The material constitution

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 constitu-tion. Distinguishing it from related approaches, in particular sociological consti-tutionalism, Marxist constitutionalism, and political jurisprudence, the paper outlines the basic elements of the material constitution, specifying its four ordering factors. These are political unity; a set of institutions; a network of social relations, and a set of fundamental political objectives. These factors provide the material substance and internal dynamic of the process of constitutional ordering. They are not external to the constitution but are a feature of juristic knowledge, standing in internal relation and tension with the formal constitution. Because these ordering factors are multi-ple, and in conflict with one another, there is no single determining factor of constitutional development. Neither is order as such guaranteed. The conflict that characterizes 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.