in constitutional practice as antinomies: the formal-constitutional signifier ‘popular
sovereignty’ comes to be experienced in material contexts as powerlessness; the constitution
promises dignity and delivers indignities in people’s public and working lives; the formal
signifier ‘people’ elides national, social and class antagonisms in which concrete collective
identities are forged; the signifier ‘freedoms’ stands for freedom to sell one’s labour at any price,
if not freedom to starve; the formal signifier ‘citizenship’ carries anaemic political capacity; etc.
Contradiction arises between the level of formal signification and what comes to be experienced
as its meaning at the level of material life. In all this the experiential-affective dimension is
crucial. Immanent critique, the experience of the discrepancy, mobilises people to act where
these contradictions acquire traction in the constitutional semantic, as thwarted constitutional
promise and imaginary, as the discrepancy between the normative language of the constitution
and the reality of powerlessness. The function of negation lies at the heart of these deployments
that generate productive blockages. These are cleavages in the language of constitutional
formation that lay the constitutional open – as the terrain of contradiction – to some appropri-
ation. That, I would argue and would endorse, as the principal promise of the material
constitution.
I have attempted to address the methodological question at the heart of the material consti-
tution, where its designation as ‘underlying’ the formal constitution, pivots on the crucial – even
constitutive – significance of the vis-à-vis between the institutional and the material. Discussions
of constitutionalism remain largely inattentive to the ‘social relations’ and ‘political objectives’
that underlie it, withdrawing the theorisation of the constitutional system from the material
contexts which inform it and in which it plays out. Against the reliance on function to introduce
the materialist ‘corrective’ through the language of ‘ordering’, as that which brings the two layers
into relation and aligns them in a way that supposedly tracks both coincidence and discrepancy,
I have argued that functional definitions typically remain ‘mute’ regarding dysfunctionalities that
they are programmed to immunise from. Marxism bequeaths an ambivalent legacy to the
material constitution. In its more structural varieties, it becomes nearly impossible to extricate
the material from the formal or insert any distance between the two that might allow us to
address ‘gaps’, discrepancies or elisions. A different, Hegelian-Marxist, reading, on the other
hand, might allow both differentiation and traction between the formal and the material
conceptions and foreground a semantics of constitutional interpretation that opens up to
democratic uses, harnessing the semantic reach of constitutional concepts to material forces
of ordering and of disruption. The materialist turn in constitutional thought suggests that
constitutional formation is not principally understood as the governing function ‘from above’;

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 The Materialist Turn in Constitutional Thought 209

instead by re-orienting constitutional thought to the material practices of the political economy,
constitutional formation attaches to changing dynamics in the relations of production. This is
not necessarily the portal through which the ever-expanding field of ‘constitutionalisms from
below’ can enter the scene; the theory of the material constitution may offer opportunities to this
line of theorisation but provides it with no warrant. The dynamics of concept formation, the
immunising forces that buttress constitutional reflexivity, raise steep barriers to such assumed
passage. I have argued instead that it is primarily antinomy and contradiction in the tradition of
immanent critique that give expression to the constitutional practice that is envisaged and
invoked by the turn to the ‘material constitution’.

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 14

Three Registers of the Material Constitution

Neil Walker

14.1 INTRODUCTION

The notion of the material constitution has undoubtedly played an important part in the
explanation and critique of constitutional law and practice at various points in the history of
political modernity. This is most notably so in the Europe of the first half of the twentieth
century, but in the decades that have followed the material constitution has remained a present
and sometimes prominent feature of our intellectual vocabulary. In a broader perspective, our
understanding of how the development of constitutional thought has been informed by consti-
tutional practice would be quite incomplete if we did not acknowledge the role that the material
constitution has played as one of a cluster of cognate concepts, including ‘economic
constitution’ and ‘political constitution’,1 typically invoked and refined in a certain type of
debate. These debates arise or intensify at key historical conjunctures when the course or
significance of constitutional development is unclear or contested and they frequently involve
actors who have a political stake as well as a theoretical interest in the outcome. Paying attention
to how, when and why the material constitution and similar terms are deployed should also
remind us of – and caution us against – an enduring and problematic feature of our conven-
tional understandings of the nature of constitutional ordering, as relevant and as instructive today
as at any point in the past. On the one hand, as such attention reveals, a purely ‘legal-normative’2
understanding of the constitution is quite inadequate – neither a reliable nor a resilient indicator
of the balance, pattern and direction of power within society – the normative structure of the
constitution instead dependent on the deeper play of economic, political and cultural forces of
the society in question; on the other hand, despite this body of evidence, the legocentric

1
See, e.g., P. Minkinnen, ‘Political Constitutionalism vs. Political Constitutional Theory: Law, Power and Politics
(2015) 11 International Journal of Constitutional Law 585; N. Walker, ‘Where’s the “E” in Constitution? A European
Puzzle’ (2020) University of Edinburgh School of Law Research Paper Series No 2020/14.
2
I use the term ‘legal-normative’ as the capsule opposite of ‘material’ in recognition of the limitations of various other
candidates. The term ‘normative constitution’ is inappropriate here as it is often used in an evaluative or prescriptive
sense to refer to a normatively attractive constitution. See, e.g., A. Menéndez, Three Conceptions of the European
Constitution (Arena Working Paper, 2003), 8. The term ‘legal’ constitution is open-ended as to the range and type of
legal phenomena it may refer to, including institutional features (courts, police, etc.) that fall within certain definitions
of the material constitution. The term legal-normative is preferred as a clearly descriptive rather than evaluative or
prescriptive deployment of the ‘normative’ and as limiting its reference to the ‘legal’ to the basic normative framework
of the law. As we shall see in Section 14.2, ‘legal-normative’ nevertheless remains capable of embracing a number of
sub-variants.

210

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 Three Registers of the Material Constitution 211

inclinations of many constitutional scholars means that they nevertheless remain tempted to
stick with or revert to exclusively or predominantly normative understandings of our object
of study.
All this, I would suggest, is fairly obvious and should be uncontentious. It is already sufficient
justification for our continuing to take the idea of the material constitution seriously, therefore,
that the insights this promises are an important aspect of any well-rounded historical sociology of
the conditions and outcomes of constitutional knowledge, and also that such an approach offers
a useful corrective to the narrowly law-centred déformation professionelle of some sections of our
intellectual trade. How useful the notion of the material constitution is beyond these general
benefits, however, is less clear. For it is deployed in such a range of different and sometimes
incompatible ways, and it stands in such a diverse and complex set of relations to the idea of the
‘legal-normative’ constitution, that it is not easy to find common ground on which to build
discussion and insight. Yet that very diversity of endorsement is also tribute to how widely shared
is the intuition that this is the kind of concept that ought to form an important part of our
common discourse.
In what follows, I will try to account for the reasons why the material constitution offers up
such a diverse, complicated and somewhat conflicted menu. That account is based upon the
idea that the concept occurs in three different registers of thought, each of which allows much
scope for internal variation and contestation. An exploration of these registers, and of the
relationship between them, cannot offer a definitive answer to the question of just how useful
the continuing exploration of the concept might be, or how much intellectual effort should be
expended in that direction. But it can at least point to some of the benefits and difficulties
involved for those of us who seek to continue the journey.

14.2 THREE REGISTERS OF THE MATERIAL CONSTITUTION

A first and most basic register, in the sense of tending to be closely allied to certain political-
ideological concerns of the constitutional analyst, places the material constitution in a relation-
ship of rhetorical contrast with the legal-normative constitution. In the second place, typically
alongside its rhetorical invocation, the material constitution functions for some authors as a
theoretical fulcrum – as a way of gaining deep explanatory purchase on the question of the salient
features of constitutional order and its relationship to other forms of order in social life. Thirdly,
the material constitution can figure more broadly – and more loosely – as a methodological
orientation; as a kind of general focusing device, a signal to attend to a certain type and range
of factors and a certain modality of explanation in seeking to account for the
constitutional order.
Importantly, the first of these registers, that of a politico-ideologically inflected rhetorical
contrast with the notion of a legal-normative constitution, retains a particular framing signifi-
cance for the other two registers. Indeed, the very term the ‘material constitution’, we might
argue, would not have been coined if it were not for its ideological function as a way of
highlighting and dramatising its distinction from the juridical form and face of the constitution –
a distinction and division that might be fleshed out as a contrast, or as an opposition, or, perhaps,
as a relationship of cause and effect, or even of absorbing and absorbed. And in turn, the two
structuring features of that framing distinction; namely the division of material and non-material
realms, and the continuity of the idea of a ‘constitution’ across these material and non-material
realms, continues to inform and in some ways constrain how we think about the material
constitution within the other two registers, theoretical and methodological.

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 212 Neil Walker

14.3 RHETORICAL CONTRAST

The best-known early instance of the rhetorical invocation of the material constitution concept
in a context of ideological disputation is supplied by Ferdinand Lasalle, the Prussian socialist
and acquaintance of Marx. In contemplation of his own title question in an 1862 lecture – ‘What
is a Constitution?’, Lasalle responded polemically: ‘The army, that is the constitution. The
police, that is the constitution. The bankers, that is the constitution’, and so on.3 His general
point was that constitution-talk should lead us toward rather than deflect us away from the
material base of the constitutional order, which he views as nothing other than ‘the actual
relations of force existing in a given society’. Lasalle’s purpose in drawing the rhetorical contrast
between material and non-material was simple but direct; to show how a textual constitution,
even one with certain formally democratic features, could be no more than a legitimating façade
for the authoritarian institutions of the Prussian regime.
Yet this is just one way in which the rhetorical contrast can be drawn for critical ideological
purposes. Costantino Mortati, writing in the context of the fascist transformation of the inter-war
Italian state, defended the material constitution as a stable background of control mechanisms
securing the hegemony of the ruling political bloc against the transience of popular democratic
will.4 Herman Heller, writing in the same period in Weimar Germany against the radical top-
down extra-constitutional political decisionism of Carl Schmitt, also made much of the material/
normative contrast and how it translated into the efficacy/validity distinction. But in his case the
emphasis was on the mutual dependence and articulation of the two elements in the production
of the ‘real constitution’.5 Constitutional stability in the context of the new age of social
democracy was viewed as a function of the vital but precarious social homogeneity of a
community formed through the operation of a broader ‘law of democracy’, for which the
materiality of (relatively equal) socio-economic relations supplied indispensable grounding.
Other commentators on interwar Germany developed the material/normative contrast in
much more critical vein to indict the Nazi dictatorship that overthrew the Weimar Republic
in 1933. Writing from American exile, Franz Neumann deployed a materialist analysis of
National Socialism as a totalitarian form of monopoly capitalism which had reduced the state
and its law to the arbitrary instrument of domination of the party.6 His fellow German Jewish
political scientist and American exile, Ernst Fraenkel, developed a more subtle account of our
key contrast, introducing the highly suggestive rhetorical device of the dual state (der
Doppelstaat) as the label for the entity that he claimed to have replaced the Rechtsstaat.7
Under the Nazi regime, he argued, the state did not disappear but split into two elements:
namely, the prerogative state (Maßnahmenstaat), a set of measures and activities fashioned solely
to meet the purposes of party rule, and the normative state (Normenstaat), a system regulated
through statutes and judicial decisions. In tandem, these two elements spoke to the two material
foundations of power – political and economic. By removing restraints on the police, reducing
judicial overview and making the party the key legislative and executive authority, the preroga-
tive state consolidated party domination of the political sphere. But the normative state remained
an indispensable part of the whole. It supplied a regime of predictable private law rules through

3
F. Lasalle, ‘On the Essence of Constitutions’, E. O’Callagan, trans. (1942) 3 Fourth International 25.
4
See, e.g., Chapter 5, by Lucia Rubinelli.
5
See, e.g., H. Heller, ‘Nature and Function of the State’ (1996) 8 Cardozo Law Review 1213.
6
F. Neumann, Behemoth: The Structure and Practice of National Socialism (Gollancz, 1942).
7
E. Fraenkel, The Dual State: A Contribution to the Theory of Dictatorship, E. A. Shils, trans. (Oxford University Press,
1941). See, further, Chapter 6, by Lars Vinx.

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 Three Registers of the Material Constitution 213

which activity at the economic core of the order could be regulated, including relations between
government and business. For, in order to sustain and stabilise its arbitrary political power, the
Nazi regime needed to retain a sufficient core of non-arbitrary rules of the economic game to
allow capitalism to flourish and the state coffers to fill.
So, where Mortati saw the material constitution as fixed, Heller’s sense of the product of the
material constitution was instead more fragile and responsive to shifting political circumstances
and fluid democratic possibilities. In both cases, however, the priority in the last instance of the
material constitution over the legal-normative constitution is clear,8 just as it was for Lasalle,
Neumann and Frankel. In the case of this latter group, however, their different politico-
ideological point of departure dictates that the dominant influence of the material constitution,
at least in the form that they encounter it, is a matter to be regretted rather than welcomed.
Yet the differing ideological predilections of different authors means that even the basic
commonality of an approach asserting material primacy should not be assumed from the mere
endorsement of the rhetoric of binary division. Hans Kelsen offers a case in point. In the Weimar
debate over the nature and justification of the final power of the constitution, Kelsen was as
much Heller’s critical target on the normativist side of the argument as Schmitt was on the
opposite political decisionist side. Kelsen also made use of the distinction between the material
and the non-material constitution, but in his case, the purpose of the distinction was to close
down rather than open up inquiry into any deeper non-positive roots of constitutional order. For
Kelsen’s material constitution was thin gruel, comprising merely the fundamental legal norms
that authorise law-making, law-interpreting and law-applying powers.9 The function of the
material constitution, so narrowly understood, was only to secure the effectiveness of the formal
legal-normative constitution and so guarantee the ‘pure’ internal logic of legal validity of the
stufenbau. Within this positivist framework, therefore, the point of invoking the material consti-
tution is precisely not to expose and refer back the posited legal-normative constitution to its
socially and economically generative forces. Rather, it serves the double objective of indicating
the necessary jural glue offered by second order legal or meta-legal norms in service of the
formal legal-normative constitution, while sealing off consideration of the influence of wider
social and material factors.

14.4 THEORETICAL FULCRUM

In these various approaches we can see how what is introduced as one side of a rhetorical
opposition can also come to serve as a theoretical fulcrum. Indeed, even thinkers working on as
expansive an intellectual canvas as Mortati and Heller come to rely upon the notion of the
material constitution as one of the key supports of their theoretical scheme. Yet it remains
doubtful how much weight the concept can actually bear for these purposes. For far from
offering the stable foundation of a coherent and cumulative project of explanation and appraisal,
the material constitution is a concept of highly contested meaning and evaluative implications.
The diversity of evaluative implications is already clear from our survey of the differing intents
behind the invocation of the material/legal-normative contrast. Indeed, the former may be seen
as flowing quite directly from the latter – the very rhetorical purpose of the claim being to lend

8
In many approaches, indeed, the material constitution not only has priority over the formal constitution but is
understood to contain and absorb the latter. For a thorough discussion of the different modes of dominance of the
material over the formal constitution, see J. Colón-Ríos, Constituent Power and the Law (Oxford University Press,
2020), chapter 8.
9
H. Kelsen, General Theory of Law and State (Harvard University Press, 1945), 124–25.

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 214 Neil Walker

table 14.1. The binary division of material and non-material realms: three candidates

Material Legal-Normative
informal Formal (formative properties)

Formal (abstract forms)

weight to a particular value judgement. Some, such as Lasalle and the critics of the Nazi order,
come to warn of the material constitution. Others, like Mortati, come to endorse it or, like
Heller, come to value it as a worthwhile yet fragile and elusive accomplishment or, like Kelsen,
come to bury it back into the folds of the formal constitution. In all cases the original rhetorical
impulse looms large over the ultimate normative conclusion. Yet even if we put the various and
quite diverse politico-contextual motivations and rhetorical strategies to one side and proceed to
explore the ways in which the schemes that are developed may exhibit a degree of explanatory
autonomy, the material constitution seems fated to generate a high degree of indeterminacy and
contestation. This is so because it is a concept that invites confusion over the very shape and
extent of its referential field.
That potential for confusion is closely bound up with the first of the two key structuring effects
of the framing distinction mentioned in Section 14.2; namely, its association with a strictly binary
division of constitutional order into material and non-material dimensions. The splitting of the
constitutional domain into just two dimensions patently places an enormous explanatory burden
on the precise terms of the divide. So far, we have discussed the non-material side of that divide
under the general heading of ‘legal-normative’ – simply as a way of indicating that its broad
domain of reference is that of the legal order itself. Yet this can cover a variety of different
specific possibilities. Often in the literature this general legal-normative domain goes instead
under the label of ‘formal’. But, as set out in simplified and stylised form in Table 14.1,10 it is both
the case that ‘formal’ itself can mean different things, covering more than one specification of
the general legal-normative domain, and that even these different variations of ‘formal’ do not
exhaust what may be covered under the general legal-normative domain. And given that the
definition of the material constitution emerges from and relies upon its contradistinction with
the legal-normative domain, then, depending upon what version of the legal-normative domain
is emphasised, what counts as the essential properties of the material constitution will differ.
A first specification of the formal constitution resonates with the understanding of law
associated with legal formalism.11 It does so by focusing on the particular properties we associate
with the legal form. The relevant properties of the legal form are rules and other law-specific
normative standards such as legal principles, and so the formal constitution is the constitution as
defined by and restricted to these formal legal properties. If this line is taken, then the material

10
This stylisation is intended to demonstrate the in-principle unavoidability of confusion based on an ordinary language
analysis of the relevant terms, but in fact it understates the actual variety and complexity of forms of usage and the
attendant scope for confusion. In some cases, the adherence of authors to any of the positions set out in Table 14.1 is
merely implicit rather than explicit or may be only partial or inconsistent. For example, both Mortati and Heller at
points refer to the written or codified constitution as the formal constitution, and it is this that supplies the contrast to
the material constitution. In my scheme the written constitution would figure as just one of the abstract or detached
legal forms under the second formal/substantive distinction, and so would supply only a sub-category of the second
sense of ‘formal’.
11
Understood as a commitment to ‘autonomous conceptualism’ in judicial and broader legal decision-making. See, e.g.,
P. Cox, ‘An Interpretation (and Partial Defense) of Legal Formalism’ (2003) 36 Indiana Law Review 56, 59.

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 Three Registers of the Material Constitution 215

constitution refers to matters constitutional that do not possess these formal legal properties. In
other words, the material constitution becomes synonymous with the ‘informal’ constitution.
If ‘formal’ under this first heading refers to these elemental features that are deemed consti-
tutive of the very ‘form’ of law, ‘formal’ under a second heading refers instead to the general
‘forms’ that we associate with law and the wider legal system; put more concisely, the second
heading refers to what is ‘formed’ rather than, as in the first heading, what is ‘formative’. And so
the emphasis falls more expansively on the forms typically taken by or produced through law,
including both those general devices and structures we identify and organise within legal
doctrine (e.g., tort, contract, property and their various sub-categories) and the catalogue of
general juridical and governmental institutions. So understood in this second sense, ‘formal’
speaks to the quality of abstraction and detachment from the concrete instantiated features of
whatever is presupposed by or produced according to law’s ‘formal’ (in the first sense) properties.
If this line is taken, the material constitution becomes synonymous with these concrete features –
the opposite of ‘formal’ becomes ‘substantive’.
Whether or not our definition of the ‘material’ of material constitutionalism follows the
formal/informal distinction or the formal/substantive distinction is significant, even if this deeper
choice of binaries rarely seems to be consciously acknowledged in the relevant conceptual
analyses. Under the formal/informal distinction, just because the formal side is itself so strictly
defined the emphasis on the informal side is more likely to remain on what some writers have
understood as ‘the legal understanding of the material constitution’.12 That is to say, a narrow
emphasis on legal form highlights by way of material contrast that which does not meet the strict
criteria of legal form. Yet such contrasting ‘informal’ factors are more likely to remain legal
phenomena in senso lato, whether deep jurisgenerative norms, as with Kelsen’s version of the
material constitution, or ‘living’ features of the legal system such as the operative processes and
outcomes of courts, executives and legislatures, including the evolved canons and conventions
of constitutionality applied by these bodies.13 Under the formal/substantive distinction, where
the emphasis is instead on the abstract/concrete divide, just as the formal and abstract side is
more expansively defined to include ‘informal’ legal features such as general institutions of the
legal governmental system, there is, correspondingly, more scope on the material and concrete
side to penetrate the deeper political motivations and economic underpinnings of the consti-
tution, so moving beyond even the most generously informal understanding of the world of law
and legal system.14
Consideration of the more expansive understanding of the material constitution produced by
this second opposition between abstract form and concrete substance also serves to highlight one
further opposition, and one further associated uncertainty, that challenges theory-building under
this sign. For, in revealing a deeper ‘non-legal’ sense of the possibilities associated with the
material constitution, it points us to a further binary that, in contrast to the first two binary
oppositions, is predicated upon and governed by the material signifier rather than the legal-
normative signifier; namely the contrast between ‘material’ and ‘ideal’ – between that which
strictly belongs to the world of matter and of material influences upon our life-chances and that
which belongs to the world of ideas and of cultural influences on social relations. Both sides of

12
A. Menéndez, Three Conceptions of the European Constitution (Arena Working Paper, 2003), 7.
13
For Menéndez this produces a further subdivision between the ‘structural’ and the ‘substantial’ elements of the legal
understanding of the material constitution; Menéndez, Three Conceptions, 7–8.
14
Heller distinguishes between material constitution in the strict sense (fundamental content) and in the wide sense
(including legal culture) in acknowledgment of the slipperiness of the concept and its dependence on the particular
opposition invoked. Heller, ‘Nature and Function’.

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 216 Neil Walker

this contrast – not only the narrowly material but also those aspects of the ideational that reflect
embedded social relations of domination – can and in some analyses do form part of the deep
structure that we call the material constitution in the more expansive understanding available
under the formal/substantive framework.
But this third candidate meaning, in which ‘material’ is much further removed from the legal-
normative domain than under the formal/informal distinction while being more narrowly
conceived than under the formal/substantive distinction, merely underlines the fragility of our
key terms as weight-bearing theoretical concepts. And in so doing, it only underscores the scope
for competition and confusion between different renderings of the underlying binary. Indeed,
since the attitudes and strategies attendant upon deeply embedded positions of social and
political power stand in most theoretical imaginaries toward the more concrete and so non-
formal end of the abstract/concrete spectrum, there is an ironic tendency for the more expansive
understandings of the material constitution qua substantive, just on account of their broad reach
across the socio-political domain, to expose themselves to the criticism that, at least in terms of
the strict material/ideal distinction, they ‘remain insufficiently materialist’.15

14.5 METHODOLOGICAL ORIENTATION

If the concept of the material constitution lacks the common focus and stability of reference to
offer the basis of a shared theoretical project, does it nevertheless retain value as a general
methodological signal of and commitment to the importance of looking beyond text and
immediate context when investigating constitutional constraints and possibilities? In a basic
sense, that is undeniable. As noted in the introduction to this chapter, reviewing the historical
debates over the material constitution offers a salutary reminder of the importance of deeper
investigation into the social and economic conditions and consequences of any and all consti-
tutional settlements. Beyond this basic reminder function, however, the methodological defence
of the idea of the material constitution meets a sceptical challenge. It must either be able to offer
a persuasive argument as to why a materially informed methodology of constitutional analysis
needs to work with the specific idea of the ‘material constitution’; or, at the very least, it ought to
be able to show that operating in these specific terms is not detrimental to any general
programme of research.
In addressing this concern, I turn to the second of the structural effects of the legal-normative/
material framing distinction; namely the continuity of the idea of a ‘constitution’ across the
divide. The legal-normative/material pairing is a good example of what Balkin calls a ‘nested
opposition’.16 That is an opposition where the two terms bear a relationship of conceptual
dependence or similarity as well as conceptual difference or distinction. Each term contains
some element in common with the other, which common element provides the conceptual
background on the basis of which the foreground distinction can be drawn. And, in the present
case, it is the notion of a ‘constitution’ that supplies the common and continuous conceptual
background upon which the legal-normative/material distinction rests.
But what, if anything, does continuity entail? By making ‘constitution’ the noun to which we
attach the term ‘material’, what structuring effect follows, and why should we be concerned
about possible distortions? To explore this sceptical possibility, we may borrow from David

15
As Goldoni and Wilkinson remark of both Heller and Mortati; M. Goldoni and M. Wilkinson, ‘The Material
Constitution’ (2018) 81 Modern Law Review 567, 579.
16
J. Balkin, ‘Nested Oppositions’ (1990) 99 Yale Law Journal 1669.

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 Three Registers of the Material Constitution 217

Kennedy’s analyses of various biases he claims as recurrent features of constitutional thought and
practice.17 Kennedy talks of a purposive bias, an institutional bias and a settlement bias, amongst
others.18 The purposive bias refers to the tendency for constitutional method to conceive of the
social and material world as something that can be the subject of intentional design, set purpose
and progressive planning. The institutional bias refers to the faith that constitutional method
places in particular resilient institutions of government as the shapers and drivers of the social
whole. The settlement bias refers to the sense that constitutional method offers full and once-
and-for-all solutions to the problems of social order that it confronts. In a nutshell, constitutional
method is seen as at once teleological, institutionally embedded and conclusive in its assump-
tions and predilections.
Kennedy’s analysis is directly concerned only with formal constitutional structures, yet it also
appears to respond to a deeper logic of constitution. The purposive bias arises from the
assumption, implicit in the very notion of constitution, that ‘things do add up, one way or the
other’.19 The institutional bias is related to an idea of structural self-containment.
Etymologically, the notion of constitution originated with reference to the constitution and
integrity of discrete bodies in the physical world, and was then extended to the ‘body politic’ with
the same kinds of assumptions carried over about the joined-up coherence and resilience of the
relevant political structures or ‘institutions’.20 The settlement bias is linked to the idea, again
implicit in the basic idea of constitution, of an achievement, a successful construction, a now
resolved state of affairs.
Each of these deeper assumptions in turn is linked to the idea of the constitution as noun
rather than adjective, as an identifiable entity rather than a mobile quality that describes and
attaches to other entities. And it is this analogous ‘thingness’ that allows us to see the possibility of
a structuring effect and, therefore, a transfer of bias between the legal-normative and the deeper
material constitution. Without putting it any higher, it is possible to imagine how articulating an
inquiry into the underlying material dynamics of constitutional law and practice as an investi-
gation into something called the ‘material constitution’ might encourage the writing over from
the method associated with legal-normative constitutionalism of various assumptions about the
purposive, institutionalised and stable quality of a discrete object.
What arguments can be raised against this sceptical line? In what is probably the most
rigorous case yet put for the general methodological benefits of an orientation toward the
material constitution that stands independently of any particular explanatory pay-off, Goldoni
and Wilkinson have made persuasive points on the credit side of the ledger.21 In so doing, while
it is no part of their explicit remit to confront the Kennedy challenge, they meet some of his
main objections.
Their point of departure involves distancing themselves not only from legocentric constitu-
tionalism, but also from various other approaches that seek to take constitutional analysis beyond
the confines of the legal-normative constitution. They see many of these as unduly one-
dimensional. Political constitutionalism tends to concentrate too narrowly on questions of

17
D. Kennedy, ‘The Mystery of Global Governance’, in J. Dunoff and J. Trachman (eds.), Ruling the World?
(Cambridge University Press, 2009), 62–65.
18
Kennedy also talks of a proceduralist bias – the disguising of substantive biases behind apparently neutral legal
procedures. While pertinent to the study of the legal-normative constitution, there is no counterpoint in the material
constitution for the translation and reception of this particular framing bias.
19
Kennedy, ‘Mystery of Global Governance’, 62.
20
See, e.g., N. Walker; ‘Reframing EU Constitutionalism’, in J. Dunoff and J. Trachoma (eds.) Ruling the World?
(Cambridge University Press, 2009), 149–65.
21
Goldoni and Wilkinson, ‘Material Constitution’.

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 218 Neil Walker

institutional efficacy (e.g., Parliaments versus Courts)22 while economic constitutionalism,

including its Marxist or Marxisant variants, tends to make the economic base deterministic of
all other levels.23 Their own approach is more capacious and more ecumenical. They specify
four layers or ‘ordering forces’24 of the material constitution; the formation and sustenance of
political unity, the operation of governmental and non-governmental institutions, the wider
pattern of economically inflected social relations and the fundamental political telos of the polity
in question. The intersection of the layers, however, reveals no unidirectional causal logic.
Rather, Goldoni and Wilkinson see all four layers in a continuous state of mutual influence both
inter se and with the formal constitutional carapace. Against the charge of purposive bias,
therefore, they could argue that the fundamental political telos of the polity possesses no general
causal primacy, and against the charge of institutional bias they could answer in the same terms
about the influence of governmental and non-governmental organs.
Moreover, through a deep reading of constitutional ordering, they claim, ‘the concept of the
material constitution captures the internal relation between constitutional order and society
without, however, eliding its conflictual and evolving nature’.25 Indeed, conflict plays a central
role in constitutional ordering so conceived, though the authors want to draw a distinction
between two types.26 On the one hand, much conflict can be diverted and managed through the
complex legal operations of the constitution in ways that consolidate the underlying material
order. On the other hand, conflict can threaten and undermine the dominant social and
economic forces situated at the material base where the agents of these forces lose the capacity
to exert sustained effects through the constitutionally coded political system. The multi-
dimensionality of the material constitution, therefore, produces a mixed picture; an account
that treats the legal-normative aspect of the constitutional order neither as a regular resource of
radical challenge to underlying societal power structures nor as a guarantor of the status quo
ante, but as a vehicle than can accommodate either tendency at different times and places. And
so, the charge of settlement bias can also be answered in the negative without conceding the
basic resilience of the material constitution.
It might be argued that it is precisely the use of constitution as a noun rather than an adjective
that allows Goldoni and Wilkinson to avoid Kennedy’s various biases. For it is through according
primacy to the overall material constitution considered as a distinct, holistically conceived object
that they are able to provide the stable and robust framework within which an ecumenical multi-
causal understanding of the whole becomes possible. Far from being detrimental, therefore, it
could be contended that the structuring effects of the continuity of the idea of the constitution in
nominal rather than adjectival terms from legal-normative to material domains is in fact
beneficial in terms of a general capacity to supply methodological enlightenment. Before
drawing that conclusion, however, we should consider one final tendency, and one final
possible bias, that may be associated with looking at the interconnected world of legal political
and economic forces in the ‘constitutional’ round; namely the singularity bias.
Let us probe further the way in which, by analogy with entities in the physical world, the idea
of a constitution, and by further extension the idea of a material constitution, describes a

22
Ibid., 568.
23
Ibid., 587; see also M. Goldoni, ‘Introduction to the Material Constitution: Traditions and Constitutive Elements’
Legal Form Blog; February 9, 2018; available at: https://legalform.blog/2018/02/09/introduction-to-the-material-consti
tution-traditions-and-constitutive-elements-marco-goldoni/, last accessed 1 August 2022.
24
Goldoni and Wilkinson, ‘Material Constitution’, 597.
25
Ibid., 597.
26
Ibid., 595–96.

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 Three Registers of the Material Constitution 219

complex unity. It is a complex unity that is singular in a double sense; both internally, in the
integrity of its inner structure, and externally, in its separateness from the material constitution of
other polities. Positing the material constitution as an object of explanation, therefore, involves a
gambit that we have identified the combination of a depth of analysis – embracing all material
factors – and a level and site of analysis – that of the discrete polity – that is uniquely or at least
most appropriate for ‘constitutional’ explanation. And so, while it is true that treating the
material constitution as our object of analysis is in a significant sense methodologically expan-
sive, allowing us to cast our explanatory gaze well beyond the terrain of the legal-normative
constitution, it also imposes its own particular methodological limits – its own assumptions
about what constitutional analysis should focus on and where it should end. Granted, to repeat a
point, if we focus on the expansiveness rather than its limits, then, as Goldoni and Wilkinson
would attest, that is precisely what allows the space for a multi-causal and multidirectional
model of the kind they advocate that is not trapped in rigid orthodoxies of causal primacy. Yet
can the argument not be made that, just because it ties the material constitution to a singular
object that is, in turn, intimately connected to the singular object of the legal-normative
constitution, there is a risk that their own framework may contain its own rigidities – its own
blind spots and restricted pathways? In the final analysis does the important search for a deeper
explanation of surface constitutional product end up limiting its own range and focus of analysis
by assuming that the object of the deeper explanation should possess the same discrete and self-
contained form as the surface?
Goldoni and Wilkinson’s treatment of the content and internal dynamics of the material
constitution is so carefully measured and closely qualified that any broad-brush critical observa-
tion risks doing it an injustice. Yet there are some indications of how their singular approach
takes the analysis in certain directions at the expense of others. Perhaps most obviously there is a
degree of state-centredness in their approach. For them, for all the variations in polity form that
emerge from time to time, ‘in [the] process of constitutional ordering the modern European
nation-state remains paradigmatic’.27 It is consolidated as a political unity – the first of their four
ordering forces – through the ‘establishment of a bounded community of belonging’.28 Behind
this political unity lie material factors. The development of the state involves the assertion of a
certain conception of political space, one that involves an appropriation and consolidation of
territory, underscored by a long-term process of ‘transformation of social and geopolitical
relations through the commodification of land, labour and money based on the logic of capital
accumulation’.29 Importantly, however, the time-frame with which we are primarily concerned
is constitutional time. Constitutional ordering, and indeed the expansive modern conception of
political unity itself, begin with the emergence of the idea of the authorising claim of an
independent constituent power. Through this we find asserted the autonomy of the political,
which has specific roots in religious disenchantment as well as general roots in the longer
pattern of economic transformation. And today, that ‘relatively autonomous mode of political
authority’30 remains, albeit the political unity and formal equality it promises stands in constant
tension with the material relations of inequality within civil society. That assertion of the relative
autonomy of the political then, reinforced by the ordering forces supplied by the hegemonic
settlement of fundamental political objectives and the conflict-mediating work of political

27
Ibid., 581.
28
Ibid.
29
Ibid., 583.
30
Ibid., 584.

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 220 Neil Walker

institutions, stands alongside and as a close complement to state-centredness as a fixed feature of

the authors’ singular view of the material constitution.
How can we fault this approach? To the extent that it draws on certain in-built methodo-
logical assumptions about the typical form and discrete quality of the polity to which the
material constitution refers, who would disagree? Certainly there are versions of the economic
constitution, in particular those driven by ordoliberal or neo-liberal assumptions about the
actual – and also preferred – shaping of global social and political order, that might take issue
with this line.31 But as we have already noted, Goldoni and Wilkinson can reasonably retort that
such a criticism, by treating the economic dimension as axiomatically prior, comes from a less
rounded methodological position than their own. Nevertheless, it is possible to construct a
position that, while much more critical of the dominant underlying economic forces than some
of the proponents of economic constitutionalism with ordoliberal or neo-liberal sympathies and,
in explanatory terms, not wedded to the automatic priority of economic causes, is nevertheless
more questioning of state-centredness and less influenced by the constitutional self-expression of
the autonomy of the political than the Goldoni and Wilkinson approach.
That alternative position begins from the observation – hardly novel – that the constitutional
state of high modernity, equipped for the first time with a systematic, expansive and impersonal
plan of government expressed by a settled normative code, declares and promotes a monopolistic
sense of its own jurisdiction-bound authority. Done in the name of sovereignty – increasingly a
self-determining popular sovereignty – its assertion of constituent power necessarily precludes
rival or complementary claims to power in the public domain. In the constitution’s own terms
all other forms of authority, including the forms of economic and social power, are effectively
relegated to the private domain. Their position is one of subordination. They remain within the
implicit gift of the constituent power to break or remake and so have only secondary and
‘derivative’ standing.32
It is precisely the prominence of the derivative model of economic constitutionalism – a
prominence due to the prior and all-pervading quality of the new constitutional state’s claim to
political authority, that accounts for the relative inattention to the economic domain in the
classical tradition of modern legal-normative constitutional thought and practice. If constitu-
tional authority trumps everything else, and if it provides the generative source upon which the
formation and fate of all other capacities depend, then its formal authority over the economic
domain is implicit and does not demand textual specification, still less detailed elaboration.
Constitutional authority, therefore, could traditionally be somewhat ‘indifferent’33 toward eco-
nomic power and, indeed, could in principle accommodate any sort of economic model,
whether or not capitalist. There need, therefore, be no explicit reference to the ‘e’ word in the
constitutional text. Instead, what are foregrounded are the constitution’s own meta-political
values which, as the constitutional state consolidated over the late nineteenth and twentieth
century, can be summarised as the ‘trinity’ of democracy, human rights and the rule of law.34
Clearly, Goldoni and Wilkinson do not buy this legocentric story of monopolistic authority.
The question remains, however, whether their version of state-level political unity and the
‘relative autonomy’ of the political more generally may nevertheless allow this constitutional

31
See, e.g., Q. Slobodian, Globalists: The End of Empire and the Birth of Neoliberalism (Harvard University Press, 2018),
184–93.
32
Walker, ‘Where’s the “E” in Constitution?’, 4, 7.
33
G. Gerapetritis, New Economic Constitutionalism in Europe (Hart, 2019), 6.
34
See, e.g., J. Tully, J. Dunoff, A. Lang Jr., M. Kumm and A. Winer, ‘Editorial: Introducing Global Integral
Constitutionalism’ (2016) 5 Global Constitutionalism 1, 3.

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 Three Registers of the Material Constitution 221

orthodoxy more influence than is merited. As Tully and his colleagues have argued, the
modelling of economic power as merely secondary and derivative supplies but a partial perspec-
tive – one directly challenged by what has been called the paradigm of ‘progressive
development’.35 In setting out the development paradigm, they draw, more insistently than do
Goldoni and Wilkinson,36 on Polanyi’s thesis as to the three forms of commodification that
underpin modern constitutionalism.37 First, there is the generation of natural resources through
the privatisation and commodification of the earth itself. Second, there is the generation of
human resources through the commodification of human productive capacities. And, third,
there is the generation of fiscal resources through the commodification of money. For Polanyi, it
is these deeper economic processes and institutions that are primordially constitutive. Recast
within a legal-normative register, it is the mechanisms of private law – property, contract, etc.,
that give juridical shape to the increasingly commodified social world from which public
constitutional law emerges and to which it responds. The new commodified forms, according
to the development paradigm, are placed under the control of private corporations, their global
spread facilitated by profit-driven competition among corporations as well as military and
financial competition among states during and after empire. Over time, the more advanced
states and corporations establish hegemonic forms of governance of the capitalist economy, and
only once that primary ‘economic constitution’ is established does the stabilisation of the
secondary constitutional qualities of human rights, democracy and the pervasive rule of law
become possible.
In a nutshell, this deeper economic perspective posits the existence of two complexes of
constitutive power rather than just one. Previous and indispensable to the much heralded
constitutive – or constituent – power of the people we have the much less heralded constitutive
power of the three processes of commodification of natural resources, labour and capital. The
political agency available to the constituting people is no mirage; but it is conditioned and often
deeply compromised by these prior underlying economic forces. And because the argument of
Tully, and of proponents of the ‘new constitutionalism’ more generally,38 tends to be concerned
not only with origins but also with the longue durée of the spread of modern capitalism, as that
extended evolution draws to the present we can see just how compromising these economic
forces have become. Various contemporary ‘sustainability crises’39 are seen to flow directly from
the basic development paradigm. Global inequality, militarism, mass migration and, most
urgently of all, environmental degradation are viewed as the pathological accompaniments of
advanced capitalism. And from this perspective, the neo-liberal turn in late modern consti-
tutional politics is viewed as the latest and most aggressive iteration of commitment to a model of
unencumbered growth that can only accelerate these crises.
In the last analysis there may be little substantive disagreement between this approach and
that of Goldoni and Wilkinson. Yet it might nevertheless struggle to be accommodated within a
methodological framework with such an emphasis on a primarily state-centred political unity.
Political unity from the Tully perspective is but one of two equiprimordial sources of constituent

35
Ibid., 3.
36
Goldoni and Wilkinson, ‘Material Constitution’, 587.
37
K. Polanyi, The Great Transformation: The Political and Economic Origins of Our Time [1944] (Beacon Press, 2004).
Discussed in the broader context of global constitutionalism by Tully et al., ‘Introducing Global Integral
Constitutionalism’.
38
See, e.g., S. Gill, Power and Resistance in the New World Order, 2nd ed. (Palgrave, 2003); G. Anderson, ‘Beyond
“Constitutionalism beyond the State”’ (2012) 39 Journal of Law and Society 359.
39
See, e.g., Tully et al., ‘Introducing Global Integral Constitutionalism’, 5–7.

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 222 Neil Walker

power alongside the deep sources and processes of commodification. These both work to an
earlier and deeper time scale and to a different spatial logic than the self-standing constitution-
ally endowed polity. They possess a structuring power that is distinct from state sovereignty,
albeit also influenced over time by the operation of sovereignty. And it is a power that today
contributes to a series of crises demanding responses which go well beyond any individual state
and its local political capacity.

14.6 CONCLUSION

To the extent that I am a critic of the idea of a material constitution, I am very much a
sympathetic critic. The rhetorical roots and the narrower theoretical understandings of the
concept can leave it mired in disagreement – and even confusion, but as a general methodo-
logical framework it holds much more promise. It is in many ways a compellingly attractive
container of the message of the need to go beyond legal-normative constitutionalism, especially
if that container is filled with a suitably multi-directional explanatory structure. Perhaps though,
that same message could be conveyed in a more flexible if less conceptually arresting manner, by
adjective rather than by noun; through insisting on material factors as a prominent and pervasive
feature of constitutional explanation without tying these factors to the bespoke material consti-
tutions of particular polities with their singular histories and prospects.

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 15

What Matter(s)? A Processual View of the Material Constitution

Mariano Croce

The notion of material constitution conjures up the idea of matter, that is, a substance that gives
form because of specific contents of its own. As the story goes, the constitution cannot be
considered as if it were a mere set of fundamental procedures and binding provisions. Nor is it
enough to conceive of this substance as a set of fundamental rights that delimit the power of the
state over the individual and get entrenched in a written-down document.1 Rather, the matter of
the constitution emerges out of an underlying material reality comprising sedimented social
practices, informal institutional mechanisms, and concrete societal ends. A constitutional docu-
ment is nothing other than the transposition of an ongoing societal project that only needs
verbalising to ensure survival and persistence. On this account, the material is believed to possess
nomic force, that is, a normativity that not only provides guidance for conduct but also moulds
people’s understanding of the social world. Importantly, the material constitution carries out this
job from within, well before a process of verbalisation puts it into words.
One major consequence of this conception bears relevance for the task of jurisprudence, as
this is believed to be the particular type of science that delves deep into the material, mostly
unspoken constitution to make it speakable. In this sense, jurisprudence is not only a cognitive
enterprise because cognition of the material constitution affects the process whereby its contents
get formalised. Not only does jurisprudence unearth the contents of the material as they are to
be made explicit; it also helps to understand when the formal constitution dries out in that it no
longer reflects the material one. It is in the light of this conception that Carl Schmitt stated:
‘Jurisprudence is itself the true source of law’.2 This task is political through and through. Much
more than representative politics, which is always exposed to contingency, jurisprudence cuts
deeper into the core elements of a society – those elements that need protection against the
caprice of the political will. In short, jurisprudence voices and protects the nomic force of
the material substance that makes a society what it is.
The present essay makes a case against this substantive understanding of the material consti-
tution. I will centre on Schmitt’s concrete-order thinking as a telling exemplification of a theory
that attaches priority to the material over the formal and yet fails to explain where matter comes
from. Materiality turns out to be a shorthand for the social, while what the social is remains
mostly underdeveloped. The social is taken for granted and claimed to shore up the formal

1
For this understanding of the material constitution, see L. Vinx, ‘Hans Kelsen and the Material Constitution of
Democracy’ (2021) 12 Jurisprudence 466–90.
2
C. Schmitt, ‘The Plight of European Jurisprudence’ (1990) 83 Telos 35, 57.

223

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 224 Mariano Croce

constitutional order, although, as I will contend, the idea of the social finds no grounds other
than Schmitt’s own ideological conviction that a community should be rooted in a limited and
durable set of core principles and values. I will continue by arguing that this critique of the
material does not necessarily lapse back into its opposite, which merely regards the material
constitution as the formal constitution considered from a sociological perspective. By drawing
from Santi Romano’s and Karl Llewellyn’s institutional theories, I will dig out an alternative
notion of the material that makes no reference to an underlying substantive reality. The consti-
tution is an institution in the sense of a set of organisational practices as practices, not the
sedimented outcome of these practices, such as behavioural standards, normative values or
fundamental principles that are selected by the political power to get enshrined into consti-
tutional provisions. Unlike substantive conceptions, this processual understanding of the material
constitution that conceives the material as a set of ongoing activities accounts for how a
collective can make room for change of its substantive contents while it preserves its identity
as a collective.

15.1 THE SUBSTANTIALIST UNDERSTANDING OF THE

MATERIAL CONSTITUTION

Although Italian jurist Costantino Mortati is certainly the scholar who tied his name to the idea
of the material constitution as based on the hegemony of a ruling political block and the
fundamental political aims it imposes,3 Mortati himself stressed that Schmitt’s institutional
theory was the cradle of a compelling notion of materiality.4 In this section, though, I will not
concern myself as much with Schmitt’s theorising in itself as with his second thoughts whereby
he came to realise that the constitution is first and foremost material. For whether or not Schmitt
made a genuine institutional turn between the early 1920s and the early 1930s,5 it is beyond any
doubt that he significantly revised the conception of the legal order that he had provided in
Political Theology (1922), where the law was made to depend on the decision of the sovereign –
and he did so precisely to bring to surface the material element of the constitutional order. In
1922, the normality of everyday life – where legal norms and judicial measures effectively do
their job of governing conduct – was entirely contingent on the inception of the legal order on
the part of a sovereign decider. Normality is a by-product that can get a foothold only once the
sovereign has established the conditions for stability. In Schmitt’s graphic formula: ‘The rule
proves nothing; the exception proves everything’6 – meaning that if one wants to understand
what the law is, one should turn one’s eye from the everyday working of legal rules and focus on

3
See M. Goldoni and M. Wilkinson, ‘The Material Constitution’ (2018) 81 Modern Law Review 569; Chapter 5, by
Lucia Rubinelli.
4
See C. Mortati, ‘Brevi note sul rapporto fra costituzione e politica nel pensiero di Carl Schmitt’, in La teoria del potere
costituente (Quodlibet, 2020), 131–52.
5
Andrea Salvatore and I put emphasis on Schmitt’s revision of preceding themes that effected a break with his theory of
the early 1920s and shed new light on his interests in the 1910s (see M. Croce and A. Salvatore, The Legal Theory of Carl
Schmitt (Routledge, 2013)). Other interpreters adopt a ‘continuist’ view such that he was always interested in the issue
of institutions and made his approach more and more conservative as he espoused the Nazi ideology (see J.
Meierhenrich, ‘Fearing the Disorder of Things: The Development of Carl Schmitt’s Institutional Theory,
1919–1942’, in J. Meierhenrich and O. Simons (eds.) The Oxford Handbook of Carl Schmitt (Oxford University
Press, 2016)). Though I do not think this continuist conception is entirely mistaken, Salvatore and I provide a critique
of it in M. Croce and A. Salvatore, Carl Schmitt’s Institutional Theory: The Political Power of Normality (Cambridge
University Press, 2022).
6
C. Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, G. Schwab, trans. (University of Chicago
Press, 2005), 15.

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 A Processual View of the Material Constitution 225

the original conditions in which the legal order was established. In this light, Schmitt is
significant for my purpose in this chapter insofar as he came to realise that the constitution is
primarily material and that he had mistakenly neglected its relation to social life.
To cut a long story short, Political Theology made the claim that for one to know what the
legal order is, one must know who is able to suspend it.7 The gist of Schmitt’s view at this stage
was that an effective legal order always depends on there being a sovereign who determines the
conditions under which the order is in force or not. Therefore, the ordinary, daily working of
legal rules and procedures fails to tell one what the valid legal order is. One should then turn
one’s attention to the person whose decision can suspend the law and re-establish it as the
appropriate circumstances arise – only this type of inquiry reveals what the valid legal order is. In
this frame, legal normality is demoted to a negligible aspect in the life of the law. However,
toward the end of the 1920s, Schmitt changed his mind about what is foundational to there being
a law. He eliminated any reference to a sovereign decider who establishes legal normality
through a decision as he realised that normality is nothing anybody can produce out of
nothingness. In other words, Schmitt brought himself to acknowledge the constitutive role of
the social practices within which normative standards are produced before the law makes them
binding. The inner normativity of these standards is not contingent on there being a legal order,
but the other way around.
This change of mind looks particularly conspicuous in his conception of the institutional
guarantees. In Constitutional Theory (1928), Schmitt had already revised his understanding of
the sovereign decision as the keystone of the legal order and came to advocate a plebiscitary,
identity-based idea of the constitutional order pivoted on the people’s power to generate a
positive constitution. In that context, he insisted on the constitution being that which gives
form to and protects an already existing substance, a concrete form of life. He thereby began to
lay emphasis on institutions as socio-historically produced forms that make up the social and
attached some importance to so-called institutional guarantees as constitutional provisions
granting ‘particular institutions special protection’ so as to prevent their elimination ‘by way of
simple legislation’.8 However, in Constitutional Theory institutional guarantees are still part of
the more comprehensive set of constitutional guarantees. Soon after 1928, Schmitt tried to put
more flesh on the bones of this material ‘substance’ and broadened the notion of institutional
guarantees. With respect to basic rights (such as freedom of person, privacy of the home,
freedom of speech, secrecy of mail and telephone, freedom of association, and the right to
property), institutional guarantees have a higher legal status because they can only be changed
with a two-thirds majority rather than a simple majority. Schmitt then concluded that basic
rights should be subsumed under institutional guarantees.
In the essay Freiheitsrechte und institutionelle Garantien der Reichsverfassung (The Rights of
Liberty and Institutional Guarantees of the Reich Constitution) (1931), he made this case by
distinguishing more clearly between individual rights, which he called ‘rights of freedom’
(Freiheitsrechte), and the guarantees (Sicherungen). The latter have legal priority over individual
rights, as they represent more comprehensive and reliable guarantees for the freedom of
individuals.9 He then introduced a further distinction between institutional guarantees

7
This is the crux of the ‘jurisprudential reading’ of Political Theology that Andrea Salvatore and I put forward in Croce
and Salvatore, Carl Schmitt’s Institutional Theory.
8
C. Schmitt, Constitutional Theory, J. Seitzer, trans. (Duke University Press, 2008), 209.
9
We analysed Schmitt’s revision of the notion of institutional guarantees in Croce and Salvatore, Legal Theory of Carl
Schmitt, 26–29. See also B. Schupmann, Carl Schmitt’s Constitutional and State Theory: A Critical Analysis (Oxford
University Press, 2017), 185–89.

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 226 Mariano Croce

(institutionelle Garantien), which are guarantees of public law nature, and guarantees of insti-
tutions (Institutsgarantien), which are of a private law nature. Institutional guarantees are prior
to the guarantees of institutions in that every institution presupposes organisational forms of a
public nature. Institutional guarantees belong to public law and are understood as constitutional
guarantees of any institution with public relevance, whereas institutional guarantees are private
in nature and are defined as constitutional guarantees of legal institutions, understood as a set of
sedimented norms and legal relations. With respect to the latter, therefore, institutional guaran-
tees apply to pre-existing institutions, already up and running and organised in traditional forms
of their own. The constitution is required to protect these forms against the legislative power that
could put them in jeopardy via ordinary statutory law.
Doubtless, this makes a substantive understanding of the constitution in a strong sense, for the
legal order recognises the internal life of (some) institutions and subsumes under its laws the
kinds of relations that are constructed therein. Basic rights turn out to be conditional upon, or
even to derive from, individuals’ being members of institutions. While rights are entrenched into
institutional guarantees, protected institutions provide the formal constitution with a substance.
On this account, the constitution does not bring anything about; it recognises, absorbs and
makes binding the normative substance that institutions furnish. This explains why, in 1933, in
the new preface to the second edition of Political Theology, Schmitt highlighted the link
between the rejection of his previous decisionism and his theory of institutional guarantees: ‘I
now distinguish not two but three types of legal thinking; in addition to the normativist and the
decisionist types there is the institutional one. I have come to this conclusion as a result of
discussions of my notion of ‘institutional guarantees’ in German jurisprudence.’10 In 1934, in On
the Three Types of Juristic Thought, he offered a full-fledged picture of this material understand-
ing of law as he developed his konkrete Ordnungs- und Gestaltungsdenken (concrete order and
formation thinking).11 The legal order incorporates a concrete order, namely, sedimented insti-
tutional practices that are the pillar of the German historical tradition and, by doing so, the law
gives a unitary, homogeneous form (Gestaltung) to the social. Within historical institutions
(such as marriage, the Church, the army, the bureaucracy), models of conduct and prototypical
figures unfold through the centuries, so much so that they come to make the basic substance of
the community that it behoves the constitution to protect and nurture as party to a
homogeneous tradition.
While it is interesting to understand how Schmitt revised his previous position and how his
revisions did remedy a few shortcomings of his view in the 1920s, it is not altogether clear how
this material substance comes to life. At face value, there are two interpretative options. First,
some social institutions are selected based on the arbitrary will of the prevailing political power
that takes it upon itself to determine what counts as an acceptable social institution and what, on
the contrary, jeopardises the social fabric. On this first option, the selection is a matter of power
based on de facto prevailing social forces. This does not look Schmittian, for he was averse to all
reductionist theories that claimed legal normativity to be ultimately based on bare power. The
alternative option is that the political power does the job of selecting, but the latter is based on
the political ruler’s (presumed) ability to read and interpret the whole history of the German
society. On this second option, the selection depends on the (presumed) intrinsic value of the
selected institutions as they are taken to be (by the ruling power) that which makes the German
society what it is. This looks more Schmittian. For it is a conservative, traditionalist

10
Schmitt, Political Theology, 2.
11
C. Schmitt, On the Three Types of Juristic Thought, J. W. Bendersky, trans. (Praeger, 2004).

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 A Processual View of the Material Constitution 227

understanding of power as the protector of deep-seated practices that are valuable because time-
tested. However, this second interpretative line leaves a question unanswered: Based on what
can one be sure that the prevailing political power is the best interpreter of that historical
tradition?
Regrettably, Schmitt never addressed this problem. In 1933–34 – quite an unfortunate
historical juncture – he clearly presumed the Leader to be the genuine interpreter of the
German tradition who could provide his loyal subordinates with a wise design to be realised
in all the various sites of the social. He put little effort into offering a robust theory of practices,
identifying the source of their normative value, discussing the intrinsic normativity of history and
justifying the special role of the Leader. He held two highly resilient ideological commitments
that he never justified. First, in order that a community may not be riven by conflict, it is to be as
homogeneous as possible – not only as to habits and traditions, but also in ethical and ethnic
terms. Second, social change is intrinsically dangerous, as the models and standards that ensure
the survival of the social are century-old institutions such as marriage, the family, the army –
exactly in the form Luther or Hegel had under their eyes. Such two commitments certainly
warrant some sort of justification. And yet the lack of justification is not the only flaw of
Schmitt’s concrete-order thinking. For his theory also begs the question: Was it the material
constitution that called for the formal constitutional setting Schmitt advocated? Or was it the
formal constitutional setting Schmitt thought desirable that called for the specific theory of the
social he offered? On this point, he was far from clear. He never cared to discuss either
the nature of institutions in general or the specific contribution of the few institutions he listed.
Nor did he expand on the relation between social normativity and legal normativity and
especially the conditions under which legal normativity is legitimised to cut out those insti-
tutions that do not fit the project drawn up by the Leader.
What looks much clearer, on the contrary, is that, for Schmitt, the material substance is
unable to give itself a form. Though institutions provide the law with material contents, a
jurisprudential activity is needed to shape these contents and turn them into manageable
constitutional material. This is why from the 1930s onward Schmitt insisted more and more
on the unique contribution of the jurists.12 Jurisprudence is not a mere method to make sense of
the unity of the legal order and its validity; let alone a mere sociological inquiry into law’s social
working. Much more than this, as Mortati nicely put it, jurists are tasked with identifying and
correctly interpreting ‘the “normative facts” that must be investigated as possessing the charac-
teristic of regularity’ in the light of which one can ‘presume that they are fit to play the function
of criteria for the assessment of social relationships’.13 In other words, both Schmitt and Mortati
believed legal science is the knowledge that identifies the social standards that are fit to become
legal standards. Contrary to purely descriptive jurisprudential paradigms, legal science is
required to look beyond the legal system to investigate social reality and to identify those pre-
existing social standards that need legal recognition. Unlike the sociology of law, legal science is
claimed to be normative because it plays a primary role in converting the unverbalised substance
of the concrete order into valid legal standards. Mortati’s conclusion is telling: ‘From this point

12
Schmitt somewhat revived his 1910s interest in the legal practice. See L. Vinx and S. G. Zeitlin, ‘Introduction: Carl
Schmitt and the Problem of the Realization of Law’, in L. Vinx and S. G. Zeitlin (eds.), Carl Schmitt’s Early Legal-
Theoretical Writings (Cambridge University Press, 2021), 1–36. However, while in the 1910s he primarily focused on
judicial activity, from the 1930s on he conceived jurisprudence as a site of knowledge which included, but was not
confined to, the activity of the judges.
13
C. Mortati, Istituzioni di diritto pubblico (CEDAM, 1967), vol. I, 9.

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 228 Mariano Croce

of view, the two terms of the factual “normality” and of “normativity” come to overlap’.14 As the
concrete order is made speakable through the jurists’ activity, normality is turned into norma-
tivity. Needless to say, it is not the spontaneous normality that social life produces freely; rather,
it is the normality that makes it through a process of selection, whereas alternative normalities
are left out or even eradicated.

15.2 THE PROCESSUAL UNDERSTANDING OF THE

MATERIAL CONSTITUTION

Evidently, Schmitt’s is a fairly thick conception of the material and the role of jurisprudence –
one that should be grounded on a much more robust theory of social normativity and its
relation to law. It then comes as no surprise that scholars who tried to cut deeper into the
relation between social and legal normativity steered clear of Schmitt’s oversimplifications.15
In this section, I would like to briefly concentrate on Romano’s and Llewellyn’s models as they
emphasise the material side of the constitution but avoid the substantialist pitfall. Though
their theories are different under many respects, Romano and Llewellyn share an idea of the
material as an ongoing activity, an organisational process. To put it otherwise, the material is
processual, in the sense of a work that gets carried on for a group to remain a group. Both
authors pointed out that constitutions – here understood as the basic law of a collective – do
not only appertain to state-based political communities but are present in all groups that persist
through time. The constitution of groups is nothing other than their organisation, namely, the
set of techniques and measures that are deployed to make sure that the group continues to exist
as a group.16
Before I briefly summarise Romano’s and Llewellyn’s take on this issue, let me begin with an
illustrative example from Llewellyn’s ‘The Constitution as an Institution’ – one that, interest-
ingly enough, is redolent with a patriarchal culture:
Mr. Hubb goes out to work and provides for payment of the bills. When he rises, his breakfast
has been attended to; and the bathroom has been left free for his shaving. He, and no other,
reads the newspaper while he eats. Before he leaves for his train, he fixes the furnace; and he
receives certain instructions as to the things to be brought back on his return. There is no need
to go on. It is obvious that Mr Hubb’s patterns of behavior are not those of Mrs. Hubb, nor those
of the maid, nor those of little Lorna. But it is equally obvious that the patterns of all four
intercog like the wheels of a clock, and make a whole go round which we choose to call ‘a
family,’ and which is more than and different from the constituent parts. It is obvious, moreover,
that Mr. Hubb’s behavior lies in good part in patterns, expected and reckoned with by the others.
And normatized. If he should fail to come home to dinner, or should forget the ordered
purchases, or should gamble away his pay-check at the poker-game, Mrs. Hubb would not
only be upset in her cooperation, but would feel aggrieved. Meanwhile, each other

14
Ibid., 9.
15
Here I have to leave aside Mortati’s theory, which should be examined in some detail to determine if it is amenable to
the same type of criticism, as I believe.
16
The locus classicus of Romano’s theory is S. Romano, The Legal Order (Routledge, 2017). Sketches of Llewellyn’s less
systematic theory of institution can be found in K. N. Llewellyn, ‘Behind the Law of Divorce: I’ (1932) 32 Columbia
Law Review 1281; K. N. Llewellyn, ‘The Constitution As an Institution’ (1934) 34 Columbia Law Review 1; K. N.
Llewellyn, ‘The Normative, the Legal, and the Law-Jobs: The Problem of Juristic Method’ (1949) 49 The Yale Law
Journal 1355; K. N. Llewellyn, ‘Law and the Social Sciences: Especially Sociology’ (1949) 62 Harvard Law Review
1286.

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 A Processual View of the Material Constitution 229

member of the family contributes her own quite diverse patterns in the interlocking whole that
goes on as a whole.17

This example is relevant under many respects. First, it tells us that all groups, however
small they are, possess a constitution – the latter being more or less complex according to the
complexity, not necessarily the size, of the relevant group. In this sense, a constitution is the
inner order of a group, of any group. Second, this constitution is not a set of written rules
(that which Llewellyn called ‘the Document’), but lies in an interwoven set of patterned,
mostly unverbalised activities that are routinised and become constitutive of the group.
Third, what counts for the group being a group, and remaining a group, is this nested set of
doings, not the context-dependent values, norms, and principles they are working on. This is
why I noted that the patriarchal residue that taints Llewellyn’s portrayal of the Hubb family
makes the example even more interesting. The description of the family as comprising a
breadwinner and a housewife today is a far less dominant model than in the 1940s, though
the institution of family can hardly be said to be extinct. At present there are families in the
sense specified by Llewellyn, although the values, norms and principles underlying them are
different than those underpinning familyhood in the 1940s. If we piece these three points
together, we can say that the constitution (as an institution) is a set of organisational activities
that makes a group go places. It is material because it is an organised process that needs
performing, not because it produces context-bound values and models. Accordingly, what
allows us to say that a family of the 1940s and a present-day family are both families – and not
two different practices bearing the same label – is the organisational process that integrates
the activities of family members – so much so that, say, a family not based on conjugality
or coupledom today could well qualify as a family in the light of the organisational job it
carries out.18
What distinguishes Romano’s and Llewellyn’s models from Schmitt’s is the insistence on the
notion of organisation as the core feature of the institution, and this makes a significant
difference when it comes to understanding the legal phenomenon.19 Their more accurate
conceptualisation of social normativity vis-à-vis the legal phenomenon led Romano and
Llewellyn to espouse a pluralist conception of the law and the constitution. For Schmitt, the
gulf separating the social from the legal cannot be bridged but through the jurisprudential
activity that selects the standards of some institutions and helps them make it to the official body
of state law. No legal order is conceivable other than state legal order – for Schmitt, political
modernity essentially depends on the state monopoly on law, to the extent that the state as a
political form would collapse should it lose this monopoly.20 Quite the reverse, Romano and
Llewellyn believed that all organised groups have an inner legal ordering.21 As the excerpt on the

17
Llewellyn, ‘Constitution As an Institution’, 18.
18
On the various reasons why nonconventional kinship configurations could/should be considered as families by family
law, see F. Swennen, ‘Un-Coupling Family Law: The Legal Recognition and Protection of Adult Unions Outside of
Conjugal Coupledom’ (2020) 28 Feminist Legal Studies 39, and N. Palazzo, Legal Recognition of Non-Conjugal
Families. New Frontiers in Family Law in the US, Canada and Europe (Hart, 2021).
19
Because of this, such terms as ‘constitution’, ‘institution’, ‘order’, and ‘law’ come to signify the same organisational
process. I will then use them interchangeably when referring to Romano’s and Llewellyn’s theorising.
20
This is the core argument advanced in C. Schmitt, The Concept of the Political, G. Schwab, trans. (University of
Chicago Press, 2007) and C. Schmitt, ‘State Ethics and the Pluralist State’, in A. Jacobson and B. Schlink (eds.),
Weimar: A Jurisprudence of Crisis (University of California Press, 2000), 300.
21
Romano was categorical when he stated that institution is synonymous with legal order, while Llewellyn distinguished
between ‘the law’ and the ‘The Law’ – but this difference is negligible for the present purposes.

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 230 Mariano Croce

Hubb family illustrates, the law comprised interlocked patterns of behaviour that assign roles and
distribute tasks according to the role members play.
However, unverbalised patterned behaviour is not enough to make an ordering. In different
ways, Romano and Llewellyn highlighted that the behavioural aspect is only part of the story – or
else, a normative ordering would not be distinguishable from complex habits. Either of them
assigned a key role to the jurisprudential activity, although they did not construe it, as Schmitt
and Mortati did, as the passage from (formless) social normativity to (formed) legal normativity.
Rather, in every stable group there is an oscillation between unspoken interlocked behavioural
patterns and a reflective attitude that makes them speakable. Therefore, the inner law of all
groups is a combination of behaviour and reflective knowledge about behaviour – though the
reflective attitude can be more or less prominent depending on the characteristics of the group.
But just as knowledge is required to there being a law, so is there in all groups a sub-unit who
take upon themselves to develop knowledge about the activities of the group.
Romano openly took up this issue in his last book, Frammenti di un dizionario giuridico
(Fragments of a legal dictionary).22 Here he insisted that the spontaneous, unspoken organised
behaviour – what he calls ius involuntarium (involuntary law) – that governs the inner life of
institutions is just as much law as the law issued by state agencies. Therefore, the organised
behavioural aspect, though unverbalised, possesses a legal value of its own. However, when a
circumstance arises in which a group needs to specify what is legal from what is not, Romano
thought a jurisprudential process is required. Here the role of the specialists comes to the
surface and starts to seep out. For the jurist is one who ‘must have an eye capable of
dominating and scrutinising in the smallest detail an almost boundless horizon’, one that
covers ‘the whole of social life, which is so varied and protean’. The jurist should not neglect
any ‘relation or phenomenon [. . .] since those that are relevant to the law are in reality fused
and mixed with others that have no legal relevance’. The ‘jurist’s preliminary task is to isolate
and separate the former from the latter, distinguishing them and dissolving their amalgam’.23
Evidently, Romano thought that the law – the inner law of institutions – can be spontaneous
and unspoken, and yet a jurisprudential inquiry is needed to make it speakable when it is
necessary, and especially when one needs to know what in an institution is legal and what is
lawful or illegal.
However, Romano was not entirely clear on who the jurists are. For his theory to be self-
consistent, it should be framed in such a way that patterns of behaviour plus reflective
attitude are present in every institution, and that all institutions have their ‘jurists’, that is,
specialists who do the job of selecting what is relevant to the inner law. Romano unfortu-
nately never got to clarify the role of legal knowledge or legal specialists within nonstate
institutions. On this point, Llewellyn was clearer. Famously, he broke the legal process
down into a set of ‘law-jobs’24 that are to be carried out in all groups and also insisted that
almost all groups comprise smaller groups and are contained into broader groups. He wrote
that it should be made

22
S. Romano, Frammenti di un dizionario giuridico (Quodlibet, 2019).
23
Ibid., 145.
24
Llewellyn listed five main law-jobs: (1) Adjustment of the trouble case; (2) Preventive channelling of conduct and
expectations; (3) Allocation of authority and procedures for its exercise; (4) Provision of direction and incentive within
the group; (5) The juristic method. The most extensive discussion of each of these law-jobs is to be found in Llewellyn,
‘The Normative, the Legal, and the Law-jobs’. For a most instructive analysis of the law-jobs theory, see W. Twining,
‘The Idea of Juristic Method: A Tribute to Karl Llewellyn’ (1993) 48 University of Miami Law Review 119.

