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.Footnote ⁴ As famously illustrated by John Griffith in his seminal article,Footnote 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.Footnote 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.

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.Footnote 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 interpretation 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.Footnote 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.Footnote 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.

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.Footnote 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 theoretically 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 parliamentary 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 underpinnings) 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 understanding 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.Footnote ¹¹ But the internal link between societal organisation and the constitutional order 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 organisation 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.Footnote 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.Footnote 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.Footnote ¹⁴

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 assumptions. 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 inequalities resulting from a liberal economy would undermine institutions of liberal democracy itself.Footnote 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 constitutional 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 identity and a cult of violence. Although novel in important respects, this new movement displays both continuities and discontinuities with the previous constitutional order.Footnote 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 widespread in Europe and beyond.Footnote 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 constitutional theorists and political commentators in the post-war era, not only in Germany, but in Europe and beyond, is undeniable.Footnote 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 radical change through utilising the economic parts of the Weimar constitution.Footnote 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 constitutional 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 exclusionary 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 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 intention. In their view the older doctrine of the ‘historical constitution’, representing the ‘fundamental 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 constitutional 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 constitution 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 constitutionalism. 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 emancipation 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’.

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 positivism of the period, which had been taken to its logical conclusion in Kelsen’s ‘pure theory of law’ and associated political relativism.Footnote 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.Footnote 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 reproduction of institutions through conflict and antagonism.

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.Footnote 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 moralistic 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-communism’.Footnote 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 constitutional 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.Footnote ²⁵ And in terms of constitutional 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, and the erosion of sovereignty, state theory itself largely disappeared into normative constitutionalism.Footnote 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 constitutional 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 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.Footnote 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’.Footnote ²⁸ There was no need, therefore, for any ‘explicit reference to the “e” word in the constitutional text’.

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, 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 disentangled 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 constitution 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.Footnote 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 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 domestic 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 constitutional 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 reconstruction 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 international investment law. In an insightful overview, Lawrence and Flynn recognise the constitutionalist 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 constitutional and ordinary law. As well as analysis this also gives the authors an entry point for articulating a strategy for transformation of transnational regimes.

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,Footnote 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 deliberative 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 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 orderFootnote ³⁵ 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 constitution 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.