The chapter intends to contribute to studies on material constitutionalism by applying Costantino Mortati’s concept of material constitution to discuss theories of constitutional change. In particular, it focusses on ‘constitutional maintenance’ doctrines elaborated in continental Europe to explain cases of limited and/or substantively guided constitutional changes, generally eluding the formal amending procedures. It argues that while constitutional maintenance doctrines catch one of the functions of the theory of the material constitution, namely, to guide constitutional changes, they fall into a logical contradiction by: (a) observing constitutional changes on the basis of mismatches between constitutional practice and the master-text constitution; and (b) supporting the need to minimise those mismatches. The argument is preceded by an analysis of doctrinal debates on constitutional change in selected jurisdictions. It is then developed by unpacking the material constitution theory in two logical steps. In particular, it will focus on the problem of the identification of the constitution and on the related need to reduce the substantive distance between the formal and the material constitution. Eventually, the chapter offers conclusions on how material constitutionalism can contribute to studies on constitutional change.

Costantino Mortati theorised the material constitution as the ‘grey area between law and politics’. This space is the source of all normativity and is comprised of two fundamental features: the essential content and the normative material elements. Both arise from and reflect the material relations present in society. Further, the formal aspect of the constitution, the text of the law, is a by-product of any given configuration of such material relations. The implication of Mortati’s focus on the ‘constitution in the material sense’ is his extensive theorisation and active promotion of means of popular participation suitable to uphold the material constitution and keep its relationship to the formal aspects of law active and dynamic.

During the 1920s, Harold Laski worked on producing a comprehensive account of a political philosophy appropriate for the new age of social democracy that was just emerging. During the 1930s, however, his optimistic political outlook waned and with this he modified his position and, in its place, presented a materialist account of British constitutional arrangements. This paper explains this later development of his thought. It examines the unfolding of his argument through his studies of the crisis of parliamentary democracy, the nature of the modern state and his materialist analysis of the British constitution and offers critical reflections of the significance of this phase of his work.

Constitutional law features prominently in the political culture of the United States, but there exists no sustained and robust tradition of theorising the material constitution of the polity. Most contemporary constitutional theorists remain committed to what Du Bois referred to as ‘constitutional metaphysics’ in his Black Reconstruction. Instead of attending to historically specific and determinate social relations, such theorists emphasise putative ‘original public meanings’ or an accretive ‘living constitution’. Alternative possibilities for constitutional theory may be identified by reappraising the insights and limitations of older analyses of American constitutionalism by Beard, Llewellyn and Hartz. These possibilities are not premised on the fetishisation of constitutional meaning, on fidelity to the framers’ white supremacist and antidemocratic project or on a commitment to the notion that the constitution is perpetually perfectible.

The contribution provides a reconstruction of Wolfgang Abendroth’s approach to the constitution as ‘social compromise’. It clarifies the historical background and asks for its potential with regard to current challenges of constitutionalisation. In the initial part, it is 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. Then, it is argued that this approach can make sense of the subsequent evolution of constitutionalism and international law after the second-world war. It is argued, however, that 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, the contribution 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 (plebian constitutionalism).

Looking for orientation, it is worthwhile to reconstruct the intellectual trajectory of Rudolf Wiethölter, a radical legal scholar from the Frankfurt school of critical theory. Wiethölter reacts to the disaster of both current liberal and Marxist legal theories. He has the courage to lay out the blueprint for a constitutional utopia. Two distinct phases are discernible. In the first phase, he develops the program of a material constitution – the economic constitution as the constitution of society. In the second phase, after his long march through the three most advanced social theories of modernity, he develops a ’critical systems theory of law’, which, however, he sharply positions against Niklas Luhmann’s functionalist systems theory. Selbstgerechtes Rechtsverfassungsrecht (self-justifying law of constitutional law) – in this condensed formula Wiethölter enigmatises his vision of a future material constitution. No less enigmatic are its two main elements of a novel ’reciprocity’ and an ’impartial partiality’. How can these enigmatic concepts be deciphered? And what prospects do they open up to an ambitious constitutional program?

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. Foreground the material context of ‘modern’ liberal constitutionalism and constitutions, this chapter argues instead these were born out of the blood and violence of empire and that they continue to be implicated in the reproduction of imperialism or, to be more precise, of capitalist imperialism defined as a global, Western-led, gendered and racialised system of domination and exploitation inherent to capitalism. To illustrate some of the connections between constitutionalism, constitutional law and capitalist imperialism, the chapter draws on select examples from British and French imperialism and pays particular attention to the ways in which racialisation structured their relationship at different stages of (imperial) capitalist development.

This chapter 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 between the material constitution and the formal constitution.