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 A Processual View of the Material Constitution 231

unmistakeable that the law-jobs hold, as basic functions, for every human group, from a group
of two persons on up. They are implicit in the concept of ‘groupness’. In any community or
society which may be taken as a larger unit, the law-jobs therefore appear at least doubly: once
for the big unit, and again for every sub-unit within the big one; and again, of course, for every
sub-sub-unit within a sub-unit, ‘etc. ad inf.’ This requires to be made explicit, because the ‘Law’-
concept of modern thought goes only to that great unit called the State or to such other political
whole as may come in question.

Consistently with this vision of the legal phenomenon, Llewellyn claimed that legal specialists
are not only the official personnel of the modern state, in that all groups at some point specialise
to the extent that specialists are needed. He explained that knowledge about behaviour is
produced in the management of ‘trouble-cases’ (dispute, grievance, offense), that is, conflict-
laden situations that must be settled lest the group be split into hostile factions. Legal knowledge
is that type of knowledge that not only handles these problematic cases, but also provides
standards for future behaviour as it performs this basic task. For, as the case is settled, a normative
generalisation is to be extracted from this settlement. This is a job that needs expertise and
techniques and that grants authority to those who supervise it. Here the legal and the political
merge, in that those who solve conflicts and oversee the production of normative generalisations
attach their authority to their unique capacity to pull the group together, especially in the most
difficult conditions:
Political authority must be concerned with the interest of the whole, and so of peace, and so of
guiding adjustment, even by the aggrieved, into channels which reduce the chance of counter-
grievance. Indeed, if the specialization of personnel into this law-job of the trouble-case take any
of the alternative roads – that over the wise old man, the peace-maker, or over the judge, or over
the priest, or over the Ifugao combination of advocate and mediator, or over the sorcerer – then
such personnel must in turn be regarded as carrying latent germs of ultimate political power.

It is not for this chapter to go into the details of this intriguing hypothesis. What counts here is
the idea that all groups develop internal, legally binding patterns of behaviour, go through
potentially dangerous crises, have these crises managed by specialists and in so doing undergo
processes of internal specialisation. This is an utterly processual view of the material consti-
tution, where the material is couched as the concrete process of specialisation carried out by
concrete people. Such concreteness is evidently miles away from the concreteness of Schmitt’s
concrete order. For the material side does not concern the actual norms, expectations, values,
and principles that the process yields. Rather, material is the process itself – so much so that
norms, expectations, values, and principles can change over time by means of that very process.

15.3 CONCLUDING REMARKS

This chapter aimed to lay out a conception of the constitution that places emphasis on the
material aspect but does not identify it with specific norms, values or principles. With
substantialist views, the processual paradigm shares the rejection of normativism as the latter
claims that the material viewpoint simply complements the purely legal perspective on the
proper workings of a constitution. The analysis of the legal order should dispense with the
separation of sociology and jurisprudence in that the latter is normative is a strong sense:
jurisprudence plays a vital role in the process that turns some social standards into legal
standards. Yet, substantialist and processual views part ways when it comes to who plays this
role and in what circumstances. Conceiving the material as a process, and not as a substance,

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 232 Mariano Croce

means conceiving the law as a set of organisational activities that take place in every group.25
Importantly, this activity is exactly what allows a group to make more or less extensive revisions to
norms, values or principles without ceasing to be that group. Accordingly, the material consti-
tution is what enables a group to oversee change and to preserve its identity as its substantive
characteristics morph. As Romano put it:
When the law is assigned the function of stabilizing, normalizing, fixing certain aspects and
movements in social life – a function that could be called conservative – this must be understood
in a sense that excludes any reference to conservative tendencies in the sense in which the
term characterizes policy frameworks that are so qualified. A legal order, unless it is poorly
constructed, on the one hand plays that function; yet, on the other hand, it can always renovate
itself and even make room for radical and extensive changes to its structure and workings. If this
were not the case, it would not be vital.26

In conclusion, if the main virtue of a materialist approach is that it ‘captures the internal relation
between constitutional order and society without, however, eliding its conflictual and evolving
nature’,27 one should certainly privilege a processual view as it does not sacrifice either conflicts
or change for the preservation of substantive contents. The processual view is an invitation to
draw attention to how substantive contents are adapted, rethought and amended in many sites of
social life as social agents struggle to keep their many practices alive and how state law could/
should accommodate change as it is produced in those sites.

25
This view can certainly be charged with overstretching the label ‘law’ and missing out on a few specific aspects of
nonlegal phenomena that are foisted upon a character that does not belong to them and thus are misconstrued. On
this criticism, see S. Roberts, ‘After Government? On Representing Law without the State’ (2005) 68 The Modern Law
Review 1. Though I cannot tackle this criticism here, my take is that the risk of misinterpreting a normative practice is
not necessarily entailed by one’s sticking to a label, provided that one is fully aware of the performative power of using
labels.
26
Romano, Frammenti di un dizionario giuridico, 113–14.
27
Goldoni and Wilkinson, ‘Material Constitution’, 597.

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 16

The Material Constitution and the Rule of Recognition

Francesco Bilancia and Stefano Civitarese Matteucci

16.1 INTRODUCTION: THE MATERIAL CONSTITUTION AS THE

SUPREME SOURCE OF THE LEGAL SYSTEM

The idea of the material constitution is generally traced to an institutionalist approach to law. By
institutionalist approach to law, we mean different theories – whose prominent representatives
are thinkers such as Maurice Hauriou, Santi Romano and Carl Schmitt – that purport that legal
orders are best explained as organisations rather than normative systems.1 For a strand of
institutionalism, the distinctive feature of a legal system is the pre-existence within a social
group of an organisation capable of shaping and maintaining order.2 Indeed, the material
constitution has recently been depicted as a theory about the ordering forces (political, eco-
nomic, geopolitical) that underpin the constitution.3 It aims to take to the surface ‘the deeper
societal context in which formal constitutional development is embedded’.4 Along this line, the
material constitution is regarded as an analytical device, the explanans of an explanatory
relation, whose explanandum is the constitutional order. The ‘relation between the organisation
of the social order and the form of the constitution’ is what the material constitution explains.5
We do not engage here with this more sophisticated use of the ideas at the root of the notion.
We stick with the account that the constitution in the material sense, rather than being an
analytical construct, is the ‘original constitution’ that is the ‘supreme source of the legal system
[. . .]. An independent source, which thereby does not exhaust itself into the posited legal sources
and does not exclusively operate through them, but it also operates immediately and directly’.6
This is what Costantino Mortati claimed about eight decades ago in possibly the most ambitious
study of the material constitution. This ‘original’ constitution was made of two elements: a

1
For a broader and more precise account, see A. Pintore, ‘Institutionalism in Law’, Routledge Encyclopedia of
Philosophy (Taylor & Francis, 1998). Available at: www.rep.routledge.com/articles/thematic/institutionalism-in-law/v-
1, last accessed 29 July 2022.
2
In C. Schmitt, Constitutional Theory [1928] (Duke University Press, 2008), 75, one finds a statement about legal
constitutional scholarship that is archetypical of institutionalism: ‘considered juristically, what exists as political power
has value because it exists’.
3
Other meanings of the expression can be found in the literature. For example, for J. Colón-Ríos, Constituent Power
and the Law (Oxford University Press, 2020), 186, the material constitution is ‘generally understood as including the
norms that establish the basic structure of the state and that regulate the legal relations between state and citizens’.
4
M. Goldoni and M. Wilkinson, ‘The Material Constitution’ (2018) 81 Modern Law Review 567, 580.
5
M. Goldoni, ‘The Material Constitution’, in R. Bellamy and J. King (eds.), The Cambridge Handbook of Constitutional
Theory (Cambridge University Press, forthcoming).
6
C. Mortati, La Costituzione in senso materiale (Giuffré, 1940), 121 (our translation).

233

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 234 Francesco Bilancia and Stefano Civitarese Matteucci

fundamental goal and a political party to achieve it.7 For Mortati, the Constitution’s function is
precisely to trace every legal source to one principle, in a way that – as Mortati writes – they
appear as springing from one thought.8 This ‘unity’ of the legal order was only possible by
recognising the constitutional predominance of the (fascist) party as the bearer of the funda-
mental political goal of the state. The goal had to be as comprehensive as to include in unity the
various interests which the state contemplates. In Mortati’s view, this ‘material’ constitution was
not the sociological basis of the formal constitution; it was as legal as the latter, for it constituted
the determinant that transmitted legal energy to any other act by which the system worked. From
this standpoint, the approach shares with many others over the period between the two wars the
claim – contra Kelsen – legal status can be assigned to facts other than norms. The curious thing
is that the polemic against Kelsen, carried out from a ‘realistic’ point of view,9 ends up
contending that efficacy can be the ultimate criterion of justification of a legal/normative order.
On the contrary, Mortati theorised that a ‘social organisation’ and the existing power relation-
ship are legal. Unfortunately, it remained obscure how this could be so. Mortati did not separate
between the Constitution either in the material or formal sense and the legal system. His
endeavour – to look for the ‘first constitution’ – seems to be directed indistinctly toward both
such notions.
The problem of not clarifying whether one is speaking of the constitution, the legal order, or
the constitution as a proxy for the legal order often affects theoretical constitutional law
scholarship. The ‘constitution’ is a political and social construct, primarily. It is barely possible
to frame a discourse on such a concept and related terms without using political science’s
epistemology and vocabulary. In other words, it is hopeless to think that one can grasp the
political arrangement (the constitution) of the state from a legal perspective only. Consequently,
by looking at the (material) constitution from the viewpoint of a legal system, we attain a partial
knowledge of it. It is fitting to note that, by this, we are not in any way suggesting that a jurist or a
legal scholar should not use in their work – that inevitably involves a normative stance – any
political, economic, moral perspective as they deem fit. The only constraint is that they do not
overcome the limits constituted by the concept of law and the rule of recognition shared by the
relevant group (see Section 16.3). Otherwise, they risk being seen as playing a game other
than law.
Be that as it may, within the exemplary of Mortati’s perspective, the material constitution links
the political forces that make up a group into a state/legal order with a set of ‘purposive norms,
which can take, among others, the form of principles, aims or values’.10
In this chapter, we take on two questions: first, whether and to what extent such a perspective
is compatible with a normative, legal positivistic approach; second and foremost, whether a
concept of the rule of recognition (RoR) of a legal system can help cast light on the ‘ordering
forces’ of a Constitution. We do not mainly deal with how the material constitution can operate
or be operated. However, there are at least two circumstances in which the material constitution
may come to the fore: when there is disagreement regarding what the written constitution
prescribes and when the legislator wants to amend the written constitution in a way that conflicts
with the material constitution. We shall say something about that in Section 16.5. In presenting
our argument, we have in mind jurisdictions with a codified constitution, in which it is easier to

7
C. Pinelli, ‘Costituzione formale-costituzione materiale’ (Treccani online entry, 2010). Available at: www.treccani.it/
enciclopedia/costituzione-formale-costituzione-materiale_%28Dizionario-di-Storia%29/, last accessed 29 July 2022.
8
Mortati, La Costituzione in senso materiale, 130.
9
Time and time again, Mortati uses terms such as ‘real’ constitution, ‘real’ sources.
10
Goldoni and Wilkinson, ‘Material Constitution’, 580.

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 Material Constitution and the Rule of Recognition 235

conceptualise the relationship between the material and the formal (codified) constitution.11 We
also confine our argument to societies adopting a form of representative democracy.

16.2 LAW AND THE RULE OF RECOGNITION

Given that the rule of recognition is often depicted as a convention,12 it is fitting to clarify at the
outset that the material constitution is not the same as the constitutional conventions. They are
either a practice operating within the gaps of written constitutions or the constitution itself for
the political notion that part of the British scholarship uses for the British constitution.
Another distinction that cuts across the idea of the material constitution is between the
traditional and modern concepts of the constitution. While the latter deals with the office of
government and separates it from society, the former indicates the ‘real’ constitution of the state
based on manners, culture and customs of people.13 This idea of a ‘real’ constitution reflecting
changes in the political culture seems to chime with the notion of the material constitution
sketched in Section 16.1. There are two fundamental differences. In our stipulation, the material
constitution is a ‘reality’ within the legal domain. It is not ‘real’ in the sense of factual. As such, it
does not necessarily play out against the written constitution. On the contrary, it usually upholds
the latter, even against future change.
A sketch as comprehensive as possible of a positivist approach to law or at least one on which
many legal positivists could agree seems equally apposite.14 We mean that law is a collective
practice of social control15 of the dominant political power through normative and coercive
mechanisms.16 According to the so-called social thesis or source thesis, law is a social phenom-
enon and, therefore, the discussion about the nature of law is essentially a question of complex
social facts.17 Such social facts are social rules determining what law is and how the law is
identified, created and modified. The relevant social fact, then, is what ultimately explains the
existence of a legal system and constitutes it as a social artefact. This implies a more fundamen-
tal – metaphysical – thesis, that a set of conditions for a norm to count as law in any conceivable
legal order must be identified. As Hart called it in The Concept of Law, such conditions are

11
We assume that what we shall say is valid in British-like situations as well. However, we eschew from engaging with the
issue. Another contentious field about the existence of a (material) constitution is the European Union. On the latter,
see F. Bilancia and S. Civitarese Matteucci, ‘The Material Constitution Arrangement of the European Union’, in M.
Belov (ed.), Peace, Discontent and Constitutional Law: Challenges to Constitutional Order and Democracy
(Routledge, 2021), 53–73.
12
An exponent of such a thesis seems to be N. MacCormick, ‘Institutional Morality and the Constitution’, in N.
MacCormick and O. Weinberger (eds.), An Institutional Theory of Law: New Approaches to Legal Positivism
(Springer, 1986), 184. He claims that ‘a constitutional order depends upon custom: that is, on the custom of referring
all legal issues ultimately to being governed by and under the provisions set out in the constitutional instrument’. Carlo
Esposito, one of the most prominent Italian constitutional scholars of the last century, had spoken of a custom of
recognition of the sources of law, shared by political parties and officials, since 1962, building on his previous theory on
the validity of the law. See C. Esposito, La validità delle leggi (CEDAM, 1934), 238; C. Esposito, ‘La consuetudine
costituzionale’ [1962], in C. Esposito, Diritto costituzionale vivente: Capo dello Stato e altri saggi (Giuffrè, 1992), 302,
306; F. Bilancia, La crisi dell’ordinamento giuridico dello Stato rappresentativo (CEDAM, 2000), 311.
13
M. Loughlin, The British Constitution: A Very Short Introduction (Oxford University Press, 2013), 20.
14
See S. Civitarese Matteucci, ‘Is Legal Positivism as Worthless as Many Italian Scholars of Public Law Depict It?’ (2010)
23 Ratio Juris 505.
15
H. Kelsen, Pure Theory of Law (University of California Press, 1967), 15.
16
Even though the conceptual and/or practical necessity of coercion has often been questioned in the post-Hartian
discussion in the Anglo-American area, we believe that it is indeed as much a fundamental part of Hart’s account of
law as of Kelsen’s.
17
E. Bulygin, ‘Objectivity of Law in View of Legal Positivism’ (2004) Analisi e diritto 219.

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 236 Francesco Bilancia and Stefano Civitarese Matteucci

ultimately spelt out in a rule of recognition (RoR).18 For Hart, law is a system of primary and
secondary rules. While primary rules are norms of conduct, secondary rules are meta-norms that
confer powers of change and adjudication. The RoR is the most crucial type of secondary rule,
by which all the others can be recognised as belonging to the same legal order.
To undertake that function assigned to such a social practice, another feature of a positivist
concept of law is the claim for legitimate practical authority as part of the nature of law.19 This
means that any normative order that aspires to be legal should be able to possess authority. This
is, in turn, path-dependent on the social efficacy of the law. The acceptance of its rules as
guidance for behaviour is a feature we will discuss further in Section 16.3.

16.3 THE RULE OF RECOGNITION AND THE

(MATERIAL) CONSTITUTION

The Kelsenian version of the material constitution seems to be an obvious candidate for one
legal positivist notion. Moreover, that Kelsen acknowledges the notion of a material constitution
might be all we need to claim that legal positivism is compatible with the material constitution.
In his Pure Theory, Kelsen explains that
The Constitution represents the highest level of positive law. ‘Constitution’ is understood here in
its material sense; that is, we understand by Constitution the positive norm or norms which
regulate the creation of general legal norms. The Constitution may be created by custom or by
specific act performed by one or several individuals, that is, by a legislative act. In the latter case,
it is always formulated in a document and hence called a ‘written’ constitution, in contradistinc-
tion to the ‘unwritten’ Constitution brought about by custom. The material constitution may
consist partly of norms of written and partly of unwritten law. The unwritten norms of the
Constitution may be codified; and if this codification is the work of a law creating organ and
therefore acquires binding force, it becomes a written constitution.20

As has been noted, what makes the material constitution material, in this account, is its
function, not any content.21 A different but related question is whether the material constitution
must have procedural content only. Kelsen is particularly interested in the mechanism through
which the rules governing legislation receive a specific formal constitutional form and, besides, a
device for a constitutional amendment is entrenched. In this way, and very significantly, the
formal constitution underpins and stabilises the material constitution, not the reverse. It has
been observed that by adopting Kelsen’s perspective, one cannot claim that the material consti-
tution may also have substantive ‘political’ content. Since ‘he rejects any account of the political
or social relations behind these norms or the state as a politico-juristic or sociological entity’,22
the underlying material order of the constitution remains hidden from sight. We do not need to
take up this specific point except for noting that there are no logical hurdles that the ‘norms
which regulate the creation of general legal norms’ include substantive rules. It is so for any
other piece of law created through the combined operating of the static and dynamic
principles.23

18
H. L. A. Hart, The Concept of Law, 3rd ed. (Oxford University Press, 1994), chapters 4 and 5.
19
K. H. Himma, ‘The Instantiation Thesis and Raz’s Critique of Inclusive Positivism’ (2001) 20 Law and Philosophy 61.
20
Kelsen, Pure Theory of Law, 222.
21
L. Vinx, Hans Kelsen’s Pure Theory of Law (Oxford University Press, 2007), 158.
22
Goldoni and Wilkinson, ‘Material Constitution’, 569–70.
23
Kelsen, Pure Theory of Law, 195.

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 Material Constitution and the Rule of Recognition 237

A better explanation of this issue is offered by the notion of the RoR, based on social practice.
As we mentioned, for Hart, the RoR must be efficacious, namely sustained by the social practice
of law, at least as shared by officials. There is overwhelming literature on the flaws and problems
that Hart’s notion of the RoR would incur, mainly from the same positivist camp.24 While, in our
view, the kernel of the theory remains unchallenged, we think it apposite for this chapter’s sake
to discuss a few of them.
The marrow of the social thesis is that the concept of law depends on something external to
it. Both Kelsen and legal institutionalism erred in building it on an abstract principle of reason
or institutional forces internal to law . The inestimable contribution of Hart’s theory is that it
reveals that the concept of law is fundamentally rooted in common sense and ordinary
language. Building on that insight, Mario Jori has explained that both the identification of
law (in general) and the individuation of the law in space-time depend on (imprecise)
intuitions shared between all the participants in the social practice we call law.25 Such
intuitions regard the essential features that the practice must possess and that people must
recognise. They amount to those situations in which organised coercion and power manage-
ment through norms are at stake. Such an awareness (that Harts notoriously calls ‘acceptance’)
is triggered by clues that ‘mark’ specific facts as the law. They are hints – intermeshed with past
experiences, traditions, all embedded in ordinary language – that guide us with reasonable
(not incontrovertible) certainty to believe that we are asked to act in a certain way or that a
person is not capable of producing a legal act.26 For example, we understand that a self-
proclaimed traffic cop is not an authentic (or valid) traffic cop because she is not wearing the
relevant uniform.
The problem with Hart is that he does not clearly and sufficiently separate between the
operations regarding, respectively, the individuation and determination of the law.27 Officials
undertake the more sophisticated (technical) operation of determining what the law is through
the rule of recognition, which allows them to build the normative chains to assess the validity of
a legal rule. Nonetheless, the first stage common sense individuation of the law is shared by
laypeople and officials.28 It is precisely this first step that gives conceptual and pragmatic
foundation to a legal order not dependent on such ephemeral entities as forces, generic
effectiveness, an ideal presupposed grundnorm.
Moreover, this partial reformulation of Hart’s theory helps overcome one of the most puzzling
characters of the recognition by officials of the ‘master rule’: its circularity.

24
See, for example, J. Coleman (ed.), Hart’s Postscript: Essays on the Postscript to ‘The Concept of Law’ (Oxford
University Press, 2001).
25
M. Jori, Il diritto inesistente (ETS, 2010), 21–40.
26
As Jori (ibid., 34, 40) conveniently emphasises, fragmentary and episodic knowledge is at the same time sufficient and
necessary. Without this indeterminacy, people could not understand and make normative judgements in their
everyday life. Indeterminacy is not a flaw, but a crucial feature of ordinary language to manage complex social
interactions. This mechanism works on normal situations, that is when there is only one possible candidate as the legal
system (ibid., 62). When there is uncertainty on this point, for example after a state coup, a legal crisis looms.
27
Nonetheless, there are passages in which he mentions ‘private persons’ together with ‘courts’ and ‘officials’ as the users
of the ‘ultimate rule of recognition’: Hart, Concept of Law, 107.
28
Jori, Il diritto inesistente, 63–64. A. Marmor, ‘Legal Conventionalism’, in J. Coleman (ed.), Hart’s Postscript: Essays on
the Postscript to ‘The Concept of Law’ (Oxford University Press, 2001), 209–10, makes a similar point by referring to a
kind of division of labour between a ‘core of practitioners’, who share the technical meaning of the rule of recognition
(the rules constitutive of the practice) and ‘further groups of people in the outer circles’.

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 238 Francesco Bilancia and Stefano Civitarese Matteucci

After all, the officials are only ‘officials’ because there is a rule of recognition that validates the
rules declaring them to be officials; and the rule of recognition, in turn, is only the rule of
recognition because they (the officials) treat it as such. So, they are only ‘officials’ from their
point of view, not from the point of view of the citizens who do not accept the officials’ rule of
recognition.29

However, both laypeople and clerics accept the same law.

Following Hart,30 we can colour such an approach as conventionalist in the minimalistic
meaning of a practice shared by persons thanks to certain characters of social reality
and the language that expresses it.31 It refers to the internal aspect of the acceptance of
law, consisting of the group members converging on a critical reflective attitude that
constitutes the social rule as normative in that deviations from that rule are appropriately
criticised.32
We can now come back to the problem regarding the content of the material constitution left
behind by Kelsen’s idea of positive norms regulating the creation of general legal norms. For
Hart, in a modern legal system characterised by a variety of sources of law, the RoR is

29
L. Alexander and F. Schauer, ‘Rules of Recognition, Constitutional Controversies, and the Dizzying Dependence of
Law on Acceptance’, in M. Adler and K. E. Himma (eds.), The Rule of Recognition and the U.S. Constitution (Oxford
University Press, 2009), 178.
30
Hart, Concept of Law, 256.
31
Spurred by Dworkin’s critique, Hart described in the Postscript the RoR as a conventional rule, meaning that ‘the
general conformity of a group . . . is part of the reasons which its individual members have for acceptance’. Hart,
Concept of Law, 255. From this proposition, an entire body of literature conceiving the RoR as a conventional rule
flourished. John Gardner has criticised this scholarship as excessively technical and focusing on ‘only those rules that
serve coordinating social functions’. J. Gardner, ‘Some Types of Law’, in D. E. Edlin (ed.), Common Law Theory
(Cambridge University Press, 2007), 23. David Lewis’s Convention: A Philosophical Study (Basil Blackwell, 1969) spun
out the debate on social conventions. It argued, contra Quine, that conventions are not agreements, as claimed by
Dworkin, but rules that emerge as practical solutions to coordination problems. Such rules have two fundamental
connected features. They are arbitrary and generally followed within a group.
Arbitrariness refers to the availability of more than one course of action. The choice to follow the conventional rule
depends precisely on that other people follow it as well. Such an account of social rules does not fit in with Hart’s RoR,
however. On the one hand, to define it as arbitrary is implausible unless one qualifies this arbitrariness as not implying
indifference to the rule’s rationale. On the other hand, reducing the rationale of a RoR to solving coordination
problems is improper. Although many primary legal rules do solve coordination problems (such as righthand drive),
secondary rules which deal with power arrangement have a broader and more complex scope. Indeed, their primary
function is to create the same social practice to which they refer. They belong to another class of conventions, called
constitutive conventions, whose usual token is the game’s rules, where the game exists only thanks to its rules. Even
though the reasons for following constitutive conventions may be more complex and varied than coordination
conventions, they share that they only exist if they are practised.
Most controversy arises around whether judges (and the general public) must abide by the RoR of a legal system.
Such a supposed obligation does not stem from any property of constitutive rules. So, the question should be answered
by resorting to other sources, such as ethics. Nonetheless, if we decide to play a game, we usually accept to play by the
rules. Otherwise, we do not play that game. When we deal with hugely more complex realms than games, such as law,
uniformity as a typical foundational character of conventional rules comes forward. After all, a social rule exists – for
historical rather than functionalist reasons – in the first place as a custom of people that follow it. If other people who
follow the rule – implicitly asking for conformity – is not a sufficient reason for action in a non-coordination
convention, it still puts pressure on the participants in the practice.
See A. Marmor, Social Conventions: From Language to Law (Princeton University Press, 2009).
32
A weak formulation of Hart’s acceptance, as officials’ acceptance alone, fails to account for the normative and
collective aspect of social norms according to M. Wilkinson, ‘Is Law Morally Risky? Alienation, Acceptance and Hart’s
Concept of Law’ (2010) 30 Oxford Journal of Legal Studies 441, 456, who pursues a stronger notion of acceptance as a
critical reflective attitude. It entails ‘an obligation on others’ and ‘involves understanding of law’s social aspect’ (original
emphasis).

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 Material Constitution and the Rule of Recognition 239

correspondingly more complex: the criteria for identifying the law are multiple. ‘They com-
monly include a written constitution, enactment by a legislature, and judicial precedents’.33
He distinguishes the RoR as ultimate – for it does not depend on the existence of any other
rule in the system – from the supremacy of one of the criteria to which the RoR refers over the
others. Thereby, there is a criterion that is ‘supreme’, for it points to those legal rules which
are not trumped by any other possible rule.34 Given that the RoR, as Hart explicitly states, is
usually unwritten, so the supreme criteria can be unwritten as well as written. Think of the
unwritten rule about ‘the authority of judicial precedents’ in the United Kingdom and United
States. If the material constitution amounts to the ‘ordering forces’ of a legal system, we
assume that the former coincides with the supreme criterion. For example, in the United
States, a supreme criterion is that constitutional amendments made in accordance with
Article V trump earlier constitutional provisions.35 Then, under the said assumption, the
RoR and the material constitution are not coextensive concepts. The material constitution is
the supreme criterion to which the RoR, as a social rule, points. The material constitution is
thus divested of some of its crucial features, such as a necessary arrangement of political
power and socio-economic relationships. However, the RoR can well incorporate purposive
norms. Hart famously states in the ‘Postscript’ ‘that in some systems of law, as in the United
States, the ultimate criteria of legal validity might explicitly incorporate besides pedigree,
principle of justice or substantive moral values, and these may form the content of legal,
constitutional restraints’.36 The ultimate difference between a legal positivist and
institutionalist approach to the material constitution is that the former considers the incorpor-
ation of purposive norms only contingent upon the specific social rules on which the legal
order is built. It still holds that the RoR is content independent, whereas, for the other
conception, a set of goals – unified around a political actor – is necessarily the generating
factor of the constitution.
The gist of our understanding of the relationship between the RoR and the material consti-
tution is that they are not coextensive. While the RoR points to those ‘external’ (to the legal
order) criteria that allow us to identify the law, the material constitution amounts to those
supreme rules (within the legal order) that make the legal order function. We acknowledge that
a fully-fledged notion of the material constitution is an endeavour of institutionalist accounts of
law. However, institutionalism cannot explain how organisations, facts, et similia count as law in
a group.
The above descriptive sketch of a possible legal positivist account of the material consti-
tution may appear a rarefied concept. The risk in these cases is to engage in dispute about
terminology. We think, though, that the idea of the material constitution, under the perspec-
tive of the RoR, still captures something valuable for making sense of the complex interplay
between written and unwritten rules in constitutional law practices. Moreover, a more robust
function of the material constitution within that frame can be grasped by shifting the discourse
from descriptive to normative grounds. Hence, in Section 16.4 we will conceptualise the
material constitution as a political construct rooted in people’s attitudes rather than factual
determinants.

33
Hart, Concept of Law, 101.
34
Ibid., 105.
35
S. J. Shapiro, ‘What is the Rule of Recognition (and Does It Exist)?’, in M. Adler and K. E. Himma (eds.), The Rule of
Recognition and the U.S. Constitution (Oxford University Press, 2009), 254.
36
Hart, Concept of Law, 247.

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 240 Francesco Bilancia and Stefano Civitarese Matteucci

16.4 FROM A DESCRIPTIVE TO A PRESCRIPTIVE ACCOUNT OF THE

MATERIAL CONSTITUTION

It is fitting to look back at the assumption that common sense and ordinary language are
foundational both of law and the RoR as determined by officials. Regarding the Constitution,
this linkage can be interpreted either in a weak or strong form. The weak form is that
identification and individuation of (the) law are necessary for determining a legal order.
Within this view, the Constitution is not usually part of this process, other than in a very shallow
sense, such as that a country has a republican or monarchic form.37 The strong form is that the
Constitution, as the fundamental rule about the exercise of political power, is part of the
common sense individuation of the law. The strong linkage between the individuation of the
law by laypeople and the existence of a constitutional order is what we call the normative core of
the constitution in a material sense. Although the strong form of linkage is hard to demonstrate
empirically, it seems reasonable to fathom that it exists in at least some contemporary jurisdic-
tions with a documentary constitution.38 However, we do not need to assume this linkage as
existent either. Our point is that a legal positivist should commit to a concept of law in which
people understand society’s fundamental constitutional structure as law. This requires articulat-
ing further the notion of rules’ acceptance.
As seen in Section 16.3, the technical operation of ‘determining’ the RoR is what officials do.
Nevertheless, the acceptance (individuation) of the RoR as a social rule pertains to ordinary
citizens too, ‘for, in the absence of general obedience, the legal system would not exist’.39
According to Michael Wilkinson, this acceptance must be of a strong (reflective) type for a legal
system to ‘flourish’ as a ‘legal system qua social order’. A legal system can exist under conditions
of unreflective acquiescence, but it causes alienation from its subjects.40 The archetypical form
of strong acceptance is found in modern constitutionalism, where ‘constitutional popularity’
(we, the people) is proclaimed ‘in the form of the implicit normative claims of a social order’.41
A consequence of the strong linkage between the individuation of the law by laypeople and
the existence of a constitutional order is that the material constitution is so thanks to a specific
normative legitimacy within a legal order. In what follows, we limit ourselves to probing this
scheme regarding the constitutionalisation of democratic principles.
The legitimacy of a given political order – and the socio-economic relations embedded in it –
is primarily a political, philosophical problem.42 We can formulate this problem too in terms of
an obligation, namely, why the commands of holders of a specific type of power should be
obeyed.43 Leaving aside any attempt to deal with a discussion that has been going on for
centuries, we presuppose that legitimate political authority cannot depend, particularly in
contemporary pluralistic societies, on the adherence to the specific goal of the state (or the

37
We owe this specification to the comments made by Mario Jori on a first draft of this chapter.
38
See note 12.
39
Wilkinson, ‘Is Law Morally Risky?’, 461
40
Ibid., 462.
41
Ibid., 461.
42
The principle that upholds a legal order is external to it, but it cannot dissolve into the mere legal order’s efficacy from
the internal point of view. Only a legitimising normative principle can ‘convince’ people to accept a normative order.
Furthermore, such an acceptance is fundamentally a political choice. U. Scarpelli, Cos’è il positivismo giuridico (ESI,
1997), 126–42, has provided, as far as we know, the best explanation of this point.
43
See N. Bobbio, Democracy and Dictatorship (University of Minnesota Press, 1989), 81. The kind of answer that a
conception of the material constitution à la Mortati would provide to such a question is that the justification of the
coercive power of the state resides in it being the bearer of political unity through unifying substantive goals.

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 Material Constitution and the Rule of Recognition 241

dominant parties), whatever that may be.44 Within a normative approach, contractarian concep-
tions, seeing the state founded on a common accord of all those who will henceforth be subject
to it, defend the cause of ascending as against descending power. In other words, the underlying
principle is that power moves from bottom to top and not vice versa: ‘in a word, it means
establishing democracy to counteract autocracy’.45
If one considers Weber’s descriptive approach to political legitimacy, one notes that legal
power stands at the opposite pole of charismatic power. According to Norberto Bobbio, this is
because the latter is the embodiment of the rule of men, the former of the rule of law.46 For
Weber, the belief in legality, ‘the compliance with enactments which are formally correct and
which have been made in the accustomed manner’, was the ‘most common form of legitim-
acy’.47 The legal-rational rule must entail a recognition mechanism dependent on compliance
with general valid rules enacted through legal institutionalised procedures to function as a
legitimating factor. This recognition is independent of the adherence to the rule content. In
conventional (social rules) terms, that recognition can be translated into a convergence (or
collective intentionality) on the legitimating role of legality and, namely, procedural legality.48
Along this line, we advance three correlated claims. First, that the ‘material constitution’, as a
legal artefact, can incorporate the principle of legitimacy based on the convergence on the belief
in procedural legality; second, that the same principle has been incorporated, historically, in
many an individual legal order; third, that, thereby, the material constitution is a legitimising
factor of political authority.49 In normative parlance, an account of the material constitution
should be based as much as possible on procedural grounds rather than substantive goals.
Political struggle is not a matter of legal battles in court. This is not to deny that political
principles penetrate the constitution,50 but their legitimacy depends primarily on procedural
devices.51
In this guise, the material constitution – that can include and often includes purposive
norms – must necessarily set the organising principles about political authority. In turn, a
normative commitment toward democracy rather than the assumption of political dominance
can (and ought to) be part of it. After all, ‘what is democracy other than a set of rules (the so-
called rules of the game) for the solution of conflicts without bloodshed? Furthermore, what
constitutes good democratic government if not rigorous respect for these rules?’52 Thereby, an
active normative attitude toward democracy and the rule of law demands cultivating a shared

44
A different matter is that the ‘constitutional order’ can incorporate values, such as equality, justice and dignity that
‘operate irrespective of the political forces that alternate each other at government, and which correspond to
widespread values within the same civil society’: A. Barbera, ‘Ordinamento costituzionale e carte costituzionali’
(2010) 30 Quaderni costituzionali 319.
45
N. Bobbio, The Future of Democracy: A Defence of the Rules of the Game (University of Minnesota Press, 1987), 133.
46
Ibid., 155.
47
M. Weber, Economy and Society [1922] (University of California Press, 1978), 37.
48
In this regard, what Wilkinson, ‘Is Law Morally Risky?’, 465, observes regarding ‘input legitimacy’ as the level of
engagement with the ‘authority structure’ is apposite: ‘This involves consideration of the manner in which our norms
are constructed, interpreted and applied rather than their substantive results alone. It means that we need to consider
the system that is responsible for our norms as a whole.’
49
According to Weber, Economy and Society, 217, legitimacy is a condition for validity.
50
G. Ferrara, La Costituzione. Dal pensiero politico alla norma giuridica (Feltrinelli, 2006), 242 ss. – one of the most
fervent advocates of a normative, counterfactual role of the Constitution – thought there is an overarching political
principle that the Constitution sets to law.
51
It should be added that the discourses of jurists and scholars contribute to shape the common sense understanding of
the law. A posture inclined to favour the primacy of a ‘material’ constitution based on democracy and deliberation
contributes to make the constitution evolve toward it or maintain it.
52
Bobbio, Future of Democracy, 156.

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 242 Francesco Bilancia and Stefano Civitarese Matteucci

belief in the Constitution’s authority and the value of deliberative democracy. The latter, of
course, is not a requirement of every conceivable ‘order’. Instead, it is the insertion of a material
supreme (constitutional) rule within the fabric of the legal system.
It is fitting to spell out in some more detail the relationship between the rule of law and the
democratic principle to articulate the kernel of the material constitution in a democratic society.
The most fundamental procedural mechanism to let every citizen participate in the governing
system and being heard is the right to vote. And particularly to deliberate. In a way, deliberative
rules are even more fundamental than the right to elect people’s representatives because they
regard how to make collective decisions in the interest of everyone, irrespective of whether
applied in a representative or direct democratic system. It is radically different from the ‘market
model’ of democracy as the former does not utilise ‘voting only in a context of ongoing
deliberation in which preferences are taken as given, fixed inputs, but change and develop in
the process of seeking agreement’.53 Indeed, a discussion usually occurs over the relevant
processes; parties and groups introduce and debate different proposals to influence each other
about a course of action. Through bargaining, such players may get to compromise. This
mechanism is a crucial legitimising factor, for, in a democratic system, the most basic cog is
the majority rule.54 Without such a set of rules that all the players must respect, democracy is
lame. Gianni Ferrara thus used to define voting rules as the most important triggers of consti-
tutional agency.55
Some other conditions are necessary for the system to work, once again relating to the attitude
(acceptance) toward the rules of the game. While participating in the voting procedure,
everyone ought to acknowledge the authority of the outcome, irrespective of one’s personal
interest and goal. Correlative to this commitment is the mutual trust in the legality and fairness
of the deliberating process, whose outcome is accepted irrespective of the decision’s content.
Given the inescapability of the majority rule, the most notable feature of a democratic system
is the effective and concrete opportunity for minorities and idiosyncratic positions to be involved
in the decision-making process. This is a matter of genuine concern that can affect consti-
tutional ordering and the constitution in a material sense. The failure to recognise the game’s
rules by the said groups and the community may lead to the fall of the political system’s
legitimacy. When, therefore, democratic legality collapses as the ruling principle, in other
words, if the society at large gets detached from the rule of recognition as shared by the
officials,56 then a breakdown may occur that tampers the ‘external statement of fact that a legal
system exists’.57 One can detect such a situation when sizeable societal sectors continuously look
for alternative means of reaction and polemic participation. Revolutionary events are possible
outcomes. An example of potential threats to the material ordering of democratic power through
the rule of law is to be found in contemporary populist movements.

16.5 THE FORMAL CONSTITUTION ENTRENCHES THE MATERIAL

As noted in Section 16.3, the material ordering factors that constitute the Constitution’s kernel
become truly ‘constitutional’ through their entrenchment into the documentary (formal)

53
T. Campbell, Prescriptive Legal Positivism: Law Rights and Democracy (UCL Press, 2004), 259.
54
Bobbio, Future of Democracy, 63.
55
G. Ferrara, Gli atti costituzionali (Giappichelli, 2000), 5.
56
Hart, Concept of Law, 118, who envisages the case that ‘there is no longer general obedience to the rule which are
valid according to the criteria of validity in use in the courts’.
57
Ibid.

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 Material Constitution and the Rule of Recognition 243

constitution. The material constitution is indeed strengthened and stabilised by becoming

public and potentially enforceable. This tenet is consistent with the framework sketched in
Section 16.4. A highly ranked written document is ordinarily necessary for having a (formal)
constitution. However, it does not suffice. The documentary constitution must have codified the
constitutional order. In other words, sufficient social pressure (collective acceptance) on the
criteria of which the RoR consists is necessary. Conversely, without such a codification, the
material constitution cannot acquire those characters of certainty and stability beside limitations
on the holders of the highest powers of government, which are typical of law in modern
societies. When the phenomenon of strengthening the material constitution by the formal does
not occur, we could speak of ‘non-constitutionalist or minimally constitutionalist
constitutions . . . made for ideological reasons and sometimes primarily for external
consumption’.58
However, if the material constitution has normative traction, one must be able to build
normative propositions upon it. This area regards the practical (judicial) application of the
material constitution. We enter this area when a conflict between the material and the
documentary constitution arises. In other words, we face the disputed issue of
constitutional change.
Recent theorists of the material constitution tend to use it as an ‘analytical tool’ to capture
‘constitutional reality when the form of the constitution is deceptive’.59 We can easily translate
this language into a normative one. For example, Kelsen argued that dictatorship rather than
democracy was the Soviet Union’s form of government according to the ‘real constitution’ as
against the letter of the 1936 Constitution.60
Along the spectrum, one meets the vexed and unresolved dispute concerning constitutional
continuity and amendments. One implication of the theory is that the material constitution
embodies the non-amendable core of the constitution. Namely, it is immune to changes
enacted through the procedure appositely laid down in the constitutional text. In Italy, for
example, with decision n. 1146 of 1988, the Constitutional Court has set up a doctrine of
unwritten limits to constitutional amendments.61 It has done so by a non-originalist interpret-
ation of article 139 of the Constitution, which prohibits changing the republican form of the
state. The Court ruled that, besides the latter written limit, principles that belong to the ‘core of
the supreme values’ on which the Italian Constitution is founded cannot be subject to the
amendment process. The Court did not say what such principles are. Since the judgement
revolved around equality, equality must be among them. Afterward, part of the literature has
interpreted this doctrine as ruling that the republican form must contain some material elements
that found the community’s political structure, such as democracy, equality, freedom, whereby
substantive norms can trump (formal) secondary rules of change and bind political power.
Moreover, the Court can use these supreme constitutional principles to strike down legisla-
tion if they find the latter in conflict with the former. We limit ourselves to noting that, within
the frame of a democratic material constitution, such a very sensitive issue requires much

58
A. Arato, The Adventures of the Constituent Power: Beyond Revolutions? (Cambridge University Press, 2017), 6.
59
Goldoni, ‘Material Constitution’.
60
H. Kelsen, The Political Theory of Bolshevism: A Critical Analysis (University of California Press, 1948), 52.
61
R. Albert, Constitutional Amendments: Making, Breaking, and Changing Constitutions (Oxford University Press,
2019), 151, defines this practice ‘the basic structure doctrine’ as an instance of ‘interpretive unamendability’. He traces
this doctrine to various cases decided by the Supreme Court of India, then followed by the Constitutional Courts of
Colombia and Taiwan. The comparative constitutional law literature has vastly discussed such cases, while the Italian
case is almost entirely neglected.

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 244 Francesco Bilancia and Stefano Civitarese Matteucci

self-restraint when establishing the non-amendable core. For example, the Constitution’s text
should always be the starting point and the frame to look for such unamendable core principles,
the first of which is democracy itself.
This point borders the equally busy battleground of constitutional interpretation. Should the
courts use the material constitution as an interpretive argument to decide hard cases, in other
words, balance constitutional goals, principles, and rights? Most constitutional norms are vague
and they often provide only weak guidance for ruling institutions and judges. Under contem-
porary constitutional settlements, the many tensions that suffuse pluralistic societies cannot be
solved once and for all by an authoritative text. However, the temptation to think that the ‘study’
of the material constitution can ordinarily illuminate something more profound than the
codified constitution must be treated cautiously. An analytical, apparently detached approach
can quickly turn into subjective – unchallenged – normative claims. Such a subjectivism overtly
runs against an account of the RoR, pointing to a shared belief in democracy as the
ruling principle.
From the perspective of political (or critical) legal positivism,62 the most crucial precept
regarding the use of ‘facts’ as interpretive devices is a commitment toward a weak form of
objectivity amounting to intersubjectivity. The latter entails a theory of discretion based on the
awareness about the inevitable exercise of power whenever a general directive is to apply.63 The
only antidote to such a situation is a form of sincerity. The commitment not to hide one’s
choices behind ‘facts’ or ‘objective values’.64 This is why a political-legal positivist, on the one
hand, prefers that the constitutional ordering factors are spelt out as much as possible in the
codified Constitution; on the other hand, she recommends that, in applying the law, officials try
to understand what the law means in the first place. Nonetheless, she is aware that often the
outcome is not the result of the legal provision only – as every official claims. Their beliefs,
opinions and interests influence the upshot.
Finally, a political-legal positivist is wary of judicial activism. A master rule based on democ-
racy, primarily expressed in deliberative processes, tends to defer to judicial discretion only as a
last resort means when legislative institutions fail to reach any agreement. It is manifest that, by
coupling principles with expectations about rights, contemporary constitutions confer resolution
powers to the courts, particularly when legislators remain silent. Nonetheless, too much judicial
power may be another clue of a breakdown of the RoR having the outline presented here.
The operation we have tried in this chapter is, above all, conceptual cleanliness about the
relationship between the RoR and the material constitution. While the RoR concerns the
ultimate criteria to identify the law, we can term as material constitution those of such criteria
(rules) that are supreme within a legal order. By understanding, instead, the material consti-
tution as the ‘original constitution’, an independent source stemming from institutional facts to
derive the legal order, one cannot explain how such facts count as law for a social group. Albeit
downsized, this notion of the material constitution as a facet of the RoR remains helpful in
illuminating the complex interplay between written and unwritten constitutional rules.
Moreover, by adhering to the idea of the internal statement about the existence of the law as
critical acceptance by ordinary citizens (not only officials) – as opposed to detecting objective
ordering forces – we have sketched the contours of a material constitution based on a normative

62
Campbell, Prescriptive Legal Positivism; Scarpelli, Cos’è il positivismo giuridico, 151–57.
63
Jori, Il diritto inesistente, 120–21.
64
It is plausible to argue that political legal positivism requires the adherence to a non-cognitivist ethics. See R. M. Hare,
The Language of Morals (Clarendon Press, 1952).

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 Material Constitution and the Rule of Recognition 245

political conception of the RoR. The normative presupposition of such a conception is a strong
linkage between the individuation/acceptance of the law by laypeople and the existence of a
given constitutional order. A consequence of such a strong linkage is that the material consti-
tution, as a legal notion, is so thanks to a specific normative legitimacy within a legal order
(again, not any factual determinants). In our view, in pluralistic contemporary societies, such
legitimacy hinges fundamentally on democratic/procedural principles rather than substantive
goals.

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 17

Constitutional Matter and Form

An Exploration of Constitutional Language

Denis Baranger

The ambition of what follows is exclusively to clarify the meaning of two words in the context of
constitutional law: ‘matter’ and ‘form’. This inquiry should, we believe, be conducted before
passing judgement (or taking sides) on the controversy between supporters of a material consti-
tution and ‘formalists’ who take the view that the constitution resides only in positive legal
sources. Our intuition (and starting point here) is that the vocabulary of matter and form brings
about serious theoretical difficulties per se. A conceptual enquiry is therefore in order.
In legal parlance, a ‘form’ refers to ‘any action or manner of proceeding which presides to the
making of a legal act (contract, will, judgment, decision, . . .)’ and is strongly related to a theory
of the formation of law through acts of volition. The word ‘form’ is connected to several cognate
terms such as ‘formality’. Formalism, in turn, appears to refer to the ‘tendency (. . .) to multiply
formalities during the making of the act’.1 Legal forms give rise not only to such procedures and
constraints but also to a mode of reasoning, also called ‘formalism’.2 A formal reason is ‘a legally
authoritative reason on which judges and others are empowered or required to make a decision’
as there appears to be ‘a valid legal rule’.3 A substantive reason, conversely, points to ‘a moral,
economic, political, institutional, or other social consideration’ that comes into play at different
moments in the life of the law, but particularly in its formative period. They ‘serve as the primary
ingredients of most constitution, statutes, precedents, . . .’.4
Form and substance are frequently united in such a conceptual couple. The alliance of ‘form’
with (or disjunction from) ‘matter’ is less frequent in modern law. Yet it appears in the idea of a
‘material’ constitution. The idea of a material constitution has found its way into constitutional
law for at least two reasons. The first reason consists in the absence of coincidence between the
scope of the rules of the formal or written constitution and the wider field of constitutional rules.
This lack of coincidence may be rejected dogmatically by those who consider that the only
existing constitutional rules are those to be found in the formal constitution. This view generally
coexists with the position according to which there is no specific constitutional matter: any norm
in the constitution is constitutional. What is or is not constitutional is not defined by a certain

1
I translate freely from G. Cornu, Vocabulaire Juridique (Presse Universitaire de France, 1997), 395.
2
Most of the discussions about ‘formalism’ in contemporary legal theory point to a wider concept of formalism as
adherence to literal meaning in the course of legal interpretation. See F. Schauer, ‘Formalism’ (1988) 97 Yale Law
Journal 509. We will not refer to this sense of formalism here.
3
P. S. Atiyah and R. Summers, Form and Substance in Anglo-American Law: A Comparative Study of Legal Reasoning,
Legal Theory and Legal Institutions (Clarendon Press, 1989), 2.
4
Ibid., 5.

246

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 Constitutional Matter and Form 247

content, but by the form of its enactment, that is, the constitutional form. Yet this claim clashes
with a great deal of empirical evidence. In France, the formal constitution has long ceased to be
the only repository of constitutional norms. Since at least 19715 the French Constitutional
Council (our constitutional court) takes the view that the constitutional norms against which
it assesses the compatibility of statutes stretch beyond the formal constitution and extend to the
Declaration of the rights of man and citizen (1789), the Preamble to the 1946 Constitution and,
since 2005, the ‘Environment Charter’. In the United Kingdom, where there is no formal
constitution because of the principle of the sovereignty of Parliament, case law has identified
a body of ‘constitutional statutes’.6 In the United States, it is widely acknowledged that certain
‘superstatutes’, such as the Administrative Procedure Act (1946),7 contain quasi-constitutional
rules. There are many more borderline cases of this kind, as we shall see.
Second, the idea of a material constitution also comes into play for doctrinal reasons. Some
authors will define the constitution by a specific content or ‘matter’. This is emphatically the
case of the main proponent of the idea, the Italian jurist Costantino Mortati.8 The purpose
becomes to demonstrate that the constitution is not contained – or even defined – by a certain
enactment, but in a certain set of concepts and subject-matter. Despite the variety of approaches
and their relative lack of clarity – for instance the identification of ‘matter’ with ‘content’ is far
from self-evident – the idea of a material constitution is based on the notion that the formal
conception is insufficient and possibly a denaturation. Asserting the material constitution as the
‘real’ or ‘proper’ one raises questions of its own. The formal dimension of constitutional law is
hard to ignore. The very project of constitutionalism has a formal dimension attached to it.
Written constitutions – and even to a large extent unwritten ones – are by definition set into
form, formulas, formalism(s) and formalities. Thinking in terms of a constitutional matter runs
the risk of promoting the archaic vision in which matter is equated with disorder, chaos and
potentially – as in neoplatonism – evil. This may help us understand why the idea of a material
constitution is often the object of outright rejection. Law as such is supposed to be form and
form is supposed to bring orderliness (and therefore goodness) to politics. In French orthodox
constitutional doctrine, from Georges Vedel to Louis Favoreu, this is how law is always opposed
to politics as form is opposed to substance.

17.1 THE UNDETERMINED PROVINCE OF CONSTITUTIONAL LAW

17.1.1 Normativism and the Rejection of the Material Definition

From the viewpoint of a formalist, constitutional law cannot be conceived materially. To take
Kelsen’s normativist point of view, the so-called material unconstitutionality will ultimately boil
down to a formal unconstitutionality, as a so-called unconstitutional law would become consti-
tutional if it were enacted in the constitutional form (a new rigid constitution or a valid
constitutional amendment).9 This approach is not illogical. The formal argument against the
material constitution is always formally correct, in the sense that it always prevails where formal
reasons are held to be conclusive. You can’t beat the argument that the constituent power can

5
Decision n 71-44 DC of 16 July 1971 ‘Liberté d’association’.
6
Thoburn v. Sunderland City Council [2003] QB 151; [2002] 3 WLR 247.
7
11 June 1946, chap. 234, 60 stat. 237. Cf. W. N. Eskridge and P. Frickey, ‘Quasi-Constitutional Law: Clear Statement
Rules as Constitutional Lawmaking’ (1992) 45 Vanderbilt Law Review 593.
8
C. Mortati, La Costituzione in senso Materiale (Giuffré Editore, 1998).
9
H. Kelsen, ‘la garantie constitutionnelle de la Constitution’ (1928) 45 Revue de droit public 206.

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 248 Denis Baranger

validly incorporate or set aside any given legal proposition in the entrenched constitution. And
the same can be said of the amending power if it follows the proper amending procedure. As a
result, whatever content is (or not) embodied in the validly enacted constitution will be held to
prevail and, conversely, any ‘constitutional material’ lacking a proper pedigree will be cast aside.
Yet – as is often the case with Kelsen – it amounts to a reconfiguration of the existing positive
material. What positive law views de prima facie as a certain ‘matter’ (distinguishable from the
mere legal form of enactment) is requalified as boiling down to a mere question of procedure.
This reconfiguration seems to ignore the fact that law requires a great deal of substantive
reasoning and also that different subject-matter involves different formal treatments. For
instance, the case could be made that human rights are norms of an entirely different kind
than, say, rules of legislative procedure. In that case, a different matter or substance requires a
different legal formalism. Human rights law arguably requires much more complex modes of
legal reasoning than simply the question of an adequate enactment procedure.
The formalist view of the constitution reduces the constitution to a norm whose only
specificity is its normativity. Yet the causation has in fact to be reversed. The normativity of
the constitution as ‘supreme’ or ‘higher’ law is only a result of its specific nature and function.
The specificity of the constitution is found in its relationship with politics. The forms and modes
of reasoning that obtain in constitutional law are not identical to other forms and modes of
reasoning extant in other branches of the law. One of the weaknesses of formalism so understood
is that it overlooks the peculiar formal characters of the positive constitution. Ignorance of the
substantive content of the constitution leads to a lack of understanding of its forms. Formalism
thus fails to explain constitutional forms.
Conversely, the strategy that purports to separate ‘matter’ from form in constitutional law has
difficulties of its own. It might be that constitutional content can be severed from form. This idea
has been defended in particular by Carl Schmitt, for whom the actual constitution is the
constitutional decision about the political form of the state, while the constitutional act or
‘formal constitution’ is only a manner to bring into application this decision. As a result, for
Schmitt, the content of the constitutional enactment can be merely fortuitous. This is for
instance the case, says Schmitt, of the (temporary) prohibition of alcohol by the eighteenth
amendment to the Constitution of the United States (1917–19, repealed in 1933). Schmitt also
draws attention to the variety of ‘eclectic clauses’ contained in the second part of the German
Constitution of 1919 (‘Weimar Constitution’).10 These ‘fortuitous’ clauses had only been
entrenched in order to shield them from changes by way of ordinary legislation. ‘Without a
written constitution as a stabilizing force, there is a risk that (issues needing settlement) will
remain excessively uncertain’.11
This interpretation runs up against two difficulties. First, any constitutional clause can be of
significance, despite its apparently trivial nature. The struggle against alcoholism could appear as
a policy goal or a higher moral value as legitimate as any other. The same thing could be said
about the decision to amend the French Third Republic constitution in 1926 in order to
enshrine the independence of the State’s debt repayment fund (Caisse d’amortissement de la
dette publique). Serious reasons of general interest – such as stabilising public finances – could
be adduced for this amendment. Closer to us, it was understandable that the 1997 Constitution

10
C. Schmitt, ‘Das Reichsgericht als Hüter der Verfassung’ (1929). I quote from the French translation: Le Tribunal du
Reich comme Gardien de la Constitution (Dalloz, 2017), 72.
11
F. Schauer and L. Alexander, ‘On Extrajudicial Constitutional Interpretation’ (1997) 110 Harvard Law Review 1359,
1376.

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 Constitutional Matter and Form 249

of the post-apartheid Republic of South Africa12 should contain extremely detailed provisions
about arbitrary arrest which ‘resemble a detailed code of criminal procedure’.13 The incorpor-
ation of large chunks of criminal law into the Constitution was explained by the recourse of the
Apartheid regime to arbitrary arrests in the recent past.

17.1.2 Borderline Cases

Ideally, all constitutional matter should be contained in the formal constitution. The perfect
constitution, to be, as philosophers would have it, ‘in keeping with its concept’ (conforme à son
concept) should achieve this perfect fit. For many reasons, it does not. In contemporary consti-
tutional law ‘a norm can be constitutionalized in several ways, its inclusion in the “Big C”
constitution [ie the entrenched constitution] being only one of them. Other methods include
judicial interpretation, quasi-constitutional statutes, and constitutional conventions.’14 The same
disjunction between form and matter is also caused by the developing role of international law.
There is a growing sense that international law, especially treaties, contain norms of a ‘constitu-
tionally’ relevant nature. To be convinced that this is the case, it would be enough to point to the
number of constitutional revisions that took place in Europe – and notably in France – to enable
the ratification of certain major international treaties.
This distribution of legal material between several sources is neither stable nor final. Clauses,
types of rules or entire subject-matters are moving to and from between the written constitution
and other formal sources. As a result, at certain key moments in constitutional history, certain
matters are ‘constitutionalised’ or ‘de-constitutionalised’. A certain subject-matter is incorporated
into the formal constitution or conversely it is set aside from it. In the case of ‘de-constitutiona-
lisation’ the ‘receiving’ source (or so to speak) consists mostly in legislation. This nearly constant
process of constitutional content moving between different sources is apparent in the transform-
ation of the French law of legislative delegation during the Third (1875–1940) and the Fourth
(1946–58) French Republics. An increasing number of Third Republic parliamentary statutes
delegated regulatory competences to the executive. There has been a long debate about whether
it was the statutory competence that was delegated as such or the subject-matter (a certain scope)
itself. The second solution has been generally held as correct, as Parliament was, since 1946,
barred by article 13 of the Constitution from delegating legislative power. Moreover, the
regulations made on the basis of such delegations were subject to judicial review by French
administrative courts and thus retained the nature of executive regulations, not of legislative acts.
In any case, this mechanism was thus raised by case law to the level of a constitutional principle.
It was declared constitutional, under certain restrictions, by the Council of State in an advisory
statement of 6 February 1953.15 This statement about the law as it then stood acknowledged that
certain subject-matters were ‘legislative by nature’ and thus could not be delegated to the
executive rulemaking power. This distribution of ‘subject-matters’ as such was ultimately
incorporated into the written Constitution in 1958. It is now governed by article 34 (legislative
subject-matters) and article 37 (‘residual’ regulatory subject-matters). Article 38 of the
Constitution now regulates a mechanism of ‘ordinances’ (delegated or secondary legislation
by way of executive orders).

12
SA Act n 200.
13
Ibid., p. 1376, fn. n 73.
14
T. Khaitan, ‘Balancing Accountability and Effectiveness: A Case for Moderated Parliamentarism’ (2021) 7 Canadian
Journal of Comparative and Contemporary Law 81.
15
N 260.497.

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 250 Denis Baranger

In other cases, certain subject-matters are shared between the constitution and other legal
sources. In France, the law of elections – which appears to deal with a core constitutional
problem, that of political representation – is split between statutes, administrative regulations
and a few very general constitutional clauses. Another striking example is parliamentary law. It
used to be practically the monopoly of each House’s Standing Order. Since 1958, however, the
Constitution has incorporated many rules regarding the legislative process, with a view to tipping
the balance of power in favour of the executive. This type of constitutional drafting has been
called ‘rationalised parliamentarism’. What used to be the province of the standing order is now
regulated by the formal constitution. This also results in a normative change. The standing
orders are held to be of inferior normative force than the formal constitution. Article 61-1 of the
1958 Constitution subjects any amendment to these standing orders to a mandatory judicial
review by the Conseil constitutionnel. While the subject-matter has been transferred, its content
has also radically been altered. The new procedures incorporated in the Constitution strictly
limit the freedom of the Houses of Parliament.
Conversely, the formal constitution does not always suffice to cover the entire span of
constitutional topics. This was emphatically the case with the three constitutional statutes of
1875 in France. Their material paucity was often bemoaned by contemporaries. Raymond Carré
de Malberg, a major public lawyer of the time, called it ‘too short to be rigid’. It only contained
‘procedural rules, with no interest for litigation by private parties’. Nowhere did it provide ‘a
substantive content with regard to individual rights’.16 As a result, the formal constitution had to
be supplemented in several ways. Key articles of the Declaration of 1789, itself not a part of
positive law, were thus informally incorporated into judicial review of administrative action by
way of unwritten ‘general principles of law’.17 This often raised a discussion about the consti-
tutional or sometimes ‘supraconstitutional’ nature of the Declaration of 1789.

17.2 POLITICAL MATTER AND LEGAL FORM

17.2.1 Politics as the Matter of Constitutional Law

The matter of constitutional law is politics. The form of constitutional law is law. Politics,
however, is the exact contrary of an inert material. It reflects the constant self-concern and self-
moulding of society. We face the same difficulties defining politics as when it comes to defining
society: ‘there is not a single phenomenon of the social’18 and neither is there a single
phenomenon of the political. We tend to see ‘society’ and ‘politics’ as shapeless and formless,
because ‘politics’ and ‘society’ refer to an infinite variety of processes nevertheless building a
whole. As a result, politics is not a mere set of facts or events that law can frame. Politics, for one
thing, is an intrinsically normative process. It generates evaluations of different kinds: moral ones
(this is good or bad) as well as intrinsically political ones (we want this collectively; we reject this
collectively). This intrinsically normative nature of politics bridges a gap between politics and
law. Politics cannot be just a raw material that law takes hold of and gives shape to. Politics is a
relatively autonomous and creative form of social activity. So is law. Both politics and law, as

16
The Commissaire du Gouvernement Latournerie in his pre-judgement brief (conclusions) on the ‘Arrighi and Dame
Coudert’ cases, Sirey, 1936. 3. This was a landmark case in which the Conseil d’Etat refused to act as a
constitutional court.
17
That was especially the case of the principle of equality.
18
P. Kahn, Origins of Order: Project and System in American Legal Imagination (Yale University Press, 2019) 183.

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 Constitutional Matter and Form 251

social processes, create themselves and build up outer social realities. This reciprocal
autonomy generates complex interactions in which law shapes politics as much as politics gives
birth to law.

17.2.2 Law as the Form of the Constitution

Constitutional law is a relatively autonomous branch of the law. Its forms, while drawn from the
general body of legal forms, are nevertheless attuned to politics. The word ‘form’ should not
mislead us here. Law is not only made of forms. The elaborate legal theories at play in any given
legal system make room for another dichotomy between law and substance or substantive
reasons19. Yet the very substance of law is conveyed through forms. When law comes up in a
substantive fashion, it must be clothed in a legal form (a precedent, a statute, a constitutional
amendment, . . .). The discussion is therefore made somehow murkier by the fact that, in this
process, legal substance is as relevant as legal form. Speaking of a ‘material constitution’
therefore muddles the issue as, first, the true matter of the constitution is politics and, second,
constitutional law deals with politics by way of both its form and its substance.
What we know today as constitutional law is merely one of the last major attempts of law to
hold sway over politics. Constitutional law is the child of several ‘formative’ projects defined by a
certain vision of the mutual arrangement of law and politics. One such important formal project
is the institutional approach to the constitution, as expressed classically by Montesquieu. The
constitution is a ’disposition of things‘, an institutional framework rather than a set of norms. Yet,
because it shapes politics and guides behaviours, there is no reason not to call it legal. It
generates institutions which, in turn, generate legal norms, although this was not the vocabulary
Montesquieu would have used. Modern constitutionalism insisted on the written form as central
to its own political project. Yet it was not born at the precise date when the Philadelphia draft
was ratified by the newly independent American states or when the French National Assembly
put together (in a rather piecemeal fashion) the Constitution of 1791. Constitutional law
emerged through the numerous historical processes in which political power has been envisaged
by law. As we have tried to show elsewhere,20 constitutional law begins where a certain approach
to power becomes embedded into law. We have called this approach the ‘syllogism of liberty’
and it consists in a logical pattern which is the same in the early English Charters of liberty, the
great English cases of the seventeenth century (Five knights Case21) and eighteenth century
(Entick v. Carrington22). It was then replicated, with some evident modifications, into the
American Constitution. This logical structure can be summarised in this way: a wrongful
infringement of liberty has taken place; this calls for the affirmation (or reaffirmation) of certain
propositions of law; finally, a remedy is granted. What is important here is that raw political
power is approached by way of a fact pattern, an apprehension of power as simply taking place
and being potentially conducive to abuses. Constitutional law then appears in the form of a set
of remedies against such abuses. Yet in the same tradition, abuse of power is viewed not only
through the lens of harm caused to the subjects, but also as the violation of a pre-existing legal
ordering. Whether this is mythical or not is irrelevant. What counts is that the form–matter
relation is productive of power as well as curative of its abuses. Power is generated by public law

19
Atiyah and Summers, Form and Substance.
20
D. Baranger, ‘Law, Liberty and Entick v Carrington’, in A. Tomkins and P. Scott (eds.), Entick v Carrington. 250 Years
of the Rule of Law (Hart Publishing, 2015), 185–206.
21
(1627) 3 How St Tr 1.
22
[1765] 95 ER 807.

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 252 Denis Baranger

as well as it is caught in the toils of the law.23 The English and American – and to a lesser extent
French – Revolutions are based on this pattern. The syllogism of liberty is apparent on the face
of the 1628 Petition of Right, the 1689 Bill of Rights, and the 1776 Declaration of Independence,
to quote just those major constitutional documents. They all stood as the background and
foundation for a new constitutional settlement.
The syllogism of liberty is only one of the possible relationships between legal form and
political matter. Law is the prominent form of institutionalised politics. It mediates our access to
politics. We acquire no intelligibility of political matter outside legal and institutional forms and
formats. Constitutional law aims at conferring legal forms on political activity. There has evolved
a specific body of constitutional legal forms (entrenched constitutions, amendment procedures,
modes of constituent power, constitutional judicial review, . . .). However, law as such – a
concept and also a catalogue of forms, formulas, formalities, . . . – stays in the background as a
resource for new developments. In that case, it is not easy to distinguish the concept of form
from other cognate notions. Law itself is held to be the mould into which power and more
generally political activity has to fit. But it should be noted that law as such is a form of a very
elusive kind. Any attempt at restricting law to ‘pedigreeable’ sources24 will prove unable to
capture the broader dynamics of legal reasoning. The Constitution is never fully self-contained.
It is immersed in the larger body of the law. This is the obvious conclusion which one can draw
from the understanding of the British Constitution as a ‘common law constitution’. The same
thing is true, however, about written constitutions. The interpretation of their relatively vague
words will require an enquiry into other aspects of the law. A member of the first Supreme Court
had proudly said that ‘the constitution would be the only fountain from which [he] draw[s]’.
One of his nineteenth century successors would instead refer to the common law – a ‘fountain of
justice’ – as a guide to the interpretation of the fourteenth amendment.25

17.3 THE DYNAMICS OF MATTER AND FORM

17.3.1 Constituent Power

There is a tendency for the constitution to become increasingly legalised and for legal formats to
become more specific when they come into contact with the phenomenon of political power.
This distinctiveness of constitutional forms is a topic far too wide to be covered here. Yet one can
suggest that all constitutional forms can be reduced to certain patterns. Constituent power is the
first such mode under which legal form and political matter are articulated. The political
‘matter’ consists of a certain community (generally called a society) which is the locus of a
certain ongoing political activity and to which certain political intentions can be ascribed. This
is more or less the raw material with which the constituent power will set out to work.
Constituent power is the name (and the form) attributed to this political art of making and
unmaking constitutions. This art takes an ‘artist’. In seventeenth-century parlance, this person is
the ‘artificer’. The word evokes an individual at work (or artifex) and the offspring of his
undertaking (the artifice). It also evokes a certain competence, or ability, to mould the materials
into an adequate form: an art. This art is also generative: pre-existing matter has been moulded
into, or possibly inserted into, a certain form. Contrary to the claims of the founding fathers of

23
This is one of the core ideas of M. Loughlin’s Foundations of Public Law (Oxford University Press, 2010).
24
The word has been coined by Frederick Schauer; Schauer, ’Formalism’ (‘pedigreeability’).
25
Hurtado v. California, 110 US 516 (1884) (per Matthews J).

