The Material Constitution

Abstract

Abstract 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 constitutional 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 constitutional 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.

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