Professional Documents
Culture Documents
130
doi:10.1093/ojls/gqx015
AbstractThis 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. They 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
enforcementpredominantly, by legislation. This innovative design inserts an element
of political constitutionalism within legal constitutionalism. Understanding directive
principles thus presents important challenges for the standard legal constitutionalist
picture of social values constitutionalism, 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.
The State shall . . . provide free legal aid, by suitable legislation or schemes or in any
other way, to ensure that opportunities for securing justice are not denied to any citizen
by reason of economic or other disabilities. Constitution of India 1949 art 39A.
The State . . . shall seek, through appropriate legislation, to provide maternity and
related benefits for women. Constitution of Namibia 1990 art 95(a).
The Confederation shall legislate on the protection of the population and its natural
environment against damage or nuisance. It shall ensure that such damage or
nuisance is avoided. Constitution of Switzerland 1999 art 74 s (1), s (2).
1. Introduction
This article examines an important but largely overlooked development in
constitutional law: the constitutional entrenchment of provisions that place
2 See eg F Ahmed and A Perry, Constitutional Statutes (2017) 37 OJLS 461. V MacDonnell, A Theory of
Quasi-Constitutional Legislation (2016) 53 Osgoode Hall LJ 508.
4 Oxford Journal of Legal Studies
hierarchy of constitutional law over legislation that are orthodoxy for legal
constitutionalism.
The article proceeds as follows. In section 2, I describe what is meant by
directive principles in more detail and provide background about their
emergence as a method of entrenching social values. In section 3, I explain the
challenge that directive principles present for the standard picture of social
values constitutionalism. Section 4 provides a brief survey of scholarship to
date that has addressed that challenge. I argue that none of the existing
approaches are satisfying because they have been framed in terms of the
standard picture. In section 5, I present an alternative theoretical framework, as
sketched above.
In developing this alternative, this article not only helps us understand
constitutional directive principles, but also provides a needed critical perspec-
tive. Constitutional law increasingly concerns topics that were once thought to
be the province of ordinary legislation. Moreover, constitutional provisions are
increasingly drafted in ways that not only expressly contemplate legislation as
the primary means for defining and giving effect to social values but require it.
These trends suggest that the standard picture is outdated. Understanding
constitutional directive principles helps us interrogate the adequacy of the
dominant judicial rights-enforcement paradigm in a new era of social values
constitutionalism.
8 See eg KM Hayne, Government Contracts and Public Law (2017) 41 MULR (forthcoming); C Saunders,
Separation of Legislative and Executive Power in The Oxford Handbook of Australian Constitutional Law
(forthcoming); C Saunders, Australian Democracy and Executive Law-Making: Practice and Principle (Part II)
(October 2016) 66 Papers on Parliament.
9 see HTF Developers (Pty) Ltd v Minister of Environmental Affairs and Tourism 2006 (5) SA 512 (T), [17]; M
Kidd, Environmental Law (2nd edn, Juta 2011) 22, 23; M Kidd, Environmental JusticeA South African
Perspective (1999) Acta Jur 142, 154. Section 24(b) provides that: Everyone has the right . . . to have the
environment protected . . . through reasonable legislative and other measures that , followed by a list of specific
policy directives.
10 Section 24(a) provides that: Everyone has the right . . . to an environment that is not harmful to their
health or well-being.
Constitutional Directive Principles 7
conferral of a substantive right, or not containing a reference to a right-bearer;
and not being listed within the same section as directly enforceable rights
provisions. Constitutional practice, used as a set of background considerations
for examining structural features, may be relevant as well. For example, the
existence of well-established doctrines of justiciability may help inform the
determination of whether a provision is contrajudicative. However, it bears
emphasis that it is the structural features of a provisionand not its practical
operationthat determine whether it is a directive principle.11
The contrajudicative character of directive principles distinguishes them from
rights provisions, at least on the conventional understanding associated with
the standard picture.12 Rights are generally both justiciable, at least to some
degree, and capable of direct judicial enforcement.13 It is, of course, not
uncommon to enact legislation to give effect to a constitutional rightwhether
in order to complement, supplement or even supplant direct judicial enforce-
ment. Critically, however, the scope and content of the fundamental social
values protected by the right, and the legal norms that are required to give
effect those values, are matters primarily and ultimately determined by the
judiciary.14
In the case of directive principles, by contrast, these are matters determined
by the political branches. Where enacted, directed legislation defines the scope
and content of fundamental social values, specifies the legal norms that they
require, and provides the manner and method of enforcing those norms.15 In
allocating institutional responsibility for fundamental social values to the
political branches and insulating that responsibility from judicial review,
11 I leave open the possibility that rights provisions can be functionally equivalent to directive principles in
their practical operation: see n 13. However, they remain rights provisions in the same way that directive
principles do not become rights provisions in virtue of being directly enforced by courts.