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 Constitutional Matter and Form 253

constitutionalism – notably Sieyès – constituent power is not inherently devoid of form. A new
constitutional order is frequently set up before the definitive constitutional enactment. Yet those
provisional or temporary enactments – or pre-constitutions – bear many resemblances with an
actual constitution. They often take the form of a fully-fledged constitutional statute which
could be applicable indefinitely were it not for the ‘definitive’ constitution to come into force.
This was the case, for instance, of the French ‘small constitution’ (petite constitution) of
2 November 1945. Other such pre-constitutions, such as the statute of 3 June 1958, do not aim
at setting up governmental powers. Yet the content of the statute of 3 June 1958 is indisputably
constitutional. First, it sets up the procedure for the enactment of the new constitution. Second,
it establishes several substantive principles that the Constitution has to respect (representative
nature of government, political accountability, separation of powers, . . .). If anything, the statute
of 3 June 1958 would have had to be seen, by a rigid legal logician, as supra-constitutional, as it
was supposed to be obeyed by the constituent power. But in any case, whatever its normative
value – which is secondary in that case – it is evidently constitutional.

17.3.2 The Constitution and Social Change

Formalism can only provide a very basic, unsophisticated, account of constitutional activity.
Restricting oneself to this formal recording amounts more or less to referring to a mere
accounting book in order to get acquainted with the actual functioning of a business undertak-
ing. Formally, the items that can be recorded in the legal equivalent to such an accounting book
are very limited indeed: norms are made and unmade, become valid or invalid. Some are
enacted, maybe even entrenched. Then, in the course of judicial review, the validity of these
norms can be controlled. This can result in these norms being discarded or set aside. The
accounting book only records the coming and going of the merchandise, not its content. This
cannot be satisfactory. As a matter of fact, this accounts for the systematically self-defeating
nature of formalistic accounts of constitutional law: they never remain formal. At one moment
or another they have to incorporate some material content.
Conversely, one could at least hope that the material constitution would provide an under-
standing of the dynamics of constitutional law in terms of its relationships with a living social
fabric. The original constitution is generally set in a specific historic and social context, not to
mention its economic infrastructure.26 The politics of a certain era provide certain ideas,
representations, prejudices about the scope of state intervention, the desirable social and moral
arrangements, etc. Constituent power results not so much in a ‘pre-commitment’ to these values,
ideas or representations, as in an original setting for institutionalised political activity. The main
quality of the setting is its relative stability and ability to adjust to ‘people of fundamentally
differing views’.27 The dismissive view of politics often held by lawyers has no other cause. The
prejudices of lawyers against politics could be expressed as follows: law is objective and settled
once and for all; politics is stained by interests and power-grabbing, as well as unstable. None of
these prejudices stand up to scrutiny. Politics involves the formulation of higher, relatively stable
principles. Conversely, law is neither inherently neutral, nor inherently stable or capable of
stabilising social life. The indeterminate nature of constitutional rules (such as the ‘general
words’ contained in the fifth and fourteenth amendments of the Constitution of the United
States), however, is such that their wording can only generate an open-ended consensus about

26
See M. Goldoni and M. Wilkinson, ‘The Material Constitution’ (2018) 81 Modern Law Review 567.
27
Lochner v. New York, 198 US 45 (1905) (dissenting opinion by Oliver Wendell Holmes, Jr.).

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 254 Denis Baranger

political justice and the moral good. Who can disagree with such an abstract requirement as that
of the maintenance of a ‘due process of law’? Yet such constitutional standards relate to a web of
socio-political values and social arrangements with a long history and a robust pedigree. This is
just one example of how the abstract universalism of classical constitutionalism paved the way
for the progressive inclusion of new modes of social activity. Human action evolves and consti-
tutional law has to adapt in consequence. In other terms: the material content of social life
which cries out for certain constitutional settlements (the ‘Atlantic revolutions’ themselves, or to
take only examples drawn from American constitutional history, the reconstruction amendments
or the civil rights struggle, . . .) also generates new constitutional paradigms, when and where this
is possible. As a result, the confrontation with new socio-political ‘matter’ generates new legal
forms and structures. Constitutional law, as such, is one such larger structure, made necessary by
the larger changes in European and American society during the nineteenth century. Once
established, constitutional law provided new legalistic methods of entrenchment, constitutional
drafting and eventually judicial review. All these formal changes have been triggered by large
scale ‘material’ changes such as capitalism, democratisation, the concern for human rights and
possibly now the concern for climate change.28
This dynamic explains the apparition of new subject-matters in the constitutional sphere. Law
must prove it is able to tackle social problems as they arise. A very clear example is the taking up
of the matter of education in American constitutional law since Brown v. Board of Education
(1954).29 This moment when a new subject-matter becomes constitutional seems to be encapsu-
lated in the famous sentence to be found in the majority opinion: ‘We must look instead to the
effect of segregation itself on public education’.30 From this moment on, education has become
a central constitutional topic and a gateway for the larger topic of racial segregation. In this new
context, the previous constitutional thinking in terms of ‘social vs. political rights’ spelled out in
Plessy v. Ferguson (1896)31 suddenly appeared as inconsistent, which it was, in all likelihood
since ‘the day it was decided’. The fourteenth amendment has operated over time as a filter
through which an almost infinite variety of social problems could be subjected to a process of
‘constitutional translation’. Brown ‘reasoned about the constitutionality of segregation in context-
dependent terms’.32 This was unavoidable. Constitutional law always emerges out of a given
political context. It is always situated and contextualised. This contextualisation of constitutional
law is a force as well as an inherent limitation. Brown ‘left unresolved the constitutionality of
segregation in contexts less fundamental than education – that is, most areas of life’.33 It took a
series of other precedents to extend desegregation to other social areas (sports clubs, public
transportation, . . .).

17.3.3 Form and Substance

The inclusion of education in the field of constitutional subject-matters was predicated upon the
capacity of all the parties – from civil rights activists to the Supreme Court – to apply the general

28
This is not to say, however, that constitutional law is a mere superstructure of these social or economic changes. Law is
autonomous in the sense that it is neither entirely conditioned by social fact nor neutral or transparent. Within the
legal world, as we shall see, constitutional law is itself an autonomous field.
29
347 US 483 (1954).
30
Ibid., 493.
31
63 US 537 (1896).
32
R. Siegel, ‘Equality Talk: Antisubordination and Anticlassification Values in Constitutional Struggles over Brown’
(2004) 117 Harvard Law Review 1470, 1480.
33
See M. J. Klarman, ‘An Interpretive History of Modern Equal Protection’ (1991) 90 Michigan Law Review 213.

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 Constitutional Matter and Form 255

words of the Fourteenth Amendment to the problem of school segregation. What has mattered,
thus, is more the capacity of legal substance to be adjusted to social and political issues than a
question of legal form or formal reasoning. As far as our topic is concerned, this example points
to a momentous conceptual problem. The discussion on the material constitution is made
murkier by the fact that, in the process of giving shape to politics, legal substance is as relevant as
legal form. This may not be the case of all the scholars who adhere to the idea of a material
constitution, yet the very dichotomy between form and matter runs the risk of falling victim to
what one may call a conceptual Manicheism. Form would appear to be one dimension of
constitutional reality, while matter would be another such dimension. Yet legal form is always
impregnated by a substantive project or purpose. While the idea of a material constitution has
the virtue of pointing to aspects of constitutional reality that are not of a legally normative nature
(facts, institutions, non-legal norms), it runs the risk of ignoring that constitutional matter always
needs to be conveyed by some sort of form, formality or formalism. As the American desegre-
gation cases show, constitutional law deals with politics by way of both its form and its substance.
In the life of the law, form and substance are ultimately indistinguishable. The fence is
constantly straddled. In order to embrace political realities, legal thinking has to extend beyond
mere forms: formal reasons (legally authoritative reasons on which judges and others are
empowered or required to base a decision or action34) are rarely sufficient to solve major
political issues and ‘hard cases’. Despite the dominantly deductive and formalist orientation of
many western legal cultures, the legal mind stands out by its tendency to ignore the form/
substance divide. This appears in the development of the doctrine of substantive due process of
law in the United States. The history of the due process clauses of the Fifth and Fourteenth
amendments to the American constitutions is paved with implicit or explicit35 Magna Charta-
style references to political power as something to be ‘guaranteed against’. Yet the idea of due
process has had a singular propensity to develop as simply an analytical exploration of the wider
idea of ‘law’ as such. ‘Increasingly, judges came to believe that using the due process clause to
review the substance of state regulation (. . .) could be confined by boundaries derived from
common law categories.’36 Very rapidly – as soon as the Dred Scott case (1857)37 and possibly
before38 – process and content, form and substance, became indistinguishable in the interpret-
ation of the due process clause. The term ‘law’ has absorbed all the other preceding terms (‘due’,
‘process’) in the clause. Its interpretation has extended to substance as well as process, matter as
well as form. The judicial history of the due process clause, and even the sub-history of the
‘substantive due process’ case law, is evidence that invoking the general words of ‘due’, ‘process’
and ‘law’ itself also meant letting many other genies – ‘substance’, ‘spirit’ – out of the legal bottle.
At the end of the day it is ‘every quality of the law’39 that was required of legislation reviewed
under the due process clause.

17.4 CONCLUSION: THE ‘GOOD ENOUGH’ CONSTITUTION

This chapter has aimed at clarifying the uses of the reference to a constitutional matter by
exploring the form versus matter conceptual couple in constitutional law. The core of our case

34
Atiyah and Summers, Form and Substance, 2.
35
See Hurtado v. California.
36
L. Tribe, American Constitutional Law (Foundation Press, 1999) vol. I, 1341.
37
60 US 393 (1857).
38
See, for instance, Trustees of Dartmouth College v. Woodward, 17 US 518 (1819).
39
Hurtado v. California, 529.

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 256 Denis Baranger

can be summed up as follows: the form of the constitution is law; the matter of the constitution is
politics. Politics, as a social activity, influences law as much as law, in turn, can govern political
action to a certain degree. This is a trite, yet generally overlooked, conclusion. Constitutional
formalism is unable to account for the law-politics relationship. What happens in the consti-
tutional sphere stretches beyond the region of the formal constitution. At the same time,
reasoning in terms of a material constitution runs the risk, not only of moral subjectivism or
political activism but of disregarding the actual interactions between law and politics and, within
law, between form and substance. What counts in this regard is a relative degree of fitness
between political activity (or matter) and law (in which form and substance are mostly indistin-
guishable). Not all constitutional formats are capable of accommodating this kind of mutually
generative relationship between law and politics. What we should aim at, therefore, is a ‘good
enough’ constitution, not an ideal or perfect one. A ‘good enough’ constitution is one that allows
for political activity to be ultimately generative of institutional power. In return, institutionalised
power is expected to shape society in keeping with basic constitutionalist values and principles. It
is submitted that such a constitution can be defined as a principled instrument of self-government.
The ‘written’ or ‘formal’ constitution is – and has to be – an instrument of self-government.
A constitution ought to be ‘a charter for the governance of generations to come’.40 ‘A consti-
tution combines moral and political theory (. . .) with an assertion of self-government (. . .) It
combines reason and will (. . .) the fecundity of our commitment to self-government arises out of
the diverse accounts we deploy to explain ourselves.’41 The formal constitution is a document
(instrumentum) creating a frame of government. The written form – where it exists – matters
significantly. There is serious argument and experience supporting the view that a written
constitution is preferable to a customary one. Yet form is not self-sufficient. The frame of
government ought to have a certain political quality. It ought to be conducive to political
autonomy, in the sense of the people being collectively autonomous. Otherwise, it may be a
perfectly adequate legal enactment. But it will not be a Constitution. Many such documents
around the world bear the title of ‘constitution’ but do not pass the test of self-government. This
accounts for their lack of real authority: they become ‘paper constitutions’ for this or that kind of
authoritarian regime. As a frame of self-government, the constitution ‘licenses you to act as you
do’ and to do so consciously: the actor abiding by the constitution, whatever that involves, does so
when ‘[his] all things considered judgments are guided by constitutional principles’.42 The
Constitution expresses the autonomy of the collective body of citizens that has enacted it, or
on whose behalf it has been enacted.
A constitution that stifles political activity, therefore, strays from the ideal of the good enough
constitution, as it tends to dissociate political matter from legal form. This is of course the case of
the so-called constitutions of despotic regimes. But any constitution is at risk of losing track of the
ongoing forms of political activity taking place within its confines. In the nineteenth century,
representative government appeared to be the best ‘fit’ between politics and law. Today, this is
less clear. The ability of constitutional forms to adjust to new types of social activity and new
levels of political involvement on the part of citizens is being put to the test. The fitness between
legal form and political matter is a constant challenge for existing constitutions. Where and
when this fitness is impaired, institutions lose contact with society. In contemporary France, for
instance, there is significant evidence that this is the case. Polls show a severely diminished

40
A. Bickel, The Least Dangerous Branch: The Supreme Court and the Bar of Politics (Yale University Press, 1986) 102.
41
Kahn, Origins of Order, xiii–xiv.
42
M. Tushnet, Taking the Constitution Away from the Courts (Princeton University Press, 1999) 51.

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 Constitutional Matter and Form 257

confidence of citizens into institutions and even the democratic principle. Social unrest – as in
the case of the Gilets Jaunes in France or the storming of the Capitole building on 6 January
2021 in the United States – targets the political regime and its alleged elitism and lack of
legitimacy. Institutional solutions such as participative democracy are devised to meet this
challenge but they are slow in the making and not always used in good faith. Most countries
are faced with a similar phenomenon of the decoupling of social and political activity and the
Constitution. This is inevitable. The matter of constitutional law is and will always be politics.
New political events and new political representations will always call for ‘an unrestricted flow of
practical reasoning’ as well as for law’s capacity to ‘proceed by positing a system of rules (. . .)
sealed off from [that] unrestricted flow’.43 The good (enough) constitution, as a principled
instrument of self-government, has to adjust both its form and substance to this protean ‘material’
reality. Constitutional law stands exactly at the crossroads between society’s never-ending debat-
ing and quarrel on how it is governed and law’s more or less clumsy attempts to impart a form to
social reality. Both make for what we call ‘self-government’.

43
These citations are drawn from John Finnis, Natural Law and Natural Rights, 2nd ed. (Oxford University Press, 2011),
355. I adhere to the twin ideas of the existence in society of a continuous process of practical reasoning and of law as a
‘sealing off’ of that process through ‘rules of stipulation’ (ibid.). But, unlike Finnis, I would not reject ‘originating acts
and circumstances’ as the trigger and the necessary situational content of this process of practical reasoning as well as
its legal output (ibid., 350). As I have tried to show in the first part of this essay, our constitutional ‘instruments’ (written
constitutions, bills of rights, constitutional precedents, etc.) have arisen out of certain specific circumstances. It took
those political situations for adequate constitutional form and substance to emerge. Our constitutional ‘originating
acts’ have expressed a valuable practical reasoning when confronted by these ‘originating circumstances’.

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 par t ii i

Analyses

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 18

A Material Understanding of Constitutional Changes

Revisiting ‘Constitutional Maintenance’ Doctrines

Graziella Romeo

18.1 THE MATERIAL CONSTITUTION AND CONSTITUTIONAL

AMENDMENT PROCEDURES

Mortati’s seminal work on the material constitution begins by expressing the need to reformulate
the problem of determining the content of the constitution.1 At the time of his writing,
continental European scholarship had long framed this issue as a dispute over the identification
of which part or parts of the constitution could be changed only according to a special
amendment procedure. The prevailing conceptualisation of constitutional supremacy was
indeed quite formalistic and mostly grounded on the theory of the sources of law. As a
consequence, the problem of the content of the constitution was inexistent when (a) a consti-
tutional text could not be identified, (b) the principle of parliamentary sovereignty made it
impossible to discern which part of the text deserved special treatment or (c) the written
constitution was interpreted as capable of conditioning the validity of any other law because
of its supremacy. In all those cases, the identification of the constitution was unnecessary either
because a constitution was non-existent or because it coincided with a constitutional master text.
According to Mortati, such a frame was based on a flawed reasoning, whereby the content of
the constitution was derived from the rigidity of its particular legal transposition.2 After all, the
dominant formalistic logic conceived of the constitution in terms of the nature of its norms,
qualified by their peculiar source of validity, whether a constituent power or a presupposed
external Grundnorm. In either case, the constitution was uncannily unravelling from an a-
juridical world. Mortati detected at least two theoretical incongruences in such a conceptual
frame. The first one was the artificial creation of legal norms from non-legal realities, a trap from
which even Schmitt’s theory of the fundamental political decision did not escape.3 The second,
and more significant, incongruence was the identification of the constitution with the existence
of a given regulation of facts and relationships that were assumed to be relevant for the life of a
certain state by an historically situated constituent power.
Mortati’s dissatisfaction with such a conclusion stemmed from his rejection of any formalistic
reading of the term ‘constitution’ as well as from his need to pursue a theory of the constitution
that would transcend the circumstances of a particular legal regime. From his perspective, then,
the content of the constitution cannot be qualified by the amending procedure necessary to

1
C. Mortati, La costituzione in senso materiale (Giuffrè, 1940), 13–14.
2
Ibid., 77.
3
G. Zagrebelsky, ‘Premessa’, foreword in C. Mortati, La costituzione in senso materiale (Giuffrè, 1998), XV.

261

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 262 Graziella Romeo

modify it; rather, resistance to amendment is a characteristic belonging to the constitution as an

entity to be isolated through a substantial reading of the moment in which the political decision
became law. The material constitution can be traced back to that moment, which coincides
with the implementation of conducts designed to establish rules of political relevance. Those
rules, deduced from the general ends of a given state, govern the political sphere. Since the
material constitution is established by the enforcement of norms of political relevance, Mortati
calls it the ‘original constitution’. The use of the term ‘original’ helps him in underlying that the
material constitution originates when the dominant class is capable of juridifying, through
effective and consistent implementation, its political decision to establish that particular set of
values and priorities of political action.4
The identification of the material constitution thus unearths the identity of the state or, as
Mortati would say, the form of the State, a term that continental scholarship uses, to this day, to
distinguish and classify a particular arrangement of the relationship between state and citizenry,
as connected to the general ends of the state legal order.
Mortati’s intellectual effort to identify the material constitution was functional, among other
things, to securing state ends through changes that over time affect particular subsets of rules or
influence political courses of action in a certain direction. Those changes and political deci-
sions, irrespective of their formalisation, can leave the material constitution untouched or can
even attain its broad aims and ends.
In the theory of the material constitution, then, the logical prius was the identification
problem; once solved, constitutional amendments could be understood by comparing the
material constitution and changes in rules or political directions observed in the legal order.
Such a theory was precisely designed to shield the essential content of the constitution from the
instability (or even capriciousness) of political bodies.5 But when the practice of writing consti-
tutions, equipped with special amending procedures, became widespread in continental Europe
in the years following Mortati’s work, the concept of a material constitution was interpreted as a
threat to the normativity of the formal document. In continental Europe, constitutional theory
was more comfortable theorising constitutional rigidity as the result of the pouvoir constituant’s
accomplishment of its historical role.
A large part of the scholarly debate on constitutional amendments remained completely
indifferent to suggestions coming from the theory of the material constitution until the latter
re-emerged to help navigate the slippery territory of informal constitutional amendments. The
experience of states equipped with written constitutions is, indeed, one in which constitutional
changes frequently take place outside the rules set forth to amend the master text. Against this
backdrop, the concept of a material constitution is at times used to understand (a) whether
changes have indeed occurred in the essential elements of the constitution and (b) whether
these changes are still consistent with the formal (and untouched) written constitution.
This chapter contributes to studies of material constitutions precisely by applying Mortati’s
concept of the material constitution to theories of constitutional change. In particular, it focuses
on ‘constitutional maintenance’ doctrines elaborated in continental Europe to explain cases of

4
In La costituzione in senso materiale, the term ‘original constitution’ appears as a synonym for ‘material constitution’. In
other works, Mortati clarified why the material constitution is also original. In particular, he explained that the material
constitution can be seen as a normative fact, meaning that the factual establishment of rules of political relevance as
well as the stabilisation of those rules by the ruling classes creates the constitution, which then continues existing
thanks to those ruling classes that have originally established it: C. Mortati, Studi sul potere costituente e sulla riforma
costituzionale dello Stato. Raccolta di scritti (Giuffré, 1972), vol. I, 13.
5
Morati, La costituzione, 20–21.

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 A Material Understanding of Constitutional Changes 263

limited and/or substantively guided constitutional changes that generally elude formal amend-
ment procedures. It argues that, while constitutional maintenance doctrines capture one of the
functions of the theory of the material constitution, namely, to guide constitutional changes,
they fall into a logical contradiction by identifying the material constitution with some parts of
the written constitutional text protected by special amending procedures. As a consequence,
those doctrines (a) observe constitutional changes on the basis of mismatches between consti-
tutional practice and the master-text constitution and (b) support the need to minimise those
mismatches. It further argues that one reason for such a misuse is the scepticism surrounding the
notion of a material constitution in those legal systems equipped with a written text. The
argument is preceded by an analysis of doctrinal debates on constitutional change in selected
jurisdictions (para. 2). It is then developed by unpacking the material constitution theory in two
logical steps. In particular, it focuses on the problem of the identification of the constitution
(para. 3) and on the related need to reduce the substantive distance between the formal and the
material constitution (para. 4). Finally, the chapter offers conclusions on how material constitu-
tionalism can contribute to studies of constitutional change.

18.2 CONSTITUTIONAL MAINTENANCE: AN ALTERNATIVE READING OF

UNCLASSIFIABLE CHANGES TO THE CONSTITUTIONAL TEXT

Constitutional rigidity, defined by the existence of special amending procedures, is linked to the
need to protect constitutional values from political capriciousness. It also expresses constitutions’
desire for ‘immortality’, to remain in place no matter how much political circumstances change
over time. Constitutional rigidity has proved to be a challenging characteristic of written
constitutions. The experience of constitutional states is studded with political parties claiming
the need to change constitutional rules so as to improve the functioning of political institutions.6
Reforms have also been framed as necessary to update the text according to societal transform-
ations.7 In a significant number of cases, constitutional reforms fail because either the political
or the popular consensus required to amend procedures is difficult to achieve.8 Therefore, under
some circumstances, constitutions have been substantially changed through the judicial elabor-
ation of constitutional doctrines, the adoption of ordinary laws or the development of consti-
tutional praxis. These phenomena are evidence of informal constitutional changes, that is of
transformation of the constitution without affecting the master text. As a result, scholarship
devoted to analysing informal constitutional changes developed in the field of constitutional law.
The research question scholars were keen to answer was: How might we identify what counts as
a valid constitutional amendment when the formal procedure to change the text has been
eluded? Answers vary. In countries with a tradition of unwritten constitutional law, such as

6
The failed 2016 reform of the Italian Constitution is an example. Proponents of the reform pointed to the need to speed
up legislative procedures and advance the efficiency of the whole system of government: S. Bolgherini, ‘Crisis-driven
Reforms and Local Discretion: An Assessment of Italy and Spain’ (2016) 46 Italian Political Science Review 71, arguing
that the need for reform had been prompted by the global financial crisis, which forced governments to pursue
efficiency and fast-track normative procedures. See also M. Morelli and M. Osnabrügge, ‘Some Neglected Reasons to
Eliminate Perfect Bicameralism: The Italian Constitutional Reform and Legislative Efficiency’ (2016) Vox 26
November 2016, available at: http://voxeu.org/article/italian-constitutional-reform-and-legislative-efficiency, last
accessed 1 August 2022.
7
T. Donnelly, ‘Popular Constitutional Argument’ (2020) 73 Vanderbilt Law Review 73, 90 also discusses informal
changes driven by societal developments.
8
Italy has a long history of failed constitutional reforms: C. Fusaro and D. Bull, ‘Yet Another Failed Attempt to Reform
the Italian Constitution’ (2017) 32 Italian Politics 111.

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 264 Graziella Romeo

Canada, the identification problem is fairly recent, as the stratification of uncodified or even
undocumented constitutional norms was part of the ordinary development of constitutional law.
Scholars there have labelled constitutional changes that escape formalisation ‘quasi-constitu-
tional amendments’.9 They are conceived as ‘subconstitutional alteration[s] to the operation of a
set of existing norms in the constitution’.10 Interestingly enough, the formula looks at the
constitutional consequences (or effects) of norms introduced in the legal system at a subcon-
stitutional level. The ability of those norms to substantially and durably affect the functioning of
the master-text constitution defines their legal status.11 In the United States, the same phenom-
ena have been branded ‘supra-constitutional statutes’,12 while in Australia they go by the name
‘constitutional statutes’.13 The same label has been employed by the UK Supreme Court to
describe statutes that resist normal rules of abrogation because they contribute to the delineation
of the uncodified British constitution.14
The substantively constitutional nature of these statutes is generally not disputed by this line of
scholarship. The ‘constitutional’ qualification is linked to two different features of statutes: (1)
they affect the functioning of constitutional institutions, for example by impacting the legislative
process and (2) they regulate relationships between the state and its citizens by recognising
fundamental rights.
Once the identification problem has been solved, the question turns to the problem of
establishing the constitutional legality of these statutes. One can frame the issue along these
lines: Can these statutes be subjected to judicial scrutiny, and, if yes, can they resist judicial
overview? Many authors have focused their attention on the desirability of constitutional adjudi-
cation in constitutional changes, taking for granted that a constitutional change exists any time a
clear mismatch between constitutional praxis and the written text is observable.15
The Canadian Supreme Court touched upon this issue in the Senate Reference.16 The
question under scrutiny was whether Parliament, acting outside the amending procedure, could
have reformed the Senate by creating consultative elections to select senatorial nominees
endorsed by the populations of provinces and territories.17
The Court maintained that Parliament was fundamentally altering the structure of the
Constitution, even though the reform would have left untouched the process for appointing
individuals to the Senate, which consists of the governor general selecting appointees on the
advice of the prime minister.18 In the Court’s view the reform was substantially an informal
constitutional change because the Constitution expressly requires the amendment procedure for
changes concerning the ‘method of selecting senators’. The sentence was interpreted as includ-
ing procedures impacting how a senator is chosen for the final appointment. The reform was
then classified as unconstitutional. The Court argued that to decide otherwise would have

9
R. Albert, ‘Quasi-Constitutional Amendments’ (2017) 65 Buffalo Law Review 739.
10
Ibid., 739.
11
Ibid., 740, citing as an example the Canadian Bill of Rights of 1960.
12
W. N. Eskridge and J. Ferejohn, ‘Super-Statutes’ (2001) 50 Duke Law Journal 1215, 1216.
13
S. Stephenson, ‘The Rise and Recognition of Constitutional Statutes’, in R. Albert and J. I. Colón Ríos (eds.), Quasi-
Constitutionality and Constitutional Statutes (Routledge, 2019), 27.
14
F. Ahmed and A. Perry, ‘Constitutional Statutes’ (2017) 37 Oxford Journal of Legal Studies 461, 471.
15
Albert, ‘Quasi-Constitutional Amendments’, 763; R. Dixon, ‘Partial Constitutional Amendments’ (2011) 13 University
of Pennsylvania Journal of Constitutional Law 643. See also R. Hirschl, ‘The Judicialization of Mega-Politics and the
Rise of Political Courts’ (2008) 11 Annual Review of Political Science 93, 97, who observes that courts’ adjudication of
constitutional amendments is an example of judges’ progressive occupation of the political arena.
16
Reference re Senate Reform [2014] 1 S.C.R., para. 62 (Can.).
17
Ibid., para. 49.
18
Constitution Act 1867.

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 A Material Understanding of Constitutional Changes 265

meant performing a narrowly formalistic reading of the Constitution. Eventually, the material
change happened despite the Court’s resistance. As some scholars have pointed out, a political
escamotage was put in place to substantially achieve the goal of establishing a different
procedure for selecting senators.19 In particular, now the Advisory Board to the Prime Minister
advises him or her about the selection of senators, who are then appointed by the governor
general. What is relevant to note here is that the Court identified the constitution with its texts
and refused to look into the factual transformations already driven and accepted by
political forces.
In continental Europe, scholars and constitutional judges frame the problem in partially
different ways. The growth of constitutional law outside the text of constitutions is even less
acceptable within legal cultures in which the master-text constitution tends to overlap with
constitutional law as such. In some cases, notably Germany, this may depend on a certain
conceptualisation of constitutional supremacy, whereby it is defined thanks to a theoretical
criterion organising sources of law and conditioning their validity. In such a context, the absence
of formalisation is perceived as a deviation of political reality from the constitutional text that
expresses the highest political will, even when only fictitiously attributed to the people.20 This is
not to say that material readings are extraneous to German constitutional culture. Quite the
contrary. The classical reference is Schmitt’s notion of the ‘fundamental political decision’, a
concept synthesising the political will identifying a people and uniting them under a consti-
tution.21 The notion echoes Mortati’s material constitution to a certain extent. In particular,
Schmitt and Mortati agree on the unifying function of the constitution created by an act
of political will, historically situated. Assonances, though, end here, because for Mortati that
political will can only be expressed by a portion of ‘the people’; that portion that is politically
active and capable of overcoming competing social forces.
Traces of material understanding of the constitutional state can be found in other authors
writing in the years of the Weimar Republic. Indeed, in that period, the legal literature
discussing the meanings and limits of constitutional change, whether realised or not through
formal amending procedures, looked at material transformations of the legal order. Jacobi used
the term ‘Verfassungsdurchbrechung’ for an alteration of the constitution substantively deter-
mined by a presidential decision that leaves the constitutional text untouched and yet breaches
the constitution.22 And Heller’s distinction between Rechtsgrundsätze (founding juridical values)
and Rechtssätze (established rules)23 resonates with Mortati’s argument about the juridical value
of the original constitution from which the written constitution derives. Nevertheless, if one
looks at contemporary constitutional scholarship, the dominant position is that the written
fundamental law is (and should be) coextensive with the German polity.24 The constitutional
text supports this conclusion by stating, in Art. 79, that the Basic Law can be modified only by a
law, to be adopted with a special procedure, amending or expressly integrating the text of the

19
Albert, ‘Quasi-Constitutional Amendments’, 763.
20
As is the case for the Basic law of 1949: see D. Grimm, ‘Constituent Power and Limits of Constitutional Amendments’
(2016) 2 Nomos 2.
21
C. Schmitt, Constitutional Theory (Duke University Press, 2008).
22
E. Jacobi, Die Diktatur des Reichspräsidenten nach art. 48 der Reichsverfassung (1924) 1 VVdDStRL 1, 109. The
classification of constitutional changes has been developed by E. W. Böckenförde, Staat, Verfassung, Demokratie.
Studien zur Verfassungstheorie und zum Verfassungsrecht [I quote from the Italian translation, Stato, costituzione,
democrazia. Studi di teoria della costituzione e di diritto costituzionale] (Giuffrè, 2006), 603.
23
H. Heller, Staatslehre (Sijthoff, 1934), 175.
24
D. P. Kommers and R. A. Miller, The Constitutional Jurisprudence of the Federal Republic of Germany (Durham
University Press, 2012), 47.

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 266 Graziella Romeo

Basic Law.25 To this extent, any material reading of the constitution, which is not functional to
its amendment, would endanger the body of values and principles that a particular Basic Law
entrusted political powers to enforce.26
An alternative framework of analysis of constitutional changes is the one offered by ‘consti-
tutional maintenance’ doctrines. A version has been theorised in Italy, where constitutional
amending procedures rarely succeed, and para-constitutional techniques and practices have
been pursued to achieve constitutional changes. Alessandro Pizzorusso coined the expression
‘constitutional maintenance’ to indicate modifications, updates and corrections to the existing
constitutional text incorporating factual or normative changes developed after its entry into
force.27 Truth be told, Pizzorusso did not intend to build a normative theory of constitutional
changes, rather he described what he thought was a way to circumvent the Constitution and its
normativity: adopting rules with a clear constitutional impact that were justified as necessary to
keep formal constitutional rules in good shape or even to realise constitutional imperatives.
Later, Italian scholars developed the doctrine, which also put forward a partially different
understanding of what is involved in constitutional maintenance. This concept is now also used
to label constitutional changes entailing formal revisions and consisting of minor (revisione
minima) or strictly focused changes (revisione mirata) to the constitutional text.28 These changes
affect the functioning of the legal order without altering the essential values that the
Constitution has established.
The idea of constitutional maintenance draws from the theory of the material constitution. In
fact, it incorporates the core intuition behind Mortati’s original notion of the material consti-
tution: the dominant political force’s (or forces’) understanding of the essential values and ends
of the state does not only define the original constitution, it also drives constitutional changes.
The material constitution unfolds beyond the formal constitution in the daily life of the legal
order. Therefore, the identification of the material constitution becomes the theoretical tool
used to distinguish between those changes that, albeit informally achieved, are still within
constitutional boundaries and those modifications that alter the essential values and ends of
the formal constitution. These latter modifications can even be performed according to
amending procedures and still represent a substantive violation of the Constitution. The
Italian Constitutional Court partially agreed to this idea when it stated that the Constitution
expresses supreme principles not encapsulated by explicit limitations to amending power. These
‘supreme principles of the constitutional order’ on the one hand cannot be altered, even by
resorting to the special amending procedure, and on the other represent the parameters that are
used to assess the validity of constitutional amendments.29
The paradigm of constitutional maintenance, albeit with some relevant alterations, has
circulated beyond Italy. In Portugal, it was used to explain reforms that, although approved
through the formal amending procedure, went beyond a constitutional revision by implying a
complete change of the constitutional paradigm, which was closer to an exercise of constituent
power. In fact, the 1976 socialist constitution was converted into a liberal-democratic one via

25
See Art. 79, German Grundgesetz.
26
J. Limbach, ‘The Concept of the Supremacy of the Constitution’ (2001) 64 Modern Law Review 1, 7 argues that the job
of the Federal Constitutional Court ‘is to tie policy to law, and subordinate it to law’.
27
A. Pizzorusso, La costituzione ferita (Laterza, 1999), 47, and A. Pizzorusso, ‘Le riforme costituzionali: una transizione
per destinazione sconosciuta’ (2005) 128 Il Foro Italiano 217.
28
F. Palermo, ‘La “manutenzione costituzionale”: alla ricerca di una funzione’, in F. Palermo (ed.), La Manutenzione
Costituzionale (CEDAM, 2007), 4.
29
Italian Constitutional Court dec. no. 1146 of 1988, para. 2.1.

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 A Material Understanding of Constitutional Changes 267

progressive transformations of the original master text, which started shortly after the establish-
ment of the first democratic government. In particular, while the 1976 Constitution declared
Portugal to be in transition to the socialist form of state, the Partido Social Democrata, a right-
wing party which led the government from 1978 to 1983 after the fall of the coalition government
led by the Socialist Party, modified the master-text to reduce ideological references to the
socialist state.30 When the Socialist Party lost the 1985 elections, the right wing coalition
introduced a new constitutional revision in 1989 which completed the transformation of the
economic model of the Constitution by eliminating any residual reference to the socialist state
and by supressing the principle of irreversibility of nationalisations predating 25 April 1974, the
date of the revolution overthrowing the authoritarian regime.31
When the process of suppression of the socialist paradigm was completed, some scholars
labelled this phenomenon an ‘ideological neutralization of the Constitution’.32 Interestingly
enough, other scholars, including those who participated as members of the 1976 Constituent
Assembly, did not interpret those changes as a political act of instauration of a new regime.
Instead, they read constitutional reforms, at least the ones affecting the frame of government, as
the mere formalisation of constitutional practices that had been accepted since 1976.33
Moreover, according to this line of scholarship, the 1976 Constitution lived on through consti-
tutional reforms because the latter only represented a progressive dilution of the revolutionary
constituent act that ended the dictatorship, along with its 1933 Constitution. In fact, the master
text can be subjected to changes to develop the principles of the 1976 Constitution itself, without
altering the essential values and organisational principles, as inferable by the master text.
To support their argument, those scholars pointed to the substantive limits to constitutional
revision, included in Art. 290 of the Portuguese Constitution (Art. 288 of the Constitution now
in force). Those limits would delineate the material constitution (or the state’s fundamental
identity) by describing, if taken all together, a democratic and rule-of-law-based state (Estado de
direito democrático).34 That notion in turn defines the Portuguese material constitution.35
Notably, Art. 290 itself was amended in 1989 to remove ideological references to socialism.36
In particular, the principle of collective appropriation of means of production was reformulated
into that of coexistence of public, private, cooperative and social property of means of produc-
tion. Moreover, the principle of democratic economic planning was replaced by the principle
according to which economic planning is established within the framework of a mixed eco-
nomic system. Still, the argument concerning the continuity of the constitution throughout
these transformations withstood. According to Portuguese scholars, the choice to abandon the
socialist project was compatible with the material constitution, being a particular development
of its content and a dilution of ideological premises that was not questioning the fundamental
option for a democratic and rule-of-law-based state.37 In other words, the formal constitution was
subjected to maintenance to preserve consistency with the evolution of the material one.

30
Lei Constitucional n. 1/82, Diário da República n. 227/1982, Série I de 1982-09-30, 3135–206.
31
The revisions are summarised by J. Miranda, ‘A originalidade e as principais características da Constituição
Portuguesa’ (2007) 16 Cuestiones constitucionales 270.
32
A. De Sousa Franco and G. D’Oliveira Martins, A constituição económica portuguesa. Ensaio interpretativo
(Almedina, 1993), 147.
33
J. Miranda, Manual de Direito Constitucional, 3rd ed. (Almedina, 1991), vol. II, 182 and J. J. G. Canotilho and V.
Moreira, Constituição da República portuguesa anotada (Almedina, 1993), 1062.
34
Miranda, Manual de Direito Constitucional, 184.
35
Miranda, ‘A originalidade e as principais características da Constituição Portuguesa’, 279.
36
Art. 191, Lei Constitucional n.1/89, Diário da República n. 155/1989, Suplemento n. 1, Série I de 1989-07-08.
37
Miranda, ‘A originalidade e as principais características da Constituição Portuguesa’, 280.

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 268 Graziella Romeo

Mortati’s view resonates in the argument put forward by Portuguese constitutional mainten-
ance scholarship. At the same time, however, those theories reverse the relationship between the
formal and the material constitution. To explain this point, let us come back to Mortati’s theory.
Along with Mortati, Portuguese scholars single out the original constitution, identified with a
number of principles, to be secured from political instability. This creates a distinction from the
master-text constitution formed by rules that encapsulate a provisional arrangement of relation-
ships, which are in turn exposed to changes according to the particular directions determined by
dominant political forces. Portuguese scholars, however, pushed the argument, going so far as to
maintain the continuity of the original constitution even through changes that profoundly
reshaped the economic constitution, realising the transition from a socialist paradigm to a full-
fledged free market economy. Being the material constitution identified with the principle of
the democratic and rule-of-law-based state, the option for either a socialist or mixed economy
system was understood as equivalent to a particular specification of that form of state. Thus, a
radical change in the formal constitution became a development of the ordinary life of the 1976
Constitution. The formalisation of new principles concerning the regulation of economic
activities was deemed to be a step in the process of settlement of the material constitution.
The logical premise is that the material (real) constitution is not entirely encapsulated in the
master text; the consequence is the need to update the formal constitution so as to secure the
endurance of the material one.
On a more general level, the constitutional maintenance doctrine employs Mortati’s idea of
the irreducibility of the material constitution to the formal one to explain the practice of
constitutional changes. In his work, Mortati clarified that the constitution is there to give stability
to the form of the state it has created. Therefore, on the one hand, the identification of the
material constitution is decisive in detecting the continuity of the legal order through changes it
will inevitably face; on the other, the constitution contemplates transformations because it has
an intrinsic planning (or forward-looking) capacity that does not end with the formalisation of
(some) rules. If the material constitution is a source of constitutional rules, however, it does not
need to be formalised to express its authority. Rather, constitutional rules, codified or not, should
always conform with the material constitution in the sense that, when conformity is lost, the
material constitution ends its life. This event, in turn, signals a crisis of dominant political forces
or even the exhaustion of their ruling power.
From Mortati’s notion of the material constitution, constitutional maintenance doctrines
deduce that transformations fulfilled by means of judicial interpretation, ordinary laws or
substantively constitutional statutes are entitled to complete the formal constitution. By the
same coin, according to those doctrines, constitutional amendments can be justified by the need
to codify these transformations. In fact, the latter already belong to the constitutional order in
two complementary senses. First of all, these transformations have been accepted by the ruling
political class and integrated into the ordinary life of the legal order. Secondly, these changes are
consistent with the material constitution, understood as the body of substantive values and
organisational conceptions largely accepted and capable of producing rules of constitutional
relevance by also granting their coherent application.
However, while constitutional maintenance doctrines draw from the theory of the material
constitution the need to identify the original constitution beyond both the master text and
constitutional law, understood as the body of rules surrounding the functioning of the consti-
tutional order, these doctrines tend to detect changes by measuring constitutional practice
against the backdrop of the master text for then pushing for formalising changes in constitutional
rules. That is why some scholars go further, maintaining that the formal constitution must

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 A Material Understanding of Constitutional Changes 269

continuously keep up with the material one by including any change that signals that a
substantial transformation has taken place within the legal order. Examined closely, these
conclusions reveal that constitutional maintenance doctrines misunderstand the logic of the
material constitution. In order to explore this misunderstanding, the following paragraphs are
dedicated to analysing, separately, (a) the problem of identifying the constitution and its changes
and (b) the argument for realising an almost complete overlap between the formal and the
material constitution.

18.3 THE PROBLEM OF IDENTIFYING THE CONSTITUTION AND

ITS CHANGES

Theories of constitutional change, including maintenance doctrines, build on the need to

conceptualise constitutional transformations that do not comply, either substantially or formally,
with prescribed amending procedures. These theories share a certain methodological approach:
A constitutional change is always measured against the backdrop of the constitutional text or of
its prevalent interpretations. Constitutional maintenance doctrines are no exception. According
to such doctrines, constitutional transformations, which can take different forms, represent
deviations from the master text. The distinguishing trait of constitutional maintenance theory
is that a deviation is considered to fall within the boundaries of what is constitutionally
permissible if it corresponds to the material constitution. Constitutional maintenance doctrine,
therefore, draws from Mortati’s material constitutional reading only to a limited extent. Indeed,
Mortati’s theory of the material constitution moves from the premise that the master text is not
coextensive with the ‘constitution’. His intellectual project places itself within a legal culture that
rejects positivism’s radical attempt to force the whole juridical experience into formalised
imperatives.38 At the same time, Mortati does not discard positivism tout court. Rather, he uses
methodological positivism to argue that the material constitution is juridical par excellence
because the social forces establishing it also guarantee its enforcement. In other words, the
material constitution exists – and it can be studied – as a juridical norm. The material consti-
tution, therefore, is an authoritative ‘ought to be’ shaping the course of political action as well as
the essential functioning of the legal order. If the material constitution is juridical, it creates
norms operating without the mediation of the formal constitution. At the same time, the
material constitution contains the potential for its own development. In fact, its nature rests
on its ability to impose rules as well as to impress a political direction on the legal order. As a
consequence, constitutional changes in the sense of transformations of the original constitution
do not happen until there is an observable shift in the values and practices of the dominant
political force.
If one takes Mortati’s viewpoint, theories of constitutional change suffer from what can be
labelled as a ‘legal positivist bias’. The problem such theories intend to solve is one of tracing
constitutional transformations that escape formal amending procedures back to some sort of
legal positivist logic. They do this either by defending the need to adjudicate those transform-
ations against the backdrop of the master-text constitution or by arguing for the need to formalise
those parts of the material constitution that have not yet been translated into positive law. In
either case, the problem of constitutional change is framed by the assumption that the master-
text constitution expresses a higher form of legality than the material constitution. To put it
differently, theories of constitutional change do not escape the normativist approach when they

38
Mortati, La costituzione, 227–28.

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 270 Graziella Romeo

identify the constitution with one or more legal documents to which a constitutional value is
substantially or formally attached. Interestingly enough, this is the case even in those legal
cultures in which constitutions, being the result of a long series of transformations and
arrangements, cannot be entirely identified with constitutional texts. An example is Canada
where the written constitutional text coexists with customary constitutional law and yet scholars
would feel the need to discuss constitutional changes by looking at deviation between consti-
tutional practice and the master text.39
Against this backdrop, what a material reading of the constitution suggests is to reset the
methodological framing by addressing the preliminary problem of identifying the constitution.
This is something that theories of constitutional change do not seem interested in doing. In the
English-speaking world, the problem is apparently solved by resorting to the common law
understanding of the term constitution. By valuing the development of the constitution through
history and political transformations,40 these theories assume that the mutability of the consti-
tution is not so much an issue of the alteration of a given, settled, arrangement of powers and
relationships as a progressive, historical development. The more intriguing constitutional issue
becomes understanding the limits of judicial adjudication in the case of constitutional
transformations.41
On the contrary, for scholars analysing legal cultures in which a constitutional text has been
adopted following a formal constituent phase, the task of identifying the constitution cannot be
conceptually separated from the problem of ensuring the full normativity of the written text.42 If
the constitution is the political decision encapsulated in the master text, it should be enforced in
all its particulars.43 At the same time, any attempt to enlarge the range of what counts as the
constitutional norm is generally disfavoured by scholarship and courts on account of the risk of
undermining the normativity of the written constitution.44 When observed from this perspective,
constitutional maintenance doctrines try to address a conceptual conundrum: making sense of
the existence of substantive constitutional norms while protecting the normativity of the written
text. They do so by suggesting that informal changes fall within the constitutional umbrella so
long as they represent transformations accepted and enforced by those social and political forces
supporting the formal constitution. Such a doctrine adopts the methodology of constitutional
materialism without fully embracing its premise, that is the dismissal of the conceptual frame-
work of constitutional rigidity as linked to special amending requirements. At least in Mortati’s
version of constitutional materialism, the constitution is flexible in terms of its ability to shape
the legal order beyond the original act of establishing a written text. Rules, having the same force
as constitutional provisions, can be directly derived from the material constitution. Therefore,
the fundamental setting of the legal order, as defined and enforced by the political forces

39
Albert, ‘Quasi-Constitutional Amendments’.
40
S. Gardbaum, ‘The Place of Constitutional Law in the Legal System’, in M. Rosenfeld and A. Saj´o (eds.), Oxford
Handbook of Comparative Constitutional Law (Oxford University Press, 2013), 167.
41
Y. Rosnai, Unconstitutional Constitutional Amendments (Oxford University Press, 2017). See in particular the chapter
on implicit constitutional unamendability.
42
M. Luciani, ‘Costituzionalismo irenico e costituzionalismo polemico’ (2006) 4 Giurisprudenza costituzionale 1643.
43
M. Kumm, ‘Who’s Afraid of the Total Constitution? Constitutional Rights as Principles and the Constitutionalization
of Private Law’ (2006) 7 German Law Journal 341.
44
M. Dogliani, ‘Costituzione in senso formale, materiale, strutturale e funzionale. A proposito di una riflessione di
Günther Teubner sulle tendenze autodistruttive dei sistemi sociali’ (2009) 15 Diritto pubblico 295; S. Fois,
Costituzione legale e costituzione materiale, La costituzione materiale. Percorsi culturali e attualità di un’idea
(Giuffrè, 2001), 36. There is no shortage of scholars who insist on the importance of not reducing constitutional
law to the master-text constitution: A. Barbera, ‘Ordinamento costituzionale e carte costituzionali’ (2010) 30 Quaderni
costituzionali 311.

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 A Material Understanding of Constitutional Changes 271

endorsing the formal constitution, is translated in formal constitutional provisions and legislative
acts as well as in constitutional practice.45 As a consequence, amending procedures merely
describe how to modify the master-text constitution; they do not contribute to the definition of
what counts as constitutional norms. This is possible because the original constitution is not
entirely included in the formal constitution; therefore, the special amending procedure does not
operate as a criterion to distinguish what can be classified as constitutional and what cannot
possibly claim such a nature.
A material account of constitutional practice is based on the identification of an original
constitution which, at the same time, founds the legal order and outlines the trajectories of
constitutional courses of political action. This original constitution may or may not contemplate
some changes to the specific arrangement made by the master text. Variances are measurable by
looking at the original constitution, while the mere fact that a parliament passes a law of
substantively constitutional significance should not provoke alarm in the political community.
The theoretical risk of using a material constitutional frame to justify constitutional changes as a
matter of accepted practice without clarity on the identity of the constitution is one of confusing
the logic of the material constitution with that of customary constitutional law, where consti-
tutional rules are the result of a series of historical developments that contribute to shaping a
political regime, while they do not intend to prescribe future evolutions. This is not to say that in
evolutionary systems, such as those with no documented constitution (UK) or with a flexible
constitution (New Zealand), a material constitution cannot be identified. Rather, the logic of
identification is different. Under a customary constitutional law framework, the constitution is
identified as a structure built over time and ordered according to a rationalising principle, that is,
that of parliamentary sovereignty.46 In a material constitution frame, the constitution is identi-
fied by detecting the juridification of a political foundational decision. The practical threat of
using a material constitutional frame to justify constitutional changes is one of legitimising
political capriciousness: Precisely what a material understanding of the constitution intends to
avoid by insisting on the identification of the founding traits of the constitutional order.

18.4 IS THERE A NEED TO MATCH THE MATERIAL CONSTITUTION

WITH THE FORMAL ONE?

Theories of constitutional change develop from the observation of mismatches between the
formal constitution and the functioning of institutions and/or the organisation of constitutionally
relevant legal relationships, as realised through praxis, judicial interpretations or legislative
reforms. They work on the assumption that mismatches are anomalies in the life of a written
constitution. Moreover, these theories generally call for the minimisation of misalliances
between the formal and the substantial constitution because misalliances threaten the norma-
tivity of the master text. Constitutional maintenance doctrines reason along the same lines when
they support constitutional reforms on the basis of the need to align constitutional texts to
transformations already taking place within the political community. In Italy, for example,
promoters of the failed 2016 constitutional reform faced harsh criticism from scholars claiming
that the proposed constitutional change went beyond the substantive limits to the amending
power. They responded by invoking the need to incorporate into the master text those

45
Barbera, ‘Ordinamento costituzionale e carte costituzionali’, 313, argues for replacing the material constitution
formula with the concept of a ‘constitutional order’.
46
G. Gee and G. Webber, ‘Rationalism in Public Law’ (2013) 76 Modern Law Review 708, 724.

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 272 Graziella Romeo

transformations already taking place in Italian constitutional practice without touching the
essential identity of the Italian Constitution.47 Portuguese constitutional reforms profoundly
changing the economic constitution were justified by resorting to similar arguments.48
Arguments of such a kind overlook a pivotal element of Mortati’s material constitutional-
ism. The material reading of constitutionalism does not just unveil the political decision that
lies at the origin of any constitution, it attributes to that political decision a juridical value,
making it a driving force for both the establishment and the development of the legal order.
In materialist accounts, there is no necessary factual overlap between the formal and the
material constitution, nor is such an overlap required or even desirable. The political forces
establishing the original constitution safeguard the continuity of their legal order by making
sure that the constitution unfolds in the changing circumstances of the life of any political
community. This is the reason why the material constitution cannot be entirely absorbed by
the formal one.
The utility of the notion of the material constitution, then, is one of providing the legal order
with an instrument to identify its founding norms. Those norms drive constitutional changes
and assist interpreters and legal practitioners in navigating those transformations of the political
community that neither alter the original constitution, nor find in the master text their sole
source of legitimisation. Material constitutionalism readings are not interested in pursuing the
co-extensivity between the formal constitution and the political community, that is the overlap
between the master-text constitution and the reality of relationships of constitutional relevance, a
co-extensivity that a large part of European continental scholarship deems to be indispensable to
guarantee the normativity of the (written) constitution.49 The all-powerfulness of the master-text
constitution, when it comes to regulating relationships of constitutional relevance, is a problem
that material readings of the constitution do not intend to solve for two distinctive, though
related, reasons. First, the master-text constitution stems from the original constitution, being
one peculiar manifestation of founding norms. As a consequence, there are portions of the
original constitution not captured by the text that are still equipped with normative power. From
a material constitutionalist standpoint, then, there is no logical necessity to conclude that the
written text should absorb the material constitution, whose normativity is even stronger than that
of the formal constitution or master text.50 This means that any account justifying the need to
change the constitution in order to include those constitutional practices that exist without
being codified misreads the logic of material constitutionalism.
Second, the material constitution is dynamic in the sense that the political forces that
established it also intend to keep it alive through the life and vicissitudes of the legal order.
The preservation of constitutional founding values and norms allows dominant political forces to
modify secondary or marginal elements without endangering the original constitution. This is
not equivalent to maintaining that the constitution is inherently flexible or open to all possible
legislative changes. Rather, the dynamism of the original constitution rests in its ability to
determine political courses of action that fulfil the same state ends as those the dominant
political forces connected to the establishment of the original constitution. Although the
constitution is dynamic, there are limitations to its ability to change. Its founding values and

47
See the foreword to a volume supporting the reform written by the former Minister for Constitutional Reforms: M. E.
Boschi, ‘Prefazione’, in C. Fusaro et al. (eds.), Perchè sì (Laterza, 2016), 5–8.
48
Italian Constitutional Court dec. no. 1146 of 1988, para. 2.1.
49
Luciani, ‘Costituzionalismo irenico’, 1665.
50
A constitution to the nth degree, in Mortati’s words: Mortati, La costituzione, 136.

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 A Material Understanding of Constitutional Changes 273

norms cannot be altered without resulting in a constitutional breach and the end of the ruling
political forces’ power to enforce their original constitution.51
Therefore, from a materialist standpoint, the problem of constitutional change is one of
detecting whether the original constitution defining both fundamental values and aims that
drive political actions, supported by dominant political forces, still stands. To shift the focus from
the original constitution to the master text is a substantial rejection of the basic assumption
behind Mortati’s theory of the material constitution.

18.5 CONCLUSIONS

This chapter suggests that constitutional maintenance doctrines misuse Mortati’s theory of the
material constitution when they adapt its logic to a concept of constitutional rigidity that is
defined by the existence of special amending procedures. One reason for such a misuse is the
scepticism surrounding the notion of a material constitution in those legal systems equipped
with a written text. In particular, scholars often suspect the material constitution to compete with
or even to replace the formal one, thus exposing the constitutional order to political arbitrariness
or even legitimising authoritarian drifts.52
Mortati did not intend the material constitution to oppose the formal one. In fact, he believed
in consistency between the two; where consistency was lost, it was because the dominant
political forces had lost their ability to enforce the rules on which the fulfilment of their ends
depended. Yet his critique of legal positivism can easily be misinterpreted as an attack on the
normativity of the written text. This may be because rationalist epistemology supports the
practice of writing down constitutions so as to completely conform the reality to an act of
political will, a practice that is fundamentally extraneous to Mortati’s notion of the material
constitution. It is also extraneous to material understandings more generally because material
constitutionalism suggests reading the legal order through a constitutional matrix that is irredu-
cible to the written text. Therefore, it is difficult to reconcile material constitutional readings
with an idea of constitutional rigidity that is linked to the existence of a special procedure to
amend the master-text constitution. That special procedure is a formal safeguard for only a
portion of constitutional reality, precisely that portion that has been captured by the
written constitution.
Mortati’s version of material constitutionalism cannot provide theories of constitutional
change with an account of constitutional transformations that seek to detect modifications
and assess their legitimacy against the backdrop of a written text. The whole theory is built on
a different premise, namely the existence of an original constitution that is the expression of a
constitutional super-legality. Similarly, it cannot help in legitimising ex post constitutional
changes on the assumption that they are rooted in and accepted by dominant political forces.
Doing so would imply equating material constitutionalism and customary constitutional law,
diluting the independent juridical value of the original constitution to the verification of
constitutional practice in particular circumstances.
Contributions that material constitutionalism can offer to theories of constitutional change
have something to do with how we frame the problem of constitutional change from a
methodological standpoint. First of all, material constitutionalism argues for an interpretation
of notions such as constitutional rigidity or flexibility that is disconnected from formalist

51
Mortati, La costituzione, 20.
52
Luciani, ‘Costituzionalismo irenico’, 1663.

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 274 Graziella Romeo

accounts. It excludes the proceduralisation, and thus formalisation, of constitutional changes as

a criterion to prove the rigidity of a given constitution. Therefore, material constitutionalism can
help to classify changes through the analysis of constitutional reality as the combination of text,
interpretation, institutional praxis and political action.
Second, material constitutionalism separates the problem of constitutional change from that
of identifying the constituent power and the correlative constituted power. The notion of the
material constitution distinguishes itself from that of constituent power because the former does
not realise itself in the founding of the written constitution. On the contrary, it intends to direct
the future development of both the constitution and the constitutional order. At the same time,
the material constitution is not a permanent constituent power because it contains its own
limitations, namely the values and the principles that the dominant political forces deem to be
indispensable to realising their ideology or vision of the state. By not relying on the notion of
constituent power, material constitutionalism offers explanations of constitutional practice that
are not bound by a binary choice between legitimising constitutional changes accepted by the
political community, as constitutional maintenance doctrines tend to do, and claiming consti-
tutional discontinuities or ruptures any time a significant change affects the constitutional order.
Finally, the notion of the material constitution elucidates the founding values and norms of a
constitutional order so as to identify the essential limits of constitutional amendment. It is
therefore relevant for interpretative practices, whether instrumental or not, to assess the validity
of constitutional changes.

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 19

The Material Constitution in Latin American Courts

Mariana Velasco-Rivera and Joel Colón-Ríos

The notion of the constitution in the material sense, or the material constitution, is not so
popular among lawyers. To the extent that it points toward a series of non-specified norms
relating to the basic structure of government and to the relationship between citizens and the
state, it lacks a key feature associated with legal rules: its susceptibility to be identified by
reference to some rule of recognition. There may even be aspects of the material constitution
(e.g., unwritten conventions) that, although easily identifiable, are not constitutional law, and
others that can only be found in judgments that determine the scope and limits of fundamental
rights. The constitution in the formal sense, in contrast, would seem to allow lawyers to identify
the relevant constitutional content with the precision of a natural scientist. All norms that, by
virtue of being included in a specific document, are protected from the ordinary law-making
process (through their subjection to a special amendment rule) can be easily categorised as part
of the formal constitution. Nonetheless, the material constitution has often played important
legal functions. In this chapter, we will focus on two judgments of Latin American constitutional
courts where, by relying on a specific conception of the material constitution, judges sought to
define the competence of the amending authority and justify or reject the imposition of implicit
limits to the power of constitutional reform.
We will proceed in the following way. Section 19.1 highlights the relationship between the
notion of the constitution in the material sense and the doctrine of the historical (or the internal)
constitution. The doctrine of the historical constitution, we will argue, should be understood as
an early formulation of the more recent idea of the constitution in the material sense. In fact, the
historical and the material constitution are in most ways indistinguishable from each other even
though, as we will see, the former (unlike the latter) involves a rejection of the theory of
constituent power. In Section 19.2, we consider two instances of judicial engagement with the
notion of the material constitution. The most obvious role that one would expect the material
constitution to assume in a judicial context is that of serving to justify the imposition of limits to
the amending authority. That is to say, that every constitution is characterised by a ‘material’
content that cannot be the subject of a constitutional amendment. The first judgment to be
considered, issued by the Constitutional Tribunal of Peru, provides an example of this phenom-
enon, even though, interestingly, it was the ‘historical’ constitution which became the key
operating concept.
The second judgment is a dissenting opinion issued by Justice Humberto Sierra Porto at the
Constitutional Court of Colombia. The dissent explicitly engaged with the concept of the
material constitution to criticise the majority’s adoption of the doctrine of unconstitutional

275

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 276 Mariana Velasco-Rivera and Joel Colón-Ríos

constitutional amendments. For the dissenting judge, that doctrine allows a non-elected entity to
identify the content of the material constitution and then place it outside of the scope of the
amending authority of democratically elected institutions. These two judgments exemplify how,
perhaps because of its non-specificity, the concept of the material constitution can be deployed
by jurists to defend opposite positions about the limits of constitutional reform. One key
difference between the approaches presented in these two cases is their understating of the
way fundamental constitutional content should be created or re-created. For the Peruvian
Constitutional Tribunal, that content should be ultimately determined by the people; under
the approach advanced by Justice Sierra Porto, it would be in the hands of the ordinary
amendment authority. The chapter ends with a brief reflection about the uses of the concept
of the material constitution in Latin American courts, and about its relation to principles
developed at the level of international law.

19.1 FROM THE HISTORICAL TO THE MATERIAL CONSTITUTION

The conceptual origins of the notion of the constitution in the material sense are to be found in
the doctrine of the historical constitution.1 This doctrine was influential in several jurisdictions
during the eighteenth and nineteenth centuries, particularly Spain. It continues to be relevant in
different countries,2 even though the concept of the constitution in the material sense has largely
replaced the idea expressed by it. According to the doctrine of the historical constitution, each
society is governed by a set of fundamental norms that develop through history and that reflect
the way of being of the community in question. In Spain, its main proponent was Gaspar
Melchor de Jovellanos, who died shortly before the country adopted its first written constitution
in 1812.3 ‘What is a constitution’, Jovellanos wrote, but the ‘fundamental laws that fix the rights of
the sovereign and the subjects, and the healthy means of preserving both?’4 These fundamental
laws, which he called the ‘effective or historical’ constitution, were to be found in ‘our old codes,
in our ancient chronicles, in our depreciated manuscripts and dusty archives’.5 Since the
historical constitution was formed slowly through the ages, ‘[t]o think that a constitution can
be made just in the same way that someone creates a play or a novel is a great insanity’.6
Jovellanos insisted that not even the nation had the right to ‘alter the form and the essence’ of
that ‘received constitution’.7

1
This view was held by Luis Sánchez Agesta who, noting the similarities between the historical/internal constitution and
the material one, maintained that ‘the internal constitution is a fact that is prior to any formal juridical declaration; it is
what we would today call the material constitution, using the unhappy term with which we have replaced the
suggestive one invented by the Spaniards of the 19th century’: L. Sánchez Agesta, ‘Los Principios del
Constitucionalismo Español: Soberanía Nacional y Constitución Interna’, in Archivo de Derecho Público
(Universidad de Granada, 1953), 29.
2
See, for example, Article R(3) of the Constitution of Hungary (2011): ‘The provisions of the Fundamental Law shall be
interpreted in accordance with their purposes, the National Avowal and the achievements of our historical consti-
tution’. For a discussion, see F. Hörcher, ‘Is the Historical Constitution of Hungary Still a Living Tradition? A Proposal
for Reinterpretation’, in A. Górnisiewicz & B. Szlachta (eds.), The Concept of Constitution in the History of Political
Thought (De Gruyter, 2017), 89–112.
3
Not counting the French-imposed Estatuto de Bayona.
4
G. M. de Jovellanos, ‘Memoria sobre Educación Pública, o sea Tratado Teórico Práctico de Enseñanza’, in C.
Nocedal (ed.), Obras Públicas e Inéditas (Biblioteca de Autores Españoles, 1858), vol. II, 39.
5
G. M. de Jovellanos, ‘Carta a Antonio Fernández de Prado’ (Gijón, 7 December 1795), in C. Nocedal (ed.), Obras
Públicas e Inéditas (Biblioteca de Autores Españoles, 1858), vol. III, 179–80.
6
‘Diarios Inéditos de Jovellanos’, cited in J. Somoza, Las Amarguras de Jovellanos (Auseva, 1989), 178.
7
Jovellanos, ‘Memoria’, vol. IV, 585.

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 Material Constitution in Latin American Courts 277

The doctrine can be summarised as follows. First, there are certain parts of a country’s
constitution, normally related to the structure of government (for instance, the sovereignty of
the Crown-in-Parliament), that cannot be modified. In this context, saying that certain norms
‘cannot be modified’ does not simply mean that their modification would be illegal (in fact, it
may be perfectly legal) but that the very idea of ‘modifying’ them made no sense: the funda-
mental laws that regulate the structure of government are simply inseparable from the relevant
society. If there is a written constitution, it must reflect those fundamental laws and, if it fails to
do so, it would be impossible for it to guarantee social stability; it would not even work as a
constitution.8 Second, the doctrine of the historical constitution radically negated the theory of
constituent power. The idea of ‘creating’ a constitution was, for proponents of the historical
constitution like Jovellanos, a ridiculous notion.9 Constitutions were a product of history, not of
the momentary will of an assembly or group of individuals. In this respect, a constitution-making
episode was always a potential repudiation of this doctrine. In the Spanish Constitution of 1812,
that repudiation was explicit: ‘Sovereignty resides essentially in the Nation, and for this reason it
has the exclusive right of establishing its fundamental rights’.10

19.1.1 The Material Constitution

The constitution in the material sense shares the key element of the doctrine of the historical
constitution: the view that there are certain precepts that are so fundamental that they form part
of a country’s constitution even if they do not find expression in a written constitutional text, that
is, in the constitution in the formal sense. Nevertheless, as we will see in this section, it does not
necessarily involve the rejection of the theory of constituent power. The precepts that comprise
the material constitution have been generally associated to the form of government (as in the
doctrine of the historical constitution) and with the protection of certain rights. In constitutional
theory, one finds two main conceptions of the material constitution: a descriptive and a
normative one.11 Hans Kelsen, for example, had a descriptive conception. For him, the material
constitution referred to the rules that established the procedures for the creation of the law.12
Kelsen’s conception is descriptive because no special juridical consequences derive from it: the
rules that are part of the material constitution can be modified in the same way as any other
norm, provided that the relevant procedure is followed. Accordingly, it is an approach that
would be of limited use to courts attempting to review the substance of the norms adopted
through the established amendment procedure.
Carl Schmitt, on the contrary, developed a normative conception of the material constitution
(which he called ‘the constitution in the positive sense’).13 The material constitution, for him,
referred to the fundamental decision of the constituent subject about its mode of political
existence. Schmitt’s conception points to the same kind of content captured by Kelsen’s as well
as by the doctrine of the historical constitution: the norms related to the form of government and

8
See, for example, F. Mellado, Tratado Elemental de Derecho Político (Madrid, 1891), 360.
9
Perhaps for a similar reason, Burke ridiculed Sieyes’ multiple constitutional proposals: ‘Abbé Sieyes has whole nests of
pigeon-holes full of constitutions readymade, ticketed, sorted, and numbered; suited to every season and every fancy’:
E. Burke, Further Reflections on the French Revolution (Liberty Fund, 1992), 317.
10
Constitution of 1812 (Spain), Article 3.
11
This argument is developed further in J. Colón-Ríos, Constituent Power and the Law (Oxford University Press, 2020).
12
H. Kelsen, ‘The Function of a Constitution’, in R. Tur & W. Twining (eds.), Essays on Kelsen (Clarendon Press,
1986), 114.
13
C. Schmitt, Constitutional Theory (Duke University Press, 2008), 75.