When an owner of capital invests in their ‘home’ state, this investment is governed by national law. But when an investor exports their capital, a whole extra body of law supplements, and sometimes supplants, these domestic arrangements. This is international investment law (IIL): the vast body of investment agreements; arbitral decisions; and other forms of hard and soft law that protect the rights of foreign investors in ‘host’ states. Flynn and Lawrence critique IIL from a material constitutionalist perspective, revealing an order bound up with the history of imperialist expansion; the inscription of the rights of the investor class as general and international; and a desire to protect capital and markets from state interference. IIL is currently undergoing a ‘constitutional crisis’, but though reforms may improve certain serious flaws, material constitutionalist analysis reveals inherent features that cannot be reformed without fundamental reconfiguration of the material relations between international capital and state constitutional orders.

This chapter deals with the relationship between the rule of recognition of a legal system and the material constitution. While the former concerns the ultimate criteria to identify the law, the material constitution points to those of such criteria (rules) that are supreme within a legal order. We contend that the material constitutions can be conceptualised as the ’original constitution’. Instead, we propose understanding it as a facet of the rule of recognition. Thus intended, this notion can help illuminate the complex interplay between written and unwritten constitutional rules. Moreover, after casting doubts on the idea of the material constitution as a descriptive device to detect the ordering forces within society, we sketch the contours of a material constitution based on a normative political conception of the rule of recognition. 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. In virtue of such a strong linkage, the material constitution, as a legal notion, enjoys a specific normative legitimacy within a legal order. In pluralistic contemporary societies, such legitimacy hinges fundamentally on democratic/procedural principles rather than substantive goals.

The paper probes the relationship between the institutional and the material dimensions of the ‘material constitution’.The analysis centres on two readings of that relationship that are offered first by structuralist and then by Hegelian strands of Marxist theory; thereafter it transfers Luhmann’s discussion of ‘semantics and structures’ to constitutional semantics and the ‘underlying’ material structures in order to offer an account of how the improbable dynamic between materiality and constitutionality might be rendered. The ‘materialist turn’ thereby re-orients constitutional thought to the material practices of the political economy and constitutional formation attaches to changing dynamics in the material relations of production and social reproduction.

This introduction is focused on two main points. First, it provides an explanation of the continued relevance of the notion of the material constitution in constitutional studies and beyond. It does so by showing the added epistemic value of the notion compared to other conceptions: the political constitutions, the living constitution, the mixed constitution. Second, it gives an overview of the contents of the Handbook by explaining its organisation and its thematic unities.

The concept of material constitution is helpful to understand how particular constitutional orders are created and operate, inviting observers to look beyond the formal constitution, showing the shortcomings of the exclusive focus on the formal constitution and offering tools to enquire into the underpinning materiality. While the material study of a particular constitution requires a detailed thorough research of the forces that condition a material constitutional order, we can show the usefulness of the enquiry through selected aspects of a constitutional order. This chapter aims to do that by explaining the military’s role in constitution-making in Turkey. While the military is a defining constitutional actor in Turkey, recognition of this in the formal constitution is very limited. 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. Through an overview of its role in the making and re-making of the 1961 and 1982 Constitutions, the military is introduced as an ordering force in the Turkish Constitution, explaining the military’s constituent and ongoing authority over the constitutional order and its role in guaranteeing the fundamental political objectives of that order.

This chapter reconstructs the content of the three principles that play a key role in the constitution and the disciplining of public power in the European Union: ’sound money’, economic freedoms(s) and ’free’ competition. Such a trio is the fundamental parameter of the validity of all national norms, at the same time that the division of labour between supranational decision-making processes favours their reflection in European legislation, while constituting a major obstacle to efforts at approving regulations and directives promoting alternative socio-economic visions. The fundamental norms of the European Union also include norms and practices that shift decision-making powers from the supranational legislature to (some) private actors, (some) technocrats and (some) national governments. The result is the affirmation of private property as the sovereign value of European law, which requires that supranational public power becomes a powerful external constraint that once and at the same time constitutes, disciplines and fragments (national) public power.

Mongolia’s recent transition to a mineral exporting economy has much to tell us about the relationship between economic change and constitutional transformation. It reveals how the legal construction of markets invite a bevy of transnational economic and legal ‘actors, norms and processes’ which interact with the national constitution. Natural resource extraction, in particular, is charged with the potential to catalyse material constitutional change within the state, by virtue of its profound socio-environmental impacts, the generation of new conflicts over resource control within the state and the exposure of national institutions to transnational investment norms within the context of volatile global commodity markets.

The constitution in the material sense is not particularly popular among lawyers. As its conceptual predecessor (the doctrine of the historical constitution), the constitution in the material sense points toward a series of non-specified norms relating to the basic structure of government and to the relationship between citizens and the state. As such, it lacks the certainty often associated with legal rules. In this chapter, we will focus on two judgements of Latin American constitutional courts where, by relying on a specific conception of the material constitution, judges sought both to define the competence of the amending authority and to challenge the judicial imposition of implicit limits to the power of constitutional reform.