On Constitutions and Constitutional Theory

Abstract

This chapter starts by exploring three varieties of constitutional theory: normative, conceptual and positive. It then offers an account of the basic concept of a constitution, noting how it differs from its various conceptions. This section also defends the analytical structure of this volume into values, modalities and institutions as part of the basic concept of a constitution. The third section turns to constitutional norms, both written and unwritten, and their role within even a codified constitution. Finally, we look at the variety of constitutionalisms as a product of the essential contestability of the values, modalities and institutions of any conception of the constitution, be that conception theorised normatively, conceptually or positively (or draw on elements of all three approaches). This diversity is exemplified by the contrasting views of the contributors to this volume.

Keywords: constitutional theory, constitution - concept and conceptions, conventions, norms and principles, constitutionalism, essential contestability