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 278 Mariana Velasco-Rivera and Joel Colón-Ríos

the rules regulating the basic relationship between citizens and the state.14 However, for Schmitt,
since those norms have been the result of a decision of the constituent subject, they are out of
the scope of the ordinary amendment process. The normative conception of the material
constitution, in this respect, invites judges to determine whether the ordinary amending power
is being used to alter or replace the fundamental laws posited by the constituent people. In
contemporary times, this is exemplified in the judicial embracement of the doctrine of unconsti-
tutional constitutional amendments. But the cases that apply that doctrine do not present the
fundamental content of the constitution (i.e., the material constitution) as unchangeable: it can
always be altered by the people acting through an extra-ordinary mechanism.
Given the close relationship between the concepts of the material and the historical consti-
tution, we may say that the doctrine of unconstitutional constitutional amendments, rather than
being a novel development, is a return to a previous status quo: a situation where a society’s
fundamental laws were not subject to change. In fact, during the nineteenth century, when the
doctrine of the historical constitution was still highly influential, it was not uncommon for
written constitutions to even lack an amendment rule.15 A mechanism for altering the consti-
tutional text was by no means seen as a necessary component of a written constitution, so, when
amendment rules became a standard feature of constitutions, the notion that some provisions
should be out of the scope of the amending power would have seemed entirely natural.
The cases that are discussed in Sections 19.2.1 and 19.2.2 exemplify the ways in which some
Latin American judges have engaged with the concept of the material constitution. Perhaps
surprisingly, we have found no instances where it played a key role in the judicial application of
the doctrine of unconstitutional constitutional amendments. In fact, as we will see, judges have
applied the concept of the material constitution in order to argue against the doctrine of
unconstitutional constitutional amendments and, in other cases, it is the doctrine of the
historical constitution which has done the work of limiting the legislature’s amending authority.

19.2 JUDGES AND THE MATERIAL CONSTITUTION

The concept of the material constitution, despite its arguable vagueness, is at first sight well
suited for judicial development and application. Whenever courts have a need to place certain
constitutional norms above others, to argue that there is a hierarchy of constitutional principles
or provisions, the material constitution provides a seemingly easy way out: every norm contained
in the constitutional text is formally constitutional, but only some norms are materially so. In
that context, the phrase ‘materially constitutional’ would not be merely describing the ‘consti-
tutional’ subject matter of the relevant norm; it would rather point to their character as
fundamental norms. The main example of that type of situation is the doctrine of unconsti-
tutional constitutional amendments. When applying that doctrine, judges could say that the
amending authority cannot touch the material constitution. ‘Material constitution’, in that
respect, would play the same role that ‘basic structure’ has played in the jurisprudence that

14
These kinds of views were challenged by Hermann Heller who, in addition to the distinction between the constitution
in the formal and the material sense, examined the concept of constitution from what he called a sociological
perspective. H. Heller, Teoría del Estado, L. Tobío, trans. (Fondo de Cultura Económica, 2012), 347. Following
Ferdinand Lassalle, he described the ‘real constitution’ as referring neither to the norms contained in a particular
document nor to those (written or unwritten) norms regulating the fundamental structure of the state, its relations to
citizens, etc., but to the actual ‘relations of power present in a country’: ibid., 317.
15
See, e.g., the French Charter of 1830 and the Spanish Constitution of 1837.

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 Material Constitution in Latin American Courts 279

has emerged since the famous decisions of the Indian Supreme Court.16 However, at least in
Latin America, we have not found any cases were the concept of the material constitution is
explicitly deployed with those objectives.17 However, its precursor, the doctrine of the historical
constitution, played that role in an important judgment of the Peruvian Constitutional Tribunal,
discussed in Section 19.2.1.

19.2.1 Peru’s Historical Constitution as a Limit to Constitutional Replacement

Peru’s current constitution was adopted by a Constituent Congress called by Alberto Fujimori’s
government after the ‘self-coup’ of September 1992. The coup involved a purge of the judiciary,
the dissolution of Congress, the suspension of the Constitution of 1979, the establishment of an
authoritarian government and the adoption of a new constitution in 1993 through a highly
controversial process.18 In 2001, and shortly after the fall of Fujimori’s regime, the Peruvian
Congress passed a law that (among other things) vested a congressional commission with the task
of drafting a new constitutional text.19 Importantly, the law established:
The Comisión de Constitución, Reglamento y Acusasiones Constitucionales will propose a draft
for the total reform of the Constitution, taking into account the historical constitution of Perú and
in particular the text of the Constitution of 1979. After approval by Congress, the draft will be
subject to referendum. If the draft is approved [by the electors], the Constitution of 1993 would
be abrogated. (emphasis added)20

The law was challenged in the Constitutional Tribunal and, in its judgment, the court discussed
at some length the limits of the ordinary power of constitutional reform and the meaning of the
legal mandate to respect Peru’s historical constitution.
The claimant argued that the amendment rule of the Constitution of 1993 (Article 206)21
could not be used for the ‘total reform’ of the constitution: such an action involved the

16
See, e.g., Kesavananda Bharati Sripadagalvaru & Ors. v. State of Kerala & Anr, 4 SCC 225 (1973).
17
Although the idea of ‘material limits’ to the power of constitutional reform is frequently used by Latin American
courts, the notion of the ‘material constitution’ or the ‘constitution in the material sense’ is less common in judgments
discussing the existence of limits to the amending power. For example, in an appeal decision where the Supreme
Court of Mexico decided on the admissibility of challenges against constitutional amendments, the court adopted a
theory of formal and ‘material’ implicit limits to the amendment power. Regarding the latter, the court maintained
‘the political principle of popular sovereignty necessarily entails implicit material limits which justification and
development should be deducted from . . . the material values based on which the idea of the constitutional state
rests upon’ (see SCJN, Pleno, Amparo en Revisión 186/2008, at 22). The term ‘constitution in the material sense’ makes
a rare appearance in a dissenting opinion in a case where the court decided that the amending power could not be
subject to any type of limits (procedural or substantive), where the dissenting judges maintained that ‘fundamental
rights provisions . . .[as well as] constitutional supremacy . . . belong to the constitution in the material sense’ (SCJN,
Pleno, Controversia Constitucional 82/2001, at 644–45). However, this part of the dissent was not central to the
reasoning of their disagreement with the majority. Interestingly, we found that in Mexico, claimants often use the
concept of ‘material constitution’ to articulate their claims (see, e.g., SCJN, Pleno, Amparo en Revisión 1477/2004,
15 May 2006 at 66; SCJN, Segunda Sala, Amparo en Revisión 1378/2005, 18 Nov 2005, at 40; SCJN, Primera Sala,
Amparo en Revisión 528/2016, 9 Oct 2019, at 14), but did not find cases in which the court uses the concept as part of
its reasoning.
18
See ‘Mensaje a la Nación del Presidente del Perú, Ingeniero Alberto Fujimori’ (5 April 1992) and Decree Law
No. 25418 (6 April 1992).
19
Law no 27600 (14 December 2001).
20
Ibid., Article 2.
21
Article 206, Constitution of Peru (1993): ‘Any initiative of constitutional reform must be adopted by Congress through
an absolute majority of the legal number of its members and must be ratified by a referendum. The referendum may
be exempted when the consent of Congress is obtained in two successive regular sessions, with a favourable vote of
greater than two-thirds of the legal number of congressmen in each case.’

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 280 Mariana Velasco-Rivera and Joel Colón-Ríos

replacement of the existing constitutional text and thus required an exercise of the ‘original
constituent power’ and the convocation of a Constituent Assembly. In response, the Congress’
legal representative maintained that a ‘total reform’ of the constitution did not require an extra-
constitutional exercise of constituent authority. Counsel pointed toward Article 32 of the
Constitution of 1993, which referred to ‘total and partial reforms of the Constitution’ as one of
the matters that could be submitted to a referendum.22 That provision, it was claimed, necessar-
ily implied that the amendment process contained in Article 206 could be used to replace the
existing constitution. The fact that Article 32 also stated that ‘the suppression or the reduction of
the fundamental rights of the person cannot be submitted to referendum’ meant that such rights
‘constitute a personal and moral identity core that neither the political process nor the juridical
norms are ethically authorized to ignore and that are internationally recognized’, not that the
total reform of the constitution lies outside of the jurisdiction of the amendment power.
The court maintained that the power of constitutional reform, as a constituted power, was
subject to formal and materials limits.23 The formal limits are the procedural requirements
contained in the amendment rule and the material ones establish ‘parameters of constitutional
identity or essence, immune to any possibility of reform’.24 The latter type of limits could be
explicit or implicit. That is to say, they could take the form of eternity clauses or be derived from
principles implicit in the constitutional text. According to the court, those principles included
‘human dignity, popular sovereignty, the democratic state of law, the republican form of
government and, in general, the political regime and the form of the State’.25 Reforming those
limits would entail the ‘destruction of the Constitution’ and would be ‘illegitimate in consti-
tutional terms’.26 The court expressly associated this view with the conception of constitutional
reform developed in Schmitt’s Constitutional Theory, noting that from that perspective, a
change ‘that involves the integral substitution of the Charter, including the clause that regulates
the amending power, would imply an act of revolution and would therefore be anti-juridical’.27
The court nonetheless noted that there are constitutions which do vest the amending organ
with the authority to replace the established constitutional text. The question was whether the
Constitution of 1993 was one of those constitutions. If one follows some scholarly discussions on
the subject, the fact that Article 206 did not explicitly authorise the amending authority to
replace the constitution in its entirety (to engage in a ‘total reform’ of the constitution) would
seem to point toward the conclusion that the amending organ only had a limited power that
could not be used to replace the constitutional text.28 However, as noted by the respondent,
Article 32 referred to the possibility of a ‘total reform’. For the court, that provision (in
combination with Article 206), ‘constitutionalise[d] the constituent function’, following the
tradition of the French Constitution of 1793.29 The constitutionalisation of the constituent
function should not be taken to mean that the legislative branch of government, as a constituted
power, becomes the constituent authority. However, ‘as an organ of the representation of the

22
Article 32, Constitution of Peru (1993): ‘A referendum may be held on the following: (1) Partial or total reform of the
Constitution . . . The abolition or abridgement of the fundamental rights of the person may not be submitted to a
referendum, neither may tax and budget rules nor international treaties in force.’
23
Part V, sec. 5.
24
Ibid., para. 72.
25
Ibid., para. 76.
26
Ibid.
27
Ibid., para. 80
28
Ibid.
29
Part VIII, para. 104.

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 Material Constitution in Latin American Courts 281

general will, there is no reason why Congress cannot propose a constitutional draft, so that the
Constituent Power, as the original fountain of power, decides to accept or reject it’.30
Such a mode of proceeding could involve a Constituent Assembly whose acts are ratified in a
referendum or one that not only drafts but adopts the new constitution. In the former case, the
court expressed, the Constituent Assembly would only be playing a constituent ‘function’, with
the actual constituent ‘decision’ remaining in the hands of the electorate.31 However, it would
also be entirely appropriate to place that constituent function in Congress itself, leaving the final
constituent act to the ‘decision of the sovereign, through the referendum’, the ‘only way in
which the Constituent Power can be expressed directly’.32 A decision of the sovereign would be
required any time a ‘total reform’ takes place. The question then becomes what counts as such a
major constitutional change. For the court, when considering whether a particular change
amounts to a ‘total reform’ of the constitution, the number of provisions altered is not the
determining factor.33 What must be looked at is whether ‘the essential content of the established
Constitution remains or is changed . . . [I]f this constitutional “hard core” – or the historical
Constitution, as stated in the challenged law – changes, a total reform would have taken place,
even if not all constitutional provisions are altered’.34
What comprises Peru’s historical constitution? And what is the relationship between it and the
more general principles (e.g., human dignity and the democratic state of law) that the court also
presented as limits to the power of constitutional reform? The principles that comprise the
historical constitution, the judges stated, started to emerge in the Bases de la Constitución de
1822 and in the Constitution of 1823.35 The Bases were adopted by a Constituent Congress
convened at a time when the war of independence was still ongoing and sought to identify the
essential content of a future constitution. For example, the Bases stated that the new constitution
must recognise ‘that sovereignty resides essentially in the Nation, which is independent of the
Spanish Monarchy, of any foreign domination, and cannot belong to any person or family’, that
the government would be ‘popular and representative’, that the separation of powers would be
respected and that a series of individual rights (including, for example, the freedom of the press)
were to be respected.36 Those principles served as a limit to the process of constitutional change
that had been triggered by Congress, and were reflected in the many constitutions adopted in
Peru, even though they were not respected during the authoritarian regime that adopted the
Constitution of 1993.
The court thus maintained that the law challenged by the plaintiffs, although referring to the
‘total reform’ of the constitution, only mandated its partial reform, as it required the constitution-
maker to respect the ‘historical Constitution and the Constitution of 1979’. Accordingly, the draft
constitution to be prepared by the constitutional commission, the judges determined, ‘shall be
based on the historical Constitution of the country, and thus implicitly re-establish the principles
and values of the Constitution of 1979. Such a process must end in a referendum in which the
draft constitution would be approved or rejected’.37 In this sense, although Congress could

30
Ibid., para. 109.
31
Ibid.
32
Ibid., 113.
33
Part IX, para 122.
34
Ibid.
35
Part V, para 37.
36
Bases de la Constitución Política de la República Peruana (16 December 1822). The Bases also stated that the new
constitution should recognise that the nation’s religion was Catholicism (‘to the exclusion of the exercise of [any other
religion]’).
37
Part XI, para 131.

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 282 Mariana Velasco-Rivera and Joel Colón-Ríos

trigger a process leading toward the ‘total reform’ of the Constitution of 1993, that is, one that
went beyond the scope of the ordinary amending power, the proposed changes in any case
would not have that effect. Those changes would find as their ultimate frontier Peru’s historical
constitution and, presumably, would also be within the boundaries of the implicit material limits
that always apply to the amending authority. However, from the Constitutional Tribunal’s
judgment, it is not entirely clear what is the relationship between those implicit limits and
Peru’s historical constitution.
At times, it seems the material limits that always apply to the amending power are already
comprised by the notion of the historical constitution. But the court also stated that a ‘total
reform’ would take place if the ‘basic principles and basic presuppositions of the political,
economic, and social organization that serve as the basis of the hard core of the Constitution
of 1993 are modified’.38 It could also be argued that the Constitution of 1993, and its basic
principles and presuppositions, could be replaced (i.e., through a total reform via Articles
206 and 32) while at the same time respecting the historical constitution of Peru. That is to
say, to replace the Constitution of 1993 in order to return to a constitutional past in which the
principles that were first formulated in 1822 are fully recognised and respected. In the end, the
Constitutional Tribunal dismissed the challenge against the 2001 law, opening the way for the
desired changes. A draft constitution was prepared by the commission and initially approved by
Congress in its first reading, but it was eventually taken off the legislative agenda among fears
that it would be rejected by the electorate. Be that as it may, there are two additional points
worth making about the court’s conception of the historical constitution and its views on what
constitutes a total reform.
First, note that the court’s conception of the historical constitution does not reject, but
rather embraces, the theory of constituent power. In fact, it is the electorate who in the end
would ultimately decide whether the draft constitution submitted to it reflected the histor-
ical constitution of Peru. From that perspective, the court’s approach to the historical
constitution appears indistinguishable from the notion of the constitution in the material
sense (as noted in Section 19.1.1, the main difference between these two concepts is that the
former involved a rejection of the theory of constituent power). Second, note that,
according to the court, modifications to ‘the economic and social organization’ of the
country would involve a violation of the material (and implicit) limits to the amending
power. Here we see actual ‘material’ factors (i.e., economic and social ones) playing a role
in limiting political authority. 39 A similar notion was briefly considered (and not rejected)
by the Supreme Court of Justice of Colombia in a 1978 case which referred to those who
saw the ‘real factors of powers’ not in the law but in the economy.40 However, as we will see
in Section 19.2.2, it was a juridical (as opposed to economic or social) notion of the material
constitution that was deployed by a dissent at the Constitutional Court of Colombia as part
of an objection against the court’s assumption of the power to declare constitutional
amendments unconstitutional.

38
Ibid., para 123.
39
These were the kind of factors identified by Ferdinand Lasalle in his famous essay, F. Lasalle, ‘On the Essence of
Constitutions’ [1862] (1942) 3 Fourth International 25. For Lasalle, ‘the material constitution as nothing else but the
actual relation of forces existing in a given society’. See also M. Goldoni and M. Wilkinson, ‘The Material
Constitution’ (2018) 81 Modern Law Review 567; C. Mortati, La Constitución en el Sentido Material (Centro de
Estudios Constitucionales, 2000).
40
Judgment No. 2397, Supreme Court of Justice (5 May 1978), 105–6.

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 Material Constitution in Latin American Courts 283

19.2.2 The Material Constitution and Judicial Discretion in Colombia

One of the most famous judgments of the Colombian Constitutional Court was rendered in
2005. In that case, the court considered the constitutionality of an amendment proposal that
would allow President Álvaro Uribe to run as a presidential candidate for a second time.41 The
court dismissed the action, but reaffirmed its jurisdiction to review proposed constitutional
changes in order to determine if they fell outside of the scope of the amending authority.42
For the court, the limits of the amending authority were to be found in the notion of consti-
tutional replacement: an amendment could alter the constitutional text, but not in ways so
fundamental that really amount to the creation of a new constitution. In this particular case, the
court concluded that the proposed change was constitutional since it would not involve the
replacement of the constitutional order. One of the main obstacles confronted by the
Colombian Constitutional Court’s adoption of the doctrine of unconstitutional constitutional
amendments was the text of the Constitution of 1991. Not only did it not include any eternity
clauses, but its Article 241 stated that the court’s power to review the validity of constitutional
amendments was limited to ‘procedural errors in their formation’ (vicios de procedimiento en su
formación).
In a series of judgments, the court nonetheless determined that in order to decide whether the
amendment procedure has been correctly followed (as required by Article 241), it was first
necessary to inquire into the competence of the amending organ. That is to say, for the court,
‘competence’ was a key element of any procedure and the competence of the amending organ
did not include the constituent power to create new constitutional orders, only the legally
regulated faculty of amending a constitution that would continue to exist after the relevant
change. Such an analysis would be ‘limited to study if the reforming authority has replaced
(sustituido) the constitution, which does not entail a material control of the relevant act . . . In a
replacement judgment, there is no comparison between the reform and the Constitution that
seeks to determine if the content of the first contradicts the content of the second’.43 The
concept of replacement was in turn defined by the court in the following way: ‘[A] transform-
ation of such magnitude and transcendence that [makes] the Constitution existing before the
reform [. . .] integrally different from the one that emerged after it, to the point that they result
incompatible with each other’.44
Justice Humberto Sierra Porto dissented from that approach in the 2005 case. What is
interesting about that dissent, from the perspective of this chapter, is that it is largely based in
an opposition between the formal and the material constitution. The judge began by discussing,
and rejecting, Schmitt’s critique of the notion of the constitution in the formal sense. As is well
known, for Schmitt, such an understanding was incapable of distinguishing between fundamen-
tal and non-fundamental norms that have nonetheless been included as part of a constitutional
text.45 For Sierra Porto, such a relativisation was not a problem as long as the formal constitution
was seen as superior to ordinary laws and could only be altered through an adequate amendment

41
Judgment no 1040/05, Corte Constitucional de Colombia.
42
The doctrine of unconstitutional constitutional amendments had already been adopted by the Constitutional Court.
See Judgment no 551/03.
43
Judgment no 1040/05, para 7.10.2.
44
Ibid.
45
Schmitt, Constitutional Theory, 67. In other words, the constitution in the formal sense failed to see the constitution as
expressing the fundamental decisions of the constituent power.

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 284 Mariana Velasco-Rivera and Joel Colón-Ríos

rule.46 Sierra Porto maintained that the approach adopted by the court, like Schmitt’s, rejected
the formal concept of a constitution. Despite being presented as a ‘procedural’ one, such an
approach ‘would inevitably involve a material control of constitutional changes, which would
have at its basis a material conception of the constitution, one that was expressly recognised by
the court in its C-971 judgment of 2004,47 when it expressed “. . . the Constitution is, by
definition and in its material sense, a normative body that defines the essential structure of the
State, its principles and fundamental values”.’48
The constitution, the dissenting judge continued, would thus be accompanied by an ‘absolute
unchangeability comprised by its essential part, what Mortati called the “constant element” or
the “absolute limit of the Constitution”’.49 Under that perspective, ‘a change in the material
Constitution would involve the fall of the State and of its fundamental principles’.50 Sierra Porto
considered this approach unacceptable, as it moved the court’s jurisprudence ‘toward the
concept of the material constitution’, a development that contradicted ‘the textual or literal
content’ of Article 241 and of other constitutional provisions.51 According to the view adopted by
the court, the ‘constitution’ would not only be comprised by the set of rules that regulate the
creation of norms by the organs or the state (a view we earlier associated with Kelsen’s ‘descrip-
tive’ conception of the material constitution) and it would not be a norm with special formal
characteristics (i.e., a norm subject to a special rule of change).52 Rather, norms would only be
part of the constitution ‘if they guarantee certain values, that is, those values allegedly embraced
by the constituent power in 1991’.53 This was described by the dissenting judge as a ‘normative
conception [concepción valorativa] of the Constitution . . . according to which a norm is only
legal if it guarantees values that are believed true and are shared by society’.54
The material conception of the constitution adopted by the court was thus based on an
erroneous premise: that whether a norm belongs in a constitution depends on its political or
juridical importance. The notion of the constitution in the material sense, the judge stated, ‘does
not allow one to identify norms as constitutional regardless of time and place; their consti-
tutional character would depend’ on how the juridical order is conceived in a specific moment.
A key problem with that approach is that, in ‘determining the defining elements of the
Constitution’ (i.e., one of the steps that the majority of the judges identified as part of the
judicial method in constitutional replacement cases), the court would find itself expounding its
very content.55 Put differently, ‘the identification of the material Constitution would every time
depend on the composition of the Constitutional Court and of its internal majorities’, such that

46
Justice Humberto Sierra Porto, Dissent, Judgment 1040/05, para 7.
47
This is one of the few cases involving the doctrine of unconstitutional constitutional amendments where the notion of
the material constitution makes an appearance, even if it did not play a key role in the court’s reasoning. The relevant
passage states: ‘One cannot forget, however, that the power of constitutional reform responds to the need of
accommodating the Constitution to new political realities, social requirements, and collective consensus.
Accordingly, the concept of constitutional replacement cannot deprive the power of constitutional reform of content.
If the Constitution is, by definition and in its material sense, a normative body that defines the essential structure of
the State, its principles and fundamental values, the relations between the State and society, rights and duties, it is
clear that the power to reform the Constitution can touch those elements.’
48
Ibid.
49
Ibid.
50
Ibid.
51
Ibid., para 1.
52
Ibid., para 7.
53
Ibid.
54
Ibid.
55
Ibid.

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 Material Constitution in Latin American Courts 285

the act of reforming the constitution would partly take place in the court itself, that is, inside the
organ that is supposed to control the amending authority.56 Moreover, for the dissenting judge,
the material concept of the constitution transformed the constitutional regime into a ‘closed
order’, that is, one that forever fixes a particular set of values.57 The idea of a ‘closed order’, Sierra
Porto maintained, contrasted with the notion of an ‘open constitution’, a concept that described
the type of order established in 1991.
For Sierra Porto, an open constitution included three main ideas: (1) the possibility of
defending, according to established legal means, values that are contrary to those considered
fundamental; (2) the possibility of modifying those fundamental values legally and (3) the
possibility of developing the most diverse political views without the need of constitutional
reform.58 This kind of view, he maintained, was reflected in the debates of the Constituent
Assembly that drafted the Constitution of 1991 and in its very composition (from members of
traditional political parties to members of previously armed revolutionary groups), as well as in
the fact that the text lacked any eternity clauses. In giving itself the task of identifying the
‘defining elements’ of the Constitution of 1991 – elements that would act as material limits to the
power of constitutional reform – the court had transformed the constitutional system into a
closed one. That is, one that excludes the modification of the values and principles that at some
point a majority of the constitutional judges determines to be part of an unmodifiable core.59
The adoption of a material conception of the constitution, Justice Sierra Porto concluded, may
have the unintended effect of encouraging extra-legal attempts of transforming the
constitutional order.
This dissent exemplifies one of the main reasons why the notion of the constitution in the
material sense has been largely absent from some constitutional circles. As Georges Vedel once
noted, the material concept of the constitution is characterised by ‘boundary problems’.60 Its
ability to be filled with any content means that, whoever can authoritatively determine what
constitutional norms and principles are part of it, becomes, from a certain perspective, the
constituent power. For Justice Sierra Porto, this was the necessary implication of the court’s
adoption of the doctrine of unconstitutional constitutional amendments: the embracement of a
material conception of the constitution gives too much power to judges. But Justice Sierra
Porto’s approach may result in a different problem: the reliance on a formal conception of the
constitution would give too much power to the legislature, that is, to the organ authorised to
alter the constitutional text through the ordinary amendment rule. This is why the solution given
by the Peruvian Constitutional Tribunal may be a more attractive one. That is to say, neither the
judges nor the legislature have the last word on the constitution’s material (or historical) content;
this authority belongs to the people acting through participatory processes, which should, in our
view, not be limited to a mere referendum.

19.3 FINAL THOUGHTS

We have seen that the constitution in the material sense – as well as its precursor, the doctrine of
the historical constitution – has made its way from constitutional theory to some Latin American
courts. The juridical notions of the material and the historical constitution, in pointing toward

56
Ibid.
57
Ibid., para. 8.
58
Ibid.
59
Ibid.
60
G. Vedel, Manuel Élémentaire de Droit Constitutionnel (Dalloz, 2002), 112.

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 286 Mariana Velasco-Rivera and Joel Colón-Ríos

certain fundamental content, are intrinsically conservative: they are about protecting some
norms from whoever would normally have the power to change them. In this respect, one
would expect these notions to become most relevant whenever there is an attempt of creating a
hierarchy between formally indistinguishable norms. Just as Lord Laws attempted to distinguish
between formally equal statutes by classifying some as ‘constitutional’ and others as ‘ordinary’ in
order to narrow the scope of the doctrine of implied repeal,61 judges may appeal to the notions of
the material or the historical constitution in an attempt to distinguish between formally equal
constitutional provisions. That kind of distinction would be especially useful in the context of
judicial efforts directed at limiting the amending power.
Despite the relevance of the notion of the material constitution to questions related to
constitutional change and its limits, we don’t want to give the impression that that is the extent
of its possible and actual roles in judicial reasoning. For example, the Bolivian Plurinational
Tribunal has relied on the concept of the material constitution not to justify its jurisdiction to
review constitutional amendments, but to defend a particular interpretation of the constitutional
text. This was exemplified in a 2010 criminal appeal process, where the court analysed the scope
of the right to counsel and the role of public defenders in the realisation of such right. The court
maintained that Article 119.II, the constitutional provision regulating the state’s duty to provide a
public defender to those defendants in economic need, aimed at ‘bridging the gap between the
formal constitution . . . and the material constitution . . . [T]herefore, in light of the principle of
the progressive realisation of rights, [Article 119.II] cannot be restrictively interpreted in the sense
that the state is bound to provide a public defender only to those defendants that cannot afford
private counsel . . .’.62 Importantly, the court understood the material constitution as not only
including domestic constitutional law, but also principles recognised by the international
community, such as the previously mentioned principle of the progressive realisation of rights.
In our view, this is an interesting development that illustrates the possibility of adding a
supranational dimension to the notion of the material constitution. This development would be
consistent with the material constitution’s conceptual predecessor, the doctrine of the historical
constitution. Naturally, Jovellanos and other early proponents of that doctrine could not have
predicted the rise of the post-Westphalian order. Yet, since they saw a constitution as the product
of history and as reflecting the way of being of the community in question, the inclusion of
principles of international human rights law could be understood as a natural addition to those
elements that form part of a country’s historical constitution. The idea of considering inter-
national human rights law as part of the interpretative framework for judicial review is indeed
central to the doctrine of the ‘constitutional block’ [bloque de constitucionalidad],63 through
which Latin American apex courts have granted constitutional hierarchy to international human
rights instruments.64
Like the doctrine of the historical constitution, the notion of the ‘constitutional block’
originated in Europe (the term was coined by Claude Emeri in 1970, but the concept was
further developed and disseminated by Louis Favoreau through a discussion of Decision 71-44

61
Thoburn v. Sunderland City Council [2003] QB 151; [2002] 3 WLR 247, para. 63.
62
Judgment 1614-2011-R, 11 October 2011, Tribunal Constitucional Plurinacional, p. 8.
63
F. Rubio Llorente, ‘El Bloque de Constitucionalidad’ (1989) Revista Española de Derecho Constitucional 9.
64
M. Góngora Mera, ‘La difusión del bloque de constitucionalidad en la jurisprudencia latinoamericana y su potencial
en la construcción del ius constitutionale commune latinoamericano’, in A. Von Bogdandy, H. Fix-Fierro and M.
Morales (eds.), Ius constitutionale commune en América Latina. Rasgos, Potencialidades y Desafíos (IIJ/UNAM e
Instituto Max Planck de Derecho Público Comparado y Derecho Internacional, 2014), 308.

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 Material Constitution in Latin American Courts 287

DC of the Conseil Constitutionnel)65 and has been influential in Latin American constitutional-
ism (it has been mainly embraced by apex courts through remission clauses or clausulas de
apertura). However, the Latin American version of the doctrine, which found one of its earliest
expressions in a judgment of the Colombian Constitutional Court,66 includes international
instruments as opposed to only domestic legislation.67 Bolivia not only followed Colombia
through its jurisprudence between 2005 and 2006,68 but it seems to be the only country that
explicitly refers to the term ‘constitutional block’ in its constitutional text.69 Article 410.II of the
Bolivian Constitution states: ‘The constitution is the supreme law of the Bolivian legal order and
enjoys supremacy before any other normative disposition. The constitutional block is comprised
by the Human Rights international Treaties and Covenants and the norms of Communitarian
Law that have been ratified by the country . . .’.
Although not articulated specifically in terms of the material constitution, the use of prin-
ciples and instruments of international human rights law reflects the receptivity of courts to
historical changes in the world order that may be understood as being a fundamental part of
their own constitutional system. The idea of considering international human rights law as part
of the interpretative framework of domestic judicial review is also found in the European
context. For example, it has been suggested that international human rights law may serve as
a material constraint on the amendment power.70 In this same vein, it would not be surprising if,
at some point in the near future, domestic discussions of the material constitution become fully
intertwined with notions of international human rights law, such that the consideration
of any argument about implicit limits to the amendment authority would ultimately remit
domestic judges to the international legal system. When that happens, the question would be
whether, as in the decision of the Peruvian Constitutional Tribunal, the material constitution
would still be considered subject to the will of the constituent people.

65
For a discussion, see, M. E. Carpio, ‘Bloque de Constitucionalidad y Proceso de Inconstitucionalidad de Las Leyes’
(2005) 7 Revista Iberoamericana de Derecho Procesal Constitucional 79, 81–83.
66
Sentencia C-225/1995, Corte Constitucional de Colombia.
67
M. Gongora Mera, ‘Bloque’, 307–8.
68
Ibid., 314–15.
69
See constituteproject.org [search term: ‘bloque de constitucionalidad’]. The constituteproject.org’s English transla-
tion of Article 411.II of the constitution of Bolivia translated the term ‘bloque de constitucionalidad’ into ‘the
components of constitutional law’. There is a possibility of inaccuracy in the figure reported here regarding those
constitutions that are not originally in Spanish, that adopt the concept of ‘bloque de constitucionalidad’ and which
might have gotten lost in translation. Even though ‘constitutional block’ is a literal translation, we think that in this
case it would be the most accurate.
70
L. Garlicki and Z. A. Garlicka, ‘External Review of Constitutional Amendments? International Law as a Norm of
Reference’ (2011) 44 Israel Law Review 343.

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 20

A Materialist Analysis of the Indian Constitution

Sandipto Dasgupta

The nearly two decade-long dissolution of European empires led to the formal political inde-
pendence of nearly one third of the world’s population. In the place of empires emerged a host
of nation states, all of which adopted a written constitution to create and organise the new post-
colonial regime. It was, by a stretch, the most productive period in the history of constitution
making. However, such a momentous endeavour has been analysed primarily through a
derivative lens. It was implicitly assumed that the basic norms, features, and formal structure
of a modern constitution were already forged in Europe and America. The work of post-colonial
constitution-makers was primarily that of adaptation; their ‘successes’ and ‘failures’ to be meas-
ured by how well or poorly they managed to incorporate a script that had already been written.
Post-colonial constitutions are therefore to be viewed as a derived instantiation of a ‘globally
shared mode of organizing socio-political formations’.1 That assumption erases the socio-
historical specificity of the post-colonial transitional moment and the political creativity of the
regime formation. It also shares a particular view of constitutions – as a set of widely shared
norms, whose validity is independent of their specific socio-historical context, and one which
necessarily bestows legitimacy on any political regime. The tradition of the material constitution
stands as a critique of that assumption, which is precisely why it is a significant intellectual
standpoint from which to interrogate the specificities of post-colonial constitutional experiences.
The absence of material constitutional analysis from the post-colonial scene was not just a
scholarly oversight. As Chris Thornhill points out, during the Cold War era the intellectual
momentum in both constitutional theory and constitutional practice was toward a more formal,
normative, view of constitutions.2 Certain features were prescribed in order for constitutions to
be considered a part of the liberal democratic world.3 With the eventual triumph of the US-led
global order, this view became globally hegemonic, especially during the constitution-making
era that coincided with the wave of democratisation in Central and East European countries.
Constitutions, at least in their prescriptive form, became globalised and standardised.4 This was
particularly true for the post-colonial countries. With the demise of Third Worldist projects of

1
J. Go, ‘A Globalizing Constitutionalism? Views from the Postcolony, 1945–2000’ (2003) 18 International Sociology 72.
2
C. Thornhill, A Sociology of Constitutions (Cambridge University Press, 2011), 3–4.
3
A. Rana, The Two Faces of American Freedom (Harvard University Press, 2010); M. Tushnet, ‘“Our Perfect
Constitution” Revisited’, in P. Berkowitz (ed.), Terrorism, the Laws of War, and the Constitution: Debating Enemy
Combatant Cases (Hoover Institution Press, 2005), 131–58.
4
H. Klug, Constituting Democracy: Law, Globalism and South Africa’s Political Reconstruction (Cambridge University
Press, 2000).

288

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 A Materialist Analysis of the Indian Constitution 289

economic sovereignty and developmentalism, and under the compulsion of sovereign debt
crises, countries in the global periphery were unable to assert their ideational or economic
autonomy. In the heady days of unipolar globalisation, international organisations and consti-
tutional experts advocated homogenous constitutional forms. The contextual, materialist type of
constitutional analysis found little political favour.
A material analysis of the post-colonial constitutional form is therefore also a recovery of a
historical moment. Decolonisation was not just a time of formal political freedom to be then
baptized by the adoption of certain idealised juridical norms. It was an attempt at shaping a
distinctive post-colonial future through autonomy from the circuit of imperial capital. In the
condition of a weak and dependent bourgeoisie under colonialism, post-colonial countries tried
pursuing autonomy through projects of planned development, state-led industrialisation, and
social transformation. These projects demanded the primacy of sovereignty over property – as
witnessed in the various attempts at nationalisation and land reform in the first decade after
decolonisation. The constitution of the post-colony therefore sought to differentiate itself from
the borrowed norms of the metropole privileging property rights and constraints on
state intervention.
However, any study of the material constitution of the post-colony has to also contend with the
eventual decline and exhaustion of that initial project and to consider how the initial consti-
tutional vision and practice changed or struggled on its own terms. Rather than a simplistic
judgement about success or failure to achieve some idealised version of ‘liberal constitutional-
ism’, it has to account for constitutional change in terms of shifting social bases.
In this chapter, I will explore some of the main elements of that experience through a material
analysis of the Indian Constitution. India is in many ways exceptional amongst its post-colonial
peers. The most significant colony of the British Empire, it gained independence through the
largest and most popular anti-colonial movement in the world. Its constitution was drafted
without any interference from or influence by its former colonial rulers. That constitution has
survived over seven decades without any coups or foreign interventions – a rarity amongst its
post-colonial peers. However, these exceptional elements make India a particularly suitable case
to investigate the material constitution of the post-colony on its own terms. It showcases some of
the central terms and problematics of the material constitution of the post-colony.
The persistent danger posed by the ‘social question’ in conditions of under-development and
inequality was the central challenge for the post-colonial regime builders. The solution, across
much of the post-colonial world, was a project of state led social transformation, known as
development planning. The post-colonial constitution, I would argue, was designed to facilitate
and realise this central goal. It was a constitution by and for administrators and planners. Setting
up the terms of the foundational constitutional design in these terms then allows us to track its
shifting coordinates over the next decades. In the subsequent parts of the chapter, I will explore
how lawyers and judges supplanted administrators as the primary custodians of the post-colonial
constitution as the fortunes of development planning declined and the Third World became
‘liberalised’; concluding with some reflections on the fate of the original post-colonial ambitions
of social transformation through the constitution.

20.1 THE PROBLEM OF HEGEMONY

The anti-colonial movement that brought independence to India was the largest mass move-
ment of its kind anywhere in the world. After the First World War, Gandhi emerged on the
Indian political scene and transformed the Indian National Congress – till then a party of urban

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 290 Sandipto Dasgupta

professionals petitioning the colonial government for various remedies – into a mass party with
an organisational structure spread across every district in the country. When independence from
colonial rule happened, Congress became the ruling party with little doubt about its claim to be
the legitimate representative of the hitherto colonised population. The scale and the success of
the Congress and the anti-colonial movement that it led gave rise to the view of a constitution of
the post-colonial regime based on consensual and high minded principles.5 This picture held
sway until the 1970s, when irrevocable tensions between different organs of the state and factions
within the party led to a full-blown constitutional crisis.
Scholars at the time questioned the earlier model of consensual post-colonial transition to
highlight the various conflicts and contradictions that lay at the heart of the post-colonial regime.
They utilised the work of Antonio Gramsci to make the argument that the post-colonial ruling
elite faced a crisis of hegemony.6 Despite Gandhi, the Indian elite were not successful in fully
overcoming their distance from the peasant masses – remaining unable to create a new common
Weltanschauung. The alliance between the elites and the masses that led to a genuinely popular
anti-colonial movement under the umbrella of the Congress was contingent on fighting a
common enemy, and did not necessarily translate into a widespread ‘common sense’ about
the new order that was to follow.
The absence of an ethico-political hegemony gave special urgency to the social question
borne by two major problems: under-development and inequality. A highly uneven distribution
of landholding, backed by the colonial system of zamindari (landlordism), subjected the rural
masses to deep-rooted hierarchy and oppression. Although facilitated by the colonial regime, the
sources of much of these quotidian experiences of hierarchy and oppression were indigenous
landlords and money lenders. With the departure of a common enemy, there was a very real
danger that the resistive energy turn inwards against the indigenous sources of social power. At
the same time, colonial economic policy, domination of British capital and persistent under-
investment meant relatively low levels of industrialisation, indigenous capital formation, and
economic growth. Taken together these manifested in widely prevailing poverty and scarcity.
Added to a population politically mobilised through the anti-colonial movement, such condi-
tions portended very real dangers of social upheaval. The social question was an unavoidable
one for the nascent post-colonial regime.
The lack of hegemony and threat of social upheaval led the Indian elites to a ‘passive revolution’
in the Gramscian sense, that is, a deliberate project of ‘revolution without revolution’.7 The post-
colonial ruling elites realised that their rule depended upon addressing the social question in a
deliberate, gradual, and controlled fashion. They needed to intervene in and transform society
without risking a tumultuous and extra-institutional revolutionary upheaval. The Constitution,
rather than a formal impedimentum of political sovereignty or a set of treasured and widely
accepted norms, was a carefully designed institutional structure for that project.
The lack of hegemony and the potential for social conflict provided the need and the
rationale for managing the social transformation through the Constitution. The particular

5
R. Kothari, ‘The Congress “System” in India’ (1964) 4 Asian Survey 1161; M. Weiner, Party Building in a New Nation:
The Indian National Congress (Chicago University Press, 1967); R. Kothari, Politics in India (Little and Brown, 1970); I.
Lloyd and S. H. Rudolph, In Pursuit of Lakshmi: The Political Economy of the Indian State (Chicago University Press,
1987).
6
R. Guha, Dominance without Hegemony: History and Power in Colonial India (Oxford University Press, 1998); P.
Chatterjee, Nationalist Thought and the Colonial World: A Derivative Discourse? (Oxford University Press, 1986); S.
Kaviraj, The Imaginary Institution of India: Politics and Ideas (Permanent Black, 2010).
7
A. Gramsci, Selections from the Prison Notebooks, Q. Hoare and G. N. Smith, trans. (International Publishers, 1971),
58.

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 A Materialist Analysis of the Indian Constitution 291

dynamic of formulating the constitution was further conditioned by two related sets of conflicts.
The first was a credible threat of popular unrest, and the second was the conflict and negoti-
ations between the different groups that comprised the post-colonial ruling elite.

20.2 THE PARTY, THE PEOPLE AND THE STATE

For the Indian constitution-makers, the challenge was how to manage a revolution (through the
Constitution) in order to avoid a revolution (in the streets). ‘If the Constitution holds up, blocks,
the future progress of our country’, warned a member of the Constituent Assembly, ‘I dare say that
the progress which has been thus retarded will be achieved by a violent revolution: revolution will
take the place of evolution.’8 This threat was a result of the events that were playing out outside the
Assembly during the four years it took to draft the Constitution. The decade preceding the
Constituent Assembly was one of increasing radicalisation of peasant and labour politics which,
while never challenging Congress’ dominance of the political landscape, did constitute a cause
for concern. In 1946, the year the Constituent Assembly convened, major militant (and at times
armed) peasant movements broke out in Bengal, Maharashtra, Travancore, and elsewhere.9
During the years of drafting the Constitution successful strikes took place in textile mills, ports,
railways, mines and postal services.10 One can add to this the threat posed by the Communists
given the global prominence of the Communist movement and the revolution in neighbouring
China. As Chairman of the Drafting Committee B. R. Ambedkar noted in the Constituent
Assembly ‘this urge for self-realization in the down-trodden classes must not be allowed to devolve
into a class struggle or class war [. . .] That would indeed be a day of disaster’.11
The anxiety about the radical energy of the popular movements was based in the nature of the
Congress as a party. It was not a revolutionary party organised under the banner of a coherent
ideology, with a committed army of cadres. Nor did the radical sentiments on the ground find a
relatively unmediated path through the party. By the 1920s, the anti-colonial movement had
become a genuinely popular struggle. Mass movements have an inherent tendency to radicalise
and exceed the scope and focus of their leaders. By the end of the 1930s, the majority of the
Congress leadership made a deliberate choice – over the protest of the left-wing faction within
the party – to contest elections and enter provincial government under the colonial consti-
tutional act called the Government of India Act of 1935. This transformed it from the party of
anti-colonial mass movement to a government in waiting.12 Its primary habitus shifted from the
streets to the government buildings.
The ordering principles for the post-colonial polity would therefore not be drawn for the
organisational structure of the anti-colonial mass movement. There remained an almost uninter-
rupted continuity between the institutions, norms and personnel of the late colonial state into
the post-colonial regime. The very same bureaucracy, police and army that was used to suppress
the anti-colonial movement transitioned seamlessly to administering the new post-colonial
regime.13 Given India’s centrality to the British empire, the colonial state machinery was the

8
H. V. Kamath, Constituent Assembly Debates, 17 September 1949.
9
S. Sarkar, Modern India: 1885–1947 (Macmillan, 1983).
10
R. Chandavarkar, Origins of Industrial Capitalism in India: Business Strategies and the Working Classes in Bombay,
1900–1940 (Cambridge University Press, 1994); M. D. Morris, The Emergence of Industrial Labor Force in India:
A Study of Bombay Cotton Mills, 1854–1947 (University of California Press, 1965).
11
B. R. Ambedkar, Constituent Assembly Debates, 4 November 1948.
12
Sarkar, Modern India.
13
A. Burra, ‘The Indian Civil Service and the Nationalist Movement: Neutrality, Politics, and Continuity’ (2010) 48
Journal of Commonwealth and Comparative Politics 404.

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 292 Sandipto Dasgupta

most developed version of its kind. Now, the new rulers sought to use it, with only minor
modifications, for the purpose of post-colonial governance and transformation.14 The state in
other words, preceded the Constitution, which in turn was built around the existing infrastruc-
ture of the state.

20.3 THE DOMINANT CLASSES AND THE CONSTITUTION

Hegemony, however, is not just a question of political common sense. A necessary, though not
sufficient, condition is supplied by the political economy of post-colonial transition. In a
capitalist system investment decisions are private and, since governments in power depend on
continued investments both for electoral gains and political stability, they are generally not
willing to extend their redistributive agenda beyond a point that would – in Gramsci’s phrase –
‘touch the essential’.15 In such a condition of dependence, the present material interest of the
capitalist (i.e., profit) appears as the future universal interest of the whole society (growth).16
Through two centuries of colonial rule, the developmental trajectory of Indian industrial capital
was heavily determined by the needs and policies of the metropolitan economy. For most of
colonial history, the focus was on the export of cheap raw materials and trade controlled by
British capital. Development of indigenous capital under this condition remained weak, spor-
adic and informal.17 Therefore, capital in India was not in a position where its interests could
appear, simply by virtue of its place in the economy, as the universal interest of the nation.
Instead, capital was crucially dependent on the state for its growth and reproduction.18
The economist Pranab Bardhan developed the notion of a ‘coalitional model of domination’
whereby he argued that in India the capitalist class, due to its historic weakness, had to share
power with other dominant classes.19 This coalition consisted of three groups – industrial
capitalists, rural landowning elites and professional elites. Independent dominance of any one
of these classes was never a concrete historical possibility. Hence the coalition was not an
incidental fact or an accident, it was the very condition of elite dominance, which would
otherwise be destabilised. This provided a centripetal constraint on the coalition, but not a
frictionless unity of purpose. As independence drew near, the general goal of winning freedom
from colonial rule gave way to intense negotiation among these classes for determining the
structure of new political institutions and the allocation of resources.20 The process of drafting
the Constitution was similarly marked by intra-coalition negotiation between the dominant
classes. That negotiation was constrained by the aforementioned inability of any group to claim
independent dominance. In terms of constitution-making this implied an inability to propose a
separate system of rule, from the one being hammered out inside the Assembly. In other words,
neither group had the ability, and hence the desire, to lead either a revolution or a coup. This
was the material basis that created the condition for, and maintained the stability of, an electoral
democracy in India.

14
S. Dasgupta, ‘A Language that is Foreign to Us: Continuities and Anxieties in the Making of the Indian Constitution’
(2014) 34 Comparative Studies of South Asia, Africa, and the Middle East 228.
15
Gramsci, Prison Notebooks, 161.
16
A. Przeworski, Capitalism and Social Democracy (Cambridge University Press, 1985).
17
A. K. Bagchi, Private Investment in India (Cambridge University Press, 1972); A. Kohli, Imperialism and the
Developing World (Princeton University Press, 2020).
18
F. R. Frankel, India’s Political Economy, 1947–2004: The Gradual Revolution (Oxford University Press, 2005); P.
Chatterjee, The Nation and Its Fragments: Colonial and Postcolonial Histories (Princeton University Press, 1993).
19
P. Bardhan, The Political Economy of Development in India (Blackwell, 1984).
20
S. Kaviraj, ‘A Critique of the Passive Revolution’ (1988) 23 Economic and Political Weekly 2429.

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 A Materialist Analysis of the Indian Constitution 293

Although shaped by the dynamics of this coalition, one amongst these three groups exercised
overwhelming influence in formulating the Constitution: the professional elites. The reason for
their prominence was the corresponding weakness of the other two dominant classes when it
came to constitution-making. While the industrial capitalist class did have a plausible vision of
‘national interest’ shaped in its own image and borrowed from the annals of the advanced
capitalist countries, it lacked either the political or the economic position required for its vision
to become hegemonic. Its dependence on the state manifested itself in its acquiescence in
developmental planning, where the state was to play the primary role in the economy.
The situation of the rural land-owning elites was in a sense the opposite. Their control over
land and agrarian labour – the vast majority of the labour force – gave them substantial power.
Much of the Congress organisation in the rural areas was dominated by this group.21 However,
what limited the influence of the rural elites in the Constitution-making process was the fact
that, unlike the other two groups, they lacked an ‘alternate coherent vision’ which they could
posit as a vision of ‘national interest’.22 Added to this was the fact that their influence and
organisation was local and internally differentiated due to the vast diversity in land holding
patterns across India. Furthermore, they did not possess the necessary technical skill or language
with which to control the levers of the state. The most they could do was act as a ‘persistent
undertow’ to the dominant developmental vision. The centralised architecture of the
Constitution, with more power allocated to the national as opposed to the provisional govern-
ments (where the landowning elites had more influence), was a mark of their relative weakness
regarding the constitutional project.
The group that supplied much of the vision, the language and the terms of public justification
for the Constitution was the professional elites. The professional elites did not constitute a class
by virtue of their control of the production process or material resources. Rather, their position
was derived from their role in managing the state institutions and their mastery of forms of
knowledge and skills suited for that task. The colonial regime created limited opportunities for
westernised education for a section of the indigenous elites. Although a miniscule proportion of
the population, this class consisted of a substantial number who went into professional services
like law, bureaucracy or academia. The nature and interest of the colonial state – the profes-
sional sphere of activity for this class – was related only minimally, if at all, to the interests of
Indian capital. As a result, this class developed a distinct sphere of its own, without ‘much of a
direct stake in the fortunes of private capital’.23

20.4 THE ADMINISTRATOR AS THE AUTHOR OF THE CONSTITUTION

What made the class of professional elites prominent was both the nature of the post-colonial
transition and the complexity of post-colonial regime formation. The fact that the transition did
not happen through a disruptive revolutionary process and hence left the infrastructures of the
state nearly intact meant that the task of building and maintaining the nascent post-colonial
regime fell primarily to this group. Specialised knowledge of the workings of state institutions
was highly prized, as evidenced by the overwhelming presence and influence of the members of
this class in the Constituent Assembly. Beyond the affairs of managing the state, the professional

21
E. Stokes, ‘Agrarian Relations: Northern and Central India’, in D. Kumar and M. Desai (eds.), Cambridge Economic
History of India, Vol. 2, c. 1757–c. 1970 (Cambridge University Press, 1983); P. R. Brass, Fractional Politics in an Indian
State (University of California Press, 1965).
22
S. Kaviraj, ‘A Critique of the Passive Revolution’ (1988) 23 Economic and Political Weekly 2429, 2431.
23
P. Bardhan, The Political Economy of Development in India (Blackwell, 1984), 52.

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 294 Sandipto Dasgupta

class was crucial to the strategy of gradual and controlled social transformation. Development
planning, the mode in which that transformation was to be achieved, was the terrain where the
specific attributes of this class was most valued. The ‘scarcity value of education’ made the
knowledge and expertise offered by the professional class an especially prized asset. Apart from
the fact that India had nearly 85 per cent illiteracy at the time of independence, there was no
sufficiently developed intellectual apparatus of the peasantry or the working class that could
propose and execute an alternative vision of transformation. This lack of alternatives from below,
nearly as important as the corresponding weakness of the capitalist class, made the professional
elites crucial for the realisation of a planned development.
As freedom came to be defined not just in political but also economic terms, modernisation and
productivity increase through planning and the consequent eradication of material deprivation
was the basis on which the post-colonial rulers appealed for the continuing support of the masses.
They claimed authority not on the basis of force but of knowledge. Colonial rule had deprived
India of a sufficient base of engineers and scientists, but it did leave behind an enormous corps of
trained administrators. While they had to adjust to a very different set of instruments and language
by which to perform their task – from coordinators of coercion to impresarios of democratic
order – their basic skill set was critical to the construction and legitimacy of the nascent regime. In
India, the pre-eminent constituent subject was the administrator.
This explains a couple of curious facts about the Indian Constitution. The first is that nearly
two-thirds of the Constitution was almost a verbatim reproduction of the colonial Government
of India Act of 1935. Like all putative constitutional acts of the colonial government this Act was
primarily an administrative manual: a comprehensive rule-book for operating the complex and
vast machineries of the colonial state and ensuring its functional coherence. The professional
elites had been trained in that manual for operating the state machinery. Its language and
grammar, levers and pulleys, were familiar to them from experience. So when the time came for
them to devise their own institutional architecture, they drew heavily from the text they knew
well.24
Second, it also explained the extraordinary length of the Constitution, which made it the
longest national constitution in the world. This was due to the inclusion of exhaustive details
about administrative arrangements, apportionment of various governmental duties, lengthy
schedules and so on. These are things that one would not expect to find in a constitution but
in less celebrated public law iteration of administrative acts. Ambedkar acknowledged in the
Assembly that normally such ‘administrative details’ would ‘have no place in the Constitution’.
But, the ‘necessities’ of the Indian condition ‘justifies their inclusion’.25
Beyond these particularities, the administrative authors of the Constitution adopted what
Martin Loughlin calls a ‘functionalist’ view of public law.26 They challenged the view that law
could be understood as a set of norms that transcend the particularities of its social context and
stipulate ideal standards. The functionalist view situated public law within an objective matrix
informed by the basic function of the state. In the context of post-colonial India, this was
primarily development and planned social transformation. Both the formulation and interpret-
ation of public law had to be purposive. This framing could be contrasted with a rights-based

24
S. Dasgupta, ‘A Language that is Foreign to Us: Continuities and Anxieties in the Making of the Indian Constitution’
(2014) 34 Comparative Studies of South Asia, Africa, and the Middle East 228.
25
B. R. Ambedkar, Constituent Assembly Debates, 25 November 1949.
26
M. Loughlin, ‘The Functionalist Style in Public Law’ (2005) 55 Toronto Law Journal 361.

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 A Materialist Analysis of the Indian Constitution 295

framing, which focussed on the constraints on the actions of the state. After emerging in the mid-
nineteenth century (primarily in continental Europe), by the early twentieth century the
functionalist style was a globally influential current.27 It was coeval with the rise of the adminis-
trative state and consequently administrative law.
In India, in the condition of a revolution without revolution, there did not exist a widely
shared common political vision that could override or transcend the divisions and fractures of
social existence. The unity of the Indian territory was an administrative legacy held together by
the force of colonial arms. The creation of a genuine post-colonial unity therefore had to be
constituted at the level of the state, as an administrative task. These were the men, the
technicians of the state, who sought to construct the architecture of public law in India: one
that sought to functionally analyse and perform the task of making a whole out of this
fractured society.
‘We have bigger decisions to take, graver choices before us, than those of lawyers’ making’,
Jawaharlal Nehru, the First Prime Minister of India, reminded his colleagues in the Constituent
Assembly.28 Public law had to be imagined outside the orthodoxies of legal thought. Not as
general rules standing above society, but as precise mechanisms based on analysis of particular
social condition. To control and manage this complex condition, one had to anticipate the
possible ways the transformational project could unfold in practice – the various authorities that
might be involved, the cohesiveness of their actions, the potential interpretations of the text and
probable obstacles. This required a calculation of mechanics, techniques and scenarios. Indian
constitution-makers studied recent constitutional experiences across the world – searching for
precise parts of the machine and seeking insights into how they operated in practice.29 The aim
of this impressive comparative analysis was to analyse the particular problems that develop
through constitutional practice, especially the possible meanings phrases can assume, and to
identify provisions that could fit India’s needs. There was an explicit focus in these studies on
technical solutions and phrasings – that is functions – rather than any general principles or
abstract ideals. Global constitutional practices were analysed from the point of view of an expert
administrator.

20.5 THE PARLIAMENT AND THE PLANNERS

The Indian constitution-makers chose to have a parliamentary, as opposed to a presidential,

system of government. Parliament was envisaged as a mediating institutional mechanism for the
two most significant, and potentially destabilising, elements of the new order – deliberate state-
led socio-economic transformation (i.e., development planning) and universal adult franchise.
There is an analytically trivial explanation for this choice. Most post-colonial countries, at least
initially, adopted the institutions of their former colonial rulers.30 Though several former British
colonies would later shift from a parliamentary to a presidential system, almost none went the
other way. But a story of institutional legacy is complicated by the fact that the state that the post-
colonial rulers inherited, namely the colonial state, was a model of unfettered
executive authority.

27
M. Loughlin, Public Law and Political Theory (Clarendon Press, 1992).
28
J. Nehru, Constituent Assembly Debates, 21 July 1947.
29
G. Austin, The Indian Constitution: Cornerstone of a Nation (Oxford University Press, 1972).
30
A. Przeworski, Democracy and the Limits of Self Government (Cambridge University Press, 2010); Go, ‘A Globalizing
Constitutionalism?’, 71.

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 296 Sandipto Dasgupta

There was a further reason why India could have moved toward an empowered executive-
driven presidential model, as many of its post-colonial peers. The inherent institutional unity of
the presidential system was far better equipped to handle the complex task of managing a
planned transformation. From Bismarck’s Germany to Stalin’s Soviet Union to Meiji Japan, all
the late developing economies followed such a path, as did India’s Third World contemporaries
like Nasser’s Egypt or Sukarno’s Indonesia. The choice of parliamentarism was far from an
obvious or standard choice.
For the Indian constitution-makers, however, the problem was a specific one: how to pursue a
planned transformation under conditions of mass democracy. In the transitional moment of
decolonisation, there was no immediate definable crisis, nor a plan of action to be enforced post-
haste. Rather, mass electoral democracy meant the situation in India was ‘dynamic and fluid’ (to
use Nehru’s words), with yet unforeseen demands and coalitions that could arise requiring a
constant process of calculation and relatively swift adjustments.31 A parliamentary system with
inbuilt mechanisms for negotiations, coalition building, and deliberations was much better
suited for such a task than a presidential system. Most importantly these mechanisms were
available for use almost continuously and were suitably low key, not requiring the mobilisation
of nation-wide elections to achieve their aims. They could act as the node for a two-way process:
allowing members of parliament to voice the demands of their constituents, thereby creating an
efficient feedback mechanism for development planners and administrators; and on the other
hand the parliamentarians with a local base could act as the spokespersons of the state and its
developmental agenda, thereby generating legitimacy and stability for it.32 In its ideal version,
the parliament could serve as the mediating plain between the developmental administration
and popular political expression. There is a familiar critique of the presidential/executive driven
social transformation project in say Egypt or Latin America whereby the rulers were more willing
to make expansive social policy statements than to give popular politics any real voice in the
affairs of the state.33 The parliamentary model in India therefore had the potential to be a more
democratic form of post-colonial developmentalism.
This ideal was not fully realised, however. The assumption that a robust democratic process
that would successfully translate popular aspiration at the level of the state could be achieved
merely through institutional arrangements, proved to be wrong. In the absence of a party that
was willing to actively engage in popular mobilisation and organisation around the social
question, the kind of active feedback mechanism imagined never came to fruition. Any organisa-
tion or mobilisation was purely electoral. Consequently, democracy in this context came to
stand in purely for electoral competition rather than any expansive sense of popular participation
in the developmental agenda. And without that mediating link, parliament’s role soon became
just one of garnering enough votes to capture the executive This trend was formalised by the rise
of Indira Gandhi in the 1970s as a plebiscitary executive standing above both the party and the
parliament and one that has been reproduced with even more favourable institutional balance
by the current regime.34

31
J. Nehru, Constituent Assembly Debates, 10 September 1949.
32
S. Dasgupta, ‘Parliamentarism, Not Presidentialism: Development and Democracy in India’ (2018) 53 Economic and
Political Weekly 43.
33
J. Beinin, Workers and Peasants in the Modern Middle East (Cambridge University Press, 2001); R. Gargarella, Latin
American Constitutionalism 1810–2010 (Oxford University Press, 2013).
34
S. Kaviraj, ‘Indira Gandhi and Indian Politics’ (1986) 21 Economic and Political Weekly 1697.

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 A Materialist Analysis of the Indian Constitution 297

20.6 LAWYERS AND SOCIAL TRANSFORMATION

The decline in the prominence of the parliament opened up space for the third branch of
government to play a role that was not initially envisaged by the constitution-makers. The
drafters were well aware that one potential obstacle to a constitutional path to social transform-
ation was the judiciary. It was not the familiar concern about the counter-majoritarian power of
judicial review that worried them. Unlike in the United States, they explicitly incorporated that
power into the Constitution. Rather, what was at stake was the different kinds of expertise and
judgement that planner administrators and judges were trained in, and how the former were
much better suited to the task of planned social intervention and transformation. Technocrats
and administrators, mediated by parliamentary deliberations, had both the necessary knowledge
and expertise as well as the proper method for deciding on the various issues that could arise in
the course of post-colonial social transformation. Judges, trained in the specialised body of rules
and precedents, lacked both that knowledge and the expertise. Second, the very nature of the
common law tradition in which all Indian lawyers and judges were raised – an obedience to past
norms and precedents – ran counter to the future-oriented project of social transformation that
the post-colonial regime was committed to. Finally, judges viewed matters through the lens of
specific litigations. The framing of a litigation was fundamentally different from the way the
transformational project was meant to be framed. The technocrats and administrators situated
individual problems within a larger whole, in a purposive manner. Litigation on the other hand
could potentially frame complex issues of social transformation through the lens of the conflict
between two parties and their contending rights.35 The resolution of this conflict had to be
found not in the most appropriate solution for advancing the goals of the transformative plan,
but in the correct set of legal doctrines and methods of interpretation. True to their functionalist
orientation, the constitution makers sought to set up a ‘division of labour’ between the executive/
legislature and the judiciary.36 The executive/legislature was to act on complex social and
economic questions facing the country. The judiciary was to act as a watchdog to ensure that
such acts never become capricious or arbitrary, instead of judging them on their substance or
merits. As Nehru stated in the Assembly regarding the transformational project: ‘The law should
do it. Parliament should do it. There is no reference in this to any judiciary coming into the
picture.’37
There are three prominent examples in the Constitution of this deliberate attempt to keep the
judiciary away from substantive questions of social transformation. First was the list of enumer-
ated rights. Each article declaring the right (say, a right to free speech) was followed by a set of
clarifications called ‘permissible limits’ that listed carefully crafted exceptions for actions that
would otherwise be construed as a violation of that right (for example, ‘security of the state’ or
‘public order’). Normally, such exceptions to rights are carved out through judicial decisions.
The constitution-makers felt that the task of such ‘balancing’ should be left to the legislative and
administrative branches rather than the judiciary, given they were better suited to striking the

35
E. Pashukanis, General Theory of Law and Marxism (Pluto Press, 2001).
36
U. Baxi, ‘The Little Done, The Vast Undone: Some Reflections on Reading Glanville Austin’s The Indian
Constitution’ (1967) 9 Journal of the Indian Law Institute 323.
37
J. Nehru, Constituent Assembly Debates, 10 September 1949.

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 298 Sandipto Dasgupta

balance between particular instances of individual rights and the project of planned
development.38
The second example was the deliberate absence of the phrase ‘due process’ from the property
clause of the Constitution. During their comparative constitutional study, the constitution-
makers heard from the New Deal justice Felix Frankfurter, who warned that the phrase ‘due
process’ opened up the possibility of judges examining the substantive aspects of legislation
rather than just its procedural fairness.39 Worried that this would lead to a pathway for the
judiciary to sit in judgement over aspects of the social transformational agenda, the constitution-
makers removed the phrase from the draft.
Finally, there was the example of the ‘Directive Principles of State Policy’: a part of the
Constitution that included a host of goals for the post-colonial regime – from social welfare to
labour conditions, education to women’s empowerment. The reason these were not drafted as
social ‘rights’ was to keep them outside the purview of judicial determination. Rather they were
framed as explicitly non-justiciable aspirational goals, whose realisation and temporal horizon
was to be determined by the administrators and legislatures as they moved along with the
transformational project, unencumbered by interference from the judiciary.
The divide between the administrative and judicial power was not simply a matter of abstract
institutional analysis. Its social basis lay in a prominent division within the class of the profes-
sional elites: lawyers versus administrators. Under colonial rule, while the administrators were
tasked with the stability and functioning of the colonial state machinery, the lawyers represented
individual interests to, and often against, the state. As a result, the lawyerly standpoint tended to
emphasise decolonisation more in terms of the ‘rule of law’. This required some forms of general
norms and abstract rights, not just ‘lessons of experience’. Due to the role they played under
colonial rule as the most prominent intermediaries between the otherwise estranged colonial
rulers and the colonised subjects, the lawyers enjoyed a significant social base and prominence.
If the claim to authority of the experts and managers rested on their knowledge and the future
progress it could help bring about, the lawyer’s authority was built through a more quotidian
experience of mediating disputes between (predominantly upper and middle class) individuals
and the state. This social base meant their viewpoint was a counterpoint to the administration –
which explains the anxiety about the potential actions of the judiciary. Their relative absence
from the life of the subaltern masses – who faced the coercive violence of the colonial state with
little mediation or recourse to law – on the other hand underlined the need for more effective
administrative interventions. Despite the differences between them, the professional elites in
general shared a wariness towards popular mobilisation and class conflict. The administrative
viewpoint, with its self-assured confidence that technocratic solutions could successfully rise
above the conflict of interests and classes, initially made it more suited for the transitional
project. But as that project stalled, the lawyers and their institutional expression – the judiciary –
sought to play a larger role in constitutional life.
Constitutional development in India for the first seven decades of the republic can be plotted
along the lines of a conflict between lawyers and administrators for the custody of the consti-
tution. As the developmental aspirations of the transitional moment seemed exhausted by the
beginning of the 1970s – both in terms of achieving its stated goals and as a result in terms of its

38
D. Kennedy, ‘The Critique of Rights in Critical Legal Studies’, in W. Brown, & J. Halley (eds.), Left Legalism/Left
Critique (Duke University Press, 2002), 178–229.
39
G. Austin, The Indian Constitution: Cornerstone of a Nation (Oxford University Press, 1972).