12 As signalled in the introduction, this articles analysis of directive principles promises to complicate the
conventional understanding by drawing attention to unconventional features of newer social rights provisions.
I return to this point in section 5.A and in the conclusion. Unless otherwise indicated, where I refer to rights in
the analysis that follows I mean to refer to this conventional understanding.
13 There is, of course, great variation in the remedies available for rights-infringement. In some cases, this
may mean that a right operates in a way that is functionally equivalent to a directive principle: for example, a case
where the remedy is a declaration that the state has an obligation to enact a law to promote a particular set of
values, but where the court leaves the scope and content of that obligation relatively open-ended and declines to
enforce the obligation. This possibility supports the broader agenda of this article, which is to call for a new
approach to social values constitutionalism: an approach that both complicates conventional understandings of
social rights and recognises the potential role of legislation, and constitutionally obligatory legislation in particular,
in the creation of constitutional legal norms.
14 See n 1.
15 The recent Nigerian case Legal Defence & Assistance Project v Federal Ministry of Education, Federal High
Court Abuja Division no 978/15 (1 March 2017), provides a good illustration. The case concerned the
Compulsory Free Universal Basic Education Act 2004, enacted to give effect to the states obligation to when
practicable provide . . . free, compulsory and universal primary education, pursuant to a directive principle:
Constitution of Nigeria, s 18(c)(a). The court held that the Act, qua directed legislation, created an enforceable
rightnot a free-standing constitutional right with judicially determined content, but a right with legislatively
defined content. Thus, the breach of the states obligation was determined in relation to details set out in the Act,
which inter alia specified levels of funding to be allocated for the provision of free, compulsory and universal
primary education. The court appeared to assume that the right thus created has constitutional status but did
not elaborate.
8 Oxford Journal of Legal Studies
directive principles insert an element of political constitutionalism within the
domain of legal constitutionalism.
25 G Bhatia, Directive Principles of State Policy in S Choudhry, M Khosla and PB Mehta (eds), The Oxford
Handbook of the Indian Constitution (OUP 2016) 644, 648; J Narain, Judicial Law Making and the Place of
Directive Principles in Indian Constitution (1985) 27 JILI 198, 199; PK Tripathi, Directive Principles of State
Policy: The Lawyers Approach to Them Hitherto, Parochial, Injurious and Unconstitutional (1954) 17 SCJ 7,
1011.
26 See NW Barber, Laws and Constitutional Conventions (2009) 125 LQR 294, 30001.
Constitutional Directive Principles 11
threaten to invert the foundational hierarchy of constitutional law over ordinary
legislation: a bedrock principle of legal constitutionalism.
I will refer to this understanding of the challenge as the norm-hierarchy
problem. My contention is that the norm-hierarchy problem is the correct
framing. The challenge is not simply one of fit. Directive principles present an
important conceptual challenge for conventional legal constitutionalist under-
standings of constitutional law and its relationship to legislation because they
defy usual expectations about how constitutionally entrenched social values
generate new constitutional legal norms. This challenges the very adequacy of
the judicial rights-enforcement paradigm. To date, however, the analysis of
directive principles has been framed in terms of the enforceability problem.
The norm-hierarchy problem has not been identified or appreciated.
4. Existing Approaches
In this section I survey existing approaches. My starting point is the approach
that most explicitly views directive principles through the lens of the standard
picture. The core contention of this approach, the enforceability approach, is that
the status of directive principles as a source of constitutional legal norms turns
on whether courts can enforce them. This contention has been rejected by
other approaches. However, they too are framed in terms of the enforceability
problem. The entrenchment approach aims to show that judicial enforcement is
irrelevant to the creation of constitutional legal norms, whereas the interpret-
ation approach aims to show that it is unnecessary, as courts can achieve this
indirectly.
I argue that all three approaches fall short in ways that demonstrate the
inadequacy of the standard picture. The standard picture leads to framing the
analysis of directive principles in terms of the enforceability problem, which
fails to capture the contrajudicative character of directive principles. As a
result, each approach failsin different waysto capture the sense in which
directive principles provide an alternative to rights provisions.
31 J Usman, Non-Justiciable Directive Principles: A Constitutional Design Defect (2007) 15 Michigan State
Journal of International Law 643, 663.
