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I-CONnect Symposium on “Constitutional Boundaries” — Constitutional Theory and Boundary Problems: Some Reflections

[Editor’s Note: This is the first entry in our symposium on “Constitutional Boundaries.” The introduction to the symposium is available here.]


–Lael K Weis, Senior Lecturer, The University of Melbourne, Melbourne Law School

The invitation to participate in the Constitutional Boundaries Workshop provided me with an important opportunity to reflect on the development and trajectory of my early career as a constitutional theorist, and the ways that constitutional law’s ‘boundaries’ have figured in defining my research interests.  This blog post shares some of these reflections, and describes some of my current ‘boundary’ probing research.

‘Boundary problems’ are the bread and butter of constitutional theory.  Theoretical problems frequently emerge at the ‘boundaries’ that define constitutional law concepts.  Making progress on theoretical problems thus relies, to some extent, on the acceptance of established, problem-defining boundaries—in the same way that ‘normal science’ (in the Kuhnian sense) relies on a scientific community’s acceptance of a scientific paradigm.[1]  And yet, theoretical debates can stalemate around unhelpfully polarised positions if problem-defining boundaries are not subject to ongoing critical examination.

My research is mainly on topics related to ‘social values constitutionalism’, by which I mean the project of constitutionally entrenching certain values as ‘fundamental’.  Early on—and perhaps like many other theorists trained within the legal constitutionalist tradition—my research interests centred on problems posed by the antinomy between ‘democracy’ and ‘constitutionalism’ that arises in the context of the direct judicial enforcement of those values.  This set of theoretical problems lies more-or-less squarely within the boundaries of legal constitutionalism and its ‘standard picture’ of social values constitutionalism.  On the ‘standard picture’, the judiciary is the institution that is primarily, and in most cases ultimately, responsible for giving effect to fundamental social values.  This responsibility includes: defining fundamental social values and the legal norms that they require through practices of constitutional interpretation, and ensuring state compliance with those norms through judicial review and other enforcement mechanisms.  While perhaps not ultimately resolvable,[2] the set of problems thus defined can be dealt with using tools—in the main, techniques of judicial deference and self-restraint—that are consistent with the ‘standard picture’.

These days, however, I am less interested in these problems.  Instead, I am far more interested in examining the boundary between ‘constitutional’ legal norms and ‘ordinary’ legal norms in the context of techniques of constitutional design that complicate orthodox understandings of legal constitutionalism associated with the ‘standard picture’.  Boundary problems of this kind are not a straightforward ‘fit’ for the legal constitutionalist paradigm.  Indeed, they complicate the very boundary between legal and political constitutionalism upon which the problem-defining democracy/constitutionalism antinomy relies.

An example of this is recent work that I have done on constitutional directive principles.[3]  Directive principles are constitutional provisions that place binding but typically non-justiciable obligations on the state to promote social values, and that are designed to be given effect by means other than direct judicial enforcement—predominantly, by legislation.

Directive principles thus present an important conceptual challenge for conventional legal constitutionalist understandings of constitutional law and its relationship to legislation.  Because they are not directly enforceable by courts, they defy ‘standard picture’ expectations about how constitutionally entrenched social values generate new constitutional legal norms.  And yet, the literature to date has mainly approached directive principles by trying to make them ‘fit’ within the rights-enforcement paradigm.  A common view is that if the obligations entrenched by directive principles are not capable of direct judicial enforcement, then they must be merely ‘symbolic’ or ‘aspirational’.  Thus, to the extent that directive principles are a source of constitutional legal norms, it has been assumed that this is only so because courts find ways to enforce them, whether directly or indirectly, or else because they are functionally equivalent to judicially-enforceable rights provisions in other ways.

I argue that this is a mistake.  Existing approaches are overly focused on enforceability.  They overlook the fact that directive principles are designed to be given effect by the political branches, and by the enactment of legislation in particular.  As I describe in the article, by allocating institutional responsibility for defining fundamental social values and the legal norms that they require to the political branches, directive principles effectively insert an element of political constitutionalism within a constitution that otherwise subscribes to legal constitutionalism.  The challenge that directive principles pose to the ‘standard picture’ is therefore not one of fit, but a challenge to the very adequacy of the rights-enforcement paradigm.

The article proposes an alternative framework for understanding directive principles that tackles this challenge head-on.  I won’t attempt to describe that framework in this short blog post.  Suffice it to say that, in providing that framework, the article invites constitutional theorists to re-examine problem-defining boundaries in the area of social values constitutionalism and social rights.

In conclusion, the Constitutional Boundaries Workshop provided a helpful series of reflections upon what attracted me, as a constitutional theorist, to doing comparative work in the first place: namely, its theoretical potential to re-examine the very ‘boundaries’ that define our field’s central debates.  Comparative constitutional law held out—and, indeed, continues to hold—the possibility and promise of interrogating assumptions about constitutional law and constitutionalism that have defined those debates, and that have provided the set of analytical and conceptual resources used to approach problems within those debates.

Suggested Citation: Lael K Weis, I-CONnect Symposium on “Constitutional Boundaries” — Constitutional Theory and Boundary Problems: Some Reflections, Int’l J. Const. L. Blog, Apr. 23, 2018, at: http://www.iconnectblog.com/2018/04/i-connect-symposium-on-constitutional-boundaries-constitutional-theory-and-boundary-problems-some-reflections


[1] See Alexander Bird, ‘Thomas Kuhn’, The Stanford Encyclopedia of Philosophy (Fall 2013 Edition), Edward N. Zalta (ed.) <https://plato.stanford.edu/archives/fall2013/entries/thomas-kuhn/>.

[2] See Neil Walker, ‘The Antinomies of Constitutional Authority’ in M Del Mar and R Cotterrell (eds) Authority beyond the State (Edinburgh School of Law Research Paper No. 2015/11) <https://ssrn.com/abstract=2574659>.

[3] Lael K Weis, ‘Constitutional Directive Principles’ (2017) Oxford Journal of Legal Studies <https://doi.org/10.1093/ojls/gqx015>.

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Published on April 23, 2018
Author:          Filed under: Analysis
 

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