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 A Materialist Analysis of the Indian Constitution 299

political legitimacy – the Supreme Court began playing a more assertive role in claiming the
final say over all matters constitutional and by extension most forms of social intervention.
Within the professional elites, the administrators and planners had lost their initial prominence
to the rural landowning classes due to the latter’s ability to successfully capture the electoral
machine. They then successfully mobilised that power to frustrate major transformational
projects like land reform.40 At the same time, international developments like sovereign debt
and economic dependencies lessened the developmental aspirations and ability of the post-
colonial state. While the prestige of the administrative elites diminished and the initial aspir-
ations of the parliament to act as a mediator of popular aspirations was frustrated, the courtroom
became the primary site for voicing demands for social policy, and lawyers once again became
the primary conveyors of middle class voices to the state. As a result the Supreme Court began
adjudicating complex matters of social policy through the vehicle of ‘Public Interest Litigation’ –
in keeping with trends in other post-colonial countries especially in Latin America and Africa.41
There has been no prominent social movement in the last three decades – whether it be for
education, housing, or the environment – that has not filed a case before the Supreme Court to
meet its demands. The judicial custodianship of the Constitution was complete when, in a
judgement unprecedented in the annals of constitutional law, the Supreme Court asserted that
they could exercise power of judicial review even over constitutional amendments. As the
material basis of the project of ‘social transformation through constitution’ shifted, lawyers rather
than administrators emerged as the principle post-colonial constituent subjects.

20.7 CONCLUSION

Lawyers replacing administrators as the custodians of the Constitution was not just a change in
style – from functionalist to legalist. It was the result of a major change in the social basis of the
transformational project and, by extension, the Constitution. The decline in prominence of the
administrator was conditioned by the corresponding rise of the other two dominant classes: first
the landowning classes through their control of the electoral machine; and subsequently of the
capitalist class as the country was integrated into the global market. These were, in their
respective ways, a signal of the decline of the developmental project that was shared by so much
of the Third World. It is only after its passing that the project of transformation through
constitution moves from the parliament and planning commission to the courtroom. This shift
of location was also a shift of scope. While the original transformational ambitions envisaged
projects like land reform and nationalisation of resources, the best that the Courts could offer
were targeted rights claims for the remedy of specific misfortunes. The increasing dependence of
progressive political actors on the Courts – in India as elsewhere – over the last few decades is in
a sense as much a sign of a defeat and a retreat from much more expansive ambitions of the past.
As frustrations with the transformational project grew, the domain of extra-constitutional
agitation again resurfaced as part of the repertoire of political action for making material or
welfare claims on the state. It is now a common feature of Indian political life to witness
blockades of roads or symbolic attacks on government properties to demand better infrastructure,
entitlements or jobs. This is what Partha Chatterjee has influentially termed the domain of

40
A. Kohli, The State and Poverty in India: The Politics of Reform (Cambridge University Press, 1987); F. R. Frankel,
India’s Political Economy, 1947–2004: The Gradual Revolution (Oxford University Press, 2005).
41
A. Bhuwania, Courting the People: Public Interest Litigation in Post Emergency India (Cambridge University Press,
2017).

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 300 Sandipto Dasgupta

‘political society’, conducted entirely in extra-legal terms, rather than through any formal
constitutional paths.42 On the other hand, the Courts increasingly sought to embody the
deliberative transformational domain, instituting social policies, forming expert committees
and pronouncing broad developmental plans in the nominal guise of rights claim – from
education to electrification. Unsurprisingly, this produced no broad transformational vision
but rather a patchwork of committee reports and judgements, focused on particular disputes,
often unimplementable. As both these paths show, the constitution makers were correct in their
foresight that the social question would remain the central issue of Indian political life. Yet, the
conflicts over that question are now fought precisely on the terms that they sought to avoid.

42
P. Chatterjee, Politics of the Governed: Reflections on Popular Politics in Most of the World (Columbia University
Press, 2004).

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 21

China’s Material Constitution

Ngoc Son Bui

China is particularly relevant to the theoretical conversations on the material constitution1 due
to ideational, historical, and institutional reasons:
First, dialectical materialism is the key methodology of Marxism–Leninism, the official
ideology of the Communist Party of China – the ruling party in the country.2 This
methodology focuses on the real social and economic conditions of institutional develop-
ment, including those of law and constitution.
Second, China’s socialist constitutional history is shaped by social and political conditions.
The founding of the People’s Republic of China in 1949 after a communist revolution
created the political condition for the new socialist constitutional order, part of which is the
1954 Constitution. The Cultural Revolution led to the promulgation of the 1975
Constitution. The need to institutionalise Four Modernizations (modernising agriculture,
industry, national defence and society and technology) animated the enactment of the 1978
Constitution. China’s current Constitution was enacted in 1982 to institutionalise and
facilitate the ‘Open Door’ economic policy. The 1982 Constitution was amended several
times (in 1998, 1993, 1999, 2004 and 2018) to respond to domestic socioeconomic reform
and China’s increasingly important role in the international political order. The mutual
interactions between formal constitutional development and societal conditions are well
captured in Qianfan Zhang’s contextual account of China’s constitution.3
Third, China lacks a judicial institution for constitutional review. The state’s Constitution
vests the constitutional interpretation power to the Standing Committee of the National
People’s Congress – the permanent body of the national legislature – and courts are not
allowed to review the constitutionality of governmental actions.4 Without judicial consti-
tutional review, China’s actual constitutional development is shaped by social, political
dynamics rather than by legal arguments in courtrooms.

1
M. Goldoni and M. Wilkinson, ‘The Material Constitution’ (2018) 81 Modern Law Review 569.
2
China’s Constitution, Preamble (amended 2018).
3
Q. Zhang, The Constitution of China: A Contextual Analysis (Hart, 2012).
4
Q. Zhang, ‘Establishing Judicial Review in China: Impediments and Prospects’, in A. H. Y. Chen and A. Harding
(eds.), Constitutional Courts in Asia: A Comparative Perspective (Cambridge University Press, 2018), 311.

301

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 302 Ngoc Son Bui

This chapter explores the material constitution of the socialist state in mainland China.5 It
first reviews the material accounts of China’s constitution. These accounts are not explicitly self-
identified as ‘material’, but touch on contextual aspects of China’s constitutional system, which
echoes the main concerns of material constitutionalists. This chapter then considers how the
material constitution is manifested in China. China’s material constitution refers to both
Chinese party-state constitutional order and its social-economic conditions. They are inter-
related: the constitutional order both shapes and is shaped by the social-economic conditions.
The chapter concludes by considering the relation of the material constitution and the formal
Constitution.6

21.1 MATERIAL ACCOUNTS OF CHINA’S CONSTITUTION

A body of English-language scholarship explores various societal aspects of China’s constitu-

tional order, which resonates with the material accounts of the constitution. These include the
inquiries into China’s ancient constitution, unwritten constitution, dual constitution and
political constitutionalism.
Consider first the study on the ancient constitution in China by Su Li (Zhu Suli), a scholar of
sociology of law at Peking University Law School.7 Following Aristotle, he uses the term
‘constitution’ to refer to both the action of constituting and to the fundamental institution.8
On that basis, constitution in ancient China means the action of constituting China’s dynastic
state and its fundamental institutions.
Some of these institutions and practices are laws; some of them, however, are perhaps principles
or norms that direct executive or judicial decisions, but most of them in the actual practice of
political and legal activity in historical China have impregnated Chinese society and people’s
everyday life, working in a hidden and silent way to make these people Chinese as well as
shaping and forming China. They form an effective constitution.9

That ‘effective’ constitution emerged in the Qin-Han period and continued to develop in the
subsequent dynasties in China.10
Like the accounts on the material constitution, Su Li’s account of the ‘effective constitution’
in ancient China deals with the formation of a unified state (‘a common political body’), the
actual working of fundamental dynastic institutions, the social institutions (the rural villages),
the common goals of organisational structure (‘how to form and maintain this huge political,
economic, and cultural body, how to shape and constitute this common body from the political,
economic, and cultural angles’).11 Su Li also discusses the geophysical factors (the Yellow River
and agriculture) of the constitution in ancient China. These are the material conditions of
constituting China.

5
For contextual, historical accounts of other jurisdictions of Greater China, see J. Buhi, Global Constitutional
Narratives of Autonomous Regions: The Constitutional History of Macau (Routledge, 2021); R. Cullen, Hong Kong
Constitutionalism: The British Legacy and the Chinese Future (Routledge, 2020); J. Yeh, The Constitution of Taiwan:
A Contextual Analysis (Hart, 2016).
6
In this chapter, the small-c ‘constitution’ refers to China’s material constitution or the constitutional order, while the
big-C ‘Constitution’ denotes its formal Constitution or the constitutional text.
7
S. Li, The Constitution of Ancient China, Y. Zhang and D. A. Bell, eds. (Princeton University Press, 2018).
8
Ibid., 19.
9
Ibid.
10
Ibid., 28.
11
Ibid., 22, 27.

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 China’s Material Constitution 303

Su Li’s work explores the actual institutional formation and development in ancient China.
The difficulty with this account is it may collapse into the study of the formation and insti-
tutional development of the Chinese ancient state.12 However, Su Li’s study has implications for
comparative study of the material constitution in the ancient world. For example, it is possible to
compare the constitution of the city-states in ancient Greece with the constitution in
ancient China.
Other accounts of the socialist constitutional order in modern China also deal with its
material conditions. One of them is the study of the ‘unwritten constitution’ in socialist China
by Jiang Shigong, another law professor at Peking University Law School.13 Criticising
formalism in Chinese constitutional studies, he focuses on ‘political reality’ and adopts ‘histor-
ical and sociological methods to explore “what the real constitution is in political life”, or “what
the effective constitution is”’.14 On that methodological assumption, Jiang Shigong argues that
the Chinese constitutional order includes both the written formal Constitution and unwritten
constitution. He focuses on important issues of Chinese constitutional politics, namely: the
relationship between the Communist Party of China and the National People’s Congress; the
position of state chairman; central–local relations; and the ‘one country two systems’ arrange-
ment. He demonstrates that these issues are, respectively, shaped by four sources of unwritten
constitutional norms: party’s constitution, constitutional conventions of ‘trinity system of rule’
(one person heading the party, the military and the state), the constitutional doctrine called
Initiatives from Two Sources (reform deriving from both central and local government), and
constitutional statutes (the Hong Kong Basic Law).15
Other accounts on the ‘dual constitution’ in China particularly focus on the relation of the
party Constitution to the state Constitution. The Party Constitution sets down its political goals,
membership, organisational structure, officials, and discipline.16 Cuban-American constitutional
law scholar Larry Catá Backer argues that party-state constitutional order in China includes both
the party Constitution regulating the political power and the state Constitution regulating the
administrative power of the state, with the former as the source for the latter.17 This view is
adopted in Jiang Shigong’s study.18 Xin He also discusses the party leadership as a living
constitution in China.19 In the same vein, Shucheng Wang provides a detailed account of the
evolution of the dual constitution in China, including the dual congresses (the party congress
and the state’s legislature), dual judiciaries (the party discipline institutions and the state courts),
the dual executive systems (the Government and the Party’s parallel departments).20

12
For unification and development of a bureaucratic empire under the state of Qin in 221 BCE and the subsequent
institutional developments of the dynastic states in China, see D. Zhao, The Confucian–Legalist State: A New Theory
of Chinese History (Oxford University Press, 2015).
13
J. Shigong, ‘Written and Unwritten Constitutions: A New Approach to the Study of Constitutional Government in
China’ (2010) 36 Modern China 12.
14
Ibid., 15.
15
Ibid., 23–40.
16
Constitution of the Communist Party of China, revised and adopted at the 19th National Congress of the Communist
Party of China on 24 October 2017, available at: www.xinhuanet.com//english/download/Constitution_of_the_
Communist_Party_of_China.pdf, last accessed 9 August 2022.
17
L. C. Backer, ‘Party, People, Government, and State: On Constitutional Values and the Legitimacy of the Chinese
State-Party Rule of Law System’ (2012) 30 Boston University International Law Journal 343.
18
J. Shigong, ‘Chinese-Style Constitutionalism: On Backer’s Chinese Party-State Constitutionalism’ (2014) 40 Modern
China 133.
19
X. He, ‘The Party’s Leadership As a Living Constitution in China’, in T. Ginsburg and A. Simpser (eds.), Constitutions
in Authoritarian Regimes (Cambridge University Press, 2013), 245.
20
S. Wang, ‘Emergence of a Dual Constitution in Transitional China’ (2015) 45 Hong Kong Law Journal 819, 841–47.

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 304 Ngoc Son Bui

Another approach to China’s constitution is political constitutionalism.21 Echoing the UK

story, Chinese political constitutionalism emerged since 2008 as an antithesis to legal constitu-
tionalism, the mainstream scholarly trend toward the judicialisation of China’s Constitution,
which has been influenced by American constitutional law.22 Chinese political constitutionalists
include Chen Duanhong, Gao Quanxi and Zhai Xiaobo, among others. Some argue that
Chinese political constitutionalism was inspired by the ‘reflexive wave’ of political constitution-
alism in the UK discourse.23 The reflexive accounts focus on the context and condition of the
political constitution and what the political is.24 Similarly, Chinese political constitutionalists
discuss the political conditions and constitutional events (such as constitution making and the
use of constituent power and constitutional moment) and the actual working of the political
institutions.25
The accounts of the ‘unwritten constitution’, ‘dual constitution’ and ‘political constitutional-
ism’ in China resonate with the material approach to constitution as it aims to understand the
reality of the Chinese constitutional order. These studies, however, focus on the actual working
of political institutions and have not yet substantively explored the broader social and economic
context of Chinese constitutional ordering.26

21.2 ELEMENTS OF CHINA’S MATERIAL CONSTITUTION

China’s material constitution refers to the party-state constitutional order and its socio-economic
conditions. It includes three elements: the party-state, the economy and the society. In China’s
constitutional ordering, the party-state both shapes and is shaped by the social and
economic conditions.

21.2.1 The Party-State

The political unity for the material constitution is Chinese modern state. David Shambaugh
observes:
The modern Chinese state has undergone several macro transitions: from imperial to republican
to revolutionary communist to modernizing socialist and, in Taiwan, to democratic phases.
While radically different in its basic ethos and organizational structure in each phase
(monarchical–republican–Leninist–liberal), the Chinese state on the mainland has had three
enduring missions: modernization of the economy, transformation of society, and defense of the
nation against foreign aggression.27

21
B. Su, ‘Political but Incontestable: A Review of “Political Constitutionalism” in China’ (2021) 10 Global
Constitutionalism 10; L. Brang, ‘The Dilemmas of Self-Assertion: Chinese Political Constitutionalism in a
Globalized World’ (2022) 48 Modern China 498; A. H. Y. Chen, ‘The Discourse of Political Constitutionalism in
Contemporary China: Gao Quanxi’s Studies on China’s Political Constitution’ (2014) 14 China Review 183.
22
H. Liu, ‘Regime-Centered and Court-Centered Understandings: The Reception of American Constitutional Law in
Contemporary China’ (2020) 68 The American Journal of Comparative Law 95.
23
Su, ‘Political but Incontestable’, 20.
24
M. Goldoni and C. McCorkindale, ‘Three Waves of Political Constitutionalism’ (2019) 30 King’s Law Journal 74, 84.
25
For more details about the ‘political registers’ in Chinese political constitutionalism, see Su, ‘Political but
Incontestable’, 20–27.
26
For the exploration of the social and economic conditions of constitutional system in China, see R. Peerenboom,
‘Social Foundations of China’s Living Constitution’, in T. Ginsburg (ed.), Comparative Constitutional
Design (Cambridge University Press, 2012), 138.
27
D. Shambaugh, ‘Introduction: The Evolving and Eclectic Modern Chinese State’, in D. Shambaugh (ed.), The
Modern Chinese State (Cambridge University Press, 2000), 1.

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 China’s Material Constitution 305

Due to limited space, this chapter focuses on the Chinese modernising socialist state in the
mainland as the political unity for the country’s material constitution. Economic reform, social
transformation and national defence to build ‘socialism with Chinese characteristics’ are the
fundamental political objectives of the state. The Chinese socialist state is the party-state. The
material accounts of China’s constitution indicate that the Communist Party of China is an
integral part of Chinese constitutional order, not an electoral party as in liberal democracy.
Throughout its history, the Party has transformed from a revolutionary party (the party leading
radical political revolution) into a ruling party (the party leading social and economic reform).28
The Party’s leadership is mandated in Article 1 of the state’s formal Constitution through the 2018
amendments. China’s party-state constitutional order is constituted by actual political insti-
tutions, their operation, and their relations. The political institutions include party institutions
and state institutions.
The party’s institutions include the National Congress, the Central Committee, Political
Bureau, specific institutions (such as Central Commission for Discipline Inspection and Central
Military Commission) and numerous party cells at the local level. As an inherent part of China’s
material constitution, the Party influences teleological and institutional aspects of the consti-
tutional order. The Party sets down fundamental objectives for the development of the socialist
state. Institutionally, since 1993, the positions of the General Secretary and President of State
‘have always been held by the same person’.29 This can be considered a constitutional conven-
tion of China’s material constitution. Through its institutions, the Party decides directions for
the institutional development of the state and party members to hold key state posts.30
The legitimacy of the Party’s leading role in the constitutional order is shaped by change in
the material conditions. The Party first came to power by leading a revolution resulting in the
founding of the People’s Republic of China on 1 October 1949. Therefore, its legitimacy
originally depended on the revolutionary source. Since 1989, when China began to reform,
the Party’s legitimacy has depended on its actual performance in leading economic develop-
ment and social transformation. In the last four decades, economic development and the
improvement of living standards confer performance-based legitimacy on the Party’s rule.31
The state institutions include bureaucracy, the legislature and the judiciary. China has
created a strong administrative system capable of macroeconomic management and proving
basic goods like public security, national defence, legal enforcement and infrastructure. Francis
Fukuyama argues that the new bureaucracy emerged in China since the beginning of the
reforms in 1978 corresponded to ‘the massive shift from the centrally planned economy to a
more open and marketized one’.32 The administrative government in today’s China now ‘is
centralized, massive, and extraordinary complex’.33 However, corruption in the administrative
system is pervasive, which has challenged the legitimacy of the political leadership. Political
leaders are aware of the gravity of the situation and initiated forceful anti-corruption cam-
paigns.34 The recent formal constitutionalisation of the anti-corruption agency (the State

28
Peerenboom, ‘Social Foundations of China’s Living Constitution’, 144.
29
T. Zhang and T. Ginsburg, ‘China’s Turn Toward Law’ (2019) 59 Virginia Journal of International Law 306, 353.
30
For more details on the Party’s influence on the state’s institutions, see He, ‘The Party’s Leadership As a Living
Constitution in China’, 248–57.
31
J. Ci, Democracy in China: The Coming Crisis (Harvard University Press, 2020), 19.
32
F. Fukuyama, Political Order and Political Decay: From the Industrial Revolution to the Globalization of Democracy
(Farrar, Straus and Giroux, 2015), 371.
33
Ibid., 374.
34
Ibid., 380.

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 306 Ngoc Son Bui

Supervision Commission) through the 2018 amendment signals the regime’s perception of
anticorruption as an issue fundamental to the regime’s resilience.
Also, China has created a legislature capable of making a huge amount of law corresponding
to the socio-economic transformation in the last three decades. This body is called National
People’s Congress (NPC) and periodically elected by the people every five years according to the
state’s Constitution. In practice, popular elections are the main mechanism to create the
legislature, albeit under the political control of the Party with various levels. The NPC is
unicameral, comprising of a standing committee and special bodies responsible to specific
national affairs. The departmentalisation of the legislative structure is instrumental to enhancing
law-making capacity. The development of the legislative institution in China is closely con-
nected to economic development. Economic reforms require new laws to regulate new social
and economic relations, which puts pressure on enhancing legislative institutional capacity. In
turn, legislative development facilitates further economic development by offering the legal
framework for economic transactions.35
Scholars discuss the role of the legislature in Chinese constitutional order. Yan Lin and Tom
Ginsburg argued that China’s legislature is the mechanism to interpret the formal Constitution,
which redistributes governmental power, defines citizens’ rights and adjusts the economic
structure.36 Yan Lin additionally demonstrates that: ‘Through statute-making, both the
National People’s Congress and its Standing Committee have enriched and changed the
definition of both vertical and horizontal governmental relations, as well as created new rules
and principles for inter-regional relations. As a result, the overall state power structure has
become more decentralized, diverse and balanced.’37Michael W. Dowdle even considers the
legislature as the locus of Chinese variant of constitutionalism as this institution was able to veto
draft bills submitted by the other political actors and ‘discipline other political actors through the
use of parliamentary investigations’.38 He argues that the growing of distinct social interests
incentivised the political elite and the emerging civil society to shift the locus of their dialogue
out of the Party and into a constitutional apparatus, like the National People’s Congress.39
China has also created a sophisticated judicial system in the last three decades capable of
resolving a variety of legal disputes. The judicial institution is complex, consisting of thousands
of district-level basic people’s courts staffed by 46,000 judges, hundreds of prefecture-level
intermediate people’s courts staffed by 36,000 judges, 31 provincial level high people’s courts
staffed by 7,000 judges, and the Supreme People’s Court (SPC) at the central level staffed by
more than 500 judges, in addition to specialist courts, such as military courts and maritime
courts.40 The Chinese courts are capable of resolving a vast number of legal disputes.

35
For the reform of the legislature in China, see K. J. O’Brien, Reform without Liberalization: China’s National People’s
Congress and the Politics of Institutional Change (Cambridge University Press, 1990); M. W. Dowdle, ‘The
Constitutional Development and Operations of the National People’s Congress’ (1997) 11 Columbia Journal
of Asian Law 1.
36
Y. Lin and T. Ginsburg, ‘Constitutional Interpretation in Lawmaking: China’s Invisible Constitutional Enforcement
Mechanism’ (2015) 63 American Journal of Comparative Law 467, 472.
37
L. Yan, ‘Constitutional Evolution through Legislation: The Quiet Transformation of China’s Constitution’ (2015) 13
International Journal of Constitutional Law 61.
38
M. W. Dowdle, ‘Of Parliaments, Pragmatism, and the Dynamics of Constitutional Development: The Curious Case
of China’ (2002) 35 NYU Journal of International Law and Politics 1, 3–4.
39
Ibid., 53.
40
W. Gu, ‘Courts in China: Judiciary in the Economic and Societal Transitions’, in J. Yeh and W. Chang (eds.), Asian
Courts in Context (Cambridge University Press, 2015), 489–92.

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 China’s Material Constitution 307

To illustrate, from January to September 2014, the SPC handled 10,929,314 cases.41 Lower courts
have decided millions of cases annually. Weixia Gu observes that, among different types of cases,
‘civil and commercial cases far outnumbered’, ‘because in the course of deepening market-
ization, Chinese courts have more and more been expected to serve as impartial arbiters of civil
and commercial disputes among citizens and market entities’.42 The party-state has initiated a
comprehensive program for judicial reform. In China, since 1999, the SPC has initiated three
five-year judicial reform plans, 1999–2003, 2004–8 and 2009–13.43 The Chinese Communist
Party also issued its Opinions on Deepening the Reform of the Judicial System and Its Working
Mechanisms.44 The judicial reform programs cover many issues, like the quality of judges,
depoliticisation of the judge election system, professionalism, judicial integrity, judicial anti-
corruption and reducing local protectionism, among others.45
Judicial reform in China has been undertaken due to the economic reform. Economic
growth has engendered social complexity which in turn creates more economic and civil
disputes. The conventional informal dispute resolution mechanisms like mediations and social
negotiations may still be employed but are insufficient to resolve new disputes. The court system
has therefore been reformed to meet with new demands generated by socioeconomic develop-
ment, although it does not replace the conventional informal mechanisms. But, whether and
how judicial reform contributes to economic development in China require empirical investi-
gation. Some empirical survey reveals the judicial institution is less relevant to socioeconomic
development than the regulatory environment.46 One of the reasons may concern the political
control of the court system. The courts in China are politically controlled,47 which limit their
independence and efficiency, and this may make social and economic actors turn to alternative
dispute solutions.48
However, court in China has different functions in commercial and political fields. Yuhua
Wang argues that Chinese rulers have incentives to promote partial rule of law and judicial
fairness in the commercial realm but impose ‘constraints on citizens’ political and civil rights to
use the court to challenge the state’.49 One consequence of the latter is that Chinese courts are
not formally vested with the power to review the constitutionality of political actions. The
absence of judicial constitutional review, however, does not dismiss the court from the material
constitution. The court is a part of China’s broader constitutional order due to its institutional
relations with the Party and state institutions.50 The Party need courts to implement its political
objectives. The legislative and executive institutions also need to rely on courts to resolve daily
legal disputes.

41
‘Cases Tried by People’s Court Jan - Sept 2014’, The Supreme People’s Court of The People’s Republic of China.
Available at: Cases Tried by People’s Court Jan–Sept 2014.
42
Gu, ‘Courts in China’, 495.
43
Ibid., 515–17.
44
Ibid., 517.
45
Ibid., 515–17.
46
C. Wei, ‘Does Judicial Independence Matter? A Study of the Determinants of Administrative Litigation in an
Authoritarian Regime’ (2017) 38 University of Pennsylvania Journal of International Law 941.
47
L. Ling, ‘The Chinese Communist Party and People’s Courts: Judicial Dependence in China’ (2016) 64 American
Journal of Comparative Law 37.
48
C. F. Minzner, ‘China’s Turn against Law’ (2011) 59 American Journal of Comparative Law 935.
49
Y. Wang, Tying the Autocrat’s Hands: The Rise of The Rule of Law in China (Cambridge University Press, 2014), 13–14.
50
F. Hualing, ‘Autonomy, Courts and The Politico-Legal Order in Contemporary China’, in L. Cao, I. Y. Sun and B.
Hebenton (eds.), The Routledge Handbook of Chinese Criminology (Routledge, 2013), 76–88.

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 308 Ngoc Son Bui

21.2.2 The Economy

The party-state plays a leading role in the transformation and operation of the socialist market
economy in China. The party-state initiated and implemented the program to reform the
economy. The China’s Gǎigé kāifàng (‘Reform & Opening up’) program in 1978 concentrated
on economic reforms toward the model called ‘socialist market economy’. The party-state plays a
leading role in implementation of these market reforms, which lead to the transformation of the
national economy from the planned into market-oriented one.
Several scholars have argued that China is an example of developmental state.51 The Chinese
experience of developmental state is often situated within the East Asian model of developmen-
tal state in Japan, South Korea and Singapore.52 One scholar, for example, argues that Chinese
law and development experience is consistent with the model of (East) Asian developmental
state, stating that ‘Modern Chinese law, like law in the 1960s Asian developmental states, is an
instrumentalist mix of borrowings and pragmatic adaptations from both east and west which has
grown into an autochthonous construct that serves specific local concepts of development’.
Similar ‘localist’ statutes and institutions have been evident in the newly industrialised nations in
Asia, which have been dubbed the Asian developmental states, tigers and miracles. Their laws
were designed to serve the developmental purposes of the Asian societies in which they are
fostered.53
It is true that the Chinese party-state has adopted legal instrumentalism to foster economic
development. However, it is misleading to conceptualise China within the East Asian model of
developmental state. Scholars who believe that China is within the model of East Asian
developmental state tend to focus on legal reforms in the area of private law and overlook the
constitutional law and political aspects in Chinese law and development experience. One of the
key distinctive features of these two stories is that legal instrumentalism is employed mainly by
the party rather than by the government. China is differentiated from other East Asian develop-
mental states by the dominant single communist party. One may argue that law has also been
used by other Asian authoritarian states to foster economic development. However, the party-
model of authoritarianism in China is different from the models of authoritarianism in other
Asian developmental states in the 1960s. The communist party in China is not a private political
organisation but the essential component of the polity, inseparable from the state and, hence,
the so-called party-state.54 Law in China is, therefore, instrumental to institutionalising the
party’s socialist-oriented developmental policies.
In addition, other aspects regarding the legal origins, bureaucracy, the courts, legal education
and legal profession in China are considerably divergent from the East Asian model of develop-
mental state. For example, the modern legal system in China has its roots in the Soviet socialist
legal tradition, which includes many features different from those of legal systems of other East
Asian developmental states which are rooted in western civil law tradition (Japan, South Korea
and Taiwan) or common law tradition (Singapore). The difference of legal origins defines the
differences in the bureaucracy, the courts, legal education and legal profession. To illustrate, the

51
J. B. Knight, ‘China as a Developmental State’ (2014) 37 The World Economy 1335; T. Heberer, ‘The Chinese
“Developmental State 3.0” and the Resilience of Authoritarianism’ (2016) 1 Journal of Chinese Governance 611.
52
W. Chen and S. Keng, ‘The Chinese Developmental State in Transition: In Light of The East Asian Experiences’
(2017) 2 Journal of Chinese Governance 209.
53
C. Carter, ‘The Success of Law and Development in China: Is China the Latest Asian Developmental State?’, in E. P.
McAlinn and C. Pejovic (eds.), Law and Development in Asia (Routledge, 2012), 89.
54
Backer, ‘Party, People, Government, and State’, 331.

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 China’s Material Constitution 309

bureaucracy and the judiciary in East Asian developmental states enjoy more independence
than their counterparts in China. This is because the Asian developmental states operate within
the separation of power scheme while the structure of the Chinese party-state is defined by the
Marxist doctrine of ‘democratic centralism’ which favours concentration of power. In China, the
party and the centralised government are the forces that lead and implement
development projects.
The role of the party-state in development China is better conceptualised as the ‘socialist
developmental state’. The socialist developmental state is a party-state that plays an active role in
promoting economic development to achieve socialism within the transformative institutional and
legal framework informed by socialist legal concepts and institutions. The socialist developmental
state presents a complex combination of both developmental and socialist properties. The
socialist developmental state is developmental in the sense that this state, like any developmental
state, plays an active role and uses law in promoting economic development. However, the
socialist developmental state is socialist in two senses. First, the developmental projects are
directed toward achieving the paradise of socialism. Second, developmental projects are pursued
within the socialist constitutional framework. This framework is transformative as a response to
the imperative of economic development, but still retains the core features of socialist consti-
tutional and legal concepts (e.g., party vanguardism, democratic centralism and socialist legality)
and the corresponding institutions. These socialist features differentiate the socialist develop-
mental state from other developmental states in East Asia and elsewhere.

21.2.3 Society
China lacks mature institutions to limit the government’s power. Elections are dominated by the
single communist party as a tool to legitimatise the party’s monopoly rather than hold the party
accountable.55 Constitutional review, the separation of power and other major institutions of
checks and balances are absent. However, China has some other social mechanisms to hold the
government and the party accountable, which is animated by socio-economic development.
Socio-economic developments in the last three decades have created new social groups and
diversified the social interests, which put pressure on creating mechanisms to address the
diversified interests of the increasingly pluralised society. New social groups, especially the
middle class, demand and mobilise for a government accountable to the public. Domestic
socio-economic dynamics and globalisation have also resulted in the dissemination of new ideas
about the constitutional legitimacy (such as constituent power, judicial review, the separation of
power, limited government) which have challenged the existing arrangement rooted in the
Soviet constitutional tradition.56 This has begun to put pressure on the initial practice of
accountable government.
Without a judicial review system, social mobilisation is the social mechanism for the society to
protect individual rights and check the abuse of the public power. This is evident in the Chinese
weiquan movement, ‘a comprehensive movement involving all social strata throughout the
country and covering every aspect of human rights’.57 As Feng Chongyi documents:

55
E. Malesky and P. Schuler, ‘Star Search: Do Elections Help Nondemocratic Regimes Identify New Leaders?’ (2013)
13 Journal of East Asian Studies 35.
56
R. Creemers, ‘China’s Constitutionalism Debate: Content, Context and Implications’ (2015) 74 The China Journal 91.
57
F. Chongyi, ‘The Threat of Charter 08’, in J. Beja, E. Pils and H. Fu (eds.), Liu Xiaobo, Charter 08 and the
Challenges of Political Reform in China (Hong Kong University Press, 2012), 129.

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 310 Ngoc Son Bui

Most cases of this right defense movement aim to protect economic and social rights, including
protests by peasants against excessive taxes, levies, and forced seizes of farmland; strikes by
workers against low pay, arrears of pay, and poor working conditions; protests by laid-off unban
workers against unfair dismissal by their employers; protests by homeowners against forced
eviction by government and developers; protests by residents against forced relocations; cam-
paigns by citizens against unpaid social entitlements; campaigns for the rights of women and
children; and protests by affected residents against environmental pollution.58

Social actors have mobilised for constitutional change. For example, in 2008, 303 Chinese
dissident intellectuals and human rights activists released a manifesto called Charter 08, which
was then signed by more than 10,000 people inside and outside China. The charter called for
amending the formal Constitution and changes to the broader constitutional order, including
separation of power, legislative democracy, judicial independence and basic political freedoms,
among others.59 Ordinary citizens also deployed constitutional arguments as an advocacy
strategy to influence policy change.60 Society’s constitutional mobilisation is the dynamics of
Chinese’s constitutional ordering.
To summarise, the logics of the interaction of the party-state, the economy and society in
constitutional ordering in China in the last four decades involves two aspects. The party-state
constitutional order both shapes and is shaped by social and economic changes. At the very
beginning of the new development path, the party-state initiated the programmes to reform the
economy according to which the state-owned enterprises play the dominant role while private
sectors are allowed to develop. The implementation of these programmes has resulted in
economic development and social change, which in turn have instigated the needs for both
formal and material constitutional development. So, economic development precedes consti-
tutional development. But later constitutional development is coupled with economic
development, which in turn has engendered the rise of the new middle class, the social force
that is equipped with new ideas and engaged in social mobilisation for further constitutional
development. These socio-economic developments are putting pressure on curbing adminis-
trative corruption, constraining the public power, effectuating the legislature, ensuring judicial
independence and fostering government accountability.

21.3 THE MATERIAL AND THE FORMAL CONSTITUTION

The distinction between the formal and the material constitution in China is important. The
replacement of the formal Constitution does not equate to the replacement of the material
constitution. Socialist China enacted five constitutions, but core principles (e.g., party leader-
ship, centralised state power, the socialist economy) of the party-state constitutional order largely
remain intact. However, formal constitutional replacement reflects and facilitates material
constitutional amendments: the actual modification of the party-state’s institutional structure,
ideological commitments, and social and economic policy.
Formal amendments to China’s Constitution in the last decades are shaped by political,
social, and economic conditions. Changes in political leadership and the party’s policy normally
lead to formal constitutional change. Social and economic development and the rise of China

58
Ibid., 129–30.
59
See, generally, J. Beja, E. Pils and H. Fu (eds.), Liu Xiaobo, Charter 08 and the Challenges of Political Reform in
China (Hong Kong University Press, 2012).
60
M. Jia, ‘China’s Constitutional Entrepreneurs’ (2016) 64 The American Journal of Comparative Law 619.

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 China’s Material Constitution 311

in the global political and economic order also animate formal constitutional amendments. The
amendment power formally belongs to the legislature, but the amendment process is function-
ally placed under the party’s leadership. Everything in the Constitution is formally amendable as
the document does not have an eternity clause, but substantive cores of the party-state consti-
tutional order (such as party leadership, democratic centralism and the commitment to social-
ism) are politically unamendable. These are amendable principles because changes to them
may lead to a constitutional revolution. The Party may impose informal, implicit, political limits
to ensure that the legislature will not change the Constitution in a way that alters the consti-
tutional cores of the socialist regime in China.61
China’s formal Constitution is a part of the broader constitutional order. It has four functions:
teleological, institutional, economic and social. First, the Constitution sets down fundamental
political objectives to achieve ‘socialist modernization along the road of socialism with Chinese
characteristics’, such as ‘to uphold the people’s democratic dictatorship, stay on the socialist
road, carry out reform and opening up, steadily improve the socialist institutions, develop the
socialist market economy and socialist democracy . . .’ (preamble). Second, the Constitution
provides a framework for the structure and operation of institutions of the party-state. The
teleological, institutional functions are politically relevant. Scholars argued China’s formal
Constitution carries political weight in the sense that political leaders adhere to it, as evident
in the constitutionalisation of the party’s leadership, removal of term limits, ‘Xi Jinping Thought’
and anti-corruption agency through the 2018 formal amendments.62 Third, the Constitution
establishes basic principles of the economy, such as ‘socialist public ownership of the means of
production’ (article 6), diverse forms of ownership (article 6), the leading force of state economic
sector in the economy (article 7) and the protection of private property (article 13). These
principles both reflect and facilitate economic reform in the last decades.63 Fourth, the
Constitution provides vocabularies for ordinary citizens to voice their concerns about the
existing constitutional order and demand for change. In practice, citizens actually use the
Constitution to frame their constitutional arguments in their demand for policy change. For
example, in 2003, Sun Zhigang, a migrant worker in Guangzhou, died while being detained
under China’s custody and repatriation system. The incident provoked great public attention.
Chinese scholars questioned the constitutionality of China’s custody and repatriation system,
which, along with other factors, led to the abolition of the system.64
The prospective dynamics of China’s constitutional order is animated by the ‘disharmony’65
between the formal Constitution and the material constitution. To illustrate, in the public
debate on constitutionalism in 2013, liberal intellectuals called for implementing the 1982
Constitution’s provisions on fundamental rights and government structure.66 The gap between
formal constitutional commitments and the constitutional practices creates the space for the
61
I explain these in detail in B. N. Son, Constitutional Change in the Contemporary Socialist World (Oxford University
Press, 2020), 278–84.
62
Zhang and Ginsburg, ‘China’s Turn Toward Law’, 346–47.
63
Z. Wang and Y. Tao, ‘Achieving Development through Innovative Constitutionalism: A China Story’ (2013) 4 The
World Bank Legal Review 201, 202
64
For detailed treatment on the case, see K. J. Hand, ‘Using Law for a Righteous Purpose: The Sun Zhigang Incident
and Evolving Forms of Citizen Action in the People’s Republic of China’ (2006) 45 Columbia Journal of
Transnational Law 114.
65
For the idea of constitutional disharmony, see G. J. Jacobsohn, Constitutional Identity (Harvard University Press,
2010), 15.
66
See, for example, Z. Qianfan, The Implementation of the Constitution and Long-Term Governance (China Copyright
and Media, 22 August 2013), available at: https://chinacopyrightandmedia.wordpress.com/2013/08/22/the-implementa
tion-of-the-constitution-and-long-term-governance/, last accessed 9 August 2022.

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 312 Ngoc Son Bui

social actors to struggle through discourse or social mobilisation for constitutional realisation.
The gap between the formal and material constitution renders China’s formal Constitution to
have four social, discursive functions: assertive, expressive, interpretative, and normative. First,
through public discourse, citizens may claim their constitutional rights which are not suffi-
ciently materialised. Second, through public discourse, the citizens can express their critical
concerns about constitutional and social problems animated by the formal and material consti-
tutional gaps. Third, the citizens, through public discourse, may provide informal interpretations
on unmaterialised constitutional commitments which may be very different from formal inter-
pretations. Finally, through public discourse, the citizens may advance new norms and proposals
to bridge the gap between the constitutional text and reality.

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 22

The Material Constitution and Extractive Political Economy

Lessons from Mongolia

Jennifer Lander

22.1 INTRODUCTION

The political economy of natural resource extraction has attracted virtually no interest from
constitutional scholars. In this chapter, I explain why this is a grave oversight and how the
material constitution can be usefully deployed as an analytical framework in this context.
Drawing on a recent socio-legal study of Mongolia’s mining economy,1 I will demonstrate the
explanatory acuity of material constitutionalism regarding the political economy of resource
extraction and its intrinsic relationship with the transformation of state law and institutions.
Section 22.2 sets out the framework of material constitutionalism that will be used to explain
legal and political phenomena associated with Mongolia’s mining boom in the second – and
main – part of the chapter.

22.2 MATERIAL CONSTITUTIONALISM AND EXTRACTIVE

POLITICAL ECONOMY

As evidenced by the variety of approaches adopted in this Handbook, there are clearly multiple
angles on the theory and method of the material constitution. Consequently, it seems sensible to
begin by setting out in broad brushstrokes the approach taken in this chapter. Because of the
widely held associations with the term ‘materialism’, it is important to say right off the bat that
I do not adopt a mechanical materialist approach which treats the constitutional order of states as
a ‘mask’2 for economic relations of production. From this so-called ‘Marxist’ perspective, the
political and legal domains of the state become a unilinear superstructure crudely determined by
its economic base,3 a type of theorising associated with early twentieth-century state socialist
experiments in the Soviet Union and its satellites, including Mongolia.
My approach generally follows the tracks of constitutional materialism represented in the vein
of scholarship influenced by Costantino Mortati, among others, where the constitutional order
(including the formal constitution) is conceptualised as part of a wider process of societal

1
J. Lander, Transnational Law and State Transformation: The Case of Extractive Development in Mongolia (Routledge,
2020).
2
A. Shinar, ‘The Ideologies of Global Constitutionalism’ (2019) 8 Global Constitutionalism 22.
3
I put Marxist in quotation marks because, as Ellen Meiksins Wood astutely points out, Marx himself only ever used the
‘base-superstructure metaphor . . . in the most aphoristic and allusive formulations’. See E. Meiksins Wood, Democracy
against Capitalism: Renewing Historical Materialism (Verso, 1995), 49.

313

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 314 Jennifer Lander

organisation.4 As Goldoni and Wilkinson observe, a core feature of Mortati’s approach is its
commitment to theorising the role of governing – both legal and political aspects – in constitut-
ing society itself: ‘Mortati presents society as something that has to be organised, rather than a
given.’5 From this perspective, constitutionalism can never simply be a normative task of
identifying ideal-type norms for what the state – and law – should be. Rather, it is always an
historical task, even if part of its object is to identify what ideals have become normative within a
constitutional order. In this sense, the formal, normative constitution does not compete with the
material constitution, but is inevitably entangled with it. The material constitution is not
unconcerned with norms, jurisprudence or legal doctrine, but contextualises them ‘in the
deeper societal context in which formal constitutional development is embedded (or, as the
case may be, dis-embedded)’.6
Material constitutionalism, for it to be worthy of the name, must re-centre history, power and
social struggle in its analysis of constitutional norms and forms, which distinguishes it both from
traditional ‘black letter’ approaches to constitutionalism as well as the popular trends of global
constitutionalism and sociological constitutionalism.7 Where doctrinal approaches err on the
side of abstraction, turning constitutions into hermetically sealed spaces of law, new varieties of
constitutionalism suffer from a tendency to treat contemporary processes of constitutional
ordering as radically untethered from the national state and the transnational structures of
political economy which continue to depend upon territorial jurisdictions. These poles in the
wide field of constitutional scholarship miss the messy way in which state constitutions emerge
over time, under the influence of a kaleidoscope of ‘interdisciplinary’ factors, path dependencies
and the continual dialectic of ideology and practice.
There is a strong sense that constitutionalism must retain a relatively monist character if it is to
be worthy of the description, given that we are speaking of political and legal relations that
acquire a hegemonic force in ordering societies. Constitutional orders are by their nature the
product of social struggles over which certain norms, procedures, actors and institutions become
dominant in ordering society and there is very little ordering of society that happens without
negotiating with the received territorial, legal and political jurisdiction of national states, even as
‘key enablers and enactors of the global scale’.8 Consequently, I argue that while plural forms of
legal ordering may exist both ‘outside’ and ‘within’ the state, they are arguably only constitutional
insofar as they supplant or become embedded within a ‘higher level of authoritative ordering
which frames the breadth and width of claims for recognition and redistribution within the
jurisdiction of the state’.9 There is good reason to continue to think of hegemony in the singular,
rather than the more recent turn in legal studies that conceptualises hegemony as something
which only occurs at ‘discrete and disconnected sites’.10 Law, particularly constitutional law, is
not simply recapitulated as a crude tool of power in this context, but becomes a critical locus of

4
Shinar, ‘Ideologies of Global Constitutionalism’, 22.
5
M. Goldoni and M. Wilkinson, ‘The Material Constitution’ (2018) 81 The Modern Law Review 575.
6
Ibid., 569.
7
See A. Slaughter, A New World Order (Princeton University Press, 2005); A. Peters, ‘The Merits of Global
Constitutionalism’ (2009) 16 Indiana Journal of Global Legal Studies 397; G. Teubner, Constitutional Fragments:
Societal Constitutionalism and Globalisation (Oxford University Press, 2012); C. Thornhill, A Sociology of
Constitutions: Constitutions and State Legitimacy in Historical-Sociological Perspective (Cambridge University Press,
2011).
8
S. Sassen, Territory, Authority, Rights: From Medieval to Global Assemblage (Princeton University Press, 2006), 3.
9
Lander, Transnational Law and State Transformation, 24.
10
D. Litowitz, ‘Gramsci, Hegemony and the Law’ (2000) 2 BYU Law Review 515.

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 Material Constitution: Lessons from Mongolia 315

hegemony and, therefore, of resistance.11 Material constitutionalism as an analytical approach

not only identifies and explains how specific legal and institutional patterns become hegemonic,
but also helps to explain why and how counter-hegemonic efforts succeed, fail or settle
somewhere in between.
One of the most under-recognised inputs in the material constitution, due no doubt to the
blind spots of public lawyers who continue to operate along the public/private dichotomy, is that
of political economy. Taking Wood’s point that ‘the economic sphere rests firmly on the
political’12 seriously opens the question of how political, legal and economic relations are co-
constituted in different places and times and across different scales. This co-constitutive
approach avoids determinism by demanding concrete, historical analysis of how particular
constitutional arrangements become hegemonic, attending to the role of agency and contin-
gency in perpetuating, undermining or transforming structural tendencies in these social
relations.13 Importantly, viewing political economy as a relevant source of constitutional law
and politics is not deterministic or even contrary to normative analyses of the constitution.
Political economy is crucially enabled and shaped by legal processes and norms, as well as social
values, so attending to political economy is not antithetical to more normative readings of
constitutional development, but rather complementary to them.
As a theoretical framework which views constitutional arrangements as historically contin-
gent, material constitutionalism can help us to conceptualise how transnational economic
‘actors, norms and processes’14 – operating across local, national, regional and global scales –
shape the normative and institutional character of states. Transnational economic processes can
have constitutional effects when the economic incentive structure is powerful enough to limit
legislative or regulatory options and challenge or change constitutional relations or norms. In
general, a precondition for national integration in the global economy is the state’s adoption of
specific constitutional configurations where the state either withdraws from the economic
sphere through privatisation – achieved institutionally and legally – to attract foreign investment
or, more rarely, when states make the logic of market competition the foundation of their
‘political’ logic (i.e., as in Chinese state capitalism).15 Frontier and emerging economies in the
Global South, in most instances, pursue the former strategy, lacking the public capital base to
compete in the global economy. By privatising or deregulating former ‘political’ domains, such
as price-setting and measures against nationalisation, the ‘law of the market’ often becomes a
grundnorm for future constitutional development.16
The volatility of natural resource extraction makes this economic sector particularly constitu-
tionally charged. As I have argued elsewhere, states ‘practically mediate and absorb profound
transnational tensions between public and private interests over resource extraction at significant

11
See M. Lazarus-Black and S. F. Hirsch, Contested States: Law, Hegemony and Resistance (Routledge, 1994).
12
Lander, Transnational Law and State Transformation, 30.
13
For a similar approach in politics, see N. Pratt, ‘Bringing Politics Back in: Examining the Link between Globalisation
and Democratisation’ (2004) 11 Review of International Political Economy 311.
14
P. Zumbansen, ‘Defining the Space of Transnational Law: Legal Theory, Global Governance and Legal Pluralism’
(2012) 21 Transnational Law and Contemporary Problems 308.
15
L. Xing and T. M. Shaw, ‘The Political Economy of Chinese State Capitalism’ (2013) 1 Journal of China and
International Relations 88–113.
16
S. Frerichs, ‘The Rule of the Market’, in P. Blokker and C. Thornhill (eds.), Sociological Constitutionalism
(Cambridge University Press, 2017), 241. See also C. May, ‘The Rule of Law As the Grundnorm of the New
Constitutionalism,’, in S. Gill and C. Cutler (eds.), New Constitutionalism and World Order (Cambridge
University Press, 2014), 63–76; Lander, Transnational Law and State Transformation, 226–29.

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 316 Jennifer Lander

sites of constitution formation’.17 Extractive economies provoke deep social conflict about socio-
environmental impacts, taxation and resource distribution at the national level, as well as
transnational conflicts about the terms and benefits of investment. These conflicts are com-
monly played out at constitutional ‘pressure-points’, as new struggles for hegemony pressurise
established constitutional balances between government institutions (e.g., legislative, judicial
and executive), central and sub-national levels of administration and the governance of civil
society and citizenship.18 The pressure on national governments to resolve the tension between
the varying interests of local, national and global stakeholders in natural resource extraction is
heightened by the fragility and crisis-prone nature of global commodity markets.
The structural volatility of the extractives sector – both nationally and globally – invites
unprecedented levels of legal and institutional change within national states, largely driven by
international perceptions of economic, political and legal risk, particularly when the state
depends upon attracting risk-averse foreign investment to catalyse market competitiveness in
extractives. Transnational legal norms which prioritise the ease and security of investment (e.g.,
non-discrimination, anti-expropriation and sanctity of contract) have become authoritative as a
legal order that cuts across national borders,19 transmitted through international investment
contracts, treaties and project financing instruments.20 The normative effects of transnational
legal ordering in extractive economies deepens material constitutional change alongside the
structural effects of natural resource markets, impacting ‘baseline patterns and processes of “rule,
redistribution and recognition”’21 as well as formal constitutional commitments. While every
state negotiates these constitutional pressures in different ways, there is an intrinsic linkage
between extractive economy and material constitutional change,22 as shall be discussed through
the Mongolian case study.

22.3 RECONCEPTUALISING MONGOLIA’S MINING BOOM AND BUST AS

MATERIAL CONSTITUTIONAL CHANGE

Mongolia emerged from the wake of the collapsing Soviet Union with a crashed economy but a
huge amount of optimism about its future as an independent democracy aligned with the West.
Mongolian state formation has always occurred between the Scylla and Charybdis of its
geopolitical situation, sandwiched between Russia and China, a context that is only becoming
more complex as Mongolia pursues competitiveness in natural resources. In the early 1990s
Mongolia surprised the international community with the fervency of its commitment to liberal
democracy and market economy. Despite the crushing impact of the Soviet Union’s withdrawal
of investment and trade with its former satellite and the consequences of ‘shock therapy’
experiments conducted by international financial institutions (IFIs), Mongolia embraced a
new constitutional trajectory. The 1992 Constitution reformed the former socialist government

17
J. Lander, ‘Shifting States: The Constitutional Risks of Extractive Development’ (2022) 43(1) Canadian Journal of
Development Studies 59, 63.
18
Ibid., 60.
19
A helpful definition of transnational legal order is ‘a collection of formalised legal norms and associated organisations
and actors that authoritatively order the understanding and practice of law across national jurisdictions’ See T. C.
Halliday and G. Shaffer, Transnational Legal Orders (Cambridge University Press, 2015), 475 (original emphasis).
20
K. Bhatt, Concessionaires, Financiers and Communities: Implementing Indigenous Peoples’ Rights to Land in
Transnational Development Projects (Cambridge University Press, 2020).
21
Lander, Transnational Law and State Transformation, 23, citing M. Goldoni, ‘Introduction to the Material Study of
Global Constitutional Law’ (2019) 8 Global Constitutionalism 86.
22
For an in-depth discussion of this general argument, see Lander, ‘Shifting States’.

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 Material Constitution: Lessons from Mongolia 317

by instantiating the separation of powers, constitutional democracy and the rule of law, thereby
establishing the institutional preconditions for the marketisation of the economy.
Democratic Mongolia is a unitary state characterised by multi-party elections, a unique
parliamentary system and a civil law jurisdiction. The 1992 Constitution established that the
unicameral legislature has the constitutional status as the ‘supreme organ of state power’ (Article
22), which means that the Mongolian constitution is characterised by ‘virtually unlimited
legislative power’.23 Governments, led by the Prime Minister, are formed through parliamentary
elections every four years and a President with specific responsibilities as head of state is directly
elected every six years. Like many other parliamentary systems with first-past-the-post electoral
systems, the legislature in Mongolia is easily dominated by the government, with very low
quorum rules for passing legislation. All matters of constitutional oversight and accountability
are referred to a specific constitutional court that exists independently from the rest of the
judicial system – the Tsets – and exercises concentrated powers of judicial review. Judicial review
remedies are not readily available through the general court system, and the Tsets does not
review the decisions of the Supreme Court. The Tsets exerts limited control over Parliament –
and governments with a strong Parliamentary majority – because the constitution provides that
the decisions of the Tsets are subject to Parliamentary approval (Article 66). The ambiguities of
the constitution about the role and function of the Tsets, the accountability of Parliament and
the role of the President has regularly led to institutional gridlock since 1992. Mongolia’s
constitutional trend following reforms in 2019, like many other post-socialist countries, is
characterised by the consolidation of strong executive powers enabled by clear Parliamentary
majorities, with limited judicial oversight.
In terms of economic reforms, Mongolia embraced financial liberalisation, the privatisation of
extensive state assets and deregulation of the pastoral economy,24 which had been a prominent
economic sector under the socialist regime. Without Soviet support or trading partnerships,
Mongolia’s textile and manufacturing industries collapsed. Decades of economic planning and
diversified industrial development were effectively washed down the drain. Through the lending
policies of the IFIs and its own post-socialist constitutional commitments, Mongolia became
receptive in the 1990s not only to transnational private capital investment but also the trans-
national legal cultures, norms and instruments which enable global trade and transactions.
While Mongolia’s traumatic post-socialist experience was not unique, its remarkably pro-
Western geopolitical approach and fulsome embrace of liberal democratic institutions make it
a particularly clear case study of how global economic and legal processes become entangled
with the material constitutions of national states. Its relatively open democracy and willingness to
engage with international institutions has made the effects of global economic integration
remarkably visible, as opposed to other semi-authoritarian states which can disguise them more
easily. Consequently, as I have argued elsewhere, Mongolia’s recent history warrants close
attention by scholars who want to unpick the constitutional implications of shifts in political
economy and vice versa.25

23
Ch. Enkhbaatar, D. Solongo, P. Amarjargal and T. Ginsburg. The Role of the Constitution of Mongolia in
Consolidating Democracy: An Analysis. (UNDP, Ulaanbaatar, 2015), 26. Available at: www.mn.undp.org/content/
mongolia/en/home/library/democratic_governance/RoleoftheConstitutionofMongoliaInConsolidatingDemocracy
.html, last accessed 26 November 2021.
24
Pastoralism is a form of agriculture based on animal husbandry, involving the grazing of animals over large pastures,
traditionally herded by groups of people who move nomadically with their herds. Semi-nomadic livestock herding
(sheep, goats, horses and camels) has been the historic basis of the economy in what is now Mongolia for millennia
and continues to play an important economic role today.
25
Lander, Transnational Law and State Transformation, 244.

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 318 Jennifer Lander

22.3.1 A Brief History of Mongolia’s Emergence as a Mineral-Exporting Economy

The twentieth century was a time of rapid constitutional change for Mongolia, change consist-
ently wrapped up with questions of land use. Mongolia’s 1992 constitution committed to
protecting all forms of public and private property to promote economic development, account-
ing for both ‘universal trends of world economic development and national specifics’ (Article
5.1). This ambiguity seemed on face value to balance pastoralists’ ongoing interests in accessing
use rights for common land, as well as the new government’s commitment to marketisation. The
privatisation of the pastoralist collectives in the early 1990s and the deregulation of the agricul-
tural sector did not make land any less relevant to Mongolia’s constitutional transition but
created the conditions for conflict over its use by those with interests in different kinds of
property rights. Thus, while the formal constitution written in 1992 purported to ‘balance’
property rights between global and national requirements, the written text pre-figured a social
conflict that would mark the material constitution in the years to come as that balance was tested
by an unprecedented wave of foreign investment in mining in the late 1990s.
With the pastoral collectives and manufacturing industries having been demolished by the
economic collapse and structural adjustment policies, the only real basis to resuscitate the
economy was cashmere and mining. Constitutional reform in the early 1990s made it possible
for Parliament to pass legislation allowing private foreign investment in the Mongolian econ-
omy. Mongolia’s unique global selling point, from the point of view of its global financial
advisors, was its status as a ‘final frontier’ of greenfield mining. While some exploration and
exploitation had been conducted during the socialist period through Soviet–Mongolian joint
ventures, the majority of Mongolia’s minerals remained unmapped and untapped. With a
mineral base believed to be worth at least 1.3 trillion US dollars, with substantial reserves of
high-quality coking coal, copper, gold, fluorspar and iron ore, among others,26 Mongolia had a
product that domestic political elites and international financiers thought was worth selling on
the global market.
In 1997, Parliament passed a new Minerals Law to make the sector more attractive to foreign
investors. With significant input from the World Bank, Mongolian legislators passed ‘the most
investor-friendly and enabling law in Asia’27 which crucially removed the distinction between
domestic and international investors (Article 10.1) and gave licence holders the right to sell
products at market rates (Article 16.3).28 The 1997 Minerals Law significantly lowered tax and
royalty rates and provided for tax stability agreements for large investments, as well as rights to
transfer licenses without government pre-approval. Alongside these easing measures for invest-
ment, the role of the state in mining changed. The law banned the government from participat-
ing directly in mining projects and restricted the role of Parliament with regard to mining
permissions and access to land. It also removed the requirement for feasibility studies, only
required environmental impact assessments when a license had already been granted and
decentralised environmental regulation to sub-national administrations.
The 1997 Minerals Law marked a profound change in the relationship between the state and
the market and put Mongolia’s new constitutional order to the test. Prior to the 1997 Minerals
Law, the seeds for Mongolia’s transition to a market economy had been planted, largely by
stripping away the socialist legacy of economic control, but the fruit had yet to be tasted. From

26
National Development Agency, Your Guide to Invest in Mongolia (National Development Agency, 2019), 14.
27
C. Husband and V. Songwe, ‘Mongolia Mining Sector: Managing the Future’ (2004) 1 World Bank 52.
28
Lander, Transnational Law and State Transformation, 109–10.

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 Material Constitution: Lessons from Mongolia 319

1997, Mongolia’s new constitutional commitments to liberal political and legal institutions
moved from paper to practice, with these institutional frameworks enabling the government to
actively facilitate a new market economy in minerals through concrete legislative and policy
changes. By 2004, over a quarter of Mongolian land was licensed for exploration and extraction,
with 50 per cent of licenses held by seven companies, the majority of which were foreign
invested entities.29 By 2009, over 45 per cent of Mongolian land was licensed for extractive
activities.30
The influx of private capital investment in extraction in rural areas, particularly led by foreign
companies, catalysed unprecedented social conflict over access to land and water between
pastoralists, illegal gold miners and mining companies. These conflicts were underpinned by
conflicting expectations of the state in relation to property rights; pastoralists expected sub-
national administrations to be able to protect their land use rights, as had been the case during
the socialist era, whilst miners held centrally-issued permits which routinely trumped pastoral-
ists’ customary entitlements.31 These conflicts about property also raised new questions about
subsidiarity and central-sub-national relations under the new constitution, and the balance
between constitutional principles of ‘self-governance and state management’32 in the context
of the governance of land. It was at this time that the deregulation of the pastoralist sector and
land administration more generally began to be acutely felt by rural inhabitants, leading to the
emergence of Mongolia’s first rural environmental movements.33 The River Movements took a
leading role in mobilising rural and urban social discontent about the regulation of mining.
Alongside rural socio-environmental conflicts and urban protests about foreign investment
and lack of public benefits from mining, a new struggle for hegemony began to play out in
central political and legislative institutions in Ulaanbaatar over the balance between national
and global control of natural resources. The discovery of the Oyu Tolgoi copper and gold
deposits in 2001 by Canadian Ivanhoe Mines prompted a national stock-take of the
1997 Minerals Law and the open terms of access for foreign investment in contrast with ongoing
restrictions for the government to participate directly in mining projects. The 1997 Minerals Law
was replaced in 2006 with a new minerals law that allowed minority government participation in
nationally strategic projects and reinstituted a role for Parliament in approving large-scale
investment agreements.34 Alongside the 2006 Minerals Law, the government introduced a
controversial Windfall Profits Tax – the highest in the world – which taxed copper and gold
ore and concentrate at 68 per cent when market prices exceeded certain limits.35 These
measures, particularly the Windfall Profits Tax, prompted intense criticism from foreign invest-
ors, although investment interest in Mongolia continued to increase as global commodity
markets began to pick up.

29
Husband and Songwe, ‘Mongolia Mining Sector’, 7.
30
Y. Suzuki, ‘Conflict between Mining Development and Nomadism in Mongolia’, in N. Yamamura, N. Fujita and A.
Maekawa (eds.), The Mongolian Eco-System Network: Environmental Issues under Climate and Social Changes
(Springer, 2013), 277.
31
E. Endicott, A History of Land Use in Mongolia: The Thirteenth Century to the Present (Palgrave Macmillan, 2012), 97.
32
A. Lkhagvadorj, ‘Fiscal Federalism and Decentralisation in Mongolia’ (2010) MPRA Paper 28758, University Library
of Munich, 79.
33
D. Byambajav, ‘The River Movements’ Struggle in Mongolia’ (2015) 14 Social Movement Studies: Journal of Social,
Cultural and Political Protest 92.
34
Lander, Transnational Law and State Transformation, 116.
35
S. Sukhbaatar, ‘Law and Development, FDI and the Rule of Law in Post-Soviet Central Asia’, in G. P. McAlinn and
C. Pejovic (eds.), Law and Development in Asia (Routledge, 2012), 142.

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 320 Jennifer Lander

By 2007, the Oyu Tolgoi project had already pushed Mongolia into the category of mineral
dependence, with the sector’s share growing from 10 per cent of GDP in 2002 to 33 per cent in
2007.36 Mongolia’s state of natural resource dependency only grew from 2009, when the
Mongolian government signed a landmark investment agreement for the Oyu Tolgoi project,
with Rio Tinto holding a managing share and the government a minority share of 33 per cent.
The signing of the investment agreement and the repealing of the Windfall Profits tax seemed to
settle the issue of balance between national and global interests. However, this agreement
ushered in a huge tide of foreign investment – 4.6 billion USD – which overshadowed the
entirety of the Mongolian economy (GDP of 4.2 billion USD in 2009).37 In 2011, Mongolia was
dubbed as a ‘Global Growth Generator’, with the world’s highest GDP growth at 17.5 per cent,38
although this high rate of growth, driven by one sector, should have signalled economic
precarity rather than strength, as the country’s public and private capital assets were now
dangerously locked into mining.
The ‘darling of international risk-takers’39 began to falter in 2012, as global commodity prices
started to decline and the Mongolian government recognised the extent of its vulnerability. This
vulnerability was both macro-economic in nature – due to lack of diversification and ballooning
levels of debt to fund infrastructure projects – as well as geo-economic: by 2012, China controlled
90 per cent of Mongolia’s minerals export market.40 The anti-discrimination provisions in both
the 1997 and 2006 Minerals Laws had allowed Chinese state-owned enterprises (SOEs) to hold
unlimited numbers of mining licenses, given on a first-come-first-served basis and transferable to
other parties. Mongolia’s embrace of international economic legal norms had led to a situation
where China was effectively able to dictate the market price for mineral exports, particularly
coal, where its SOEs held the exploitation rights and where the products were destined for the
Chinese market.
To prevent effective takeover of its coal market, the Mongolian government introduced a new
investment law in 2012 – the Strategic Entities Foreign Investment Law (SEFIL) – which gave
Parliament significant oversight in screening large investments, particularly where these came
through state-owned enterprises. Shortly thereafter, the government sought to renegotiate the
Oyu Tolgoi investment agreement under the provisions of SEFIL, aiming to amend the tax
stabilisation measures which had been incorporated into the agreement in 2009 which pre-
vented the government from maximising tax revenue during the global commodity boom.41
Mongolia’s ballooning public and external debt was a major factor for this attempted renegoti-
ation, with the government having issued its first bonds on international debt markets around the
same time. These new debts, acquired to fund the Mongolian government’s share in the Oyu
Tolgoi project and develop infrastructure, amounted to over 2 billion USD and doubled
Mongolia’s debt burden between 2011 and 2012.42

36
S. Combellick-Bidney, ‘Mongolia’s Mining Controversies and the Politics of Place’, in J. Dierkes (ed.), Change in
Democratic Mongolia: Social Relations, Health, Mobile Pastoralism and Mining (Brill, 2012), 273.
37
A. Isakova, A. Plekhanov and J. Zettelmeyer, ‘Managing Mongolia’s Resource Boom’ (2012) 138 EBRD Working Paper
1.
38
World Bank, Mongolia Economic Update (World Bank, 2013), 3.
39
J. Manthorpe, ‘Mongolia Struggles with the Complexity of Resource Development’, Business in Vancouver,
29 September 2013.
40
T. Edwards, ‘Mongolia to Ease Conditions on Private Foreign Investors’, Reuters, 23 April 2013.
41
Lander, Transnational Law and State Transformation, 123.
42
World Bank, ‘Mongolia Economic Update’, 24.

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 Material Constitution: Lessons from Mongolia 321

The introduction of SEFIL and the attempted renegotiation of the Oyu Tolgoi investment
agreement sparked widespread criticism from foreign investors, mining companies, credit ratings
agencies and IFIs. Once praised for its embrace of market economy and its liberal investment
climate, Mongolia quickly became the pariah of the international finance media, with loud
allegations from impacted corporations and shareholders about Mongolia’s ‘resource
nationalism’ and lack of respect for the rule of law.43 While the Oyu Tolgoi project was the
most high-profile project in Mongolia, other foreign mining companies complained of similar
woes.44 The ensuing crisis of international confidence in Mongolia’s investment environment
caused a steep and rapid decline in foreign direct investment (FDI). Between 2012 and 2014, FDI
spiralled from 4.45 billion to 508 million USD, which promptly sent Mongolia into an unpre-
cedented debt crisis and led to one of the largest bailout packages from the International
Monetary Fund in history.45

22.4 ECONOMIC CRISIS AS A ‘CONSTITUTIONAL CRUCIBLE’ 46

It is at this low point in Mongolia’s recent economic history that we can begin to see the effects
of extractive political economy upon the Mongolian constitutional order, particularly the ways
in which market actors, norms and processes began to dominate institutional relations, legisla-
tive and political horizons, the scope of civil society and the substance of citizenship. One of the
first manifestations of material constitutional change arising from Mongolia’s turbulent encoun-
ter firstly with post-socialist constitutionalism and then market-based extractivism has been the
articulation of a firm limit on national legislative sovereignty and the strengthening of executive
power in the Mongolian constitution. While global commodity booms give momentary political
and policy space for the government to flirt with nationalisation, the concrete effects of FDI
withdrawal and the discourse of declining investor confidence has a powerful disciplinary effect
on the legislative options on the table.
As soon as FDI really began to spiral in 2013, the government scrapped SEFIL and introduced
another investment law, with significant input from the International Finance Corporation
(IFC) of the World Bank Group, which returned Mongolia’s investment framework to a similar
standard of liberal commitment as the 1997 Minerals Law. Under the new investment law, the
government removed screening measures for private foreign investment, provided new tax and
non-tax incentives to investors and provided a general right of recourse to international arbitra-
tion.47 A new State Policy on Minerals accompanied these general legislative measures in 2014
‘to establish a stable investment environment . . . and to strengthen competitiveness in the global

43
For an excellent critique of the use of ‘pejorative labels’ such as resource nationalism to discursively undermine the
laws and policies of the Mongolian state, see D. Bumochir, ‘Nationalist Sentiments Obscured by “Pejorative Labels”’
(2019) 21 Inner Asia 162.
44
For example, in 2011, a prominent Canadian mining company – Khan Resources – initiated international arbitration
proceedings against the government for the deregistration and non-renewal of its uranium mining license following
the implementation of a new nuclear energy law. Hundreds of licenses were cancelled around the same period
(2011–13). The implementation of a controversial environmental law strongly supported by rural social movements led
to the cancellation of licenses for over 200 mining projects in 2011 and a corruption scandal in the Mineral Resources
Agency led to the swift cancellation of 106 licences in 2013. See Lander, Transnational Law and State
Transformation, 125.
45
In 2017, the IMF approved an external financing package of 5.5 billion USD to prevent Mongolia from defaulting on
its debt, notably – and remarkably – reliant on the involvement of China to provide USD 2.19 billion in currency swap
lines to maintain Mongolia’s financial liquidity. See Lander, Transnational Law and State Transformation, 133.
46
Ibid., 208.
47
Ibid., 127.

