Martin Loughlin

The project’s ambition is to build on the foundations study by developing a compelling account of the contemporary significance of constitutional thinking and practice. The objective is, in short, to provide an explanatory account of the way that constitutional thought has come to shape modern political reality. Its title, The Constitutional Imperative, is intended to highlight two critical aspects of this development.

(i) The necessity of constitutions.

The first aspect is the conviction that a constitution—by which is meant a formal document providing the basic framework by which political regimes are to be governed—is now felt to be something necessary and essential. Today, we see that the operation of this principle has come to mean that all states—and, more recently, all types of associations exercising significant governmental responsibilities—recognize that, for the purpose of maintaining their own authority, they are obliged to adopt a formal constitution. This first aspect of the constitutional imperative invites an examination of both the relationship between law and politics in the constitution of authority and, given the tendency of legal thought towards universalization, of the relation between the local and the universal.

(ii) The mandatory character of constitutions.

The second sense of the constitutional imperative draws more explicitly on the affinity between modern constitutions and legal discourse. Under the conditions of modernity, the old sense of a constitution as a set of practices of fluid and uncertain character which maintained the "silences" that were conducive to political negotiation has been replaced by a constitution that speaks in the imperative voice. Whether by specific design or through a process of iteration, constitutions come to acquire an authoritative status and are interpreted as commanding "thou shalt".

These two aspects of the constitutional imperative are closely related. But whereas the first is an imperative with respect to the relation between constitution and political authority, the second is an imperative intrinsic to the phenomenon itself. Constitutions are now acknowledged to be ‘prestige’ concepts that confer esteem. States are obliged to adopt constitutions not only to provide internal stability but also in order to bolster their standing in the world. This evolution is an expression of what might be called the two waves of modernity, from nation-modernity to world-modernity.