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Constitutional Directive Principles

Oxford Journal of Legal Studies (Forthcoming)

45 Pages Posted: 26 Jul 2017  

Lael K. Weis

Melbourne Law School

Date Written: April 4, 2017

Abstract

This article is the first step toward developing a general and systematic account of constitutional directive principles. Directive principles are an increasingly common way of constitutionally entrenching social values and provide an alternative to conventional rights provisions that has yet to be adequately understood. Directive principles place binding but typically non-justiciable obligations on the state to promote social values, and they are designed to be given effect by means other than direct judicial enforcement—predominantly, by legislation. This innovative design inserts an element of political constitutionalism within a constitution that otherwise subscribes to legal constitutionalism. Understanding directive principles thus presents important challenges for the standard legal constitutionalist picture of social values constitutionalism, which has long been associated with judicially enforceable rights provisions. This article both defines these challenges and presents a new theoretical framework for analysing directive principles. In doing so, it challenges the adequacy of the dominant judicial rights-enforcement paradigm that continues to frame the analysis of social values constitutionalism.

Keywords: directive principles, directive principles of social policy, directed legislation, constitutional law, constitutional theory

Suggested Citation

Weis, Lael K., Constitutional Directive Principles (April 4, 2017). Oxford Journal of Legal Studies (Forthcoming). Available at SSRN: https://ssrn.com/abstract=3000179

Lael K. Weis (Contact Author)

Melbourne Law School ( email )

University of Melbourne
Melbourne, Victoria 3010
Australia

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