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 322 Jennifer Lander

market’48 by promoting ‘private-sector led development’ and reducing the direct role of the state
in the mining economy. The new State Policy reformed the mining licencing process to the
deregulated standard of the 1997 Minerals Law. As a signal of ‘remorse’ for damaging its
international investment credibility, the government agreed to pay an 80 million USD arbitra-
tion award to Khan Resources in 2015 and concluded an international agreement (‘the Dubai
Agreement’) to settle the tax dispute between Rio Tinto and the Mongolian government with
regard to the Oyu Tolgoi Investment Agreement.
Alongside specific legislative and policy measures, significant changes in the distribution of
regulatory power between central and sub-national government institutions were instigated and
legitimised to resuscitate investment confidence. As I discuss in detail in Transnational Law and
State Transformation, Parliament had garnered a reputation among investors and mining
companies as a key source of political risk between 2006 and 2012, with its propensity to
introduce more stringent or ‘discriminatory’ legislation and attempts to re-negotiate large-scale
investment agreements.49 The 2013 Investment Law and the 2014 State Policy on Minerals
shifted the balance of institutional power in relation to the mining economy away from
Parliament toward the executive, through unusually high quorum measures to prevent legisla-
tive reform. These legislative initiatives were complemented by the establishment of executive
policy councils and agencies which managed investor-state relations exclusively through the
Ministry of Mining,50 in close cooperation with the Fiscal Revenue Division of the Ministry of
Finance and the Central Bank. Alongside the increasing domination of the legislature’s function
by the economic priorities of the executive, the role of the Central Bank has also increased to
enforce fiscal discipline and constrain Parliament’s budgetary function.
Alongside efforts to purge ‘nationalist’ politics from central institutions and resuscitate invest-
ment flows, the Ministry of Mining sought to limit the role of representative institutions at the
sub-national level from ‘politicising’ the local investment environment. Sub-national govern-
ments had become key sources of corporate and investor ire in the early 2000s, by making
demands upon mining companies for local contributions and attempting to protect pastoralists’
land rights against mining licenses. The 2014 amendments to the Minerals Law, following the
new State Policy, mandated compulsory local development agreements to be negotiated
between the Governor’s office – an unelected position in the executive branch of local
government – and mining companies in order to financially align their interests and manage
expectations. In addition to amendments to the national budget law, these changes meant that
sub-national governments who supported mining in their localities would substantially benefit,
thereby incentivising their cooperation (or co-optation).51 Bringing sub-national administrations
into ‘line’ with the central government pro-extractive agenda has been a critical aspect of
consolidating a material constitutional settlement around the regulatory role of government in
relation to mining projects.
Around the same time, the government convicted high profile leaders of the famous River
Movements on trumped-up charges of ‘environmental terrorism’. These criminal convictions
and the government’s new anti-political policies and rhetoric have had a significant impact on

48
Article 1.2, State Policy on Minerals (2014–2025), cited in Lander, Transnational Law and State Transformation, 129.
49
Lander, Transnational Law and State Transformation, 146.
50
For example, the 2013 Investment Law is uniquely protected from ‘political’ legislative reform by a two-thirds
quorum measure.
51
J. Lander, ‘Community Development Agreements and the State’s Extractive Strategy in Mongolia: Participatory
Governance or Governance Participation?’, in S. Adelman and A. Paliwala (eds.), The Limits of Law and
Development: Neoliberalism, Governance and Social Justice (Routledge, 2021), 218–20.

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 Material Constitution: Lessons from Mongolia 323

Mongolia’s growing environmental civil society and the extent to which small organisations are
willing to engage in overtly conflictual terms. A marked trend towards authoritarianism has
intensified over the past decade, with new legislation passed by Parliament in 2021 which bans
civic activity impacting the reputation of business interests. This gradual chilling effect on civil
society has been starkly born out in recent months by the government’s criminal investigation of
a high profile environmental advocate on charges of “sabotage” of large-scale development
projects.
Within this broader shift towards ‘collaborative’ modes of civic engagement, local populations
impacted by mining increasingly interface with non-state mechanisms of redress. These may be
available through corporate social responsibility (CSR), investment safeguards in project finance
or international development donors seeking to bridge community–corporate relations. These
programmes generally reposition Mongolian citizens as ‘impacted stakeholders’ in relation to
mining projects, with no reference to their constitutional rights.52 While it is positive that
impacted populations are able to make some gains through these varying CSR programmes
and non-state grievance mechanisms, they effectively become part of the insulating bulwark for
foreign investment that privatises issues of widespread public concern about the social and
environmental impacts of mining in Mongolia and prevents them from becoming ‘politicised’.53
Furthermore, there is high risk of uneven access to justice through these non-state mechanisms
because of the significant variability of CSR standards and investment safeguards across the
range of mining projects occurring within Mongolia.
While these legislative, political and policy shifts at the central and subnational levels may
seem disconnected, they form a cohesive picture of change across critical axes of the national
state. Mongolia’s embrace of a market-based mining economy and its associated legal politics
has shaped the distribution of regulatory and political power within central government insti-
tutions and between central and sub-national administrations in a pro-extractive, executive
direction, with tangible impacts for civil society and the substance of citizenship. While there
are sputters of so-called ‘nationalist’ sentiment from the platforms of political parties and
politicians about taking back Mongolia’s mining sector and challenging the terms of foreign
investment when market prices begin to recover, the rhetoric does not match Mongolia’s FDI-
dependent reality.54 Overall, the election of new governments has done little to substantially
change the terms of Mongolia’s mining investment regime, which speaks to the constitutional
quality of global economic integration in natural resources for Mongolia.55 Where in the 1990s it
was possible to locate the two main political parties along a traditional left–right political
spectrum, particularly on economic issues, today there is no tangible difference between them.
While the FDI crisis was initially managed by the Democratic Party, since 2016 the Mongolian

52
Lander, Transnational Law and State Transformation, 168–204 deals with this issue in greater depth than the scope of
this chapter allows.
53
P. Hatcher and J. Lander, ‘Searching for New Political Spaces: Negotiating Citizenship and Transnational Identities
on Mongolia’s Mining Frontier’ (2022) Vol. ahead-of-print Journal of Contemporary Asia, 1–24.
54
Even the current government’s tenacity in wrangling with Rio Tinto over missing tax revenues between 2016–18 has
little hope of challenging the new status quo. With Rio Tinto having initiated international arbitration proceedings in
2020, Mongolia’s position will be narrowly interpreted through the narrow parameters of international investment
norms and, unless the arbitration tribunal upholds the government’s counterclaim, the government will be in the
unhappy situation of having to capitulate again on tax revenues or make good on its thread to void the Oyu Tolgoi
Investment Agreement. In either case, Mongolia faces deepening dependence on foreign investment on Western
international terms or on China’s, with profound material constitutional ramifications in terms of legislative and geo-
economic sovereignty.
55
D. Schneiderman, Constitutionalising Economic Globalisation: Investment Rules and Democracy’s Promise
(Cambridge University Press, 2008), 4.

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 324 Jennifer Lander

People’s Party has ‘maintained the commitments and virtually identical institutional frameworks
of its predecessor’,56 despite its populist rhetoric.

22.5 CONCLUSION: ECONOMIC HISTORY

AS CONSTITUTIONAL HISTORY

Mongolia is not a case study of a weak state ‘versus’ global capital but shows how constitutional
features of states can be materially transformed by transnational processes of legal and economic
ordering. Critical aspects of Mongolia’s constitutional democracy have been weakened by its
pursuit of FDI in extractives, particularly in terms of limiting any deliberative role of Parliament
as a safeguard on foreign investment and the sensitivity of local governments to the demands of
local populations. While civil society in Mongolia remains vibrant, outspoken organisations
which seek to hold the government accountable for infringements of citizens’ rights are under
increasing political and financial pressure. However, other institutional features of the state have
been strengthened, notably bureaucratic, technocratic and executive institutions and norms.
This simultaneous weakening and strengthening of different aspects of the state strongly suggests
that a new hegemonic order has become dominant within the national constitution, an order
which is underscored by new dependencies on foreign capital investment and transnational
processes of legitimation, which invite new economic constituents to shape the trajectory of
public law and policy. Because these changes in the material constitution have occurred
through economic laws and policies, the courts have played no supervisory function.
Material constitutionalism invites re-conceptualisation of what counts as constitutionally
significant and which actors drive constitutional processes. The Mongolian case study suggests
that it is a great loss to our understanding to overlook non-traditional actors (e.g., Parliaments,
sub-national governments, civil society organisations, investors, corporations, arbitration tribu-
nals and IFIs), norms (e.g., those derived from international investment law) and processes (e.g.,
FDI and global market cycles) in contributing to constitutional change. If we take as our point of
departure the co-constitutive relationship between law, economy and political systems – in the
sense of ‘creating conditions for the possibility of each other’57 – then it is only common sense to
begin to pay closer attention to political economy as a relevant source of constitutional change,
particularly in the case of extractivism which generates such significant tensions within national
states. This is not to suggest that all economic, institutional or legal change counts as consti-
tutional, or we drain the term of its meaning. However, when an ‘economic’ transformation
such as that witnessed in Mongolia has such profound implications for law-making, adminis-
trative relations, domestic politics and civil society – with a widening gap between the formal
constitution and its practice – it seems like a good time to check our constitutional blind spots.

56
Lander, Transnational Law and State Transformation, 236.
57
Ibid., 23.

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 23

The Military in the Material Constitution of Turkey

Tarik Olcay

23.1 INTRODUCTION: ACCOUNTING FOR THE MILITARY IN MATERIAL

CONSTITUTIONAL ENQUIRY

The rediscovery of the concept of material constitution1 offers many avenues to study the
operation of particular constitutional orders. The material study of constitutions opens up lines
of enquiry that legal constitutionalism and political constitutionalism struggle to register,2 and
helps to provide an explanation, if not justification, of political practice that the formal consti-
tution fails to capture or simplistically labels ‘unconstitutional’. It helps to look beyond the
formal constitution in a systematic way to understand and explain why particular constitutional
orders are created in the way they are and why they operate in the way they do. It calls for a focus
on the institutions in society that condition – or precondition – the constitutional order that the
formal constitution may not fully account for. Above all, it is an enquiry that is curious to
understand and interested in explaining why some seemingly unconstitutional or extra-
constitutional political values or practices can have a central place in a given
constitutional order.
What is material to a constitutional order is not always captured in formal constitutional
arrangements. This may be due to oversight or poor design, but it can also be the result of
negotiation, concealment, manipulation or deferment in formal constitution-making. The
exclusion of aspects of the material constitution in the formal constitution can have a profound
impact on the constitutional order over time, either by the constitutional form moulding the
materiality of the constitutional order or the formal constitution amounting to a sham
constitution,3 but, in any case, constitutional analysis is poorer when the material forces that
condition the constitutional order are not taken into account only because they are absent from
the formal constitution.
The material study of the constitution captures what underpins the formal constitutional
values and structures and helps to explain how a constitution operates beyond its formal
confines, providing tools for constitutional explanation and prediction, in addition to its signifi-
cant epistemic value. The identification of how the constitution operates within a polity through
a study of the ordering forces that permeate the constitutional order is a more holistic enterprise

1
M. Goldoni and M. Wilkinson, ‘The Material Constitution’ (2018) 81 Modern Law Review 567.
2
M. Goldoni and T. Olcay, ‘The Material Study of Constitutional Change’, in X. Contiades and A. Fotiadou (eds.),
Routledge Handbook of Comparative Constitutional Change (Routledge, 2020), 262–68.
3
D. S. Law and M. Versteeg, ‘Sham Constitutions’ (2013) 101 California Law Review 863.

325

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 326 Tarik Olcay

of recognising loci of constitutional power compared to not only formal enquiries but also
enquiries that centre around constituent power, which tend to focus on the extraneous shaping
of constitutional orders.
There are many places one can look to understand the material constitution of Turkey.
Indeed, some of the chapters in this handbook, which apply the conceptual framework of the
material constitution to other constitutional orders, show the relevant places to look at in
particular constitutional orders. These may include, broadly, political economy, political cul-
ture, social structure, religion, geopolitics, international relations, and imperial factors.4
Specifically with regard to the Turkish constitution, the role of religion in public life as well as
the role of the state in organising religion,5 including the current religious–corporatist structure
of bureaucracy,6 the independence of the Central Bank,7 the ‘deep state’8 and the rise of
alternative – and conservative – business elites, especially in the past few decades,9 may be
relevant to a material study. This chapter aims to offer a modest starting point for an enquiry into
the material constitution of Turkey by looking at perhaps the most obvious aspect of the Turkish
Constitution beyond its formal boundaries: the military. Although some constitutional powers
are given to senior military officials in Turkey, no other central aspect of the Turkish consti-
tutional order is more understated in the formal constitution than the military. There has been
an overbearing presence of the military on Turkish politics, ranging from explicit institutional
expectations to a constant threat of a coup d’état. Against this background, the aim of this chapter
is to introduce the military as an ordering force in the Turkish Constitution, through an
examination of its role in the making and re-making of the 1961 and 1982 Constitutions. The
chapter explains the military’s constituent and ongoing authority over the constitutional order
and its role in guaranteeing the fundamental political objectives of the constitutional order.
What this reveals is that, although recognition of its constitution-making role is limited in the
formal constitution, the military is a defining constitutional actor in Turkey. Only through
accounting for the constitutional role of the military can the materiality of the Turkish
Constitution be grasped and a more accurate description of the Turkish constitutional order
be provided.
Whilst the chapter will argue that the military’s role has been central in shaping Turkey’s
constitutional order, it is worth noting that its involvement has not been confined to a founding
moment in Turkish constitutional history. The military has been part of a wider web of insti-
tutional ordering forces, albeit with a central role, but it has been tasked within this wider web to
provide security for the top-down secularist and nationalist reforms made during the founding
era of the Turkish Republic in the 1920s and 1930s, and has been designed to have tutelage over
democratic politics.10 The motivation behind this role has not been to provide for a protracted
military rule, but to protect the secular order and the state apparatus;11 and the Turkish military
has been a crucial institutional guarantor of the constitutional principles of secularism and

4
Goldoni and Wilkinson, ‘The Material Constitution’, 580.
5
A. Kuru, Secularism and State Policies toward Religion: The United States, France, and Turkey (Cambridge University
Press, 2009), 161–235.
6
D. Coşan and C. Uğur, ‘Cults in Turkey on the Move to Replace Gülen Community’, Birgün Daily, 29 October 2016.
7
S. B. Şahin, ‘Central Bank Independence in Turkey: A Neo-Gramscian Analysis’ (2012) 47 Cooperation and Conflict
106.
8
M. Soyler, The Turkish Deep State: State Consolidation, Civil–Military Relations and Democracy (Routledge, 2015).
9
D. Kenner, ‘The Happy Story of the Anatolian Tigers’, Foreign Policy, 19 March 2010.
10
A. T. Kuru, ‘The Rise and Fall of Military Tutelage in Turkey: Fears of Islamism, Kurdism, and Communism’ (2012)
14 Insight Turkey 37.
11
Z. Sarigil, ‘The Turkish Military: Principal or Agent?’ (2014) 40 Armed Forces & Society 168, 169.

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 The Military in the Material Constitution of Turkey 327

nationalism, which have been protected by unamendability clauses in both the former 1961
Constitution and the current 1982 Constitution.

23.2 THE PLACE OF THE MILITARY IN TURKEY

Looking at the role of the military in constitution-making in Turkey is an obvious starting point
for a material study of the Turkish constitution. The involvement of the military in Turkish
constitutional politics pre-dates the Republic of Turkey, which was founded in 1923, but the
chapter will focus specifically on the 1961 and the current 1982 Constitutions, both of which
were made following coups d’état and under strict military control. Not only was the current
1982 Constitution drafted by military generals who carried out the 1980 coup d’état, but the
previous 1961 Constitution was also drafted under the control of the military junta responsible for
the 1960 coup d’état. In addition to such direct involvement in constitution-making, the military
has also had an indirect, yet defining, influence on constitutional change in Turkey from the
time the 1982 Constitution has been in force to this day. The military’s failure in the 2016 coup
attempt, for instance, inversely reshaped the constitutional order by paving the way for the
constitutional changes that created an autocratic system of presidential government.12
The central role of military is not simply about the threat of physical power it may exert but
also the place and perception of the military in Turkish society more generally. Turks consider
themselves a military-nation, as evident in the adage ‘every Turk is born a soldier’.13 Turkey has a
considerably large military force, having the highest number of military personnel in NATO
after the United States,14 military service is compulsory for every male Turkish citizen,15 and a
mandatory national security curriculum has been taught in high schools by active servicemen
until recently.16 The military also has long been the institution enjoying the highest levels of
public confidence in Turkey.17 It is therefore a socially and materially very powerful institution
that retains its influence on the daily lives of the citizens of Turkey.
The Turkish constitutional order is embedded within the civil law tradition with an apparent
commitment to legalist formalism. A conscious choice was made to adopt this legal tradition in
the formative years of the Turkish Republic, where public law was heavily based on the French
tradition.18 Coupled with a tradition of a ‘strong state’,19 this resulted in a legalist approach to law

12
Z. Yilmaz, ‘Erdoğan’s Presidential Regime and Strategic Legalism: Turkish Democracy in the Twilight Zone’ (2020)
20 Southeast European and Black Sea Studies 265.
13
A. G. Altinay, The Myth of the Military-Nation (Palgrave Macmillan, 2004), 13–32.
14
‘International Comparisons of Defence Expenditure and Military Personnel’ (2021) 121 The Military Balance 517.
15
1982 Constitution of Turkey, Article 72.
16
A. G. Altinay, ‘Human Rights or Militarist Ideals? Teaching National Security in High Schools’, in D. T. Ceylan and
G. Irzik (eds.), Human Rights Issues in Textbooks: The Turkish Case (Tarih Vakfi Yurt, 2004), 76–90.
17
M. Aydin, M. Çelikpala, E. Yeldan, M. Güvenç, O. Z. Zaim, B. B. Hawks, E. C. Sokullu, Ö. Şenyuva, O. Yılmaz and
S. D. Tığlı, Kantitatif Araştırma Raporu: Türkiye Siyasal Sosyal Eğilimler Araştırması [Quantitative Research Report:
Turkey Political Social Leanings Research] 2020, İstanbul, Kadir Has Üniversitesi, Türkiye Çalışmaları Grubu,
Akademetre ve Global Akademi, 7 January 2021, available at: www.khas.edu.tr/sites/khas.edu.tr/files/inline-files/
TEA2020_Tur_WEBRAPOR_1.pdf, last accessed 3 June 2021.
18
For example, see K. Gözler, ‘Türk Belediye Sistemi Üzerinde Fransız Etkisi: 3 Nisan 1930 Tarihli Belediye Kanunu
Fransa’dan mı İktibas Edilmiştir?’ (2019) 28 Çağdaş Yerel Yönetimler 1 (arguing that the Turkish municipality regime is
inspired by the French one) or K. Gözler, ‘Osmanlı/Türk Köy İdaresi Sistemi Üzerinde Fransız Etkisi: 1864 ve 1871
Osmanlı Nizamnamelerinin Köylere İlişkin Hükümleri ve 1924 Köy Kanunu Fransa’dan mı İktibas edilmiştir?’ (2019)
68 Ankara Üniversitesi Hukuk Fakültesi Dergisi 413 (arguing that the Turkish village regime is inspired by the French
one).
19
M. Heper, ‘The Strong State as a Problem for the Consolidation of Democracy: Turkey and Germany Compared’
(1992) 25 Comparative Political Studies 169.

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 328 Tarik Olcay

whereby a gargantuan body of administrative law has been legislated. This, in turn, created a
formalist public law culture that mainly dealt with a detailed body of public law, focussing its
enquiry on the forms that the constitution and other administrative laws create.
The influence of legalist formalism has resulted in the concealment of certain aspects of the
legal and constitutional order from view. While, on the face of it, Turkey has had a formally
advanced constitutional and administrative law with established administrative judiciary and
administrative traditions, the body of public law remained insufficient to account for certain
phenomena within the constitutional-legal order. The history of modern Turkey is rife with
constitutional crises, where certain political issues could not be resolved within the operation of
the formal constitutional mechanisms or the major political actors feel that way, resorting to
(formal) constitutional amendment20 or simply (at least temporarily) setting the formal consti-
tution aside.21 Whilst the former also tells an important story as to the place of the formal
constitutional text and whether it is truly constitutional if it is amended at every critical political
juncture,22 the focus of this chapter is on the latter, as that is where the role of the military has
been most significant in constitution-making.
Considering its key role in shaping the Turkish constitutional order, the place of the military
in the formal constitution seems modest. The main constitutional provision that gives the
military an important albeit rather limited constitutional role is the one creating the National
Security Council.23 This body was created by the 1961 Constitution and was tasked to ‘communi-
cate’ its views on national security policy to the Cabinet until the 1971 constitutional amendment
that gave it the power to make ‘recommendations’ to the Cabinet.24 According to the amended
1982 Constitution, the National Security Council currently consists of the President, deputies of
the President, Ministers of Justice, National Defence, Internal Affairs and Foreign Affairs, the
Chief of the General Staff and the commanders of the Land, Naval and Air Forces.25 While this
formal arrangement gives the military a central role in shaping the national security policy, it
does not do justice to the actual constitutional power it is capable of exerting.
Both the 1961 and 1982 Constitutions were adopted in the aftermath of military coups d’état
and under military junta rule. Throughout the period they have been in force they have
undergone several major reforms and experienced further military intervention. As mentioned,
the Turkish military has enjoyed high public confidence, especially in comparison with the
political elite, and it was therefore able to intervene in constitutional politics with no significant
backlash from the general population. Although it has suffered major setbacks since the
2007 Presidential election,26 including the Ergenekon and Balyoz trials of active and retired
military officials27 and the 2016 coup attempt and its aftermath,28 on the whole, but not
necessarily in all sectors of the society, it remains a powerful and trusted institution in Turkey.29

20
As of 2021, the current 1982 Constitution has been amended 19 times, including several major omnibus amendments.
21
The governmental system was arguably changed unconstitutionally with a de facto amendment. See T. Olcay, ‘The
Turkish Constitution as a Disrespected Idol’, IACL-AIDC Blog, 14 January 2021, available at: https://blog-iacl-aidc.org/
cili/2021/1/14/the-turkish-constitution-as-a-disrespected-idol, last accessed 3 June 2021.
22
Ibid.
23
1982 Constitution of Turkey, Article 118.
24
1961 Constitution of Turkey, Article 111.
25
1982 Constitution of Turkey, Article 118/1.
26
R. Karakaya Polat, ‘The 2007 Parliamentary Elections in Turkey: Between Securitisation and Desecuritisation’ (2009)
62 Parliamentary Affairs 129.
27
E. Aydinli, ‘Ergenekon, New Pacts, and the Decline of the Turkish “Inner State”’ (2011) 12 Turkish Studies 227.
28
L. Haugom, ‘The Turkish Armed Forces and Civil–Military Relations in Turkey after the 15 July 2016 Coup Attempt’
(2019) 2 Scandinavian Journal of Military Studies 1.
29
Altinay, ‘Human Rights or Militarist Ideals?’

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 The Military in the Material Constitution of Turkey 329

23.3 MILITARY INVOLVEMENT IN CONSTITUTION-MAKING

The military has had a double function in the Turkish constitutional order. First, it played
various direct and indirect roles in creating the conditions for major constitutional changes as
well as in constitution-making processes. Second, through its involvement in constitution-
making it placed itself as one of the guardians of secularism and nationalism, the fundamental
constitutional principles of the Republic of Turkey. Due to the abrupt end to the multi-national
and Islamic Ottoman Empire and the top-down nature of the Kemalist revolution, the
Republican political elite, itself originating from the Ottoman military, designed the Turkish
military as a central constitutional actor having the power to wield physical force whenever
secularism or nationalism are considered to be under threat in domestic politics.
Direct military involvement in constitution-making has occurred since the first constitution of
Turkey during the Ottoman Empire. Two of the 28 members of the committee that drafted the
1876 Constitution, which was the first step towards a constitutional monarchy, were military
officials.30 The Committee of Union and Progress, which carried out the Young Turk
Revolution in 1908 that led to the Second Constitutional Era of the Empire, had infiltrated
the Ottoman military and the Republic was founded in 1923 under the leadership of Mustafa
Kemal Atatürk, a field marshal. The more focussed and direct involvement in constitution-
making, however, came following Turkey’s transition from a one-party state to a multi-party state
in 1945 and the eventual rise of the Democrat Party, which broadly represented the conservative
masses against the secularist–nationalist elites of the Republic. In 1960, a group of middle-ranked
officers in the Turkish military overthrew the Democrat Party government and set up a military
regime with a view to ‘ending the increasingly oppressive Democrat Party regime’.31 This coup
d’état has been looked on favourably by many constitutional scholars due to its claims of
reorienting the country toward ‘Atatürk’s path’ and away from ‘religious manipulation’.32 The
1960 coup was recently even reconceptualised as a ‘democratic coup d’état’.33
The National Unity Committee (NUC), the military junta that took power after its overthrow
of the democratic government in 1960, commissioned a group of legal academics to draft a new
constitution. The draft produced by the commission received wide criticism for weakening the
principle of universal suffrage by creating a second chamber with a corporatist character, as well
as excessively limiting the executive power for the benefit of various autonomous institutions it
proposed, such as a State Council, a National Security Council, a National Economy Council,
a National Bank of Turkey and universities.34 The NUC then created a constituent assembly
that consisted of two chambers: (i) the NUC itself and (ii) the House of Representatives. Despite
what its name may suggest, the latter chamber was not elected; rather, it consisted of members
appointed by the head of the state (10 members), the NUC (18), provinces (75), the Republican
People’s Party (49), the Republican Villagers Nation Party (25), bar associations (6), press (12),
the Veterans’ Association (2), small businesses (6), youth (1), trade unions (6), chambers of
commerce (10), teachers’ unions (6), agricultural unions (6), universities (12) and the judiciary
(12).35 The Democrat Party, which had received 48.6 per cent of the votes in the 1957 general

30
B. Tanör, Osmanlı-Türk Anayasal Gelişmeleri, 17th ed. (YKY, 2008), 133.
31
Ibid., 365–66.
32
Ibid., 365.
33
O. O. Varol, ‘The Democratic Coup d’État’ (2012) 53 Harvard International Law Journal 291, 323–28.
34
K. Gözler, Türk Anayasa Hukuku, 2nd ed. (Ekin, 2018), 105.
35
Tanör, Osmanlı-Türk Anayasal Gelişmeleri, 369–70.

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 330 Tarik Olcay

election and had been overthrown in the 1960 coup d’état, was not represented in the
Constituent Assembly.
To draft the new constitution, a Constitution Committee was established in the House of
Representatives, consisting of 20 members. The process designed regarding the approval of the
draft of the Committee gave similar powers to each chamber of the constituent assembly, which
is significant especially when contrasted to the system adopted in the making of the 1982
Constitution that is completely deferent to the military wing, as explained in the following
paragraphs. Still, given the considerable control of the NUC over the House of Representatives
and the complete absence of the Democrat Party which represented almost half of the electorate
before the coup d’état, it would be difficult to imagine that the substantive demands of the
military were not catered for in the drafting of the constitution in the process.
Following the approval of the final constitutional text in a referendum by 61.5 per cent of the
votes on 9 July 1961, the NUC forced the leaders of the political parties to sign a joint declaration
that, among others things, recognised the legitimacy of the 1960 coup d’état and denounced the
Democrat Party ideology as well as ‘partisanship’ generally.36 The military elite also ensured that
the Justice Party, a descendant of the Democrat Party, did not put forward a presidential
candidate so that Cemal Gürsel, the leader of the NUC, could be elected President.37
The 1961 Constitution is commonly regarded as a constitution that prioritised the individual
over the state, rather than the other way around.38 This is especially the case when it is
contrasted with the 1982 Constitution, which is – or at least in its original form was – a more
authoritarian constitution with a state-centric approach to rights and freedoms. That said, the
1961 Constitution contained many provisions that demonstrate a serious distrust in democratic
politics and provide for bureaucratic mechanisms to keep it under control.39 For instance, the
members of the NUC were made Senators for life in the Senate of the Republic, the second
parliamentary chamber created by the 1961 Constitution.40 The Constitution also gave the
President the power to directly appoint another 15 Senators.41 This was designed to ensure that
the interests of the military bureaucracy were sufficiently present in the legislature to keep
democratic politics in check. The 1961 Constitution also entrenched the military judiciary and
the Military Court of Cassation as constitutional authorities.42 More importantly, it created the
National Security Council for the first time, with a view to creating a mechanism that would
liaise the Cabinet with the military bureaucracy, placing it hierarchically at the same level as the
Cabinet in the Constitution.43
The next direct military involvement in constitution-making came on 12 March 1971, this time
in the form of a memorandum with an ultimatum to end ‘social and economic unrest’ in
response to the political violence between rightist and leftist groups,44 and form a ‘strong and
credible government’. The generals signed the memorandum as ‘members of the National
Security Council’,45 demonstrative of the intended uses of the creation of the National Security

36
Ibid., 376–77.
37
Ibid., 377.
38
B. Tanör, Iki Anayasa: 1961–1982, 5th ed. (XII Levha, 2013), 17.
39
E. Özbudun, Türk Anayasa Hukuku, 11th ed. (Yetkin, 2010), 45–46; Tanör Osmanlı-Türk Anayasal Gelişmeleri,
399–401.
40
1961 Constitution of Turkey, Art. 70.
41
1961 Constitution of Turkey, Art. 70.
42
1961 Constitution of Turkey, Art. 141.
43
Tanör, Osmanlı-Türk Anayasal Gelişmeleri, 400.
44
E. J. Zürcher, Turkey: A Modern History, 3rd ed. (I. B. Tauris, 2004), 253–58.
45
Tanör, Osmanlı-Türk Anayasal Gelişmeleri, 411.

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 The Military in the Material Constitution of Turkey 331

Council. Following the 1971 memorandum, martial law was declared and this lasted over two
years, during which three constitutional amendments were made to the 1961 Constitution.
These amendments extended the scope of the military courts in a way that allowed certain civil
matters to be tried before them due to martial law, strengthened the National Security Council
by giving it recommendatory powers, and strengthened the executive to the detriment of the
legislature.46
The military once again stepped in as political violence spread during the late 1970s, claiming
the lives of not only left- and right-wing militants but also of public figures, including a former
prime minister.47 On 12 September 1980, the military announced that it had taken over political
power claiming that the state organs had stopped functioning, and dissolved the Turkish
Parliament. The military made it clear that it intended to hand back political power, but not
before significant reforms had been made to the political system. The junta set up the National
Security Council (not to be confused with the constitutional organ with the same name), which
consisted of the Chief of the General Staff, the three Commanders of the Land, Naval and Air
Forces and the General Commander of the Gendarmerie. Whilst the National Security
Council delegated day-to-day government business to an unelected civil cabinet, it dictated
the government programme.48
The National Security Council bestowed upon itself constitutional reform powers.49 In 1981,
it established a constituent assembly that consisted of (i) the National Security Council and (ii)
an Advisory Assembly.50 The Advisory Assembly was not elected and its members were not
affiliated to any political party, all of which had already been dissolved. One hundred and twenty
of the 160 members of the Advisory Assembly were recommended by unelected governors in
each province and appointed by the National Security Council, and the remaining 40 members
were appointed directly by the National Security Council. Ensuring its complete control over
the constitution-making process, the National Security Council also empowered itself to
approve or amend and approve the draft constitution passed by the Advisory Assembly.51 The
1982 Constitution was drafted under these conditions and the draft finalised by the National
Security Council was approved in a plebiscite by 91.37 per cent of the votes on 7 November 1982,
with a 91.3 per cent turnout. It is worth noting that the National Security Council officially
banned criticism of the National Security Council’s campaign for the draft constitution and
strongly implied that if the draft constitution was rejected, military rule would continue for the
foreseeable future,52 prompting voters to vote for the lesser of two evils.
The resultant 1982 Constitution created a more authoritarian constitutional order as well as
strengthening the military’s constitutional position in several respects. It provided that the
number of civil members would not exceed the number of military members of the National
Security Council (the constitutional organ) and further escalated the role of this Council in a
way that forced the government to prioritise the Council’s decisions. It expanded the scope of
national security to bring social and political conflicts into the constitutional remit of the
military. It also gave even more powers to the executive branch than the 1971 amendments,
including an easier process for the President to dissolve the parliament. It provided extensive

46
Tanör, Iki Anayasa: 1961–1982, 217–22.
47
Zürcher, Turkey, 264.
48
Özbudun, Türk Anayasa Hukuku, 52.
49
Law on the Constitutional Order, No. 2324, dated 27 October 1980, Art. 6.
50
Law on Constituent Assembly, No. 2485, 29 June 1981, Art. 1.
51
Law on Constituent Assembly, No. 2485, 29 June 1981, Art. 26.
52
Özbudun, Türk Anayasa Hukuku, 56.

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 332 Tarik Olcay

Presidential powers to appoint members of the senior judiciary and placed several restrictions on
the activities of political parties. It also made it easier to place limitations on all fundamental
rights and freedoms on general grounds such as national security, public order, public utility and
public morality.
As the approval of the referendum on the 1982 Constitution also automatically elected Kenan
Evren, the Chief of General Staff and the leader of the National Security Council (the organ of
the military junta), as President for a seven-year term as per Provisional Article 1 of the
Constitution, the junta had direct control over democratic politics until the late 1980s.
Following the end of Evren’s presidential term, Turkish politics became more plural and
eventually the Welfare Party, an Islamist political party and the political ascendant of the
Justice and Development Party (AKP), came to power in 1996, leading a coalition government
with two centre-right political parties. This government only lasted for a year, after the military
issued a memorandum on 28 February 1997 to force out the government due to activities it
regarded as a threat to secularism. The Welfare Party was eventually banned by the
Constitutional Court in 1998 as it had become a ‘focal point’ of activities against secularism,
which is an unamendable principle of the Turkish Constitution.53 This military intervention is
widely known as the ‘post-modern coup’ as it forced a government out through a memorandum
with a thinly veiled threat of an actual military coup by the National Security Council, yet it did
not dissolve the parliament as in previous interventions.
In 2007, the military provoked an unintended constitutional change. Reflecting on its
historical practices, it made its discontent with the prospect of Abdullah Gül’s presidential
election clear through what has come to be known as the ‘e-memorandum’ of 2007. Abdullah
Gül was the candidate put forward by the AKP and was likely to be elected President by the
Turkish Parliament. The fact that he came from a religious background and that his wife wore
the Islamic headscarf became an issue with the secularist parts of society.54 The military weighed
in on the matter by publishing a statement on its website, signalling that it will ‘act’ if secularism
comes under attack within the context of the presidential election. The government refused to
succumb to this pressure and pressed on with Gül’s candidacy, only to find itself unable to
achieve quorum in the Turkish Parliament after a move by the parliamentary opposition to
innovate a new rule on quorum requiring that the number of votes required in the first round of
election (367) is also the number for the session to be quorate. Although the AKP had enough
MPs to elect Gül in the second round, where 276 votes were sufficient, the Constitutional Court
ruled in favour of the opposition regarding the quorum rule.55 A general election was called in
response to this and the AKP, although losing some of its seats, were able to achieve quorum
because the Nationalist Movement Party gained enough seats in the Turkish Parliament to
make up the 367 required for quorum. After the election, Gül was elected President and the
AKP introduced a significant constitutional amendment that provided for a popularly elected
President, as well as clarifying the rule on quorum. This amendment was approved in the
2007 referendum by 68.95 per cent of the voters.
Especially since the 1990s, there has been a constant debate regarding the democratic
legitimacy of the 1982 Constitution and the need to adopt a ‘civil’ constitution to replace the
current ‘military’ constitution.56 This discourse has ranged from simple calls to formally remake

53
Constitutional Court, E. 1997/1 (Political Party Closure), K. 1998/1, 16 January 1998.
54
Ş. Dinçşahin, ‘A Symptomatic Analysis of the Justice and Development Party’s Populism in Turkey, 2007–2010’ (2012)
47 Government and Opposition 618, 627–30.
55
Constitutional Court, E. 2007/45, K. 2007/54, 1 May 2007.
56
Z. Arslan, ‘Turkey’s Bid for the New Constitution’ (2007) 9 Insight Turkey 7.

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 The Military in the Material Constitution of Turkey 333

the constitution by a civil body and rescue it from its military underpinnings to substantially reform
it and rid it of mechanisms that maintain the tutelage of the military over democratic politics.
Whilst much of the authoritarian foundations and language of the Constitution remains intact,
reforms made in line with Turkey’s process of accession to the European Union in late 1990s and
2000s created, at least nominally, a less restrictive constitutional framework for the protection of
fundamental rights and freedoms as well as allowing more space for democratic politics.57
Turkey witnessed another coup attempt in 2016. This was striking for many reasons, but
especially for demonstrating the ongoing relevance of the military in shaping the Turkish
constitutional order. Since the early 2010s, many observers considered that military tutelage
over democratic politics in Turkey was over and that the military had lost its purchase within
society, at least when it came to shaping domestic politics.58 Especially after what was considered
to be the AKP’s victories over the military, such as the 2007 presidential election and consti-
tutional amendment referendum, and the Ergenekon and Balyoz trials, the predominant view
was that the ‘era of coups’ was over. The 2016 coup attempt and its aftermath are a testament to
the continuing central relevance of the military to constitutional ordering in Turkey.

23.4 CONCLUSION: THE EFFECTS OF MILITARY INVOLVEMENT AND

THE MATERIAL CONSTITUTION

The formal constitution of Turkey equips the military with significant powers, including a
pivotal role in making and executing national security policy. As the making of the last two
constitutions and several military interventions at critical constitutional junctures demonstrate,
the military has a defining constitutional role, more than simply informing about the work of the
executive in Turkey. It is clear that there is a strong lingering presence of the military within the
Turkish constitutional order, providing a checks and balances mechanism, not necessarily to
curb excessive use of governmental power, but to keep democratic politics in check when it feels
that political unity or the fundamental political objectives that make up the particular consti-
tutional order are at stake. It is telling that the national security policy document, the ‘red book’,
is known as the ‘secret constitution’ of Turkey and a former Chief of General Staff called it ‘the
god of all policies, the mother of all laws: it is unthinkable to act against it’.59
The Turkish Constitution has been shaped by the military more than by any other institution.
Some effects of the military involvement in constitution-making in Turkey are self-evident. The
current constitution itself was drafted under military control and to this day the people of Turkey
are constantly reminded of its military origins. That said, enquiries into the Turkish constitution
rarely take the ongoing constitutional role of the military into account. This is not to say that the
military is not treated in the constitutional law scholarship as having exercised ‘constituent
power’, but rather to emphasise that the formal constitution fails to acknowledge how much
influence the military has consistently had over constitutional actors and not only during coups
d’état or the transitional periods following them. A mere focus on the act of founding with regard

57
E. Özbudun and Ö. F. Gençkaya, Democratization and the Politics of Constitution-Making in Turkey (Central
European University Press, 2009), 43–72.
58
Y. Cilliler, ‘Popular Determinant on Civil–Military Relations in Turkey’ (2016) 38 Arab Studies Quarterly 500. Cilliler
notes strong popular support for the government in the civil and political society as well as by major economic interest
groups, the power of the pro-government media and the change in political opposition’s approach to a more cautious
stance toward the political involvement of the military as some of the reasons for the fading influence of the military
over domestic politics.
59
K. Akkoyunlu, ‘Chapter Two: Turkey’ (2007) 47 The Adelphi Papers 21, 37.

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 334 Tarik Olcay

to the military’s involvement in constitution-making in Turkey conceals the fact that the
constitutional relevance of the military is reinforced by the success of the military-
made constitutions.
The aforementioned legitimacy deficit of the 1982 Constitution due to its military origins may
be overstated as well. There was a serious constitution-making attempt between 2011 and 2013,
bringing together the four major political parties representing 95 per cent of the voters in an ad
hoc constitution-making committee in the Turkish Parliament with equal representation. The
idea was to replace the ‘authoritarian’ constitution made by the military with a ‘civil’ one based
on the protection of human rights. This attempt failed miserably as the threshold for agreement
was set too high with consensus required among the four political parties involved in the process
and three of the four political parties’ reluctance to compromise on their ‘red lines’ – presiden-
tialism for the Justice and Development Party (AKP), secularism for the Republican People’s
Party (CHP) and nationalism for the Nationalist Movement Party (MHP). This led the way to a
rapid eradication of political goodwill and an increasing authoritarianism until this day.60 The
failure of the process may be explained away as being unfortunate, but the political parties knew
it would mean the 1982 Constitution living on. This may be, therefore, a legitimacy crisis only in
name; perhaps the 1982 Constitution, at least the basic framework it sets up, caters well to the
needs of the Turkish polity. This is not to praise the 1982 Constitution but rather to point out that
its framework is amenable to speak to the material constitution of Turkey. This can also be
observed in constitution-making debates, including the 2011–13 constitution-making process,61
where there are two fault lines: (i) nationalism and the unitary character of the state and (ii)
secularism. These are the essential characteristics of Turkey’s material constitution, conditioned
by military tutelage.62 The main political forces in the country, represented by the AKP, the
CHP and the MHP, do not wish to move away from these fundamental political objectives. The
perceived legitimacy deficit, therefore, seems to be a shallow and formalistic pre-occupation
with the fact that it was the military that oversaw the making of Turkey’s constitutions, rather
than one of profound disagreement with the essence of the ‘military’ constitution.
This chapter has sought to show the constitutional role of the military in the Turkish
constitutional order beyond its formal constitutional powers and its direct interventions to
democratic politics roughly once every decade. The role of the military is ongoing and it
conditions the constitutional order, protecting its fundamental political objectives and shaping
the behaviour of constitutional actors. The material enquiry of the constitution promises to help
to pinpoint the forces responsible for such ordering. Further studies on the material constitution
of Turkey may enquire into the political interests or factions that make up the military.63 What
happened in the aftermath of the 2016 coup attempt, muddled as it may be, has exposed the
presence of an organised political interest group inside the military, seeking to exert political
power within the military and beyond. It would be naïve to assume that the rest of the military is
not organised as such and does not consist of other interest groups that have political influence.
Studying the corporatist nature of the military can yield useful data regarding the type and extent
of the current constitutional relevance of the Turkish military.

60
F. Petersen and Z. Yanaşmayan (eds.), The Failure of Popular Constitution Making in Turkey: Regressing towards
Constitutional Autocracy (Cambridge University Press, 2020).
61
F. Petersen and Z. Yanaşmayan, ‘Explaining the Failure of Popular Constitution Making in Turkey’, in F. Petersen
and Z. Yanaşmayan (eds.), The Failure of Popular Constitution Making in Turkey, 49–56.
62
See Kuru, ‘Rise and Fall of Military Tutelage in Turkey’.
63
See, e.g., B. Esen, ‘Praetorian Army in Action: A Critical Assessment of Civil–Military Relations in Turkey’ (2021) 47
Armed Forces & Society 201.

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 24

The Material Constitution of International Investment Law

Jessica Lawrence and Tom Flynn

24.1 INTRODUCTION

When an owner of capital invests this capital in the state of their citizenship or nationality, this
‘domestic’ investment is governed by the ordinary rules of national law. But when an investor
exports their capital, investing it in a state in which they are legally a foreigner, a whole extra
body of law supplements, and in some cases supplants, these domestic arrangements. This is
international investment law (IIL): the vast and ever-growing body of international investment
agreements (IIAs), decisions of arbitral tribunals and other forms of law – formal and informal,
‘hard’ and ‘soft’ – that seek to protect the rights of foreign investors against the actions of
‘host’ states.
Whether the investor invests their capital at home or exports it abroad, we are concerned in
this chapter with the interplay between the actions of an investor (someone with capital who
wishes to make a profit) and the actions of a state (a body which, in democratic theory, claims to
be the legal avatar of ‘the people’). The legal relations between these actors – contractual,
tortious, constitutional, etc. – cannot be understood in purely formal terms. Rather, following
Goldoni and Wilkinson,1 we argue that it is only through a materialist analysis (and in the
broadest legal context a material constitutionalist analysis), emphasising the role of power and
political economy, that we can unpack the ways in which the constitutional order shapes and is
in turn shaped by the figure of the (international) investor.
We argue in this chapter that investment law must be understood in the context of struggles
between capital exporters and states, where investors seek to protect their individual property
rights against the actions of political authorities. At the domestic level, the ‘legitimacy’ and
‘proportionality’ of state action are frequently key to determining whether or not a particular
intervention that impacts an investor’s property will be deemed legal and/or compensable, and to
what degree. IIL, on the other hand, is more agnostic about the ‘public good’, frequently
requiring compensation in cases where state actions are in some way justifiable with reference
to non-economic or communitarian values, and at levels set without regard to the impact on the
public purse and the ability of the state to fulfil its broader social responsibilities. In this, IIL
differs from the practice of both domestic constitutional law and international human rights law,
where not every interference with a right is necessarily a violation of that right and where the

1
Marco Goldoni and Michael A. Wilkinson, ‘The Material Constitution’ (2018) 81 Modern Law Review 567.

335

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 336 Jessica Lawrence and Tom Flynn

legitimacy of the aim of the interference, its means and its extent are all relevant in determining
whether a right has been violated and, if it has, the amount of compensation due to the victim.2
In effect, IIL internationalises the protection of property and contract rights over and above
other competing rights and obligations of the state and prioritises the protection of investors over
and above that of ordinary citizens. IIL does this in part by drawing on and relying on formal
constitutional concepts such as equality, non-discrimination and the rule of law, but uses these
concepts differently to how they are used within national constitutional orders. This comes as no
surprise, once we acknowledge the very different material context within which IIL has been
created, developed, practiced, enforced and re-created.
These tensions between IIL and public policy have not gone unnoticed. Indeed, IIL is
currently undergoing something of a ‘constitutional crisis’, as states in both the global North
and South bristle against the restrictions they have imposed on themselves and on each other in
the hope of attracting investment and stimulating economic growth. Extensive criticism of the
inconsistent decisions of arbitral tribunals; the perceived bias and conflicts of interest of arbiters;
broad interpretations of investor protections and consequent limitations of policy space; increas-
ingly massive awards; and a lack of evidence regarding the benefits of the system have created a
backlash and spurred a number of different reform efforts. Much of the discussion has focused
on substantive and procedural tweaks to the formal constitutional order of IIL, in order to make
it more consistent, less biased and more attentive to states’ ‘right to regulate’ and investors’
obligations to their host states.
However, in this chapter, we argue that we cannot simply rearrange the legal formalities and
expect meaningful systemic change. Rather, an analysis of the material constitution of IIL
reveals that it is an order bound up in fundamental ways with the history of imperialist expan-
sion; the inscription of the particular rights of the investor class as general and international; and
a desire to protect capital and markets from state interference. Section 24.2 briefly maps the
formal constitution of IIL: its origins, its development; its texts; and its institutions. In Section
24.3, we adopt Goldoni and Wilkinson’s four ordering forces of material constitutionalism –
political unity, institutions, social relations and fundamental political objectives – to draw
attention to the distinct ordering principles of this international regime. In doing so, we
demonstrate the impact of an international legal order that self-consciously uses the language
of constitutionalism to introject political objectives and a conception of social relations at odds
with a substantive conception of democracy; that re-casts a set of rules and institutions designed
to further the interests of capital-exporters as international rights claims; that does so on behalf of
an investor-subject afforded protection purely as a function of its transnational economic activity;
and that is produced and reinforced by means of institutions of meagre democratic legitimacy in
a political unity that, unlike the state, does not consist of a physical territory, but precisely of a
non-physical ‘international’ space, outwith the borders and beyond the control of governments.
We conclude that though the various calls for reform may well improve certain serious flaws in
the formal system of IIL, material constitutionalist analysis reveals inherent features of the system
that cannot be reformed without a fundamental reconfiguration of the material relations
between international capital and state constitutional orders.

2
The European Court of Human Rights, for example, takes the position that it will not interfere with a state’s decision
regarding the level of compensation to be paid in the event of an expropriation unless it is ‘manifestly without
reasonable foundation.’ Lithgow v. United Kingdom (1986) 8 EHRR 329, 373. Likewise, the Court’s general view is that
the level of compensation should be relative to the public purpose of the measure. James v. United Kingdom (1986)
5 EHRR 35, 147.

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 Material Constitution of International Investment Law 337

24.2 THE FORMAL CONSTITUTION OF INTERNATIONAL

INVESTMENT LAW

The question of whether, to what extent and in what context it is appropriate to use the language
of constitutionalism to describe and engage with non-state legal orders is not settled. Though
widely accepted in some international contexts (such as in that of the European Union), the
‘project’3 of transplanting constitutionalism from the statist frame to other global frames has met
with more resistance. For the present purposes, the ‘global constitutionalism’ debate of the 2000s
and 2010s4 is not important: IIL is certainly not a constitutional legal order such as that of a state
in the formal sense. It is not autochthonous or self-standing and it is so partial in its sectoral
coverage that it lacks the breadth and overarching nature associated with constitutionalism
proper. Nevertheless, the concept of constitutionalism and its vocabulary are used here as a
discursive framework that throws some important issues of formal law into sharper relief than
would be the case without constitution-talk: democratic legitimacy, equality before the law,
institutional independence and much else besides. We are not alone in using constitutional
tools to assess IIL: by specifically adopting methods, norms, processes and language commonly
associated with constitutionalism, the architects and practitioners of IIL themselves have been
actively trying to constitutionalise the IIL regime for years; just as critical scholars have been
deploying those same tools to contest its power and legitimacy.5

24.2.1 Sources of the Constitution

Having clarified this context, we can now turn to setting out the three main sources of the formal
constitution of IIL.
First, there are around 3,000 IIAs currently in force,6 most notably including Bilateral
Investment Treaties (BITs) and treaties that contain provisions or chapters covering investment,
such as some modern Free Trade Agreements (FTAs). There are also sectoral agreements, such
as the Energy Charter Treaty, which protect investors’ rights in particular economic fields; as
well as other treaties that contain certain protections for the rights of investors, though this may
not be their central function and they may or may not contain the ‘common core’ of rights
generally found in IIAs. Examples of this latter sort of treaty are the WTO’s General Agreement
on Trade in Services (GATS) (in particular mode 3 commitments regarding commercial
presence) and Agreement on Trade-Related Investment Measures (TRIMS); the EU Treaties
insofar as they concern the free movement of capital and the right of establishment; and regional
human rights treaties such as the European Convention on Human Rights (ECHR) insofar as
they concern the protection of property rights.
Second, IIL is to be found in the procedural rules, institutions and treaties governing
international investment arbitration. The International Centre for the Settlement of
Investment Disputes (ICSID) Convention (also called the Washington Convention) and the

3
D. Kennedy, ‘The Mystery of Global Governance’, in J. L. Dunoff and J. P. Trachtman (eds.), Ruling the World?
Constitutionalism and Global Governance (Cambridge University Press, 2009), 40.
4
See, e.g., J. L. Dunoff and J. P. Trachtman, ‘A Functional Approach to International Constitutionalization’, in in J. L.
Dunoff and J. P. Trachtman (eds.), Ruling the World? Constitutionalism and Global Governance (Cambridge
University Press, 2009), 3–37.
5
See, e.g., D. Schneiderman, Constitutionalizing Economic Globalization: Investment Rules and Democracy’s Promise
(Cambridge University Press, 2008).
6
A regularly updated database can be found at: https://investmentpolicy.unctad.org/international-investment-agreements,
last accessed 10 August 2022.

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 338 Jessica Lawrence and Tom Flynn

New York Conventions lay down much of the legal framework in this respect, supplemented by
the provisions of individual IIAs; and institutions such as ICSID and the UN Commission on
International Trade Law (UNCITRAL), amongst others, provide significant forums, personnel,
and expertise for arbitration. The vast majority of IIL disputes are brought by private actors,
empowered to make claims against national governments through investor-state dispute settle-
ment (ISDS) provisions in IIAs. Such claims are heard by ad hoc investment tribunals modelled
after private commercial arbitration mechanisms, staffed with a mix of lawyers, arbitrators and
academics. Arbitration takes place outside the jurisdiction of the state and its courts, which –
importantly – are presumed to be potentially biased against foreign investors and subject to
pressure from national actors, in contrast to ‘de-politicised’ and ‘neutral’ international forums.7
Third, the vast and varied jurisprudence of arbitration tribunals constitutes a source of law in
its own right. While the decisions of these tribunals have no formal precedential value or
binding effect beyond the parties themselves, they can be influential, and well-crafted decisions
can have persuasive value. Around 700 such decisions are known; however, the real figure may
be much higher, as not all are made public.8
To these three major sources of the formal constitution of IIL, we can add a range of
supplementary sources, including customary international law (e.g., rules regarding the protec-
tion of aliens, rules of treaty interpretation); national legal practices and rules; investor–state
contracts; and related areas of international law such as international tax agreements; finance
and debt arrangements; ILO and OECD codes of conduct; and many others.

24.2.2 Rules and Principles of the Constitution and Their Malleability

In terms of their substance, while IIAs vary greatly in terms of their precise content, they
generally follow a common format, typically including rules regarding non-discrimination on
grounds of nationality; prohibition of expropriation without compensation; and ‘fair and equit-
able treatment’ (FET). Other protections may be added to the mix as well – capital transfer rights
and protection against breach of contract through ‘umbrella clauses’, for example, are also
common. These protections are frequently cast in the language of rights and are sometimes
analogised to protections found in human rights law: denial of justice, the right to a fair trial, the
right to property, due process and non-discrimination are deployed by both the IIL and human
rights regimes to defend natural and legal persons against the actions of the state.9 However, the
terms of the protections afforded by IIAs are vague, leaving wide latitude for arbitrators to
interpret their meaning and making arbitral decisions notoriously unpredictable.10
To provide just one example, the prohibition of expropriation or nationalisation without
compensation includes not only ‘direct’ expropriation (the mandatory legal transfer of property
or outright physical seizure), but also ‘indirect’ expropriation (measures ‘tantamount to’ or
‘equivalent to’ expropriation, where the investor is deprived of the use and enjoyment of their

7
See S. Puig, ‘No Right without a Remedy: Foundations of Investor-State Arbitration (2013–14) 35 University of
Pennsylvania Journal of International Law 829.
8
For a current list of known disputes, see: https://investmentpolicy.unctad.org/investment-dispute-settlement, last
accessed 10 August 2022.
9
See M. Paparinskis, ‘Analogies and Other Regimes of International Law’, in Z. Douglas, J. Pauwelyn and J. E
Viñuales (eds.), The Foundations of International Investment Law: Bringing Theory into Practice (Oxford University
Press, 2014), 73–107.
10
This has long been discussed as a problem undermining the legitimacy of tribunals. See, e.g., S. D Franck, ‘The
Legitimacy Crisis in Investment Treaty Arbitration: Privatizing Public International Law through Inconsistent
Decisions’ (2005) 75 Fordham Law Review 1521.

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 Material Constitution of International Investment Law 339

property while retaining formal ownership). This latter category has, at its most expansive, been
interpreted as including any action ‘depriving the owner, in whole or in significant part, of the
use or reasonably to be expected economic benefit of property even if not necessarily to the
obvious benefit of the host State’,11 a sweeping definition that could cover nearly any state action
that diminished the value of the investment. Most tribunals have not gone quite so far, requiring
a ‘substantial deprivation’ of property to have taken place before a measure will be found
expropriatory.12 However, the uncertainty that is built into the ad hoc arbitration system means
that it is difficult to predict ex ante where a particular tribunal will stand on such questions,
leaving open the possibility for investors to threaten suits in order to dissuade governments from
taking actions contrary to the investors’ interests.13
Such strong-arm tactics are particularly concerning given that the category of ‘indirect
expropriation’ has sometimes been interpreted to cover so-called regulatory takings. As the
tribunal stated in Santa Elena v. Costa Rica, in the context of a challenge by a tourism resort
developer to a decision by the state to convert the resort’s intended location into a coastal wildlife
reserve:14 ‘Expropriatory environmental measures – no matter how laudable and beneficial to
society as a whole – are, in this respect, similar to any other expropriatory measures that a state
may take in order to implement its policies: where property is expropriated, even for environ-
mental purposes, whether domestic or international, the state’s obligation to pay compensation
remains.’15 But here too there is contrary practice from other tribunals. Consider the following,
from Methanex:16 ‘[N]on-discriminatory regulation for a public purpose, which is enacted in
accordance with due process, and which affects, inter alios, a foreign investment, is not deemed
expropriatory and compensable unless specific commitments had been given by the regulating
government to refrain from such regulation.’17 Subsequent decisions have not resolved this issue:
the line between a compensable expropriation and a ‘legitimate’ regulation which does not give
rise to a claim for compensation remains unclear.
Even murkier is the interpretation of the nebulous and frequently litigated FET standard, and
the extent to which compensation should be paid when governments undermine the ‘legitimate
expectations’ of a foreign investor. Tribunals reading this standard broadly have found compen-
sable harms in situations including a state’s refusal to issue or renew a permit required for a
business to operate, the regulatory phase-out of an environmentally harmful business and the
withdrawal of a tax exemption. They have even – at their most extreme – read the standard as
implying an obligation to maintain ‘regulatory stability’,18 thus clearly limiting the possibility of
domestic actions that undermine the interests of international investors. Others have read the
obligation more narrowly, as protecting only ‘legitimate’ and ‘reasonable’ expectations, such as
where specific representations were made to the investor to induce the investment.19

11
Metalclad v. Mexico, 5 ICSID Reports 209, Award, 30 August 2000, para. 103.
12
Pope & Talbot, Inc. v. Government of Canada, UNCITRAL Award, 26 January 2000.
13
The notion of ‘regulatory chill’ is widely discussed in the literature.
14
Compañia del Desarrollo de Santa Elena S.A. v. Republic of Costa Rica, ICSID Case No. ARB/96/1, Award, 17
February 2000.
15
Ibid., para. 72.
16
Methanex Corporation v. United States of America, UNCITRAL Final Award, 3 August 2005.
17
Ibid., at Part IV, para. 7
18
Tecmed v. Mexico, ICSID Case No ARB (AF)/00/2, Award, 29 May 2003.
19
Duke Energy Electroquil Partners and Electroquil SA v. Ecuador, ICSID Case No ARB/04/19, Award, 18 August 2008;
Masdar Solar & Wind Cooperatief U.A. v. Kingdom of Spain, ICSID Case No ARB/14/1, Award, 16 May 2018.

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 340 Jessica Lawrence and Tom Flynn

Tribunals taking the narrower approach have sometimes noted the need to balance investors’
expectations against the legitimate regulatory activities of host countries.20 This importation of
‘proportionality’21 or ‘reasonableness’22 analysis into IIL has been advocated by some scholars as a
way of addressing legitimacy concerns and in light of the growing list of clashes between IIL and
domestic regulation over issues relating to, for example, environmental protection and public
health.23 However, many scholars continue to view IIL through the traditional lens of private
commercial law, arguing that its ‘public’ character is overstated24 and that these disputes remain,
at their heart, commercial ones. To date, use of proportionality analysis by tribunals remains
inconsistent and of variable quality, raising further questions about its value as a means of
imbuing IIL with legitimacy.25
The stakes of these constitutional debates in IIL are made much higher by the eye-watering
awards that can come with successful ISDS claims. Bonnitcha and Brewin have found more
than 50 cases in which compensation exceeded USD 100 million, the largest of which was an
award of $40 billion in a case involving the nationalisation of Russian oil company Yukos.26
Awards of this nature seriously impact national budgets and affect the ability of states to take
action for the benefit of their citizens.
Illustrative of the potential pitfalls is the case of Tethyan Copper v. Pakistan,27 in which an
Australian mining company filed a successful ICSID arbitration against Pakistan regarding the
denial of an expected mining license. The tribunal ultimately found that Tethyan had a legitimate
expectation that the mining license would be granted and that due process was not followed: the
denial therefore violated the rights of the investor. It awarded Tethyan $4 billion plus interest in
compensation, taking into account the future income the investment would have earned (or, rather,
might have earned) over its 50-year operating cycle if it had in fact been built (even though the
investor’s original outlay was only $150 million).28 This award was nearly as large as the $6 billion
bailout package that the IMF and Pakistan had agreed a few months earlier:29 the perverse result is
that two thirds of the bailout went straight into the pockets of an Australian mining company.

20
Saluka Investments BV (The Netherlands) v. Czech Republic. UNCITRAL Rules, Partial Award, 17 March 2006; EDF
International S.A., SAUR International S.A. and León Participaciones Argentinas S.A. v. Romania, ICSID Case No.
ARB/05/13, Award, 8 October 2009.
21
B. Kingsbury and S. W. Schill, ‘Investor-State Arbitration As Governance: Fair and Equitable Treatment,
Proportionality and the Emerging Global Administrative Law’ (2011) 2 Transnational Dispute Management; C.
Henckels, Proportionality and Deference in Investor-State Arbitration: Balancing Investment Protection and
Regulatory Autonomy (Cambridge University Press, 2015).
22
V. Vadi, Proportionality, Reasonableness and Standards of Review in International Investment Law and Arbitration
(Edward Elgar, 2018).
23
See, e.g., A. M. Daza-Clark, International Investment Law and Water Resources Management (Brill, 2016); V. Vadi,
Public Health in International Investment Law and Arbitration (Routledge, 2012); J. E. Viñuales, Foreign Investment
and the Environment in International Law (Cambridge University Press, 2012).
24
J. E. Alvarez, ‘Is Investor-State Arbitration Public?’ (2016) 7 Journal of International Dispute Settlement 534.
25
See, e.g., D. Schneiderman, ‘Global Constitutionalism and Its Legitimacy Problems: Human Rights, Proportionality,
and International Investment Law’ (2018) 12 The Law & Ethics of Human Rights 251; G. Bücheler, Proportionality in
Investor–State Arbitration (Oxford University Press, 2015).
26
J. Bonnitcha and S. Brewin, Compensation under Investment Treaties (International Institute for Sustainable
Development, 2020).
27
Tethyan Copper Company Pty Limited v. Islamic Republic of Pakistan, ICSID Case No. ARB/12/1, Award, 12 July 2019.
28
The use of the so-called discounted cash flow (DCF) method to calculate an investment’s expected future income
over its entire life cycle is frequently used as a basis for awarding compensation. See Bonnitcha and Brewin,
Compensation under Investment Treaties.
29
IMF, Press Release No. 19/264, ‘IMF Executive Board Approves US$6 billion 39-Month EFF Arrangement for
Pakistan’, 3 July 2019, available at: www.imf.org/en/News/Articles/2019/07/03/pr19264-pakistan-imf-executive-board-
approves-39-month-eff-arrangement, last accessed 10 August 2022.

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 Material Constitution of International Investment Law 341

In an effort to reign in the potentially broad scope and unpredictable interpretation of IIL
protections, some states have begun to include preambles, exceptions and carve-outs that seek to
protect non-economic interests and the right to regulate in new generation IIAs. Others have
begun to exit the system, terminating IIAs and withdrawing from ICSID. The EU has sought to
move away from ad hoc arbitration and toward a more formalised Investment Court System or
potentially even a Multilateral Investment Court. Even UNCITRAL is currently debating ISDS
reform.30
But such reform efforts can, at best, improve the perceived legitimacy of IIL’s doctrinal
and institutional architecture. To understand the structural limitations of such formal consti-
tutional change, we must look to the material forces at work in the undergrowth of IIL that
created this legal world and which these institutions and constitutional debates reflect and
reproduce.

24.3 MAPPING THE MATERIAL CONSTITUTION OF INTERNATIONAL

INVESTMENT LAW

24.3.1 Political Unity

24.3.1.1 Development
IIL’s history is a long one and is deeply embedded in the imperialist expansion of European
commercial interests beginning in the seventeenth century.31 Early treatments of the (European)
law of nations held that foreign traders, once admitted to a state’s territory, should be treated no
worse than nationals.32 Friendship, Commerce and Navigation (FCN) treaties built on this
foundation, establishing networks of treaty-based protections for the property of expatriates,
sometimes reciprocal, but often – especially in non-European contexts – on the basis of
‘enforced compliance’ and unequal treaties.33 International customary law developed an ‘inter-
national minimum standard’ for the treatment of aliens that prohibited bad faith and ‘outra-
geous’ conduct by the state,34 as well as a rule prohibiting the expropriation of alien property
except when for a public purpose, where not arbitrary and where ‘prompt, adequate, and
effective’ compensation would be paid (the so-called Hull formula).35 Failure to uphold these
standards triggered international responsibility and the home states of sufficiently powerful and

30
UNCITRAL, ‘Working Group III: Investor-State Dispute Settlement Reform’, available at: https://uncitral.un.org/en/
working_groups/3/investor-state, last accessed 10 August 2022.
31
K. Miles, The Origins of International Investment Law: Empire, Environment and the Safeguarding of Capital
(Cambridge University Press, 2013).
32
The idea that there is a freedom to trade on a non-discriminatory basis can be found back as far as de Vitoria, Grotius
and de Vattel. F. de Vitoria, De Indis et De Iure Belli: Relectiones (orig. 1532, E. Nys, ed. 1964), Part 2; H. Grotius, De
Jure Belli Ac Pacis Libri Tres (orig. 1625, J. B. Scott, ed., F. W. Kelsey, trans., 1925), Book II, Chapter II, XXII; E. de
Vattel, Law of Nations (orig. 1798, J. Chitty, trans.), Book II, Chapter VIII, s108–9.
33
Miles, Origins of International Investment Law, 25 et seq. See also Antony Anghie, Imperialism, Sovereignty and the
Making of International Law (Cambridge University Press, 2012).
34
Neer Claim, 1926 4 RIAA 60.
35
C. Hull, Letter, ‘The Secretary of State to the Mexican Ambassador (Castillo Nájera)’ Washington, 21 July 1938,
available at: https://history.state.gov/historicaldocuments/frus1938v05/d662, last accessed 10 August 2022.

