Constitutional Directives: Morally-Committed Political Constitutionalism

Modern Law Review, Forthcoming

26 Pages Posted: 3 Jan 2019 Last revised: 26 Mar 2019

See all articles by Tarunabh Khaitan

Tarunabh Khaitan

University of Melbourne - Law School; University of Oxford - Faculty of Law; NYU Law School; Berkeley Center on Comparative Equality Law

Date Written: December 14, 2018

Abstract

36-odd state constitutions around the world feature non-justiciable thick moral commitments (‘constitutional directives’). These directives typically oblige the state to redistribute income and wealth, guarantee social minimums, or forge a religious or secular identity for the state. They have largely been ignored in a constitutional scholarship defined by its obsession with judicial review and hostility to thick moral commitments in constitutions.

This article presents constitutional directives as obligatory telic norms, addressed primarily to the political state, which constitutionalise thick moral objectives. Their full realization—through increasingly sophisticated mechanisms to ensure their political enforcement—is deferred to a future date. They are weakly contrajudicative in that these duties are not directly enforced by courts. Functionally, they help shape the discourse over a state’s constitutional identity, and regulate its political and judicial organs. Properly understood, they are a key tool to realise a morally-committed conception of political constitutionalism.

Keywords: constitutional directives, directive principles, political constitutionalism, moral constitutionalism, constitutional identity

Suggested Citation

Khaitan, Tarunabh, Constitutional Directives: Morally-Committed Political Constitutionalism (December 14, 2018). Modern Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3301155

Tarunabh Khaitan (Contact Author)

University of Melbourne - Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

University of Oxford - Faculty of Law ( email )

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United Kingdom

NYU Law School ( email )

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New York, NY 10012-1099
United States

Berkeley Center on Comparative Equality Law

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Berkeley, CA 94720-7200
United States

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