Constitutional Directives: Morally‐Committed Political Constitutionalism
| Author | Tarunabh Khaitan |
| DOI | http://doi.org/10.1111/1468-2230.12423 |
| Published date | 01 July 2019 |
| Date | 01 July 2019 |
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Modern Law Review
DOI: 10.1111/1468-2230.12423
THE
MODERN LAW REVIEW
Volume 82 July 2019 No. 4
Constitutional Directives: Morally-Committed Political
Constitutionalism
Tarunabh Khaitan∗
About 37 state constitutions around the world feature non-justiciablethick moral commitments
(‘constitutional directives’). These directives typically oblige the state to redistribute income
and wealth, guarantee social minimums, or forge a religious or secular identity for the state.
They have largely been ignored in a constitutional scholarship defined by its obsession with
the legitimacy of judicial review and hostility to constitutionalising thick moral commitments
other than basic rights. This article presents constitutional directives as obligatory telic norms,
addressed primarily to the political state, which constitutionalise thick moral objectives. Their
full realisation—through increasinglysophisticated mechanisms designed to ensure their political
enforcement—is deferred to a future date. They are weaklycontrajudicative in that these duties
are not directly enforced by courts. Functionally, they help shape the discourse over a state’s
constitutional identity, and regulate its political and judicial organs. Properly understood, they
are a key tool to realise a morally-committed conception of political constitutionalism.
INTRODUCTION
Directives in constitutional practice
Liberal constitutional discourse has been dominated by a proceduralist, acontex-
tual, universalising worldview. This Rawlsian vision of constitutionalism casti-
gates thick, substantive, moral commitments (other than fundamental rights) in
constitutions as illiberal and unwise, at best to be tolerated as minor deviations
only when absolutely unavoidable. In practice, however, the ideal of procedu-
ralist constitutionalism is approximated only by a handful of liberal democratic
states, arguably the United States and Australia. Many other (sufficiently or
aspirationally) liberal-democratic states include thick moral commitments in
their constitutions.
∗Associate Professor at Universities of Oxford and Melbourne. I am grateful to Mihika Poddar,Tejas
Rao and Ayushi Singhal for excellent research support and to multiple colleagues who helpfully
commented on previous drafts. Thanks also to Dilara Ozer and Nabila Lucente for help with
references. Mistakes remain my own.
C2019 The Author.The Moder n Law Review C2019 The Modern Law Review Limited. (2019) 82(4) MLR 603–632
Published by JohnWiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 101 Station Landing, Medford, MA 02155, USA
Morally-Committed Political Constitutionalism
Jeff King has characterised such thick moral commitments as constitutional
‘mission statements’.1An important, but much-ignored, form of these thick
commitments is a set of provisions I will call ‘constitutional directives’ or simply
‘directives’. Constitutional texts variously describe them as ‘directive principles
of social policy’, ‘directive principles of state policy’, ‘goals and principles of
state action’, ‘principles governing economic and social policy’, ‘fundamental
objectives’, ‘fundamental obligations of government’, ‘pr inciples of state pol-
icy’, ‘state tasks’,2‘fundamental tasks’ and so on. On a conservative count,
about 37 state constitutions around the world—starting with that of Ireland
in 1937—feature such constitutional directives.3While the Irish provisions are
treated as pioneering, it has been suggested that they were themselves inspired
by proto-directives in Republican Spanish4and Weimar constitutions.5
All 37 of these constitutions contain at least some directivesthat seek to secure
access to a social minimum (in relation to healthcare, education, nutrition or
such like). About 15 of these constitutions also contain an egalitarian directive
requiring redistribution of income and wealth. Environment protection also
features prominently.6So do provisions relating to national unity and identity,
especially in relation to language, religion and culture. Many directives concern
themselves with economic organisation of the state, usually favour ing a ‘bal-
anced’ system between state socialism and unfettered market capitalism. Thus,
contrary to the belief that directives are simply non-justiciable social rights, in
1 J. King, ‘Constitutions as Mission Statements’ in D. J. Galligan and M. Versteeg (eds), Com-
parative Constitutional Law and Policy:Social and Political Foundations of Constitutions (Cambridge:
Cambridge University Press, 2013) 73–102.
2 On ‘state tasks’, see generally K. Sommermann, Staatsziele und Staatszielbestimmungen (Germany:
Mohr Siebeck, 1997).
3 These include the constitutions of: Ireland (1937), India (1950), Qatar (provisional constitution,
1970), Bangladesh (1972), Panama (1972), Pakistan (1973), PapuaNew Guinea (1975), Portugal
(1976), Spain (1978), Sri Lanka (1978), Nigeria (1979), Tanzania (added in 1984 by amendment
to the 1977 Constitution), Zanzibar (1984), Nepal (1990), Namibia (1990), Sierra Leone (1991),
Zambia (1991), Tibet (constitution of the government in exile, 1991), Ghana (1992), Andorra
(1993), Lesotho (1993), Uganda (1995), Ethiopia (1995), Gambia (1996), Eritrea (1997), Thai-
land (1997), Sudan (1998), Nigeria (1999), Somaliland (2001), Swaziland (2005), Thailand
(2007), Nepal (interim constitution, 2007), Bhutan (2008), Angola (2010), South Sudan (2011),
Nepal (2015), and Thailand (2017). This count does not include constitutions of federal units
(such as Jammu and Kashmir, Lower Austria, Basel City and Western Cape). Also excluded
are ‘positive rights’ provisions in communistconstitutions—such a sthe r ight to work under the
Constitution of the Union of Soviet Socialist Republics 1977, Art 40—which werealso typically
non-justiciable. The list also excludes provisions such as the Canadian Constitution Act 1982,
s 36, which are probably best understood as directives, even though they do not characterise
themselves as such.
4 I. Jennings, The Approach to Self-Government (Cambr idge: Cambridge University Press, 1956)
19. See Constitution of the Spanish Republic 1931, Arts 42–50.
5 R. Walsh,‘Pr ivateProperty Rights in the Drafting of the Ir ish Constitution: A Communitarian
Compromise’ (2011) 33 DublinULJ 86, 95. Weimar Constitution, Art 151: ‘The economy has
to be organized based on the principles of justice, with the goal of achieving life in dignity for
everyone. Withinthese limits the economic liber ty of the individual is to be secured.’On social
provisions in post-World War I European constitutions generally, see A. Headlam-Morley, The
New Democratic Constitutions of Europe (Oxford: OUP, 1928) 264f.
6 On environmental ‘directive pr inciples’ generally, see D. Boyd, The Environmental Rights Rev-
olution: A Global Study of Constitutions, Human Rights, and the Environment (Vancouver, BC:
University of British Columbia Press, 2012) 45–77; L. Weis,‘Environmental Constitutionalism:
Aspiration or Transformation?’ (2018) 16 ICON 836.
604 C2019 The Author. The Modern Law Review C2019 The Modern Law Review Limited.
(2019) 82(4) MLR 603–632
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