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 342 Jessica Lawrence and Tom Flynn

well-connected investors might choose to espouse the claims of wronged nationals, leading to
arbitration between the capital-exporting and -importing states, or, if this failed, to so-called
gunboat diplomacy or outright military intervention, a tactic eventually outlawed by the Drago–
Porter Convention in 1907.36
This gradual spread of international property rules did not go uncontested. Beginning in the
1860s, Latin American states began to resist the ‘diplomatic protection’ system used to enforce
the rights of investors in their territories and presented an alternate theory of what the ‘fair
treatment’ of investors and their property should entail. Under this new ‘national treatment’
standard, known as the Calvo doctrine,37 investors were to be treated no worse but also no better
than the nationals of the host state. This position was unattractive to capital-exporters because it
meant that if the state were to treat its own investors in a disagreeable manner, it could treat
foreign investors in this manner too: indeed, the Soviet Union relied on the Calvo doctrine to
justify its refusal to compensate a gold mining venture expropriated in 1917.38
This history of imperialism and resistance sits at the heart of the modern system of investment
law. The rise of IIAs must be understood in significant part as a reaction to post-colonial, socialist
and other state interventions that put international property rights in jeopardy. Decolonisation in
particular created risks for investors, as property acquired and rights established under colonial
regimes were challenged by new governments seeking to redistribute wealth, re-assert sover-
eignty over natural resources and exercise national control over their economies.
Nationalisations and the retraction of concessions were important tools for these newly-
independent governments: one study found 875 recorded expropriations across 62 countries
between 1960 and 1974.39
Socialist and post-colonial states made several attempts to assert what they saw as their
economic rights and to create a new international standard for the protection of investments.
The 1962 UN General Assembly Resolution on Permanent Sovereignty over Natural Resources
recognised the right of the state to expropriate private interests on payment of ‘appropriate
compensation, in accordance with the rules in force in the State taking such measures in the
exercise of its sovereignty and in accordance with international law’40 – a far more flexible
standard than the Hull formula favoured by capital-exporters. The 1974 Declaration on the New
International Economic Order41 recognised the right to expropriate without paying fair market
value and stated that ‘[n]o State may be subjected to economic, political, or any other type of
coercion to prevent the free and full exercise of this inalienable right’.42 Similarly, the
1974 Charter of Economic Rights and Duties of States attempted to abolish the ‘minimum
standard’ on the expropriation of alien property and replace it with domestic law, in accordance
with the Calvo doctrine.43

36
Hague Convention II – Limitation of Employment of Force for Recovery of Contract Debts (Drago-Porter
Convention), 18 October 1907, art. 1(1).
37
C. Calvo, Derecho internacional teórico y práctico (Amyot, 1868).
38
V. V. Veeder, ‘The Lena Goldfields Arbitration: The Historical Roots of Three Ideas’ (1998) 47 International and
Comparative Law Quarterly 747.
39
O. T. Johnson Jr. and J. Gimblett, ‘From Gunboats to BITs: The Evolution of Modern International Investment Law’,
in K. P. Sauvant (ed.), Yearbook on International Investment Law & Policy 2010-2011 (Oxford University Press, 2012),
675 (quoting Permanent Sovereignty Over Natural Resources Report of the Secretary General, UN Doc. A/9716
(1974)).
40
G. A. Res. 1803 (XVII), reprinted in (1963) 2 International Legal Materials 223.
41
Resolution 3201 (S-VI).
42
Ibid., para 4(e).
43
G. A. Res. 3281, U. N. GAOR, 29th Sess., Supp. No. 31, at 50, UN Doc. A/9631, 15 January 1974, reprinted in 14
I.L.M. 251 (1975).

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 Material Constitution of International Investment Law 343

Capital-exporting states, spurred by the efforts of ‘norm entrepreneurs’ from the banking,
business and legal sectors,44 responded by creating the modern system of international invest-
ment law. Following several failed attempts to create a multilateral investment law framework,45
which fell apart due to disagreements between capital-exporting and capital-importing states
over investor protection standards, individual capital-exporting states instead divided and con-
quered, turning to bilateral negotiations and laying the foundations for modern IIL. The first
BIT was signed between Germany and Pakistan in 1959.46 ICSID was established as part of the
World Bank Group in 1966 to provide a set of rules and a de-localised forum for hearing
investment disputes and the web of treaties slowly began to build. It was not until 1989, however,
that IIL really began to blossom. The fall of the Soviet Union brought with it the need for states
around the world (post-Soviet and otherwise) to attract capital and the end of the Cold War led
to a decline in foreign aid budgets. At the same time, the debt crisis of the 1980s reduced the
availability of private lending; export-led growth strategies in Asia seemed to demonstrate the
successes of liberal economic policies; and the general climate of ‘end of history’ thinking in
political and intellectual circles was evident in the Washington Consensus, which regarded ‘a
restrictive attitude limiting the entry for foreign direct investment’ as ‘foolish’ behaviour motiv-
ated by ‘economic nationalism’.47
These ideas were pushed in particular by capital-exporting states and international financial
institutions, including via conditionality mechanisms,48 but were also taken up enthusiastically
by capital-importing states convinced of the promise of economic growth; convinced of the
perceived need to compete for scarce investment capital; and eager to reap the benefits.49 From
the democratic perspective, it is notable that this flurry of treaty-making and institution-building
in the 1990s took place ‘virtually unnoticed’, with mid-level government officials negotiating and
concluding the agreements largely without scrutiny by parliaments, the media or the public50
and with little attention to the potential consequences of the commitments being made, aside
from the promised increases in international investment.51

44
N. M. Perrone, Investment Treaties and the Legal Imagination: How Foreign Investors Play by Their Own Rules
(Oxford University Press, 2021).
45
See, e.g., Havana Charter for an International Trade Organization (1948), UN Conference on Trade and
Employment, UN Doc. E/CONF.2/78; International Chamber of Commerce, International Code of Fair
Treatment of Foreign Investment (1948); International Law Association, Draft Statute of the Arbitral Tribunal for
Foreign Investment and the Foreign Investment Court (1948); Abs and Shawcross, Draft Convention on Investments
Abroad (1959); OECD, Draft Convention on the Protection of Foreign Property (1967).
46
Treaty between the Federal Republic of Germany and Pakistan for the Promotion and Protection of Investments,
signed 25 November 1959 (1963) 457 UNTS 23 (entered into force 28 April 1962).
47
J. Williams, ‘What Washington Means with Policy Reform’, in J. Williamson (ed.), Latin American Adjustment: How
Much Has Happened? (Institute for International Economics, 1990), 7–20.
48
A. Kaushal, ‘Revisiting History: How the Past Matters for the Present Backlash against the Foreign Investment Regime’
(2009) 50 Harvard International Law Journal 491.
49
Andrew Guzman suggests that poorer states face a prisoners’ dilemma ‘in which it is optimal for them, as a group, to
reject the [adequate, effective, and prompt compensation rule], but in which each individual LDC is better off
“defecting” from the group by signing a BIT that gives it an advantage over other LDCs in the competition to attract
foreign investors’. A. T. Guzman, ‘Why LDCs Sign Treaties that Hurt Them: Explaining the Popularity of Bilateral
Investment Treaties’ (1998) 38 Virginia Journal of International Law 639, 666–67.
50
J. Bonnitcha, L. N. Skovgaard Poulsen and M. Waibel, The Political Economy of the Investment Treaty Regime
(Oxford University Press, 2017), quoting Daniel C. Etsy.
51
A recent survey of government officials from 13 developing countries, for example, found that ‘all officials, including
stakeholders, noted that they had been unaware of the far-reaching scope and implications of BITs during the 1990s,
when the treaties proliferated’. L. N. Skovgaard Poulsen and E. Aisbett, ‘When the Claims Hit: Bilateral Investment
Treaties and Bounded Rational Learning’ (2013) 65 World Politics 273, 281–82.

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 344 Jessica Lawrence and Tom Flynn

It is from this history of conflict over the extent to which capital markets should be shielded
from state intervention that the political unity of the material constitution of IIL has come into
being.

24.3.1.2 Territory
Goldoni and Wilkinson write that ‘[a] constitutional order . . . represents a certain conception of
political space (which, in the political form of the modern state, is conceived as a territory)’.52
But the material constitution of IIL specifically and deliberately does not conceive of its political
space as a physical territory: on the contrary, it conceives of it in opposition to physical territory,
precisely because IIL is the means by which capital exporters can escape from the jurisdiction of
the state while still maintaining an emplaced physical or legal presence within the state. Such
escape is to an imagined non-physical, liminal space of internationality, outwith and beyond the
direct control of states. Here, disputes regarding physical assets, legal rights or agreements with
foreign investors are removed to the metaphysical plane of IIL (this is all despite the fact that the
actual panels themselves are physically located within the very real territory of seats of inter-
national economic power, such as London, Geneva, Paris and Washington, DC). The deterri-
torialisation of international law and the shift from ‘territoriality’ to ‘functionality’ as ‘an
organizing principle for regulatory authority’53 are fully on display in this context, as are the
associated questions of democratic legitimacy and control. Deterritorialised IIL therefore pre-
sents acute problems of ‘social dis-embeddedness’,54 as it regulates conflicts between ‘legality and
market rationality, competition and solidarity, and between opposing political and social [and
economic] forces’55 in a jurisprudential context far removed from democratic norms as
developed within the territorial state.
However, as Arcuri and Violi rightly emphasise, territoriality and the territorial state remain
key to the (oppositional) spatiality of IIL.56 This is true in the prosaic sense that IIAs define their
scope in terms of territorial limits, but more importantly through IIL’s reliance on the apparatus
of the state for the enforcement of judgements. It is also true in the sense that states are
ultimately the source of IIL’s legality and legitimacy. Though we have emphasised that IIL is
a means by which capital exporters can remove themselves from state law and jurisdiction, it
must also be noted that IIL is not only a creation of a capital-owning class imposed on innocent
and unwitting states, but is also a creation of states themselves – and not only capital-exporting
states. As David Schneiderman notes, ‘states paradoxically are conceding space to the rules and
institutions of transnational economic law . . . authoring the very rules and institutions that bind
them well into the future’.57 Note, here, the dualistic element at work: IIL relies on the
(constitutionally-derived) authority of the state for its creation, operation, enforcement,

52
Goldoni and Wilkinson, ‘Material Constitution’, 581.
53
C. M. Brölmann, ‘Deterritorialization in International Law: Moving Away from the Divide between National and
International Law’, in A. Nollkaemper and J. E. Nijman (eds.), New Perspectives on the Divide between National and
International Law (Oxford University Press, 2007), 84, 87.
54
Goldoni and Wilkinson, ‘Material Constitution’, 586.
55
Ibid.
56
A. Arcuri and F. Violi, ‘Reconfiguring Territoriality in International Economic Law’, in M. Kuijer and W. Werner
(eds.), Netherlands Yearbook of International law 2016: The Changing Nature of Territoriality in International Law
(The Hague: Asser Press, 2017), 175.
57
D. Schneiderman, ‘Global Constitutionalism and International Economic Law: The Case of International
Investment Law’, in M. Bungenberg, C. Herrmann and M. Krajewski (eds.), European Yearbook of International
Economic Law 2016 (Springer, 2016), 29.

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 Material Constitution of International Investment Law 345

perpetuation and expansion; while simultaneously impeding the (constitutionally-derived) man-

date of the state to act. In this sense, it is not so much that IIL constrains the state, but rather that
it is a means by which the state constrains itself, exercising its authority to reduce its authority
and to fundamentally alter the conditions under which democracy is supposed to operate at the
national level. It is through this sleight of hand that transnational IIL defends its democratic
credentials, relying on the political voluntarism of treaty-making as grounding for its legitimacy.

24.3.1.3 Collectivity
If ‘the formation of political unity requires a material process of political integration . . . of a
collectivity’,58 the collectivity in question here is a diverse and sometimes unselfconscious one,
consisting of three broad and sometimes overlapping categories of actor: states (capital-exporting
and capital-importing), investors and those whom we will call here practitioners. We can begin
by noting that the two categories of state in the collectivity overlap: while we can distinguish in a
general sense between countries that export capital and countries that import it, all countries are
recipients of inward investment flows and even the poorest countries may also be home to
(sometimes very) rich individuals and firms that engage in capital export.59 By investors we mean
natural and (especially) legal persons with the means and the desire to engage in international
investment. By practitioners we mean the disparate network (sometimes tight-knit, sometimes
very loose) of national and international politicians, industrialists, lobbyists, lawyers, intellec-
tuals, bureaucrats and others who actually run and sustain and develop the system.60 This is the
epistemic community that provides the political impetus for IIAs, that staffs arbitral institutions
and that engages in the IIL discourse of ‘rights’, ‘justice’, ‘fairness’ and ‘equality’. This is, in the
Gramscian sense, the hegemonic class who obtain the consent of the dominated by projecting
their own particular interests as general interests.61
IIL is one means by which this loose collectivity organises economic and social relations in
accordance with its (perceived) interests, insulating the economic from political interference.
IIL uses the mechanism of investor rights to constrain state power, claiming that states are free to
regulate the economy as they see fit within the confines of the rule of law.62 The ‘rule of law’ here
is given a particular and contingent interpretation, as part of the project of introjecting a set of
investor- and property-friendly values into the pre-existing discourse of constitutionalism.

24.3.1.4 Constitutionalisation and Entrenchment

IIAs make domestic policy decisions regarding investments difficult (read: expensive) to reverse
in future, essentially attempting to insulate them from democratic control. It is important to note

58
Goldoni and Wilkinson, ‘Material Constitution’, 581.
59
B. S. Chimni, ‘Capitalism, Imperialism, and International Law in the Twenty-First Century’ (2012) 14 Oregon Review
of International Law 17.
60
Compare Leslie Sklair’s transnational capitalist class (TCC), which she describes as including ‘[transnational corpor-
ation] executives and their local affiliates (corporate fraction); globalizing state and inter-state bureaucrats and
politicians (state fraction); globalizing professionals (technical fraction); and merchants and media (consumerist
fraction)’. Leslie Sklair, Globalization: Capitalism and its Alternatives (Oxford University Press, 2002), 99.
61
A. Gramsci, Selection from the Prison Notebooks (International Publishers, 1971).
62
See S. W. Schill, ‘International Investment Law and the Rule of Law’, in J. Lowell, J. C. Thomas and J. van Zyl Smit
(eds.), Rule of Law Symposium 2014: The Importance of the Rule of Law in Promoting Development (Academy
Publishing, 2015), 81; P.-T. Stoll, ‘International Investment Law and the Rule of Law’ (2018) 9 Goettingen Journal
of International Law 267.

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 346 Jessica Lawrence and Tom Flynn

that this is exactly what national constitutions try to do when they entrench fundamental norms.
In some cases constitutions attempt to make certain norms entirely permanent and unamend-
able,63 but more usually the amendment or repeal of constitutional rules is made subject not to
the procedure for ordinary law-making outlined in the constitution (whatever that may be) but to
a special procedure for constitutional amendment (often one requiring a parliamentary super-
majority).64 Constitutions vary widely in their degree of entrenchment and in which parts of
themselves, if any, they designate as fundamental and thus part of some unalterable core. IIL has
successfully transposed this logic of entrenchment from the field of national constitutionalism to
that of the regulation of international capital flows, placing property rights and investor protec-
tions ‘beyond (ordinary) politics’ and successfully generalising this logic across a broad range of
states. The intention here was explicit: the elevation of managerialism and technocracy to the
status of constitutional modes and norms of governance was described by the World Bank as a
process of ‘locking in good policies’,65 whereby constitutional, legal and political inflexibility are
deliberately chosen and perpetuated in order to achieve long-term economic goals.66
It is therefore through the historical, political and material processes outlined here that the
collective subjects of IIL have created a loose but powerful form of political unity. The
organisation of this unity gravitates around the distinction between centre and periphery
(crudely, between North and South, between West and the rest), but it also oscillates between
these two rough poles: it is increasingly the case that the capital-exporting states of the global
North and West are beginning to chafe under the rigours of a system they played a major role in
designing, which suited them only for so long as it did not unduly restrain them. Moreover,
there is also oscillation within states and not just between them, such as when we see discontent
and disaffection within less-privileged parts of the citizenries of rich states, blamed in part
on exactly the processes of globalisation and neoliberalisation that form the fundamental aims
of IIL.

24.3.2 Institutions
As with national political unity, the material order of IIL depends on the work of formal and
informal institutions. The formal system is comprised of the range of international institutions,
treaties and tribunals, described in Section 24.2, that perform the substantive legwork of creating
and recreating the norms of IIL and of embedding them ever further within national and
international systems of law.
However, IIL does not only play out at the international level. Under the ICSID and New
York Conventions, if a state refuses to pay compensation following an investment award, the
investor can bring actions for enforcement before the courts of any other member state and have
any commercial assets of the state in that jurisdiction seized and attached to the judgement. We
see here the quite fundamental – indeed, parasitic – way in which IIL depends on states: as
described, it is states that negotiate and sign IIAs, it is the institutions of states that enforce these
treaties and the arbitration systems set out thereunder, and it is states that legitimise the system of
IIL by injecting it with an element of democratic authorisation (the system of IIL having been

63
E.g., Art 79(3) of the German Grundgesetz.
64
See R. Albert, Constitutional Amendments: Making, Breaking, and Changing Constitutions (Oxford University Press,
2019).
65
World Bank, World Development Report 1997: The State in a Changing World (Oxford University Press, 1997), 50–52.
66
S. Gill, ‘New Constitutionalism, Democratisation, and Global Political Economy’ (1998) 10 Pacifica Review: Peace,
Security & Global Change 23, 34

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 Material Constitution of International Investment Law 347

‘freely’ entered into by states), even as IIL reduces the scope of state action. For this reason,
David Schneiderman argues that IIL is essentially ordoliberal, assigning the state ‘a special role
to play in the structuration of free markets by laying down the rules of the game via an economic
order’.67 Observing this ‘special role’, Wolfgang Streeck notes the ‘drama of democratic states
being turned into debt-collecting agencies on behalf of a global oligarchy of investors’.68
This relationship between IIL and domestic legal orders is an interactive one, with national
norms (such as doctrines of US constitutional law69) filtering upstream to the IIL level and
norms of IIL filtering downstream to the national level. The transformation of host state legal
systems and institutions is a specific goal of IIL; as Stephen Schill writes: ‘investment treaties aim
at binding states into a legal framework that gives them an incentive and a yardstick for
transforming their legal systems into ones that are conducive to market-based investment
activities and provide the institutions necessary for the functioning of such markets’.70
Proponents of IIL see this as a significant benefit, arguing that IIL promotes the rule of law
and ‘good governance’ domestically and thus not only protects investors, but also creates ‘spill
over’ effects that improve state administrative practices to the good of national citizens as well.71
However, as Mavluda Sattorova has shown, this ‘spill over’ does not seem to play out on the
ground: IIL appears to have had little impact in terms of promoting ex ante compliance with
‘good governance’ standards, with domestic responses instead tending toward the ambiguous,
reactive and bureaucratic.72
Informal processes are also at work here, encouraging not only the spread of IIL, but also the
narrative of IIL as necessary for development, as a tool for promoting the rule of law and good
governance and as essential for protecting the rights of investors against abuses by the state (and
thus as a sibling regime to human rights law). Of particular importance to this diffusion of norms
and discourses are the networks through which investors, capital-exporting states and practition-
ers co-ordinate their actions and frame their interests as general rather than sectoral: chambers of
commerce, industry lobbying groups, political party funding and so forth; but also law schools,
professional networks and scholarship that adopt and reproduce the language and assumptions
of IIL.73 Moreover, the Venn diagram of the personnel involved is a complex one, as lawyers
become arbitrators become lawyers become judges become academics. These individuals,
already defined as part of the ‘practitioner’ constituency of the collectivity of IIL, play a crucial
role, as the adjudicative moment is at the core of the system. The whole array of norms and
institutions of IIL are mere paper tigers until they show their non-paper teeth and it is precisely at
the moment of adjudication, when awards are handed down and made legally binding, that IIL
demonstrates its credentials as a truly legal order and not as a mere instance of institutionalised
diplomacy or international politics.

67
D. Schneiderman, ‘Global Constitutionalism and International Economic Law: The Case of International
Investment Law’, in M. Bungenberg, C. Herrmann and M. Krajewski (eds.), European Yearbook of International
Economic Law 2016 (Springer, 2016), 31.
68
W. Streeck, ‘The Crises of Democratic Capitalism’ (2011) 71 New Left Review 5, 28.
69
D. Schneiderman, ‘NAFTA’s Takings Rule: American Constitutionalism Comes to Canada’ (1994) 46 University of
Toronto Law Journal 499; Gill, ‘New Constitutionalism’, 34.
70
S. Schill, The Multilateralization of International Investment Law (Cambridge University Press, 2009), 377.
71
R. Echandi, ‘What Do Developing Countries Expect from the International Investment Regime?’, in J. E. Alvarez and
K. Suavant (eds.), The Evolving International Investment Regime: Expectations, Realities, Options (Oxford: University
Press, 2011), 13.
72
M. Sattorova, The Impact of Investment Treaty Law on Host States: Enabling Good Governance? (Hart, 2018).
73
Perrone, Investment Treaties and the Legal Imagination.

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 348 Jessica Lawrence and Tom Flynn

IIL is therefore a sophisticated system of norm-diffusion, whereby concepts, practices and

ideas from one legal order or physical territory can be transplanted to others by the rotation of
personnel and their acculturation to an international habitus that regards the system of IIL as not
merely legally sound and economically useful but as a moral good.

24.3.3 Social Relations

IIL embodies and reproduces a very specific and particular vision of social relations and as such
enacts particular processes of subjectivation.74 The subject, as constituted by IIL, is a homo
economicus in the purest sense, existing only insofar as it is economically active, with no inherent
value beyond this material calculus.75 Rights are afforded to the investor-subject as a function of
its economic status – if it ceases to ‘invest’, it is once again rendered invisible to IIL. Likewise, the
investor is a specifically international subject and is protected only insofar as it acts as such.
Citizens (whether legal or natural) of a state cannot use IIL to protect their rights unless
and until they reconstitute themselves as transnational economic actors; it is through the transfer
of capital across state borders that the investor-subject is made legible to and gains the protection
of IIL.76
If IIL is a ‘constitutional’ order, it is one that exists for the benefit of these investor-subjects. As
a collective, the investor class is imagined by IIL to be disempowered, vulnerable and subject to
the whims of powerful host state governments, who may at any time expropriate their property,
discriminate against them or act arbitrarily against their interests. The rights extended to
investors provide protection against these threats, placing them on an equal footing with states,
and the institutional system of IIL is deployed to ensure that investors are granted ex post
compensation in the event of any harm. Note that while the rights of investor-subjects are
analogous to those provided by human rights law, IIL provides these protections only to the
economic actor as economic actor. The result of a violation is monetary damages – IIL does not
deal in specific performance, cannot force domestic legal change and provides no relief to
anyone other than the complainant. Whereas a national constitutional court may (or may not)
be able to strike down a statute that breaches constitutional rights or may compel a government
department to adopt or reverse a particular decision or policy (and thus have legal effects that
ripple outward from the complainant to the citizenry as a whole), IIL sees only the bottom line.
In this way, IIL also subjectivises the state itself as an economic actor, relying on the calculus of
rational cost-benefit maximisation to incentivise (rather than to legally compel) governments to
act without prejudice to investors’ interests. Non-investors (such as citizens of the host state who
may be impacted by investment activity) are largely invisible to IIL, except insofar as they are
imagined as the general beneficiaries of economic development, good governance and the rule
of law.
Excluded from this world are any other subjectivities an investor may inhabit (as, for example,
a human being), any other subjectivities the state may inhabit (as, for example, a democratic
institution) and other ways of conceiving the relationship between them.

74
Goldoni and Wilkinson, ‘Material Constitution’, 587.
75
See R. Urueña, No Citizens Here: Global Subjects and Participation in International Law (Martinus Nijhoff, 2012), 53.
76
In many cases this is true whether or not the internationalisation is ‘real’ or a legal fiction. For example, in Tokios
Tokelés v. Ukraine, an investment Tribunal found that a company incorporated in Lithuania could make use of the
Lithuania–Ukraine BIT to bring a claim against Ukraine, despite the fact that it was controlled and 99 per cent owned
by Ukrainian nationals. Tokios Tokelés v. Ukraine, Case No. ARB/02/18, 29 April 2004.

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 Material Constitution of International Investment Law 349

24.3.4 Fundamental Political Objectives

In the words of the World Bank:
[A] greater flow of foreign direct investment brings substantial benefits to bear on the world
economy and on the economies of developing countries in particular, in terms of improving the
long term efficiency of the host country through greater competition, transfer of capital,
technology and managerial skills and enhancement of market access and in terms of the
expansion of international trade.77

The explicit teloi of IIL are therefore two-fold: protecting investors and encouraging and
accelerating economic growth. The standard story sees these two teloi as intertwined: investment
leads to economic development (both immediately and in the longer term by promoting ‘good
governance’); and, in order to get investment, (developing) states need to prioritise property
rights so that investors will feel secure. Countries make such commitments via IIAs, which,
through ISDS, raise the cost of discriminating against an investor or acting in ways that would
damage the value of their investment. This, then, is the grand bargain by which IIAs claim to
provide benefits both for investors and their home states and for host states and their people.
While the first objective – protecting the rights of investors – has been a ‘success’ of IIL, the
second objective – contributing to economic development – is open to question. To begin with,
the basic link between strong IIAs and attracting investment has not been borne out by empirical
studies: the evidence for whether IIAs and ISDS really do promote investment is mixed at best,
with most studies finding either no effect or limited effects.78 To take but one example, Brazil
has long refused to include ISDS in its Cooperation and Investment Facilitation Agreements
and yet was the sixth largest global destination for foreign direct investment in 2019.79 The link
between IIAs and ‘good governance’ has also been challenged, with studies finding little impact
on domestic administrative practices and the biggest impacts coming in terms of restricting
domestic policy space and national budgets.80
In keeping with its lopsided focus on protecting the interests of investors, IIL spreads a
particular vision of the proper relationship between state and market. IIL has embraced a vision
of protecting investors, investments and markets from political interference and of preventing
‘populist democracy’, corruption, ‘bad governance’ or simple change of heart from undermining
individual property rights. In this sense, IIL is a key instrument in the service of market
expansion and the process David Harvey has called ‘accumulation by dispossession’, by which
new spaces and assets are opened for exploitation and profit through commodification, privatisa-
tion and the management of public and private debt.81 IIL provides legal security for this process,
ensuring that privatised assets cannot be re-nationalised without significant cost, preventing
countries from enacting capital controls or other mechanisms that would undermine the value
of investors’ property rights and generally dissuading public authorities from changing the
regulatory environment to the detriment of international investors. B. S. Chimni makes explicit
the way that these processes of accumulation by dispossession manifest the integral links

77
World Bank Group, ‘Guidelines on the Treatment of Foreign Direct Investment’, in Legal Framework for the
Treatment of Foreign Investment, Volume 2: Guidelines (World Bank Group, 1992), 35–44 (preamble).
78
L. E. Skovgaard Pousen, Bounded Rationality and Economic Diplomacy (Cambridge University Press, 2015).
79
UNCTAD, ‘Foreign direct investment’, available at: https://stats.unctad.org/handbook/EconomicTrends/Fdi.html,
last accessed 10 August 2022.
80
Sattorova, Impact of Investment Treaty Law.
81
D. Harvey, The New Imperialism (Oxford University Press, 2003).

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 350 Jessica Lawrence and Tom Flynn

between capitalism and imperialism and specifically the new ‘global imperialism’ that charac-
terises the era of globalisation.82 IIL drives the ‘internationalization of property rights’ and
contributes to the ‘loss of economic sovereignty’ that are key components of global imperial-
ism.83 It inscribes a protective barrier around the market activities of its investor-subjects in part
through its adoption and co-option of the grammar of constitutionalism and human rights and
thereby serves to benefit ‘those segments of the capitalist class in the advanced capitalist
economies and emerging economies that gain from the globalization process at the expense
of the subaltern classes in both the First and Third Worlds’.84 This is also how IIL has come to be
a double-edged sword for capital-exporting states and has in recent years also begun to render
states of the global North and West vulnerable to the reduced regulatory space that results: a case
not so much of the empire striking back as of the empire backfiring.

24.4 CONCLUSION

All four ordering forces of the material constitution – political unity; institutions; social relations;
and telos – can be seen at work in the ongoing controversy over the legitimacy of IIL in general
and ISDS in particular. The formal constitution of IIL could be revised to encompass the kind of
proportionality, reasonableness or balancing rules that national and international courts might
follow. IIAs could be amended to impose obligations on investors. Appellate systems could be set
up to correct for inconsistent ISDS decisions and the more general problem of variable quality
in terms of tribunal reasoning. Such reforms would no doubt counter some of the criticisms of
IIL – specifically by injecting into it concepts and structures drawn from administrative and
public law contexts.
Reforming this formal constitutional structure, however, will not alter the underlying material
commitments of IIL: its logic of market expansion; projection of market subjectivities; constitu-
tionalisation and entrenchment of property and contract rights; and inscription of a strong and –
ideally – irreversible constitutional line between the political and economic spheres.
Understanding IIL in terms of material – rather than formal – constitutionalism reveals it is a
para-constitutional system designed to entrench permanent constraints on governments’ ability
to intervene in the market and to privilege the needs of transnational business above democratic
choice. Material constitutionalist analysis provides an opening through which we can at least
begin to subject this constitutional order for transnational capital to democratic scrutiny.

82
Chimni, Capitalism, Imperialism, and International Law.
83
Ibid., 28–31.
84
Ibid., 19.

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 25

The ‘Terrible’ Functional Constitution of the European Union

‘Sound’ Money, Economic Freedom(s) and ‘Free’ Competition

Agustín José Menéndez

the crime of that unhappy section of men to whom the perhaps ‘terrible’ and ‘unnecessary’ right to property
has allowed nothing but a bare existence.
Cesare Beccaria, Of Crimes and Punishments

25.1 INTRODUCTION

This chapter reconstructs the key norms and practices that constitute and structure public power
in the European Union (hereafter, EU). At the core of what may be labelled the ‘functional’
constitution of the EU we find three fundamental principles: ‘sound’ money, economic
freedom(s) and ‘free’ competition (Section 25.2). The force of this trio stems from two main
sources. First, ‘sound’ money, economic freedom(s) and ‘free’ competition are the key parameters
(‘the yardstick’) by reference to which the validity and soundness of all national norms and policies
is determined by supranational institutional actors. This entails that those national norms and
policies which are found to be in conflict with the trio of principles may be derogated, set aside or
eventually declared void by the just mentioned actors (Section 25.3). Second, the division of
labour between supranational decision-making processes is so structured that it is far easier to
approve European regulations and directives which aim at further realising ‘sound money’,
economic freedom(s) and ‘free’ competition than to make part of EU law norms or decisions
that limit the scope of such principles, for example through the redistribution of economic
resources across and within borders (Section 25.4). In addition, it should be noted that, while
representative institutions are formally placed at the core of the EU decision-making processes,
actual practice results in the empowerment of (some) private actors, (some) technocratic insti-
tutional actors and (some) national governments to define the substantive content of European
norms (Section 25.5). The result is a peculiar blend of authoritarian legalism which places a
radical conception of private property at the very heart of the functional constitution of the EU,
therefore disciplining, enervating and fragmenting (national) public power (Section 25.6).

25.2 THE TRIO: ‘SOUND’ MONEY, ECONOMIC FREEDOM(S) AND ‘FREE’

COMPETITION, THE BEATING HEART OF THE FUNCTIONAL
CONSTITUTION OF THE EUROZONE

In this first section, I describe the key components of the constitution and organisation public
power in the EU: ‘sound’ money, economic freedom(s) and ‘free’ competition.

351

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 352 Agustín José Menéndez

25.2.1 ‘Sound’ Money

The ‘soundness’ of money refers to the preservation of its capacity to command goods or services.
‘Sound’ money is money that can serve as the store of value, thereby creating the conditions for
capital accumulation and the preservation of the value of the capital already accumulated.1
The ‘soundness’ of European money is guaranteed by means of a specific discipline of
monetary and economic policy. In particular, by (a) affirming that monetary stability is the
paramount goal of monetary policy; (b) ensuring that fiscal policy is also oriented toward the
realisation of ‘sound’ money (entailing what may be referred to as ‘monetary’ dominance); and
(c) making public institutions responsible for the preservation of liquidity in financial markets, a
goal generally referred to as the achievement of financial stability.

25.2.1.1 Monetary Stability as the Paramount Goal of Monetary Policy

Price stability is the paramount goal of monetary policy in the Eurozone.
The principle emerged and became entrenched as a quasi-necessary consequence of the
monetary arrangements predating European Monetary Union (hereafter, EMU), in particular
the European Monetary System (hereafter, EMS). Under the latter, states were required to keep
their currencies within established fluctuation ranges (tied to a ‘peg’). Given how the EMS was
run, this created the conditions under which all states had massive incentives to follow the policy
lead of the German central bank, the Bundesbank, which assigned huge importance to the
achievement of price stability, to the point of the latter trumping other socio-economic goals.2
Monetary stability became ‘codified’ as the paramount objective of monetary policy in the
Treaty of Maastricht, and is now enshrined in Article 119.2 TFEU, in which we read that: ‘the
primary objective of [monetary policy] shall be to maintain price stability and, without prejudice
to this objective, to support the general economic policies in the Union, in accordance with the
principle of an open market economy with “free” competition’ (emphasis added).
It should be noted, however, that price stability is defined by reference to ‘consumption’
prices, something which places outside the observation focus of the ECB the prices of
financial assets,3 a far from irrelevant or for that matter neutral choice, to which we will return
in Section 25.6.
The primacy of monetary stability so defined has been further confirmed since the beginning
of the financial, economic and fiscal crises in 2007. Not only because policies aimed at
overcoming the crises which might have resulted in higher inflation were not even considered,
but also because of the emergence of practices and conventions aimed at ensuring the full value
of public debt (an asset that is key, in direct and indirect ways, to the preservation of the value of
cumulated capital). Two developments in this latter regard are especially relevant. First,
Eurozone states seem to be precluded from deciding the unilateral default of their public debt.
At the final stages of the fiscal crisis of the Greek state in the spring of 2015, a convention
emerged according to which unilateral default would result in the defaulting state being

1
I consider the distributive implications of ‘sound’ money and the other fundamental principles in Section 25.6.
2
See A. J. Menéndez, ‘The Sleep of Numbers Produces Monsters: The Case of “Numerical Rules”’, in C. Caruso and
M. Morvillo (eds.), Il governo dei numeri (Il Mulino, 2020), 95–120, 101–2.
3
See ECB, A Stability-Oriented Monetary Policy for the ECSD, 11 October 1998, available at: www.ecb.europa.eu/
press/pr/date/1998/html/pr981013_1.en.html, last accessed 8 August 2022.

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 The ‘Terrible’ Functional Constitution of the EU 353

expelled from the Eurozone.4 Second, explicit norms have been introduced ensuring the
absolute priority of the repayment of principal and interest of public debt over any other public
expenditure. In some cases the priority has been enshrined into the Constitution (cf. article 135.3
of the Spanish Constitution); in other instances, a similar result has been achieved by means of
subjecting the issuing of debt to laws other than those of the country of issuance, characterised
by their emphatic protection of creditors (typically England before Brexit, Luxembourg
afterwards).5

25.2.1.2 ‘Sound’ Public Finances and Economic Policies through Monetary Dominance
We have just seen that price stability is the paramount goal of monetary policy in the Eurozone.
But it is much more than that. European norms and practices ensure that monetary stability is a
precondition for the pursuit of any other socio-economic goal through any other economic
policy. The dominance of the goals of monetary policy all across the policy board results in
‘sound’ money projecting itself into ‘sound’ public finances, ‘sound’ labour policies, a ‘sound’ tax
system and so on. In such a way, the preservation of the store value of capital becomes a
prerequisite for any conceivable socio-economic policy.
Beyond the formal proclamation (Article 119.3 TFEU), this is ensured to a large extent by
solving the asymmetries built into EMU by ‘mainstreaming’ the goals of monetary policy. In
particular, the coherence between a single and centralised monetary policy (run by the
European Central Bank, hereafter ECB) and a plurality of national fiscal and economic policies
(decided by national parliaments and national governments) is guaranteed by a number of limits
to the latter, not the former. This accounts for the most conspicuous components of the ‘sound
budgetary’ canon, the fiscal rules setting ceilings to the stocks of public debt (60% GDP) and to
public deficits (3% GDP).6 In the wake of the 2010 fiscal crisis, new fiscal rules have been added
to the set constraining national fiscal policy, from tighter limits to the ‘structural’ deficit of
Member States,7 to those fixing trajectories of deficit and debt reduction,8 closely associated to a
peculiar form of automatic stabilisers in reverse, the automatic expenditure cuts.9 The room for
discretionary fiscal policy is further constrained by the panoply of indicators of macroeconomic
imbalances, which reach into the four corners of economic policy.10 These rules substantiate the
ideal of ‘sound’ budgetary policy and are rendered effective through a complex set of procedures
(now referred as the European Semester), formally aimed at the coordination of fiscal policy in

4
The German Chancellor of the Exchequer rendered explicit what was until then an implicit rule. See P. Inman,
‘Greece’s debt can be written off – whatever Wolfgang Schäuble says’, The Guardian, 17 July 2015. The fact that,
despite the results of the referendum held literally some days before, the Greek state accepted an agreement which did
not contain any concrete debt write off seems to confirm that the view of Schäuble prevailed.
5
At the same time, however, Eurozone states have been required to insert collective action clauses in their debt
issuances (Art. 12(3) of the ESM Treaty of 2 February 2012, consolidated version available at: www.esm.europa.eu/legal-
documents/esm-treaty, last accessed 8 August 2022), something which seems to raise the eventuality of non-payment.
However, it should be kept in mind that the very point and purpose of such clauses is to prevent the full default on the
debt and thereby to facilitate that creditors are repaid as much as possible.
6
Article 1 of Protocol No. 12 to the Treaty on the Functioning of the European Union of 13 December 2007, OJ 2012
No. C326/279 (‘TFEU’).
7
Article 2a and Article 9(1), first paragraph of Council Regulation 1466/97, OJ 1997 No. L209/1, as amended by Council
Regulation 1055/2005, OJ 2005 No. L174/1 and Council Regulation 1175/2011, OJ 2011 No. L306/12 (‘consolidated text
of Regulation 1466/97’).
8
Article 5(1), second paragraph and Article 9(1), second paragraph of the consolidated text of Regulation 1466/97; Article
5(1) of the consolidated text of Regulation 1466/97; Article 1(1) of the consolidated text of Regulation 1467/97.
9
Fiscal Compact, Article 3.1. e.
10
Article 2 of Regulation 1176/2011, OJ 2011 No. L306/28.

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 354 Agustín José Menéndez

the European Union, but which have acquired an increasingly hierarchical and disciplinary
character. In particular, the Commission has acquired a growing power to shape and mould
national economic policy through the issuance of ‘recommendations’. The persuasive power of
the Commission was always linked to the fact that lack of compliance may at the end of the day
result in sanctions being imposed upon the delinquent Member State (Article 126.11 in con-
junction with Articles 11 to 16 of Regulation 1467/97). Since the reform of the Growth and
Stability Pact in 2011 and, very especially, since the ratification of the Fiscal Compact, the
powers of the Commission have been scaled up, not least because sanctioning has become
easier, as the European executive only needs to be supported by a qualified minority of Member
States (cf. Articles 4.2 and 5.2 of Regulation 1173/2011 and Article 7 of the Fiscal Compact; Article
17.3 of Regulation 241/2021 establishing the Recovery and Resilience Facility confirms the
transformation of the recommendations issued by the Commission to Members States in the
context of the European Semester into de facto binding norms.)
Private actors are also expected to contribute to the fostering of ‘sound’ economic policies
through the pressure they have been rendered structurally capable of exerting over Member
States. Their structural power results from the combination of the prohibition of the financing of
deficits by the ECB (Article 123.1 TFEU),11 which forces states to seek funding in financial
markets, and the scope of free movement of capital, which applies not only within the Eurozone
but all over the world (Article 63.1 TFEU). As a result, states running a deficit are obliged to seek
funding in financial markets, while actors in financial markets are free to invest or not in the
public debt of a state (they can indeed pick and choose which public debt to buy). Under such
conditions, a reduced number of powerful actors in financial markets may become the arbiters
of the financial fortunes of states, ‘voting’ with their capital, so to say.12 Not by chance, the
European Court of Justice (hereafter, ECJ) has characterised the structural dependence of states
on financial markets as key to ensure the implementation of ‘sound budgetary policies’.13
It could be argued that the suspension of all fiscal rules in the spring of 2020,14 combined with
the virtually unconditional funding of (huge) state deficits by the ECB (through the ad hoc
PEPP programme)15 may result in a radical reversal of the relationship between the goals of
monetary and fiscal policy, eventually putting an end to monetary dominance and, conse-
quently, creating the political space into which the appropriateness of ‘sound’ budgetary policies
may be reconsidered. At the time of writing, however, European institutions remain committed
to reapply the fiscal rules as soon as the crisis has been ‘resolved’.16 Indeed, it may be argued that
whatever the intentions of policymakers, the ‘emergency’ actions taken by the ECB (and other
leading central banks) have prevented the fiscal collapse of Eurozone states (and of the world
economy), but perhaps at the price of further increasing wealth inequalities.17 That is an
empirical question that requires further research, but it is telling that financial markets boomed
as ‘real’ economies entered into unprecedented peace-time recessions.
11
Resort to compulsory loans from financial institutions is precluded by Article 124 TFEU.
12
W. Streeck, ‘Markets and Peoples: Democratic Capitalism and European Integration’ (2012) 73 New Left Review 63.
13
See C-370/12, Pringle [2012] ECR I-0000, para. 135.
14
Communication from the Commission to the Council on the activation of the general escape clause of the Stability
and Growth Pact, of 20 March 2020, COM(2020) 123 final; Statement of EU ministers of finance on the Stability and
Growth Pact in light of the COVID-19 crisis, of 23 March 2020, available at: www.consilium.europa.eu/en/press/press-
releases/2020/03/23/statement-of-eu-ministers-of-finance-on-the-stability-and-growth-pact-in-light-of-the-covid-19-crisis/,
last accessed 3 August 2022.
15
See Decision (EU) 2020/440 of the European Central Bank of 24 March 2020, OJ 2020 No. L91/1-4.
16
There is, though, a vivid academic debate on the need of reforming European economic governance, led by O. Blanchard,
Á. Leandro and J. Zettelmeyer, ‘Ditch the EU’s Fiscal Rules; Develop Fiscal Standards Instead’, Vox EU, 22 April 2021,
available at: https://voxeu.org/article/ditch-eu-s-fiscal-rules-develop-fiscal-standards-instead, last accessed 8 August 2022.
17
Along such lines, see A. Tooze, Shutdown: How Covid Shook the World’s Economy (Allan Lane, 2021).

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 The ‘Terrible’ Functional Constitution of the EU 355

25.2.1.3 Financial Stability

Supranational and national public institutions are expected to play a major role in preserving the
stability of the financial system as a whole, something that may well require state intervention to
underpin the value of financial assets when there is a serious risk (now labelled a ‘systemic risk’)
that the market will undermine itself, threatening the stability of the economy as a whole.
While the role of the state as a lender of last resort to financial institutions is far from being a
new one, the breadth and scope of the responsibilities of public institutions has expanded
geometrically under EMU, most clearly since 2007. If before that date it was assumed that
markets were capable of stabilising themselves,18 provided that the consumer prices were
contained by the central bank, in the aftermath of the financial crisis the active prevention of
the build-up of ‘excessive’ risks not only became a fundamental task of public institutions, but
the ECB was given a mandate to play the leading role in that regard.
As a result, the ECB has become the lender of last resort of financial institutions, either fully
or partially substituting financial markets as a source of credit, or, more modestly but not less
decisively, stabilising the conditions under which financial markets operate (acting as a ‘market
maker’). As a result, allocation of capital in the European Union has been constantly mediated
by the ECB, through massive refinancing operations (from which, it should be said en passant,
financial institutions have constantly profited). The intense mediation of capital markets by the
ECB seems to contradict the requirement that capital be allocated through markets (Article 127
TFEU).19
The value of capital has not only been protected by assigning new powers to the ECB.
Individual states and the Eurozone as a whole have played a significant role as guarantors of last
resort. In particular, a convention has emerged that allocates responsibility for cross-border
financial loans to the state where the debtor is established or resides (debtor state as guarantor
of last resort). This emerged with great force during the Irish financial crisis (2008) and was
confirmed by the terms of the programmes of financial assistance to Eurozone states from 2010.
At the same time, the Eurozone and the European Union as a whole have equipped themselves
with the financial means to underwrite debtor states through the provision of conditional
financial assistance. That was rendered possible by baroque legal structures such as the
European Financial Stability Facility,20 and then with the reform of Article 136 TFEU,21 by a
European equivalent of the IMF, the European Stability Mechanism, the legal discipline of
which hangs however uneasily between public international law and European Union law.22

18
The so-called efficient markets hypothesis.
19
See K. Tuori, ‘Has Euro Area Monetary Policy Become Redistribution by Monetary Means? “Unconventional”
Monetary Policy As a Hidden Transfer Mechanism’ (2016) 11 European Law Journal 838. Of course, it could be
discussed whether the requirement imposed by Article 127 TFEU is sensible or, indeed, whether it is at all feasible.
That, however, does not detract from the fact that the provision is not being complied with.
20
The state of Luxembourg created on 7 June 2010 a ‘société anonyme’, which was technically speaking a ‘special
purpose vehicle’. Immediately afterwards, Eurozone states became shareholders and, once and at the same time,
signed a framework agreement with the European Financial Stability Facility itself. The original text of the
Framework Agreement can be consulted at www.irishstatutebook.ie/eli/2010/act/16/enacted/en/pdf, last accessed
8 August 2022.
21
European Council Decision 2011/199/EU of 25 March 2011 amending Article 136 of the Treaty on the Functioning of
the European Union with regard to a stability mechanism for Member States whose currency is the euro, OJ 2011 No.
L91/1.
22
Treaty establishing the European Stability Mechanism, 2 February 2012, available at: www.esm.europa.eu/legal-
documents/esm-treaty, last accessed 8 August 2022.

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 356 Agustín José Menéndez

Finally, a convention has been developed concerning the obligation of states to underpin
systemic financial institutions, in particular ruling out the imposition of losses on the sharehold-
ers and the creditors of such institutions (in technical jargon, favouring bail-outs and disfavour-
ing bail-ins). This was clearly the practice followed during the 2007–8 financial crisis. The so-
called bail-in directive23 is supposed to result in a radical shift of paradigm, in particular ensuring
that losses are suffered by private shareholders. As a matter of fact, however, its actual effects
confirm the consolidation of the ‘bail-out’ convention. To avoid the ‘severe disruption of the
functioning of financial markets’, article 27.5c of Regulation 806/201424 codifies the different
treatment to be granted to ‘systemic’ banks. While the shareholders and creditors of ordinary
banks should be the first to suffer losses, the same is not the case when the bank is a systemic one.
Then public money can be used to bail out the financial institution so as to avoid ‘contagion’ to
the financial system.25 This entails codifying the unequal treatment of shareholders depending
on the size of financial institutions.

25.2.1.4 A Caveat: ‘Sound’ Money and Non-Eurozone Member States

Does ‘sound’ money apply with equal force across the European Union? The answer seems to
be complicated by the ‘variable geometry’ of EMU. Nineteen Member States are part of the
Eurozone, eight are not. One may think that the latter are not subject to the full disciplining
force of ‘sound’ money, at least not with the same intensity as Eurozone states that have actually
transferred their monetary policy to the institution mandated to ensure the ‘soundness’ of
money, the ECB (on the basis of the ‘derogating’ provisions of Article 139 TFEU). However,
Denmark, Bulgaria and Croatia are de facto within the gravitational space of the Eurozone, as
members of the ‘Exchange Rate Mechanism II’, which ‘anchors’ their currency to the euro.26
This results in a powerful economic constraint subjecting them to the same actual constraints as
Eurozone Member States, at least as long as they remain within ERM-II. The five remaining
Member States (Sweden, Hungary, Czech Republic, Poland and Romania) are in principle in a
position to implement an ‘autonomous’ monetary policy. But could it be oriented to realise goals
other than securing the ‘soundness’ of money? While it is clear that these five countries have a
margin of autonomy which can be expressed in a different inflation target (as in the case of
Poland), it is relevant to notice that the general discipline enshrined in the Treaty on the
Functioning of the European Union applies unless it is expressly derogated by Article 139
TFEU. No derogation is foreseen from article 131, which requires the ‘independence’ of the

23
Directive 2014/59/EU of the European Parliament and of the Council of 15 May 2014 establishing a framework for the
recovery and resolution of credit institutions and investment firms and amending Council Directive 82/891/EEC and
Directives 2001/24/EC, 2002/47/EC, 2004/25/EC, 2005/56/EC, 2007/36/EC, 2011/35/EU, 2012/30/EU and 2013/36/EU
and Regulations (EU) No 1093/2010 and (EU) No 648/2012 of the European Parliament and of the Council Text with
EEA relevance, OJ 2014 No. L173/190.
24
Regulation 806/2014 of 15 July 2014 establishing uniform rules and a uniform procedure for the resolution of credit
institutions and certain investment firms in the framework of a Single Resolution Mechanism and a Single Resolution
Fund and amending Regulation (EU) No 1093/2010, OJ 2014 L225/1.
25
The different standards applied to big and small banks can be illustrated by comparing the bail-in of a cluster of small
Italian savings banks in 2015 and the bail-out of the much larger Monte dei Paschi di Siena in 2017. The latter decision
was taken despite the fact that ECB inspectors had serious doubts about the solvency of Monte dei Paschi. See E.
Martinuzzi, ‘What the ECB Didn’t Say about Monte Paschi’s Bailout’, Bloomberg.com, 30 June 2019, available at:
www.bloomberg.com/graphics/2019-opinion-monte-paschi/, last accessed 8 August 2022.
26
See Agreement of 16 March 2006 between the European Central Bank and the national central banks of the Member
States outside the euro area laying down the operating procedures for an exchange rate mechanism in stage three of
Economic and Monetary Union, OJ 2006 No. C73/1.

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 The ‘Terrible’ Functional Constitution of the EU 357

national central bank, or from 119.3, which affirms not only price stability, but also sound public
finances, sound monetary conditions and a sustainable balance of payments as objectives to be
pursued by the economic policy of all Member States. Were any of the ‘autonomous’ five to
pursue an ‘alternative’ monetary policy, it is more than probable that Eurozone states would
exert pressure for that policy to be rectified, in the name of not altering ‘the levelled playing
field’ within the ‘open market economy’. Quite tellingly, when confronted with a major
financial, economic, and fiscal crisis in 2008, Hungary and Romania preferred the harsh terms
of conditional financial assistance from the EU, which entailed an internal devaluation that
preserved the value of capital) rather than exploring the limits of their fiscal and monetary
autonomy.27

25.3 ECONOMIC FREEDOM(S)

The literal tenor and the structure of the provisions of the Treaty establishing the European
Economic Community defining the ‘four’ economic freedoms (Article 30 TEC – elimination of
quantitative restrictions; Article 48 TEC – free movement of workers; Article 52 TEC – right of
establishment; Article 59 TEC – freedom to provide services; and Article 67 TFEU – elimin-
ation of (some) limits to the movement of capital) were ambivalent. This reflected the lack of a
consensus among the drafters on the point and purpose of European integration. Was the
European Economic Community to be an external enabler of national Democratic and Social
states, rendering possible their consolidation through the expansion of external trade, but
without constraining the power of states to steer socio-economic activity? Or rather, was the
EEC to serve as an external constraint setting limits to national socio-economic powers in view
of realising the liberal ideal of economic freedom? This ambivalence has marked the evolution
of European institutions, oscillating between the paradigm of the ‘common’ market proper of
the external enabler vision, to that of the ‘single’ market, in which the EU comes closer to an
external constraint.
From the late 1950s to the early 1970s, the constellation of political forces at the national and
supranational levels favoured the building of an internal market gravitating around the freedom
to trade goods and the right to cross borders to pursue gainful employment, at the very same time
that all economic freedoms were to a considerable extent socially, politically and culturally
‘embedded’ through national (and supranational) regulation.28
From the mid and late 1970s onward, the political and economic constellations radically
changed, giving way to a balance of forces in which economic freedoms came to be understood
as actionable subjective rights, largely emancipated from national law and politics into a ‘single
market’. The odd combination of economic stagnation and high inflation eroded the intellec-
tual and political consensus around the Democratic and Social State, resulting in the decline of
political parties as a constitutional force, and the parallel rise of courts and central banks,
promoted as actors that could solve an alleged ‘governability’ crisis (caused by the ‘excesses’ of
democracy).29 Non-financial corporations and financial institutions, largely subdued during the
‘treinte glorieuses’ regained, slowly but steadily, the political and legal means to translate their
economic power into political might. The Commission and the ECJ were key actors in these

27
Financial assistance was jointly offered by the EU and the IMF with the support of the World Bank.
28
The extremely difficult act of squaring liberalisation with the consolidation and development of social states was to a
large extent rendered possible by an exceptional political and economic climate, which was not deprived of its dark
elements, from the resilience of patriarchy to the realpolitik of the Cold War.
29
M. J. Crozier, S. P. Huntington and J. Watanuki, The Crisis of Democracy (New York University Press, 1975).

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 358 Agustín José Menéndez

transformations and saw their decisions partially codified with the deep reforms to the literal
tenor of the Treaties, with economic freedoms strengthened and articulated as general subject-
ive rights.30
This radical transformation has deeply marked the prevalent construction of economic
freedoms.31 Not only they are characterised as subjective rights, but each of them is regarded
as a manifestation of a wider and encompassing ‘economic freedom’, that, as we will see in
Section 25.6, is closely related to a specific conception of private property. And at the heart of
such wider economic freedom, we find the right to fully command one’s own capital. At one
time understood as the (relatively modest) freedom to make payments corresponding to non-
financial transactions (Articles 67.2 and 67.1 TEEC), free movement of capital was first turned
into a fully-fledged subjective right by Directive 88/36132 and then into the most fundamental of
the economic freedoms by the Treaty of Maastricht. This primacy of free movement of capital is
reflected in its legal force. Not only is it the only freedom that applies ‘erga omnes’, beyond the
territory of the European Union (Article 63 TFEU), but it may eventually defeat conflicting
Treaty provisions, including article 345 TFEU. In particular, the Court of Justice has concluded
that the full realisation of free movement of capital may require a narrow construction of the
national power to define property regimes.33 That reveals, as we will see in Section 25.6, that
beyond the economic freedom(s) (and indeed of the whole trio of principles at the heart of the
fundamental European norms) lurks a radically strong conception of private property.

25.3.1 ‘Free’ Competition

The principle of ‘free’ competition prescribes that the allocation of goods and services must take
place through ‘competitive’ markets, so that the welfare of the consumer is maximised.34
While the principle was originally interpreted as empowering the Commission to monitor
and eventually constrain private activity that could undermine the effectiveness of economic
freedoms,35 the centre of gravity of the principle shifted in the 1980s, leading to its transformation
into a yardstick that determines the validity of public regulation of economic activity and, above
all, the direct public engagement in the provision of goods and services (for example, through
public ownership of corporations).36 At the same time, the rise of ‘consumer welfare maximisa-
tion’ (and not sheer economic size and power) as the criterion by reference to which the legality
or illegality of corporate structures and practices is determined has favoured the concentration of
economic power, fuelling the further oligopolisation of the European economy. The de facto

30
See the referred provisions with Articles 28, 45, 49, 56, 63 TFEU.
31
This transformation was led by the ECJ, which first ‘decoupled’ free movement of goods from non-discrimination on
the basis of nationality (case 120/78, Cassis de Dijon [1979] ECR 00649) and then sidestepped the very structure of the
Treaties to regard all four economic freedoms as making up a single normative block, on the basis of which projected
the new understanding of free movement of goods to the other economic freedoms. See the rulings in C-76/90, Säger,
ECLI:EU:C:1991:331; C-55/94 Gebhard, ECLI:EU:C:1995:411; C-415/93 Bosman, ECLI:EU:C:1995:463 and C-163/94,
Sanz de Lera, ECLI:EU:C:1995:451.
32
Council Directive 88/361/EEC of 24 June 1988 for the implementation of Article 67 of the Treaty, OJ 1988 No. L178/5.
33
C-367/98, Golden Shares, ECLI:EU:C:2002:326.
34
H. Hovenkamp, The Antitrust Enterprise: Principle and Execution (Harvard University Press, 2006).
35
For example, through the abuse of market power that rendered difficult access to different national markets European
Court of Justice. See rulings in cases 56 and 58/64, Consten Grundig, ECLI:EU:C:1966:41; 6/72 Continental Can,
ECLI:EU:C:1973:22; 85/76, Hoffmann, ECLI:EU:C:1979:36; 322/81, Michelin, ECLI:EU:C:1983:313; Ford vs.
Commission, ECLI:EU:C:1985:340.
36
See rulings in cases 18/88, Régie des télégraphes et des téléphones, ECLI:EU:C:1991:474; C-41/90, Höfner, ECLI:EU:
C:1991:161; C-218/00, Inail, ECLI:EU:C:2002:36; C-399 and 401/10, Bouygues, ECLI:EU:C:2013:175; and T-296/97,
Alitalia, ECLI:EU:T:2000:289.

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 The ‘Terrible’ Functional Constitution of the EU 359

suspension of competition law in the aftermath of the financial crisis in 2008 and of the
coronavirus crisis in 2020 proves the malleability of the principle of ‘free’ competition when
constructed in the image and semblance of consumer welfare maximisation. In both cases,
national Treasuries have been deployed to inject massive amounts of capital in ‘ailing’ com-
panies (financial institutions in 2008–9, all kinds of corporations in 2020). Actual practice, thus,
seems to diverge radically from the theoretical ideal models which inspired the drafting of
Article 119.1 TFEU (‘open market economy with free competition’) and to basically point to a
discipline of state intervention, which should not meddle with private control over the invest-
ment of capital. Quite tellingly, even nationalisations ceased to be a taboo during the corona-
virus crisis, provided, however, they were temporary, and private ownership and control
remained the rule and the goal.

25.4 THE ‘TRIO’ AS YARDSTICK OF THE VALIDITY AND SOUNDNESS OF

NATIONAL NORMS

‘Sound’ money, economic freedom(s) and ‘free’ competition constitute the key parameter by
reference to which the validity of all national legal norms and decisions is determined by
supranational institutions. In other words, European institutions claim that to be valid, national
statutes, regulations, decrees, administrative decisions and judicial rulings must comply with the
substantive requirements stemming from the full recognition of ‘sound money’, economic
freedom(s) and ‘free’ competition.
‘Sound’ public finances (the second limb of the principle of ‘sound’ money) has become the
yardstick by reference to which the European Commission and the Eurogroup assess national
fiscal, social and tax policies through the European Semester. It is also the principle which
guides the review of national economic policies when states are subject to forms of ‘condition-
ality’ under programmes of financial assistance and is indeed expected to play the same role
under the recovery programmes to be implemented from 2021 onward.37 There are clear
indications that the activation of the role of the ECB as a conditional buyer of last resort of
public debt is indeed subject to the requirement that states follow not only ‘sound’ fiscal policies,
but more widely ‘sound’ economic policies.38
Economic freedom (s) and ‘free’ competition have become the key yardsticks by reference to
which the ECJ determines the validity of all national socio-economic norms, independently of
whether the point and purpose of such national norms is at all related to cross-border economic
activity (as we saw in Section 25.3). The key administrative powers assigned to the European
Commission on what concerns competition law make it a key additional enforcer of ‘free’
competition as a parameter of the validity of national law.
It is pertinent to consider why ‘sound’ money, economic freedom(s) and ‘free’ competition are
the only components of the yardstick of European validity and soundness. In particular, it is
necessary to consider why fundamental rights (as enshrined, for example, in the Charter of

37
See Article 17(3) of Regulation 2021/241 of the European Parliament and of the Council of 12 February 2021,
establishing the Recovery and Resilience Facility, OJ 2021 No. L57/17.
38
See the letter sent by the ECB to the Italian government on 5 August 2011, rendered public by Il Corriere della Sera
some weeks afterwards. See ‘C’è l’esigenza di misure significative per accrescere il potenziale di crescita’, Corriere
della Sera, 29 September 2011, available at: www.corriere.it/economia/11_settembre_29/trichet_draghi_italiano_
405e2be2-ea59-11e0-ae06-4da866778017.shtml, last accessed 8 August 2022. A similar letter was sent the same day to
the Spanish government. See now the Transmission Policy Instrument of the ECB, which aims at containing bonds
spreads. Eligibility is dependent on “sound” budgetary policy. See ‘The Transmission Protection Instrument, 21 July
2022, available at: www.ecb.europa.eu/press/pr/date/2022/html/ecb.pr220721~973e6e7273.en.html.

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 360 Agustín José Menéndez

Fundamental Rights of the EU) are not part of such yardstick. First, competences matter. The
original text of the Treaties mentioned economic freedom(s) and ‘free’ competition, but not
fundamental rights (with the sole exception of the different dimensions of the right to non-
discrimination on the basis of nationality and sex). True, the Court of Justice made the principle
of fundamental rights protection an integral part of unwritten EU law and the Charter of
Fundamental Rights was made part and parcel of the primary law of the Union when the
Treaty of Lisbon entered into force in 2010. Still, rights standards have been consistently deemed
as applicable to supranational law and decisions only, while not to national laws and decisions,
unless the latter are ‘implementing’ Union law (see now Article 51.1 of the Charter). Article 51.2
of the Charter renders explicit that the provisions of that text do not and cannot result in the
accrual of new competences to the EU. Second, European institutions, most notably the ECJ,
have subordinated fundamental rights to the trio, by characterising fundamental rights as
potential exceptions to the full application of, mainly, economic freedom(s). This has resulted
not so much in a rebalancing of the substantive core of European law, but in the construction of
fundamental rights in the mould of economic freedoms, that is, as subjective rights, neglecting
their fundamental relational character, and the key role played by collective rights and collective
goods in that regard.39 The following sections (Sections 25.5 and 25.6, perhaps especially 25.6.3)
go a long way to explain why not even the crises have shocked the EU strongly enough as to veer
it off the path it has travelled in the last decades.

25.5 IN-BUILT BIAS IN SUPRANATIONAL DECISION-MAKING

The progressive empowerment of the European Parliament as (co)legislator is frequently said to

have created the conditions under which EU law would not only enjoy direct democratic
legitimacy, but also become instrumental in rebalancing the substantive content of European
law away from the primacy of ‘sound’ money, economic freedom(s) and ‘free’ competition. By
shifting the last legislative word from intergovernmental to supranational procedures, the direct
representatives of citizens (the Euro-parliamentarians) would gain power, something which
would be likely to shift the emphasis from ‘market-making’ to the ‘political’ government
of markets.
Such a line of reasoning fails to take seriously the extent to which the division of labour
between the different procedures of supranational law-making results in a bias in favour of the
trio of principles, rendering improbable the referred ‘rebalancing’. To become aware of this
inbuilt bias it is necessary to reflect on the fact that Treaty reforms have not resulted in the
primacy of co-decision so much as in the emergence of a peculiar division of labour between co-
decision and intergovernmental procedures of law-making. It follows that the chances of a
regulation or directive being adopted depend, to a considerable extent, on the procedure
through which it has to be discussed and voted. While co-decision increases the chances of
adoption, unanimous agreement in the Council diminishes them.40 Quite obviously, it is more
difficult to make all national ministers agree than, as co-decision requires, forge a qualified

39
A. J. Menéndez, ‘The Unencumbered European Taxpayer As the Product of the Transformation of Personal Taxes by
the Judicial Empowerment of Market Forces’, in R. Letelier and A. J. Menéndez (eds.), The Sinews of European Peace
(University of Oslo, 2009), 157–268.
40
In some cases (paradigmatically, the Own Resources Decision, ex Article 311 third paragraph) agreement in the
Council is not enough, and there is a need for national parliaments to express their consent.

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 The ‘Terrible’ Functional Constitution of the EU 361

majority in the Council and a simple majority in the European Parliament.41 What turns the
imbalance into a substantive bias is the fact that this division of labour is far from random.
Market-making norms, amplifying the breadth and scope of ‘sound’ money, economic freedoms
and ‘free’ competition are decided through co-decision; while market-correcting bills, fleshing
out socio-economic rights and collective goods, have to be adopted through unanimity, and are,
consequently less likely to be transformed into regulations and directives (the case of capital
income taxation is very telling, discussed next).
This shows how the fundamental norms organising supranational decision-making tend to
prevent European institutions from redressing the imbalance between on the one hand private
property and entrepreneurial freedom and on the other hand other socio-economic goals.
It is important to keep in mind that this is so not only because measures reflecting alternative
socio-economic views are much less likely to be adopted, but because the division of labour
between decision-making procedures fosters the artificial splitting of issues. Questions that used
to be regarded as so inextricably intertwined as to require simultaneous legislation (e.g., capital
taxation and the discipline of free movement of capital) have been turned into separate questions
by the division of labour between supranational decision-making processes, likely to be settled in
different pieces of legislation and at different points in time (if at all). Unsurprisingly, the full
liberalisation of the movement of capital was decided in 1988,42 once the Single European Act
had subjected that decision to the qualified majority, while the harmonisation of the norms on
capital income taxation failed to materialise until 200243 and was manifestly insufficient.44 The
result is not only the legal primacy of free movement of capital, but the de facto facilitation of
large-scale tax avoidance.

25.6 PRE-EMPTING SUPRANATIONAL DEMOCRATIC LAW- AND

DECISION-MAKING

The chances that the bias described in Section 25.5 is rectified by the forging of a strong
democratic will at the supranational level are very limited. While the European Union identifies
itself as a democratic polity (Article 2 TEU) and while the supranational law-making procedures
are formally structured so as to ensure democratic representativeness,45 the fact of the matter is
that supranational law- and decision-making is dispersed in a wealth of procedures, something
which not only limits the democratic legitimacy of European legal norms but also reduces the
chances of a coherent democratic impulse underpinning European legislation.
In fact, the democratic legitimacy of co-decision is undermined by the empowerment of
(some) private actors (Section 25.6.1), (some) technocratic actors (Section 25.6.2) and (some)
national executives (Section 25.6.3) to define the content of common norms and practices.

41
The chances of a unanimous agreement in the Council of Ministers have declined given the successive enlargements
of EU membership and the ensuring larger social and economic heterogeneity among states.
42
See Council Directive 88/361/EEC of 24 June 1988 for the implementation of Article 67 of the Treaty, OJ 1988 No.
L178/5.
43
See Council Directive 2003/48/EC of 3 June 2003 on taxation of savings income in the form of interest payments, OJ
2003 No. L157/38.
44
See G. Zucman, The Hidden Wealth of Nations (Chicago University Press, 2015).
45
The decisive role played by the Council of Ministers contributes indirect democratic legitimacy, to the extent that
ministers are appointed by prime ministers or presidents, themselves chosen by the direct representatives of the
national people; while the European Parliament, being directly elected by European citizens, contributes direct
democratic legitimacy.

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 362 Agustín José Menéndez

To this should be added the emerging tendency to depart from majoritarian decision-making
(Section 25.6.4).

