The Material Constitution

Published date01 July 2018
AuthorMichael A. Wilkinson,Marco Goldoni
Date01 July 2018
Volume 81 July 2018 No. 4
The Material Constitution
Marco Goldoni and Michael A. Wilkinson
What is the material context of constitutional order? The purpose of this paper is to offer an
answer to that question by sketching a theory of the material constitution. Moving beyond
the interwar constitutional theories of Heller and Mortati, the paper outlines the four ordering
forces of the material constitution: political unity; a set of institutions; social relations, and
fundamental political objectives. These forces constitute the substance and dynamic of constitu-
tional ordering, in internal relation with the formal constitution. Because these ordering forces
are multiple, and in tension with one another, there is no single determining factor of consti-
tutional development. Neither is order as such guaranteed. The conflict that characterises the
modern human condition might but need not be internalised by the process of constitutional
ordering. The theory of the material constitution offers an account of the basic elements of this
process as well as its internal dynamic.
Constitutionalism in Europe is suffering a certain fatigue. Due in part to North-
American influence, constitutional enquiry had become narrowly focused on
the protection of constitutional norms and the enforcement of individual rights
through the judicial process. The special role played by constitutional courts
and the German Constitutional Court in particular underlined an increasingly
‘juridical’ approach to constitutionalism.1If the constitution was what the
court said it was, the task of the constitutional lawyer was to provide normative
and hermeneutic guidance for judicial reasoning. This coincided with the
broader judicialisation of constitutional politics, aptly characterised by Ran
Hirschl as ‘juristocracy’, but fully embraced by legal constitutionalists as the best
institutional arrangement for holding the constitution together and protecting
individual rights from political abuse.2
Respectively, University of Glasgow School of Law and London School of Economics Department
of Law.
1 See, for example, C. M¨
ollers, ‘We are (afraid of) the people’ in M. Loughlin and N. Walker
(eds), The Paradoxof Constitutionalism: Constitutional Power and Constitutional For m (Oxford:OUP,
2007) 87.
2 R. Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism
(Cambridge, Mass: Harvard University Press, 2004).
C2018 The Author.The Moder n Law Review C2018 The Modern Law Review Limited. (2018) 81(4) MLR 567–597
Published by John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
The Material Constitution
The theoretical hegemony of this approach, appositely labelled ‘norma-
tivism’,3can be traced from the beginning of the post-war period through to a
triumphant pinnacle at the ‘end of history’ marked by the fall of the Berlin wall
and the collapse of the Soviet Union. But in the wake of 9/11 and the return
of states of emergency and states of exception, normativism begins to appear
vulnerable. With the inception of the Euro-crisis, the rule of law crisis and
more recently the migrant crisis in Europe, it starts to look untenable.4These
critical conjunctures show that the normative constitution in general and the
protection of rights through judicial means in particular are not self-sustaining.
Constitutional history reclaims front stage, if it had ever fully left the theatre.
The repercussions of course extend beyond constitutional theorising, as the
‘end of history narrative’ is discarded, disowned by its inventor, and non-liberal
political theory returns to the fore.
It is no surprise that by the beginning of the millennium a new wave of
‘political constitutionalism’ had entered the stage.5But, with some notable
exceptions, this stream of scholarship remained normative, reductive, formal-
istic, wedded to individualistic premises, and incapable of offer ing explanatory
conceptual accounts of constitutionalism or of constitutional development.6
It restricted itself to claims about the superior ity of parliaments over courts
at holding the executive to account and at determining rights disputes, po-
sitioning itself normatively against the legal constitutionalist’s faith in judicial
reasoning, but eschewing issues of constituent power and state theory.
In short, political constitutionalism was insufficiently material.7It 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 mater ial 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
3 See M. Loughlin, ‘The Concept of Constituent Power’ (2014) 13 European Journal of Political
Theory 218; M. Loughlin and S. Tschorne, ‘Public Law’ in The Routledge Handbook of Interpretive
Political Science (Abongdon: Routledge, 2016).
4 See, for example, J.White, ‘Authority after Emergency Rule’ (2015) 78 Moder n Law Review 585;
C. Gearty,‘The State of Freedom in Europe’ (2015) 21 European Law Journal 706. More generally,
see V. Ramraj, ‘No Doctrine More Pernicious? Emergencies and the Limits of Legality’ in V.
Ramraj (ed), Emergencies and the Limits of Legality (Cambridge: CUP, 2008) 3.
5 Key works are J. Waldron, Law and Disagreement (Oxford: OUP, 1999); A. Tomkins, Our
Republican Constitution (Oxford: Hart, 2005); R. Bellamy, Political Constitutionalism (Cambridge:
CUP, 2007).
6 cf K. Ewing, ‘The Resilience of the Political Constitution’ (2013) 14 German Law Journal 2111;
O. Beaud, ‘Reframing a debate amongst Americans: Contextualising a Moral Philosophy of
Law’ (2009) International Journal of Constitutional Law 53.
7 cf P. Minkinnen, ‘Political Constitutionalism vs. Political Constitutional Theory: Law, Power
and Politics’ (2015) 11 International Journal of Constitutional Law 585.
568 C2018 The Author. The Modern Law Review C2018 The Modern Law Review Limited.
(2018) 81(4) MLR 567–597

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