25.6.1 The De Facto Delegation of Law-Making Powers to Actors Repeatedly Mobilising

Their Economic Freedoms
The characterisation of economic freedoms as full-blown subjective rights has turned such
freedoms into legal instruments which can be used by private actors to challenge the validity of
national legal norms and policies that allegedly set obstacles to the full enjoyment of the rights
stemming from EU law. It should now be added that, when economic freedoms are repeatedly
used as battering rams with which to attack national legislation, it becomes possible to shape to a
considerable degree the set of (national and supranational) regulatory frameworks, to the point
of rendering supranational regulation unnecessary.
It is important to observe that, while the normative effect of the unleashing of private actors
through economic freedoms is usually described as leading to a ‘mutual recognition’ of regula-
tory standards,46 in dynamic terms it triggers a process of regulatory competition, which serves as
a functional substitute of politically mediated harmonising legislation. The substitution has
massive social, economic and political consequences. Political representative institutions get
weakened, while owners and managers of capital, especially mobile capital, acquire a meaning-
ful power to influence the choice of the ultimately preferred collective decision. As is well
known, ‘repeat players’ before the ECJ are not infrequently economic actors routinely operating
across borders (i.e., multinationals), which have adapted their institutional and operational
structures to maximise the chances of profiting from the empowering of private actors brought
about by EU law.

25.6.2 Epistocracy and Empowered Technocrats

A good deal of the powers that have been Europeanised in the last 30 years has been assigned to
institutions whose legitimacy stems from the ‘expert knowledge’ held by officials.
The European Central Bank is the paradigmatic instance of such an epistocratic institution.
As we already pointed out, the ECB plays a formidable role in the government of the Eurozone
and in general of the EU. The Frankfurt institution defines and implements the monetary policy
of the Eurozone, as foreseen in Article 127.2 TFEU. Since 2007 it has been granted decisive
powers concerning the macro and micro prudential supervision of financial institutions,47 as
well as assigned a central role in the monitoring of financial assistance (as part of the so-called
troika). Even more decisively, the ECB has acquired quasi-sovereign powers as a lender of last
resort to financial institutions and as a (conditional) buyer of last resort of public debt.48 To this it
should be further added that the sheer impossibility of drawing a clear line between the breadth
of monetary and fiscal policy has resulted in the ECB actually shaping general economic policy

46
Communication from the Commission concerning the consequences of the judgement given by the Court of Justice
on 20 February 1979 in Case 120/78 (‘Cassis de Dijon’), OJ 1980 No. C256/2.
47
Regulation 1092/2010 of the European Parliament and of the Council of 24 November 2010 on European Union
macro-prudential oversight of the financial system and establishing a European Systemic Risk Board, OJ 2010 No.
L331/1 and Council Regulation 1024/2013 of 15 October 2013 conferring specific tasks on the European Central Bank
concerning policies relating to the prudential supervision of credit institutions, OJ 2013 No. L287/63.
48
True, the ECB plays such a role through the convoluted and expensive mediation of financial institutions, so as to
keep the appearance of compliance with Article 123 TFUE.

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 The ‘Terrible’ Functional Constitution of the EU 363

through what is labelled its ‘non-conventional’ monetary policy. This practice has been justified
by the ECJ, which has concluded that the remit of monetary policy should be deemed as wide as
necessary to achieve the goals of monetary policy, rather independently of the (narrow)
legitimacy basis of the ECB.49 Among many other things, this implies that the ECB can decide
on the shape of its monetary policy independently of whether or not this affects the conduct of
national fiscal policies, while the reverse does not hold. While the Federal German
Constitutional Court in Weiss50 threw further doubts on the extent to which such an interpret-
ation was compatible with democratic constitutional law, it failed to translate its concerns into
any operative constraint.51
The ECB is far from being the only non-representative institution which has acquired
important powers in the last decades. Independent fiscal authorities have been created in all
Member States and have become part of a wider European network.52 Such authorities do not
only produce the key figures on the basis of which national fiscal plans are elaborated, but also
produce influential reports assessing the fiscal costs of alternative policy options. There are plans
to create ‘competitiveness’ authorities, with an even broader mandate, extending to the analysis
of policy options to ‘strengthen’ national economies.53 By the same token, the IMF has become
one of the key players in the processes of granting financial assistance to Eurozone states
undergoing fiscal crises and of monitoring compliance with the economic programmes to
which the said assistance was conditioned.

25.6.3 The Recurrence of Emergencies and the Empowering of Asymmetric Executive-like

Institutions and of Creditor States
Supranational decision-making is cumbersome because there are quite a number of veto points.
This results in the EU being not slow to react, but in some occasions incapable of doing so,
entangled as it is in a ‘joint decision trap’.54 Not only is the problem compounded when
extraordinary circumstances require prompt decisions, but the slow path at which the EU
decides results in challenges deteriorating into crises, thus making emergencies recurrent.
When confronted with major challenges, the EU follows a cycle of procrastination and ineffect-
ive action, leading to emergency decision-making in the absence of any declaration
of emergency.
On such a basis, it is perhaps only a trifle exaggerated to argue that the EU has developed an
addiction to emergencies, while largely lacking specific provisions governing them. As long as
‘ordinary decision-making’ is close to impossible because of its cumbersomeness, emergencies
are bound to be regarded as the only way out of the impasse, so decision-makers start to
internalise a new identity as emergency decision-makers.

49
Conclusions of AG Cruz in case Case 62/14, Gauweiler, ECLI:EU:C:2015:7, para. 111; ruling of the Court, ECLI:EU:
C:2015:400, cf. para. 52 ff.
50
BVerfG, Judgement of the Second Senate of 5 May 2020 – 2 BvR 859/15, ECLI:DE:BVerfG:2020:
rs20200505.2bvr085915.
51
Cf. M. Dani, E. Chiti, J. Mendes, A. J. Menéndez, H. Schepel and M. Wilkinson, ‘“It’s the Political Economy . . .!”
A Moment of Truth for the Eurozone and the EU’ (2021) 19 International Journal of Constitutional Law 309–27.
52
See www.euifis.eu/, last accessed 8 August 2022.
53
‘Five Presidents’ Report’, available at: https://ec.europa.eu/commission/sites/beta-political/files/5-presidents-report_en
.pdf, last accessed 8 August 2022.
54
F. Scharpf, ‘The Joint-Decision Trap: Lessons from German Federalism and European Integration’ (1988) 66 Public
Administration 239.

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 364 Agustín José Menéndez

An obvious danger is that the recurrence of undeclared emergencies results in the selective
and arbitrary breach of legal norms and, consequently, in the slow but steady erosion of the
capacity of EU law to integrate European society. At any rate, emergencies lead to a further
encroachment of ordinary, ‘representative’ supranational decision-making procedures. Cycles of
emergencies favour the empowerment of those institutions that are structurally capable of
deciding swiftly and quickly (i.e., basically executives or executive-like institutions). By the same
token, emergencies favour the aggravation of pre-existing power imbalances, which not infre-
quently project themselves beyond the emergency in the legal norms written under it. Such
tendencies seem to be confirmed by the institutional and procedural developments in the wake
of the financial and fiscal crises: the central role of the Euro Summit and the Eurogroup and,
within them, the heightening of power asymmetries in favour of ‘creditor’ states and to the
detriment of ‘debtor states’.

25.6.4 Minoritarian Government

Finally, we can observe both formal and informal tendencies to divorce the forging of a
European general will from the democratic formation of a majoritarian will.
First, the reform of the procedures through which national fiscal policies are formally
coordinated, and in actual practice monitored and controlled, has resulted in a move from
majoritarian decision-making (a ‘qualified’ majority in the Council of Ministers or the
Eurogroup) to minoritarian decision-making (the Commission concurring with a ‘qualified’
minority of the members of the Council of Ministers or the Eurogroup). It should be noticed
that such change affects fundamental decisions, including the imposition of sanctions in the
case of a persistent breach of the fiscal rules mentioned in Section 25.2.
Second, the empowerment of the European Parliament as co-legislator has resulted in the
addition of quite a number of additional steps in the law-making process. That has created a
serious risk that the gains in democratic legitimacy compromise the capacity to take effective and
prompt decisions. This has favoured the ‘informal’ simplification of the law-making process
through the creation of mixed institutional structures (the so-called trilogues) in which the main
institutions with legislative responsibilities, the Council of Ministers, the Parliament and the
Commission iron out their differences and strive to reach an agreement.55 Now, what has been
gained in efficiency has been lost in democratic legitimacy. Minority groups tend to be under-
represented in ‘trilogues’, while some parliamentarians emerge as repeat players. Furthermore,
the ‘trilogues’ proceed behind closed doors, undermining the achievements of the increased
transparency of the workings of Parliament and Council.

25.7 PRIVATE PROPERTY AS THE SUPREME VALUE OF EUROPEAN LAW

The legal and economic force of the trio of ‘sound’ money, economic freedom(s) and ‘free’
competition has turned the EU into a most powerful external constraint that champions a radical
conception of private property. European law has released European property owners from
many of the limits and constraints imposed by the post-war Democratic and Social State in
pursuit of its vision of socialised and temporary property rights.56 At the very same time,
European law fosters fiscal and monetary policies that preserve the value of accumulated capital

55
A. E. Stie, Democratic Decision-Making in the EU: Technocracy in Disguise? (Routledge, 2012).
56
T. Piketty, Capital et Ideologie (Seuil, 2019), chapter 11.

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 The ‘Terrible’ Functional Constitution of the EU 365

and ensure the means for the future and indefinite accumulation of capital. As a result, while
national public power has been enervated and fragmented, supranational public power remains
essentially disciplinary and regulatory, capable of preventing and channelling action but ill-
equipped to undertake positive action. In other words, the powers that states have lost have not
been transferred to the supranational level but have either been dispersed or have resulted in a
stronger position of the owners of capital.
This peculiar organisation of public power relies very heavily on the authority of European
law, in particular on its pretence to be the supreme law of the land.57 The bite of the claim to
substantive supremacy of private property depends on the success of the structural claim to
supremacy of EU law over national law (otherwise, states will be free to make social concerns
prevail over private property). It should be said, however, that the claim to supremacy of EU law
has not gone uncontested. As is well-known, national constitutional and supreme courts,
following the leads of the German Federal Constitutional Court and the Italian
Constitutional Court, have insisted on national constitutions remaining the ultimate source of
validity and legitimacy of the law within each state. From that claim follow a number of limits to
the structural supremacy of EU law, which come hand in hand with limits to the supremacy of
private property. However, higher national courts have refrained so far from considering the
substantive tensions lurking behind structural conflicts. They have actually limited themselves to
insist on the structural primacy of national constitutions, while accepting, at the end of the day,
the substantive choices of EU law. Thus, the much debated case law of the German and the
Italian constitutional courts setting ‘counter-limits’ to the force of EU law has had very limited (if
any) substantive implications.58 National courts seem to be worried about the allocation of
competences and not so much about the substantive content of the law.
Whether the present organisation of power is stable remains an open question. What can be
said is that the supremacy of a radical conception of private property, guaranteed by the trio of
principles referred in the title of this chapter, seems to have contributed to the growth of income
and wealth inequalities in the European Union in the last 40 years. National policies aimed at
countering such trends have been either dismantled or pre-empted by arguing that they
breached economic freedom(s), distorted ‘free’ competition or led to ‘unsound’ public finances.
Supranational equivalents did not materialise (most of the time they were not even proposed)
given the many veto points in-built in the asymmetric supranational law-making process.

25.8 IS IT PERTINENT TO SPEAK OF A ‘EUROPEAN CONSTITUTION’ OR

OF EUROPEAN CONSTITUTIONAL LAW?

The euro and Frontex are powerful reminders of the fact that the EU has acquired state-like
traits and that European law, consequently, engages with the most politically sensitive questions.
Should we then extend rather freely the constitutional language to the European Union?
Should we speak of the ‘European constitution’ and of ‘European constitutional law’?
The answer cannot but be nuanced. In descriptive, ‘sociological’ terms, there is no doubt that
the European Union has a constitution, for sure in ‘functional terms’, perhaps even in the
‘material’ terms referred to in this handbook. And the study of such a constitution requires, as

57
On the evolution of the structural principle of supremacy, see M. Dani and A. J. Menéndez, ‘European
Constitutional Imagination: A Whig Interpretation of the Process of European Integration?’, I-Courts Working
Papers, 243/2021.
58
A. J. Menéndez, ‘“False Friends” costituzionali: l’irresistibile ascesa dei conflitti fondamentali tra il diritto europeo e
quello nazionale’ (2019) Diritto pubblico comparato ed europeo 887.

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 366 Agustín José Menéndez

I have tried to do in this chapter, going beyond the ‘law in the books’ and considering the
relevant socially enforced conventions and practices, but also keeping at least one eye on the way
in which power is actually wielded. By the same token, we need to reconnect the study of
political agency with that of the content of the fundamental legal norms and to do so without the
many blinders that the mythology and dogmas of European law imposes upon us. Although
Mortati’s concept of the material constitution remains problematic, not least on account of its
origins (or to be more precise, its role model), the ‘research agenda’ that comes hand in hand
with such a concept is in itself a powerful reminder of the importance of agency even in
processes which are deeply mediated by heavy structural forces, such as the transformation of
European Union law in the recent past. It should constitute, among other things, a powerful
warning against naïve formalism and an incentive to bring into the scope of our analysis the key
institutions through which power is actually exerted.
Still, there are many serious doubts as to whether such a functional constitution can be
regarded as legitimate in democratic terms, so as to be considered on a par with the national
democratic constitutions of the Member States. Freely characterising European fundamental
norms as constitutional may result in, ingeniously or disingenuously, cloaking in plain sight the
profound substantive mutation that the European Union has experienced in the last four
decades, bordering on a regime change. By a too generous application of the term ‘constitution’
to EU law, we run a serious risk of projecting into it qualities that it does not have, connotations
that it does not deserve. Above all, we may end up devaluing the currency of democratic
constitutional law, concluding that European law and national constitutional law are part of a
continuum, an assumption that cannot but end up in conceptual and normative confusion.

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 Index

Abendroth, Wolfgang, 14, 136–49 Atatürk, Mustafa Kemal, 329

background, 136 Augustine, St., 150
balance of social forces, 137–40 Australia
constituent power and background conditions, 141–2 constitutional statutes, 264
constitutional compromise theory, 137, 140–2 Austrian Constitution (1920), 138
international law, 144–5 Austrian Social Democratic Party, 138
legacy (new directions), 145–9 authoritarian liberalism, 146
neoliberal constitutionalism, 145 authoritarianism, 308
norm compromise, 140 autonomy
reservations (initial) towards Austro-Marxist movement, definition, 157
139 systemic concepts, 159
social compromise (evolution), 142–4 autonomy of law, 158
social compromise theory, 137 autopoiesis, 155–6, 159
social transformation, 142 avaritia, 150–1, 156, 159, 164, 167
abolition-democracy, 112
Absolute Constitution, 9 Backer, Larry Catá, 303
Abwägung (balancing), 76 Bad Godesberg programme (1959), 39, 142
accumulation by dispossession, 184 Bagehot, W., 70
Adams, John, 57 balance of forces, 3, 5, 137–40
Administrative Procedure Act (USA, 1946), 247 Balfour, Arthur, 70
Adorno, T., 37 Balibar, Étienne, 40–1
affective constitutionalism, 9, 46–8, 63 Balkin, J.
Africa, 177, 299 nested oppositions, 216
Agamben, Giorgio, 11 Baranger, Denis, ix, 19
Albert, R., 243 Bardhan, Pranab, 292
Alexy, Robert, 81 Barnard, F.M., 49
Algeria, 181–2 Bases de la Constitución (Peru, 1822), 281
alienation, 162 Basic Law (FRG), 79, 82, 87, 136, 154
Allende, Salvador, 145 (Article 14), 140
Althusser, Louis, 28 (Article 20), 136, 140
Ambedkar, B.R., 291, 294 (Article 21), 140
American Revolution, 180 (Article 28), 136, 140
Anderson, Perry, 37 (Article 79), 265
Anschütz, Gerhard, 77 Bates, David, 52
arbitrariness, 238 Bauer, Otto, 14, 32, 138–9
Arcuri, A., 344 Bäumlin, Richard, 81, 86–8
Arendt, Hannah, 32 Beard, Charles, 11, 114, 118, 121–2
On Revolution (2006 edition), 193 Bedjaoui, M., 144
Aristotle, 3, 81, 302 Berlin, Isaiah, 48
Politeia, 25 Bernstein, Eduard
art, 151, 156 evolutionary path to socialism, 32
artificer, 252 Bhandar, B., 176

367

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 368 Index

big-C Constitution (PRC) corruption, 310

formal constitution, 302 custody and repatriation system, 311
Bilancia, Francesco, ix, 19 democratic centralism, 309
Bilateral Investment Treaties (BITs), 337, 343 dual constitution, 303
Bismarck, Otto von, 41, 296 economic development, 310
blood and soil, 59–60 economic development and social transformation
bloque de constitucionalidad (constitutional block), 286–7 (CPC legitimacy), 305
Bobbio, Norberto, 241 Initiatives from Two Sources doctrine, 303
Bogdanov, Alexander, 31 judicial review, 307, 309
Bolivia, 287 judicial system, 306
Bolivian Constitution, 287 legal instrumentalism, 308
Bolivian Plurinational Tribunal, 286 middle class, 309–10
Bonaparte, Louis, 139 Mongolia’s mineral exports, 320
Bonapartism, 139, 141, 145, 178–9 political constitutionalist approach, 304
Bonnitcha, J., 340 presidency, 305
Bourdieu, Pierre, 75, 166 public discourse, 312
bourgeoisie, 126 role of legislature, 306
Branca’s Commented Edition, 90 social mobilization, 309
Brandler, Heinrich, 139 socialist developmental state, 309
Brandt, Willy, 139 socio-economic development, 309
Brazil, 349 trinity system of rule, 303
Brewin, S., 340 unwritten constitution, 303
Brexit, 184, 189–90, 353 China (material constitution), 301–12
Bright, John, 71 economy, 308–9
British Constitution, 64–75, 235, 252 elements, 304–10
British Overseas Territories, 183 and formal constitution, 310–12
Brown v. Board of Education (USA, 1954), 254 party state, 304–7
Bulgaria, 356 society, 309–10
Bundesbank, 352 Chinese Constitution (1954), 301
Bundesrepublik Chinese Constitution (1975), 301
definition, 136 Chinese Constitution (1978), 301
Bundesverfassungsgericht case law, 131 Chinese Constitution (1982), 17
Bundesvertrag (federal treaty), 189 amendments, 301, 305, 310–11
Buonarroti, Michelangelo, 151 functions, 311
Burke, E., 277 provisions on fundamental rights and government
structure, 311
Caisse d’amortissement de la dette publique, 248 social, discursive functions, 311
Calhoun, John C., 196 Christodoulidis, Emilios, ix, 6
Calvo doctrine, 342 Cilliler, Y., 333
Canada, 264, 270 citizenship, 181, 185
capital, 205, 221 federal ~, 190
laws of motion, 184 citoyen, 79
capital income taxation, 361 civil society, 34–6, 206, 219
capitalism, 26, 70, 201 Civil War (USA), 112, 118, 198
capitalist imperialism, 184, 350 Civitarese Matteucci, Stefano, ix, 19
Catholic Church, 150 class, 143, 148, 154, 176
Cecil, Lord, 71 class struggle, 28, 42–3, 125, 127, 131, 143, 179, 291
centre–periphery relations, 17 class theory, 153
Césaire, A., 179 coalitional model of domination (Bardhan), 292
Charter 08 (PRC), 310 Code de l’Indigénat (1881), 181
Charter of Economic Rights and Duties of States (1974), Cold War, 39, 288, 343
144, 342 Colombia
Charter of Fundamental Rights of EU, 360 material constitution and judicial discretion, 283–5
Chatterjee, Partha Colombian Constitution (1991), 283, 285
‘political society’, 299 Colombian Constitutional Court, 275, 283–4, 287
Chen Duanhong, 304 Colón-Ríos, Joel, x, 10
Chile, 145 Comisión de Constitución (Peru), 279
Chimni, B.S., 349 commodification, 219, 221–2
China, 16–17, 291 common law, 185, 252, 270, 297
core constitutional principles, 310 Communist Manifesto (Marx and Engels), 174

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 Index 369

Communist Party of China, 17, 301, 303, 305, 308 political matter and legal form, 250–2
Opinions on Deepening Reform of Judicial System, 307 politics as matter of constitutional law, 250–1
Communist Party of Soviet Union, 31 constitutional order, 224, 325–6, 335
Communist Party Opposition (KPO, Germany), 136, 139 binary division, 214
comunità intermedia (intermediate community), 8, 98–9 constitutional pluralism, 160–1
concepción valorativa (normative conception), 284 constitutional reality (Manessis), 129
concrete order, 10, 101, 111, 226, 231 constitutional texts
explanation, 105 unclassifiable changes, 263–9
Fraenkel, 109–10 constitutional theory, 32, 55, 115, 149, 201
material constitution, 105–9 Abendroth beyond Abendroth (new directions), 145–9
concupiscentia oculorum, 150–1, 167 real challenge, 155
conflict sociology, 153, 162 versus constitutional reality, 20
Connelly, Stephen, 206 constitutional thought
Conseil Constitutionnel (France), 250 materialist turn, 199–209
Constituent Assembly (India), 291, 293, 295 constitutionalisation, 143
Constituent Assembly (Peru), 281 two processes, 141
constituent power (notion), 14 constitutionalism, 13, 137
constitution historical perspective, 314
abstract–concrete divide, 215–16 contentio, 150–1, 156, 167
affective ~, 48 contenuto proprio (core content [of constitution]), 92–3, 98
ambiguity of term, 100 coronavirus crisis (2020), 359
collision rules, 161–2 corporate social responsibility (CSR), 323
continuity of idea of ~, 216 corruption, 147–8, 305
functional definition, 202–3 Cour Grand Maison, 182
legal-normative understanding, 210–11 Cover, Robert, 9, 55, 59
social compromise, 136–49 crisis of constitutional democracy, 63
traditional and modern concepts, 235 critical legal theories, 164
Constitution as basic decision (Schmitt), 10 critical social theory, 157
constitution of peoples, 49–50 critical systems theory, 147, 163
constitutional amendments, 243 normative perspective, 157
unconstitutional ~, 278, 284–5 reception and critique, 156
constitutional change, 4 social theory conflicts, 155–6
material understanding, 261–74 Wiethölter, 155–6
constitutional fetishisms, 39 critical theory, 15, 37, 39, 113, 138, 152
originalism and living constitutionalism, 121–3 Croatia, 356
constitutional identity, 9, 19–20, 45 Croce, Mariano, x, 19, 224
constitutional language, 246–57 cultural materialism, 48, 50, 58–9
constitutional law, 2, 61, 108, 110, 113, 171–2, 265, 275 cultural nationalism, 50
attempt by law to hold sway over politics, 251 culture, 29, 47–50
formal dimension, 247 culture of conflict, 163
politics as matter of ~, 250–1 Cunow, Heinrich, 126
relatively autonomous branch of law, 251 curiositas, 150–1
undetermined province, 247–50 custom, 256, 270, 273
constitutional maintenance doctrines, 13, 263–9 custom (unwritten constitution), 236
identifying constitution and its changes, 269–71 customary international law, 338
material versus formal constitution (need to match?), Czech Republic, 356
271–3
constitutional maintenance theory Dasgupta, Sandipto, x, 16
distinguishing trait, 269 Daskalakis, George, 125, 130
constitutional matter and form, 246–57 decisionism, 106–7, 111, 197, 226
constituent power, 252–3 Declaration of Independence (1776), 252
constitution and social change, 253–4 Declaration of Rights of Man, 179, 181, 183, 247, 250
constitutional law (borderline cases), 249–50 déformation professionelle, 211
constitutional law (undetermined province), 247–50 democracy
dynamics, 252–5 market model, 242
good-enough constitution (definition), 256 rules of game, 241
good-enough constitution, 255–7 democracy, human rights and rule of law, 14, 220–1
law as form of constitution, 251–2 Democrat Party (Turkey), 329–30
material definition (rejection), 249 Democratic and Social State, 357, 364
normativism, 247–9 demos, 55

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 370 Index

Denmark, 356 end of history (return of material constitution), 15–20

Descartes, René material constitution beyond Europe, 16–18
Discourse on Seeking Truth in Sciences, 45 theoretical challenges (21st century), 19–20
developmental state, 308–9 Energy Charter Treaty, 337
dialectical materialism, 65, 301 Engels, F., 138, 174
Diamond, Martin, 193 England, 175
Dicey, A.V., 177, 181, 193 Enlightenment, 175, 180
dictatorship, 68, 101, 108 Entick v. Carrington, 251
dictatorship of proletariat, 30 epikeia (equity), 81
direct democracy, 98–9 equaliberty (Balibar), 40
discounted cash flow (DCF), 340 equality, 69, 72
Disraeli, B., 71 Esposito, Carlo, 235
disturbance (notion), 207 Estado de direito democrático (state based on democracy
diverse function systems, 162 and rule of law), 267
dominant political forces, 42, 134, 272–4 ethnos, 55
DOM-TOM, 183 Euro-Crisis (2009 to 2013), 146
Doppelstaat (dual state), 212 European Central Bank, 42, 203, 352–6, 359, 362–3
Dowdle, Michael W., 306 European Commission, 354, 357–9, 364
Drago–Porter Convention (1907), 342 European constitution, 365–6
Dred Scott case (USA), 198, 255 European constitutional law, 365–6
droit politique, 40 European Convention on Human Rights (ECHR), 337
Drossos, Y., 129 European Council of Ministers, 364
Du Bois, W.E.B., 112–15, 118, 121–3 European Court of Human Rights, 336
Black Reconstruction (1935), 112 European Court of Justice, 196, 354, 357–60, 362–3
dual state European Financial Stability Facility, 355
material constitution, 100–11 European Monetary System (EMS), 352
Nazi Germany, 101–5 European Monetary Union (EMU), 352–3, 355–6
due process of law, 254 European Parliament, 360–1, 364
Duguit, Léon, 11, 105, 127 European Semester, 353, 359
Durkheim, Émile European Stability Mechanism, 42, 353, 355
organic solidarity, 159 European Union, 16, 40–1, 145, 333, 337, 341
Dworkin, R., 238 actors mobilising economic freedoms, 362
asymmetric executive-like institutions (empowerment),
East India Company, 175 363–4
Ebert, Friedrich, 32 conflict with Member State, 196
Ebert–Groener Pact, 154 creditor states, 363–4
ECB. See European Central Bank emergencies (recurrence), 363–4
ECJ. See European Court of Justice epistocracy, 362–3
economic co-determination, 137 functional constitution, 351–66
economic constitution, 166–7, 210, 221, 268 internal market competence, 195
economic determinism, 64, 66, 74, 117 law-making powers (delegation), 362
economic federation, 194 member states (non-Eurozone sound money), 356–7
economic growth, 336, 343, 349 minoritarian government, 364
economic institutionalism, 155 private property ‘supreme value’, 364–5
economic liberalism, 41 regional imperialism, 184
economic planning, 267 supranational decision-making (in-built bias), 360–1
Economic Senate (Svolos), 128 supranational democratic law (pre-emption), 361–4
economic structuralism, 29 technocrats (empowered), 362–3
economism, 43 European Union Fiscal Compact, 354
Egypt, 296 European Union Growth and Stability Pact
Ehmke, Horst, 76 reform (2011), 354
Ehrlich, Eugen, 11, 47, 109 Eurozone, 203
Emeri, Claude, 286 bail-in directive, 356
Enabling Act (Nazi Germany, 1933), 101–2, 104 ceilings (public debt, public deficit), 353
end of history, 11–14, 343 consumption prices, 352
cultural conservatism and moralistic liberalism, economic freedom, 357–9
12–13 economic policy, 353–4
Marxism (postwar inflection of material constitution), financial crisis (2008), 359
13–14 financial stability, 352, 355–6
postwar material constitution, 12 fiscal crisis (2010), 353

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free competition, 358–9 Fradera, J.M., 180

free movement of capital, 358, 361 France, 18, 95, 139, 174, 177–8, 249
functional constitution, 351–7 constitution of Third Republic (1926), 248
monetary dominance, 353–4 constitutional statutes (1875), 250
monetary stability (paramount goal), 352–3 Council of State, 249
price stability, 352 electoral law, 250
public finance, 353–4, 359 parliamentary law, 250
sound money, 352–7, 359 statute (of 3 June 1958), 253
trio (of fundamental principles), 351, 360–1, 364–5 Franceafrique, 184
trio (yardstick of national norms), 359–60 Fraenkel, Ernst, 37, 100–4, 110, 212–13
Eurozone crises (2007-), 352 concrete order thought, 109–10
Evren, Kenan, 332 Dual State, 9, 101, 109
Exchange Rate Mechanism II, 356 Frankfurt School, 37, 39, 138
Frankfurter, Frank, 298
fair and equitable treatment (FET), 338–9 free movement, 191
family, 228 Free Trade Agreements (FTAs), 337
fascism, 7, 74, 139 freedom and obligation (concordance), 87
Favoreau, Louis, 247, 286 freedom of conscience, 87
FCA franc, 184 freedom of speech, 78, 80–1, 225
Federal Constitutional Court (FCC), 79, 81, 85, 87, 137 Freiheitsrechte (rights of freedom), 225
federal supreme court, 195 French Constitution (1848), 181
federation, 20 French Constitution (1958), 249–50
birth and transformation, 189–92 French Constitutional Council, 247
constitutional balance, 196 French Empire
constitutional foundations ‘ambiguous’, 196 ‘association’ versus ‘assimilation’, 182
creation of constitutional ‘gateway’, 190 French Parliament, 249
double telos, 193 French Revolution (1789), 147
dynamic versus static order, 194 successive constitutions, 178–80
form of political association, 188–9 French socialist party (SFIO), 39
fundamental characteristic, 196 Freud, S., 37
homogeneity principle, 197–8 Friedman, Milton, 15
leads to interventions, 192 Friedrich, Carl Joachim, 38
material constitution, 188–98 Friendship, Commerce, and Navigation (FCN), 341
peculiar sentiment, 193 Führerprinzip (principle of leadership), 108
proportionality principle, 195 Fujimori, Alberto, 279
right to have rights, 191 Fukuyama, Francis, 305
war, 197 functional constitution
Feng Chongyi, 309 European Union, 351–66
Ferrara, Gianni, 242 functional integration, 78
finance capital, 184–5 functionalist systems theory, 156–7
fine politico (political goal), 91–4, 97, 99 Wiethölter’s devastating verdict, 158
Finnis, John, 257 fundamental rights theory, 78
Fiscal Compact (EU), 42
Five Knights Case, 251 Galilei, Galileo, 150
Flynn, Tom, x, 18 Gandhi, Indira, 296
form Gandhi, M.K., 289–90
definition (legal parlance), 249 Gao Quanxi, 304
formal constitution, 92, 100, 104, 129, 131, 135, 141, 208, Gardner, John, 238
214–16, 224, 226, 234, 236 Gauchet, Marcel, 40
China, 310–12 General Agreement on Trade in Services (GATS), 337
entrenches material constitution, 242–5 general principles of law (France), 250
international investment law, 337–41 General Strike (UK, 1926), 66–7
need to match material one (issue), 271–3 general will, 127
role, 92 Gerber, Carl Friedrich von, 47
formal reason German Confederation (1815–66), 189
definition, 246 German Constitutional Court, 76, 196, 365
formalism, 49, 99, 130–1, 157, 205, 246, 253, 256, 303, 366 Weiss (2020), 363
definition, 246 Germany, 32, 51, 145, 158, 265, 343
Forsthoff, Ernst, 79, 136 collision model of constitutional rights, 76
Fourth Republic, 249 November revolution (1918), 31, 137

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 372 Index

Gesetz im materiellen Sinne (law in material sense), 47 Hegel, G. W. F., 6, 27, 33, 42, 77, 157, 208, 227
Giesen, Bernhard, 50 doctrine of State, 25
Gilets Jaunes, 256 idealised concept of State, 27
Ginsburg, Tom, 306 Hegelian Marxism, 208
Gladstone, W.E., 71 fundamental insight, 207
global constitutionalism, 337 hegemony, 33–6, 314, 316
globalisation, 184, 186, 346, 350 India, 289–91
Glorious Revolution, 176 Heller, Hermann, 7, 33, 37, 45, 47, 50, 53, 56, 58, 63, 190,
Goldoni, Marco, x, 46, 48, 52, 171, 201–3, 207, 217–21, 314, 198, 212–15, 278
335 Staatslehre, 48
good governance, 347, 349 Hensel, Albert, 81
governing class, 65, 71–2 Herder, J.G., 9, 51–2, 56
Government of India Act (1935), 291, 294 Auch eine Philosophie der Geschichte (1774), 49
Gramsci, Antonio, 29, 94, 143, 290, 292 Volk, 48–50
hegemony concept, 33–6, 345 Herf, Jeffrey, 55
Gratian, 81 Hesse, Konrad, 13, 76, 79, 86
Greece, 7, 140, 203, 303 Smend turned upside down, 82–4
Constitution (1927), 125 historical bloc (Gramsci), 35
fiscal crisis (2015–), 352 historical constitution, 10, 275–8
formal constitution versus substantive constitution, 129 Peru, 279–82
guided democracy period, 128–30 historical sociology, 211
Greek Civil War (1946-1949), 128 historicism, 49
Greek Constitution (1864), 128 Hitler, A., 101, 104–5, 107–8
Greek Constitution (1927), 128 Hoare, Sir Samuel, 71
Greek Constitution (1952), 128–30 Hobbes, T., 106
Greek Constitution (1975), 132–3 Höffe, Otfried, 160
(article 106), 132 Holmes, Oliver Wendell, 48
Greek constitutional thought Holy Roman Empire, 49
material constitution, 124–35 Hong Kong Basic Law, 303
Greenberg, Udi, 12 Horkheimer, Max, 140
grey area between law and politics, House of Commons, 73
47, 89, 91, 93, 96, 99 House of Lords, 72
Griffith, J., 2, 4, 135 House of Representatives (Turkey), 330
Grimm, Dieter, 85–6 Huber, Ernst Rudolf, 107–9
Group of Seventy-Seven, 144 Hull formula, 341–2
Grundgesetz. See Basic Law (FRG) human rights, 248, 334
Grundnorm (Kelsen), 163, 237, 261, 315 ‘surrogate for socialism’, 15
Gu, Weixia, 307 human rights law, 338, 347–8
Gül, Abdullah, 332 Hungary, 10, 276, 356–7
Günther, Gotthard, 158 Hunter, Rob, x, 11
Gürsel, Cemal, 330 hybrid constitutionalisation, 136–49
Guzman, Andrew, 343
identification of law, 237
Häberle, Peter, 76, 79–80 IIL. See international investment law
Habermas, Jürgen, 14–15, 39, 54, 56, 87, 140, 154 imagined community (Anderson), 191
critique of functionalist reason, 156 immanent critique, 200, 208–9
discourse theory, 155 immigration law, 76
theory of communicative action, 156 imperial boomerang, 172, 187
Haiti, 173, 178, 180 imperial constitution
St Domingue, 174 consolidation, 177–8
Hampshire, Stuart, 200 contemporary manifestations, 183–7
Hart, H. L. A. racial ~, 178–83
Concept of Law (3rd ed., 1994), 235 tensions and contradictions, 178–83
problem, 237 imperialism, 18, 174, 177, 342
rule of recognition, 19, 237–9 implied powers (doctrine), 195
Hartz, Louis, 11, 114, 118, 121 implied repeal doctrine, 286
Harvey, David, 15, 349 India, 16
Hauriou, Maurice, 233 capitalist class, 299
Hayek, F. A. von, 186 constitutional amendments (power of judicial review),
He, X., 303 299

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development planning, 294 material constitution (development), 341–4

exceptional elements, 289 material constitution (mapping), 341–50
illiteracy (1947), 294 material constitution (political unity), 341–6
judiciary, 297–8 material constitution (territory), 335–45
landowning classes, 299 political objectives, 349–50
litigation, 297, 299 social relations, 348
middle class, 298–9 tribunals, 338–40
national interest, 293 international law, 137, 186, 189, 191–2, 249
party, people, state, 291–2 International Monetary Fund, 185, 321, 340, 363
problem of hegemony, 291 international political economy, 18
professional elites, 293–4, 298–9 international private law, 161
state role in economy, 293 interstate citizenship, 191
Indian Constitution (1950) intersubjectivity, 244
administrator as author, 293–5 interwar period, 6, 20, 33, 36, 52
directive principles of state policy, 298 material constitution (transformation), 7–8
dominant classes, 292–3 Svolos’s sociological approach, 125–8
lawyers and social transformation, 297–9 investor–state dispute settlement (ISDS), 338, 340, 349–50
longest in world, 294 Iraq, 185, 187
parliament and planners, 295–6 Irish financial crisis (2008), 355
Indian National Congress, 289 Italian Communist Party (PCI), 38
indirect rule, 182 Italian Constituent Assembly, 90, 97
individualism, 126 Italian Constitution (1948), 132
individuation of law, 237, 240 Italian Constitutional Court, 243, 266, 365
industrial capitalism, 142 Italy, 8, 13, 32, 68, 127
informal conceptions, 2 constitutional maintenance doctrines, 266
informal constitution, 216 failed constitutional reform (2016), 263, 271
becomes synonymous with ‘material constitution’, 215 ius involuntarium (involuntary law), 230
Institut für Sozialforschung, 138, 140
institution Jacobi, E., 265
core feature, 229 James v. United Kingdom (1986), 336
institutional bias, 217 Japan, 308
institutionalism, 12, 20, 42, 239 Jay, John, 197
institutionalists, 10–11 Jiang Shigong, 303
institutionelle Garantien (institutional guarantees), 226 Jori, Mario, 237
institutions, 325 Jovellanos, Gaspar Melchor de, 276, 286
international investment law, 346–8 judges, 238, 255, 278
Institutsgarantien (guarantees of institutions), 226 judicial precedents, 239
instrumentum (document), 256 judicial review, 253–4, 287, 301, 317
integral State (Gramsci, lo Stato integrale), 34 judicial supremacy, 115
integration concept (Germany), 76 judiciary, 13, 67, 72, 77, 297–8
Integrationslehre, 76, 125 juridical normativity, 164
intensives Leben (Schmitt, ‘intensive life’), 46 jurisprudence, 223, 231
International Centre for Settlement of Investment juristocracy, 201
Disputes (ICSID) Convention, 337, 340–1, 343, 346 jus publicum Europaeum, 11
International Finance Corporation (IFC), 321 Justice and Development Party (AKP), 332, 334
international financial institutions (IFIs), 316–17, 321, 324,
343 Kalyvas, Andreas, 54–5
international human rights law, 286–7, 335 Kant, I., 207
international investment agreements (IIAs), 335, 337–8, Kelsen, Hans, 12, 47, 51–2, 90, 126, 137, 188, 195, 205,
341–2, 344–6, 349–50 213–15, 234
international investment law, 18 descriptive conception, 277
arbitration tribunals, 338 normativist point of view, 247
constitutionalisation and entrenchment, 345–6 positive norms regulating general legal norms, 238
formal constitution, 337–41 pure theory of law, 11, 66, 90, 236
formal constitution (malleability), 338–41 Soviet form of government, 243
formal constitution (rules and principles), 338–41 Kennedy, David, 217–18
formal constitution (sources), 337–8 Kennedy, Ellen, 53
institutions, 346–8 Khan Resources, 321–2
material constitution, 335–50 Kierkegaard, Søren, 52, 199
material constitution (collectivity), 345 Kirchheimer, Otto, 138–9

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 374 Index

Kleinstaaten, 49 legal doctrine, 158

konkrete Ordnungs- und Gestaltungsdenken (concrete legal formalism, 124, 214, 248
order and formation thinking), 226 legal institutionalism, 237
Koselleck, Reinhart, 160 legal normativity, 226–7
legal order, 240–1, 268–9, 272–3
Laband, Paul, 46 legal positivism, 10–11, 19, 47, 90–1, 99, 235–6, 239–40, 244,
labour, 26, 175–6, 205, 221 273, 295
labour movement, 137–9 legal positivist bias, 269
Labour Party, 72–3 legal principles theory, 81
land, 176, 293, 299, 319 legal system, 234
Lander, Jennifer, x, 18 modo d’essere (mode of existence), 92
Transnational Law and State Transformation (2020), 322 legal-normative constitution, 211, 213–14, 216, 219–21
Larsen, Signe Rehling, x, 20 legal-normative constitutionalism, 217–18, 222
Constitutional Theory of Federation (2021), 188 legal-rational rule, 241
Laski, Harold, 10–11, 33, 64–75 legitimacy, 242, 245
ambivalence, 70, 73 legitimacy principle, 241
constitutional analysis (fundamental problem), 75 Lenin, V.I., 7, 30–1, 34, 68
crisis of parliamentary democracy, 67–8 Bogdanov’s ‘idealism’, 31
material constitution, 70–2 theory of imperialism, 183
material constitution (revisited), 72–4 theory of state, 30
materialist turn, 65–7 Lethen, H., 62
modern state (nature), 69–70 Lewis, David, 238
Laski, Harold (works) Li, S. (Zhu Suli), 302
Democracy in Crisis (1933), 67–8 liberal constitutionalism, 56
Dilemma of Our Times (1952), 73 liberalism, 7, 26
Faith, Reason and Civilization (1944), 73 Liebknecht, Karl, 32
Grammar of Politics (1925), 64 Lin, Yan, 306
Grammar of Politics (4th ed., 1938), 65, 67 Lithgow v. United Kingdom (1986), 336
Parliamentary Government (1938), 70–2 Litt, Theodor, 77
Reflections on Constitution (1951), 72–4 living constitution, 3, 116
Reflections on Revolution of Our Time (1943), 74 living constitutionalism, 114, 120–1
State in Theory and Practice (1935), 69–70 Llewellyn, Karl, 11, 114, 121–3, 224, 228–31
Lassalle, F., 6, 25, 28–9, 126, 134, 206, 212–14 Lloyd George, D., 71
‘real constitution’ versus ‘written constitution’, 28–9 Locke, John, 118, 175
definition of ‘constitution’, 28 Lockean constitutionalism, 175–6
‘real constitution’ versus ‘written constitution’, 133 logic of capital, 184
last utopia, 15 logic of territory, 184
Latin America, 10, 16, 296, 299, 342 longue durée, 221
material constitution, 275–87 Losurdo, D., 176
law, 26, 36, 73, 143, 157, 205, 232 Loughlin, Martin, xi, 2, 4, 7, 39, 135, 294
definition (Laski), 69 Louverture, Toussaint, 178
form of constitution, 251–2, 256 Luhmann, Niklas, 15, 151, 158–9, 162
foundation (Laski), 69 contingency formula, 163
functionalist view, 294 functionalist systems theory, 152, 157
institutionalist approach, 233 structural coupling (concept), 159
nature, 235 Lukacs, G., 37, 207
political theory, 152–3 Lüth decision, 13, 76, 79
real contradiction (Realwiderspruch), 164 Luther, M., 227
sociological conception, 66 Luxembourg, 353, 355
system of primary and secondary rules (Hart), 236, 238 Luxemburg, Rosa, 7, 31–2
law of constitutional law, 157–60, 163
impartial partiality principle (Wiethölter), 159–60 Maastricht Treaty, 41, 352
juridical functionalism, 158–9 MacCormick, N., 235
law’s radical autonomy, 157–8 MacDonald, J. Ramsay, 66
reciprocity principle (Wiethölter), 159 Machiavelli, N., 32, 36, 146–7, 150
two principles, 159 Machtergreifung, 101, 107–8
Lawrence, Jessica, xi, 18 Mackenzie, Robert, 73
lebendes Recht (Ehrlich, ‘living law’), 47 Madison, James, 3
Lefort, Claude, 39 Malberg, Carré de, 99
legal constitutionalism, 201 Malberg, Raymond Carré de, 250

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Manessis, Aristovoulos, 125, 129–33, 135 Mongolia, 313–24

background, 129 most ambitious study (Mortati), 233
constitutional reality (concept), 132 need to match formal one (issue), 271–3
opposed Smend’s theory, 129 neglect in anglophone world, 1
‘political importance’ in formal constitution, 129 origins (Marx and Lassalle), 25–9
Manitakis, Antonis, 125, 133–5 postwar Europe, 36–9
adaptability (notion), 135 prescriptive account, 240–2
real constitution (concept), 133–4 principal promise, 208
Marauhn, T., 81 processual understanding, 228–32
Marshall aid, 38 return, 1–21
Marx, K.H., 5–6, 25–8, 40, 47, 147, 157, 174, 176, 179, 187 revolutionary generation, 30–3
commodity form (fetish phenomenon), 205 rule of recognition, 236–9
conception of State ‘underdeveloped’, 27 social democratic reformism, 30–3
economic structuralism, 28 substantialist understanding, 224–8, 231
law-as-superstructure thesis, 164 Turkey, 325–34
materialist constitutional theory, 25 material constitution (historical perspective), 6–11
methodology, 26 material constitution idea
social reproduction (materiality), 204 way into constitutional law, 246
Marx, K.H. (works) material constitution registers
Capital (v1), 28, 204, 206 methodological orientation, 211, 216–22
Capital (v3), 27 rhetorical contrast, 211, 213
Civil War in France, 26 theoretical fulcrum, 211, 213–16
Critique of Hegel’s Philisophy of Right, 27 material constitutionalism
‘Der 18. Brumaire des Louis Bonaparte’ (1852), 139 formal–informal distinction, 215
German Ideology, 26 material integration, 78
Grundrisse, 206 material order
Jewish Question, 26 indeterminacy, 204
Preface to Critique of Political Economy, 26, 44 material struggle, 40
Marxism, 6–7, 204–5, See also Western Marxism materialism, 20
ambivalent legacy (to material constitution), 208 materialist interpretation of history, 65–6
Marxism–Leninism, 31, 301 materialist philosophy, 5
Marxist historiography, 174 materialist turn (constitutional thought), 199–209
mass movements, 291 materiality, 46, 205, 223
Maßnahmenstaat (prerogative state), 212 materiality question, 200
master-race democracy, 176 Maus, Ingeborg, 87
master-text constitution, 271, 273 McCormick, J.P., 46, 53
material (concept), 46–8 Meierhenrich, Jens, xi, 9
material amendment procedures, 261–3 Meiji Japan, 296
material constitution, 4–5, 100–11, 276–8 Meinel, F., 79
autonomist view, 42–4 Menéndez, Agustín J., xi, 16, 145, 215
China, 312 metapolitefsi (‘regime change’) period (Greece, 1974-),
conceptions, 20 131–5
concrete order, 105–9 Methanex Corporation v. United States of America (2005),
definition, 1 339
descriptive account, 240–2 Methodenstreit, 46
dynamic and concrete, 5 mixed constitution, 3
entrenched by formal constitution, 242–5 mode of production, 26, 28–9
exists as juridical norm (Mortati), 269 modern constitution
extractive political economy (Mongolia), 313–24 colonial dawn, 174–7
federation, 188–98 modernity, 156, 160
French exception, 39–42 central problem, 158
function, 213 Möller, Kolja, xi, 14
Gramsci (concept of hegemony), 33–6 Mongolia, 18
Greece, 124–35 civil society, 324
grey area between politics and law, 91 coal, 320
Hegelian–Marxist reading, 200 copper and gold deposits (Oyu Tolgoi), 319–20, 322–3
international investment law, 335–50 debt burden, 320–1, 323
interwar era, 7–8 economic crisis as constitutional crucible, 321–4
Latin American courts, 275–87 extractive political economy, 313–24
methodological question, 208 FDI crisis, 323

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 376 Index

Mongolia (cont.) National Socialism, 9, 33, 58, 100, 109, 212

foreign investment, 318 National Unity Committee (NUC), Turkey, 329–30
foreign investment law (SEFIL, 2012), 320–1 nationalism, 50, 56, 171
GDP boom (2011), 320 Nationalist Movement Party (MHP, Turkey), 332, 334
geopolitical situation, 316–17 nation-building, 198
investment law (2013), 322 nation-state, 143, 160, 180, 219
macro-economic vulnerability, 320 natural law, 78, 121, 177
material constitution, 313–24 Nazi Germany, 10
material constitutional change, 316–21 constitution, 59
Mineral Resources Agency, 321 dual state, 100–5
mineral-exporting economy (history), 318–21 material constitutionalism, 110–11
minerals law (1997), 318–22 necessity politics, 195
minerals law (2006), 319–20 Negri, A., 30–1
minerals law (2014 amendments), 322 autonomist view, 42–4
mining boom and bust, 316–21 Nehru, Jawaharlal, 295–7
national budget law, 322 neoliberalism, 15, 74, 145, 164, 184–6, 220–1, 346
natural resource dependency, 320 Neumann, Franz, 33, 37, 138–9, 212–13
privatisation, 318 new constitutionalism, 15, 145, 221
resource nationalism, 321 New Deal, 12, 143
state policy on minerals (2014), 321–2 New Democracy (Νέα Δημοκρατία), 132
transition to market economy, 318 New International Economic Order, 144–5
USP (final frontier of greenfield mining), 318 1974 Declaration, 342
windfall profits tax, 319 New York Convention, 346
Mongolian Central Bank, 322 New Zealand, 271
Mongolian Constitution (1992), 316–19 Ngoc Son Bui, ix, 17
Mongolian Ministry of Finance, 322 Nicolaus of Cusa, 81
Mongolian Ministry of Mining, 322 nomic force, 223
Monte dei Paschi di Siena, 356 nomos, 55
Montesquieu, Baron de, 197 normative approach, 241
institutional approach to constitution, 251 normative legal discourse, 160
moral subjectivism, 256 normative material elements, 93
mortal sins, 150–1 normative state, 101
modernity, 152 normativism, 106, 197, 231, 269
revaluation, 150–1 material definition (rejection), 247–9
Mortati, C., 7–8, 35, 42, 51, 58, 133, 202, 212–14, 224, 227, Normenstaat (normative state), 212
247
conceptualisation of constitutional order, 313 Oakes, Guy, 50
constitution in material sense, 89–99, 124 objektive Wertordnung (objective value order), 81
constitutional thought, 46–7 officials, 237, 240
core intuition, 266 Olcay, Tarik, xi, 9
Costituzione in senso materiale (1940), 47, 124 open constitution (notion), 285
does not discard positivism tout court, 269 ordering forces, 1, 188–9, 193–4, 202, 218–19, 233–4, 239,
essential content (of constitution), 94 244, 325–6, 336, 350
form of state, 262 ordre public, 162
irreducibility of material constitution to formal one, 268 original constitution (Mortati), 262
material amendment procedures, 261–3 originalism, 114, 119–20, 134
material constitution concept ‘problematic’, 366 Orlando, Vittorio Emanuele, 90
meaning of ‘formal constitution’, 92
realist study of legal theory, 91 Pakistan, 340, 343
unifying function of constitution, 265 para-constitution (Greece), 128, 130–1, 135
mulattos, 178–9 Paris Commune, 26
Müller, Adam, 50 parliamentary road to socialism, 10, 72
Müller, Friedrich, 85 parliamentary sovereignty, 175, 177, 181, 183, 185, 247, 261,
multilateral investment law framework, 343 271
Murkens, Jo, 51–2 Parsons, T., 159
party conflict, 117
Nanopoulos, Eva, xi, 18 party system (UK), 71
Nasser, G.A., 296 Pashukanis, Evgeny, 205
National People’s Congress (PRC), 303, 306 passive revolution (Gramsci), 290
Standing Committee, 301, 306 pastoralism, 317–19

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 Index 377

peasant movements, 291 public policy, 336

personal integration (Smend), 78 purposive bias, 217–18
Peru
historical constitution (limit to constitutional Quine, W., 238
replacement), 279–82
total reform (of constitution), 279–82 race, 176
Peruvian Constitution (1823), 281 racial institutionalism, 57
Peruvian Constitution (1979), 279, 281 racial legalism, 59
Peruvian Constitution (1993), 279–82 racialisation, 173
Peruvian Constitutional Tribunal, 275–6, 279, 282, 285, racialised difference
287 constitutionalisation, 180–3
petite constitution (France, 1945), 253 racism, 58, 118
Pizzorusso, Alessandro, 266 Rancière, Jacques, 39
Plessy v. Ferguson (USA, 1896), 254 reactionary constitutionalism, 56
Poland, 356 reactionary modernists, 55
Polanyi, Karl, 8, 221 real constitution, 189, 212, 235
political constitution, 2, 4, 210 definition (Manitakis), 134
political constitutionalism, 201 historical–evolutionary perspective, 134
political economy, 29 reality of state, 91
extractive ~ (Mongolia), 313–24 Realwidersprüche
transnational structures, 314 real contradictions (of society), 162
political jurisprudence, 43 Rechtsgrundsätze (Heller, ‘founding juridical values’), 265
political legitimacy, 240–1 Rechtssätze (Heller, ‘established rules’), 265
political parties, 133 Rechtsstaat, 37, 49, 85, 138
political society, 87 Rechtsstaatlichkeit (rule of law), 87
political space, 344 reductionism, 29, 226
political unity, 34, 56 reform without violence, 68
forms, 20 regressio ad infinitum, 19
political will, 265, 273 regulatory competition, 362
politics, 256 Reich Economic Council (Weimar), 126
matter of constitutional law, 250–1 Reichstag fire, 101
Polybius, 3 Reichstag fire decree (28 February 1933), 102, 104
popular sovereignty, 125, 127 reified authority, 113
Portugal, 13 Renaissance, 150–1
constitution (1933), 267 Renner, Karl, 32, 126, 137
constitution (1976), 266–8 representative democracy, 65, 98, 235
constitutional reforms, 272 representative government, 256
ideological neutralization of Constitution, 267 Republican People’s Party (CHP, Turkey), 334
positivism, 12, 20, 26, 171, 235, 269 republicanism, 26
postcolonial constitution, 288–9 revisione minima (minor constitutional revisions), 266
post-Marxist legal theory, 152 revisione mirata (focused constitutional revisions), 266
Pottage, Alain, 201 revolutionary claim (Laski), 68
Poulantzas, N., 6, 125 Ridder, Helmut, 87
state theory, 131–5 right to strike, 141
pouvoir constituant, 53–5, 57, 61, 141, 262 Rio Tinto, 320, 322–3
pouvoir constitué, 56, 141 River Movements (Mongolia), 319, 322
power relations, 43, 118, 133 Robespierre, M., 179
prerogative state, 101 Romania, 356
Preuß, Ulrich, 54–5 Romano, Santi, 11, 91, 105, 224, 228–30, 232–3
private law, 221 Frammenti di un dizionario giuridico (Fragments of
private property, 16, 166, 358 Legal Dictionary, 2019), 230
proceduralist bias, 217 romantic anticapitalists, 55
professional representation, 127 Romeo, Graziella, xii, 13
profit, 175, 184, 204 RoR. See rule of recognition
progressive development, 221 Rosanvallon, Pierre, 40
property rights, 335 Rosenfeld, Michel, 54
proportional electoral laws, 99 Rousseau, J.J., 6, 52, 79
Prussia, 212 Rubinelli, Lucia, xii, 8
Public Interest Litigation (India), 299 rule of law, 17, 87, 95, 102–3, 106, 177, 181, 185, 204, 241,
public law theory, 100 298, 307, 336, 345, 347

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 378 Index

rule of recognition, 190, 275 Sciulli, David, 160

law and ~, 235–6 secularism, 326, 329, 332, 334
material constitution, 236–9 selbstgerechte Praxisspiele (self-justifying praxis games),
ruling class, 10, 41, 138, 141–2, 145 161, 163
ruling party, 124 selbstgerechtes Rechtsverfassungsrecht (self-justifying law of
Ruppel, N., 81 constitutional law), 152, 157
Russian Revolution (1905), 30 Selbstgerechtigkeit (self-justification), 163
Russian Revolution (1917), 30, 67, 74 Selbstverwaltung (self-management), 142
self-constitutionalisation, 141
salus populi, 193 self-government, 256–7
Salvatore, Andrea, 224 Seneca, 62
Samuel, Sir Herbert, 71 sensus communis, 45
Sánchez Agesta, Luis, 276 separation of powers, 3
Santa Elena v. Costa Rica, 339 settlement bias, 217
Sartre, J-P., 37 settler colonial project, 181
Sattorova, Mavluda, 347 sham constitutions, 325
Schengen agreement, 41 Shambaugh, David, 304
Scheuerman, William, 54, 61 Sicherungen (guarantees), 225
Schill, Stephen, 347 Sierra Porto, Humberto, 275–6, 283–5
Schlegel, Friedrich, 50 Sieyès, E. J., 52, 253, 277
Schmitt, Carl, 7, 9, 11, 42, 79, 101, 125, 134, 190, 197, 212–13, Singapore, 308
223, 227 Single European Act, 361
blood and soil, 59–60 Sklair, Leslie, 345
concrete order, 110 slave trade, 174
constitutional theory ‘remains touchstone’, 62 slavery, 117–18, 174, 177–80, 198
content severed from form, 248 small-c constitution, 302
critique of formal constitution, 283 Smend, Rudolf, 7, 13, 47, 125
decisionism versus normativism, 105 anti-positivism, 77–8
federations (political balance), 194 communitarian theory, 125
fundamental political decision (notion), 265 integration theory, 77–8, 130
individual constitutional laws (concept), 129 Staatsrechtslehrerreferat, 78
institutional theory, 224 Verfassung und Verfassungsrecht (Constitution and
jurisprudential thought (types), 101 Constitutional Law), 77
normative conception (of material conception), 277 social autonomy
political existentialist par excellence, 46 constitutional governance, 161
political modernity, 229 social change, 253–4
‘positive concept’ of constitution, 129 social compromise, 146, 149
sentimental manifesto, 60–2 social constitution, 114–16, 118, 152
status contract, 189 definition, 115
theory of concrete order, 20 social constitutional state, 137
theory of fundamental political decision, 261 social democracy, 41, 126, 140, 154, 212
two meanings (absolute and relative) of constitution, 95 social inequality
violent sentiments, 58–62 constitutional question, 9
Schmitt, Carl (works) social movements, 133
Concept of Political (2nd ed., 1926), 62 social relations, 121–3, 153, 208
‘Freiheitsrechte’ (Rights of Liberty, 1931), 225 capitalist export, 185
Legality and Legitimacy (1932), 51 imperial, 185
Political Romanticism, 50 social system, 160–1, 166
Political Theology (1922), 51, 105–6, 224–5 social theory, 153, 157–8
Political Theology (2nd ed., 1933), 226 social thesis, 235, 237
Römischer Katholizismus und politische Form, 60 social-fascism theory, 139
Staat, Bewegung, Volk (1933), 58–9 socialism, 68, 127, 138, 309
Statute and Judgment (1912), 105 socialist market economy, 308
Three Types of Juristic Thought (1934), 105–6, 226 Socialist Party (Portugal), 267
Verfassungslehre (1928), 9, 45, 225, 280 societal surplus values, 164–6
Schneiderman, David, 344, 347 constitutional problem, 166–7
Schönberger, Christoph, 194 society, 92, 250, 252, 314
Schütz, Anton, 151 definition (Laski), 69
science, 150, 154, 164, 166 society as society, 160, 162
scientific racism, 179, 186 sociological constitutionalism, 137, 148

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 Index 379

sociology of law, 10–11, 19, 47, 109, 227 synallagmatic contract, 159
soul of state, 45 syndicalism, 127
sound money systems theory, 15, 148, 159, 165
definition, 352 most advanced analyses, 157
source thesis, 235 redundancy (concept), 204
South Africa, 249
South Korea, 308 Taiwan, 304, 308
sovereign decider, 106, 224–5 tendency (Negri), 43
sovereign dictatorship, 103 Tethyan Copper v. Pakistan (2019), 340
sovereignty Teubner, Gunther, xii, 15
definition (Laski), 69 Thalheimer, August, 139
Soviet Union, 316, 342–3 Third Republic, 248–9
soviets, 30–1 Thoma, Richard, 77, 79
Spain, 10, 276, 353 Thornhill, Chris, 288
constitution (1812), 277 TINA narrative, 16
SPD, 14, 31–2, 37, 39 Tocqueville, Alexis de, 65, 181–2, 197
Spengler, Oswald Togliatti, P., 38
Decline of West, 52 Tokios Tokelés v. Ukraine, 348
Staatsrechtswissenschaft (science of constitutional law), 47 tolerance as legal principle, 87
Stahl, Friedrich Julius, 77–8 Tönnies, Ferdinand, 49
Stalin, J., 31, 33, 37, 296 trade unions, 139, 141, 143–4
state, 74–5, 98, 114, 125, 140, 142, 184, 346–7 Trade-Related Investment Measures (TRIMS) Agreement,
definition (Laski), 69 337
definition (Stahl), 77 Trades Disputes Act (UK, 1927), 66
international investment law, 345 transnational capitalist class (TCC), 345
purpose (Laski), 69 transnational legal order, 316
state of uncertainty, 194 definition, 316
state power, 138 Treaty Establishing European Economic Community
state sovereignty, 192, 196, 222 (TEC), 357
State Supervision Commission (PRC), 306 Treaty of Lisbon
status activus processualis, 80 entry into force (2010), 360
Steigerungszwänge, 151 Treaty on Functioning of EU (TFEU, 2007), 353–9, 362
Stinnes–Legien Agreement, 154 Tsets (Mongolia), 317
Streeck, Wolfgang, 347 Tully, J., 221
structures of feeling (Williams), 45 Turkey, 17, 62
substantive constitution, 215–16 authoritarianism, 334
substantive due process, 249 civil law tradition, 327
substantive reason constitutional and administrative law, 328
definition, 246 constitutional order, 327, 333–4
substratum, 202 constitutional principles (secularism and nationalism),
Sukarno, President, 296 327
Sun Zhigang, 311 coup attempt (2016), 327–8, 333–4
superbia, 150–1, 156, 167 coup d’état (1960), 327, 329–30
super-state, 192 coup d’état (1980), 327, 331
supranational decision-making (pre-emption), 361–4 Ergenekon and Balyoz trials, 328, 333
Supreme Court (Canada) formalist public law culture, 328
Senate Reference, 264 martial law (1971), 331
Supreme Court (Colombia), 282 material constitution, 334
Supreme Court (India), 279, 299 material constitutional enquiry (accounting for military,
Supreme Court (Mexico), 279 325–7
Supreme Court (Mongolia), 317 military involvement (effects), 333–4
Supreme Court (UK), 264 military involvement in constitution-making, 329–33
Supreme Court (USA), 254 place of military, 327–8
Supreme People’s Court (SPC, PRC), 306 Presidential election (2007), 328
Svolos, Alexandros, 125, 132 red book (‘secret constitution’), 333
sociological approach, 125–8 role of religion, 326
Sweden, 356 secularism, 334
Swiss Confederation (1814–48), 189 Turkish Constitution (1876), 329
Switzerland, 87 Turkish Constitution (1961), 326–8, 330–1
syllogism of liberty (Baranger), 249–52 Turkish Constitution (1982), 326, 330

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 380 Index

Turkish Constitution (1982) (cont.) wage labour, 27

authoritarian constitutional order, 331 Walker, Neil, xii, 14
democratic legitimacy (issue), 332 Wang, Shucheng, 303
origins, 331 Wang, Yuhua, 307
place of military, 327–8 Warren Court (USA), 120
Turkish Constitutional Court, 332 Watson, Jacob, 150
Turkish National Security Council (constitutional organ), Weber, Max, 165, 241
328, 330–1 Webster, Daniel, 196
Turkish National Security Council (organ of junta), 331–2 Wehler, Hans-Ulrich, 61
twelfth camel, 164 Weimar Constitution, 9, 51, 59, 101–4, 107–8, 135, 248
tyranny of values, 79 Weimar Germany, 8–10, 33, 46, 58, 96, 138, 265
anti-positivism, 77–8
undergirding, 29, 199, 202 Reichsverfassung, 51
United Kingdom, 18, 47, 65, 68, 70–1, 73, 145, 174, 178, weiquan movement (PRC), 309
184–5, 187, 271 Welfare Party (Turkey), 332
crisis (1931), 66–7 Welfare State, 12, 16, 136
United Nations, 143 Wertordnung (value order), 87
United Nations Commission on International Trade Law Western Marxism
(UNCITRAL), 338, 341 French exception, 39–42
United Nations Conference on Trade and Development Gramsci, 33–6
(UNCTAD), 144 Lassalle, 28–9
United Nations General Assembly, 144 Lenin, 30–1
United Nations General Assembly Resolution on Natural Luxemburg, 31–2
Resources (1962), 342 Marx, 25–8
United States, 3, 11, 37, 115, 123, 145, 184, 251, 347 Negri, 42–4
commerce clause, 194 postwar Europe, 36–9
constitution, 188, 194, 297 tradition of material constitution, 25–44
contestation of federal authority, 196 Wiethölter, Rudolf, 15
eighteenth amendment, 248 collisions of constitutions, 160–3
fifth amendment, 253, 255 critical systems theory, 155–6
fourteenth amendment, 112, 252–5 critical systems theory (reception and critique), 156
judicial precedents, 239 economic constitution, 153–5
power (global destabilising effects), 16 juridical functionalism, 158–9
supra-constitutional statutes, 264 juridical negativism, 153
universal suffrage, 36, 126 law of constitutional law, 157–60
universalism, 178, 185–6, 254 law of constitutional law (impartial partiality principle),
unwritten constitutions, 263, 303 159–60
Uribe, President Álvaro, 283 law of constitutional law (reciprocity principle), 159
law’s radical autonomy, 157–8
Vagdoutis, Nikolas, xii, 6–7 political theory of law, 152–3
value production, 205 real contradiction in law, 164
value system, 131 Rechtswissenschaft (1968), 153
Vedel, Georges, 247, 285 social theory conflicts, 155–6
Velasco-Rivera, Mariana, x, 10 societal surplus values, 164–6
Vereinigung deutscher Staatsrechtslehrer, 137 societal surplus values (constitutional problem), 166–7
Verfassungsdurchbrechung (Jacobi), 265 society as society, 160
Verfassungsgüter (constitutional goods), 80 systems crises, 151–2
Verfassungsvertrag (constitutional treaty), 189 transversality procedure, 155
Vergara, Camila, 32 work on material constitution (continuation), 163–7
Vinx, Lars, xii, 9 Wihl, Tim, xii, 13
Violi, F., 344 Wilkinson, Michael A., xii, 46, 48, 52, 171, 201–3, 207,
Voegelin, Eric, 62 217–21, 238, 240, 314, 335
Volk, 48–50, 63, 96 input legitimacy, 241
Völkisch materialism, 56–8 Williams, Raymond, 9, 47
Völkischer Beobachter, 58 Marxism and Literature, 45
Volksgemeinschaft, 59, 107, 109 Wittgenstein, L., 121
definition, 103 Philosophical Investigations, 199
Volksstaat (popular state), 126 Tractatus, 199
volonté générale, 79 Wollstonecraft, Mary, 57
voting rules, 242 workerist approach (Negri), 42

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 Index 381

working class, 8, 10, 31, 36, 43 Young Turk Revolution (1908), 329
World Bank, 318, 321, 343, 346, 349 Yukos, 340
written constitutions, 185, 188, 234, 236, 247, 249, 252, 262,
274 zamindari (landlordism), 290
normativity, 270 Zhai Xiaobo, 304
rigidity, 263 Zhang, Qianfan, 301

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