32 For example, the right to free education for children under 14 years (art 21A) was previously only a
directive principle (art 45). See MP Singh, The Statics and the Dynamics of the Fundamental Rights and the
Directives Principles: A Human Rights Perspective (2003) 5 SCC 1 < www.ebc-india.com/lawyer/articles/
2003v5a4.htm>.
33 Unnikrishnan v State of Andhra Pradesh (1993) 1 SCC 645. As noted above (n 32), the Indian Constitution
has subsequently been amended to expressly include free education for children under 14 years as a free-standing
right.
34 See U Baxi, The Avatars of Indian Judicial Activism in SK Verma and Kusum (eds) Fifty Years of the
Supreme Court of India (OUP 2007) 158; M Khosla, Making Social Rights Conditional: Lessons from India
(2010) 8 ICON 739, 7601; Singh (n 32). As discussed below (section 4.C), the accuracy of this characterisation
has been questioned in recent scholarship.
35 See eg AP Atupare, Reconciling Socioeconomic Rights and Directive Principles with a Fundamental Law
of Reason in Ghana and Nigeria (2014) 27 Harv Hum Rts J 71; EE Okon, The Environmental Perspective in
the 1999 Nigerian Constitution (2003) 5 Env L Rev 256; Singh (n 32). It should be noted that Singh only
endorses enforcement as a second-best solution to the problem of courts failing to give due weight to the states
obligations under directive principles when reviewing directed legislation.
36 Singh (n 32) (arguing that such changes are infringe the basic structure doctrine).
37 Baxi (n 34).
38 Tarunabh Khaitan defends a version of this view as an account of at least some of the directive principles
in the Indian Constitution: T Khaitan, Directive Principles and the Expressive Accommodation of Ideological
Dissenters ICON (forthcoming) <http://dx.doi.org/10.2139/ssrn.2888987>.
14 Oxford Journal of Legal Studies
principles thus initially represents a set of aspirations. Over time, however,
those aspirations become a source of constitutional legal norms when the
conditions for their direct enforcement emerge.
This appears to offer the most attractive version of the enforceability
approach. It refines the suggestion that directive principles can be transformed
from unenforceable aspirations into directly enforceable rights, and thereby
provide a source of constitutional legal norms. The trouble with this solution,
however, is that it continues to assume that directive principles must fit within
the dichotomy described above. But it is not obvious why that dichotomy
should be accepted. Even if direct judicial enforcement represents the paradigm
case of how entrenched social values generate constitutional legal norms, why
think that it is the only case?
The enforceability approach is dissatisfying in its uncritical acceptance of the
standard picture. It does not assist us in evaluating whether directive principles
occupy a distinctive place in contemporary social values constitutionalism.
Constitutional theory should respond to innovations in constitutional design by
re-evaluating existing conceptual categories rather than assuming that they
must be assimilatedeven where doing so challenges dominant understandings
of constitutional law and constitutionalism. Just as constitutional theory has
responded to recent developments in statutory bills of rights by re-evaluating
existing models of constitutional rights review,39 constitutional theory should
respond to directive principles by re-evaluating the standard picture.
43 Harel (n 40) 177, 180, 188. Singh (n 32) makes a similar suggestion.
44 The affirmation of the states constitutional obligations is tied, in turn, to the instantiation of a republican
conception of freedom: Harel (n 40) 188. For present purposes, that aspect of the account need not be
considered.
45 Harel (n 40) 1545, 1778, 1801. As discussed below in section 5.A, this assumption is implausible. This
is another reason for rejecting the enforceability approach.
16 Oxford Journal of Legal Studies
C. The Interpretation Approach
A third and more promising approach has emerged from Indian scholarship
that tries to make sense of the Supreme Court of Indias current approach to
directive principles, which requires harmonious construction with fundamen-
tal rights.46 As with the Courts earlier approach (discussed in section 4.A,
above), harmonious construction requires that directed legislation conform to
rights. But unlike that earlier approach, harmonious construction also holds
that rights should, so far as possible, be interpreted in a way that is consistent
with directive principles.47 In theory, then, this approach gives the state greater
scope to legislate to give effect to directive principles. However, the Court has
not provided guidance about what harmonious construction entails, and has
been inconsistent in its application of the principle.48 Moreover, as discussed
above, in some cases the Court appears to have transformed directive
principles into judicially enforceable rights by importing their subject matter
into rights provisions. Such cases suggest that harmonious construction is a
version of the enforceability approach.
In recent scholarship, Gautam Bhatia complicates this view. While conceding
that the Court has imported the subject matter of directive principles into
rights provisions,49 Bhatia suggests that this occurs in ways that are more
varied than usually appreciated. He offers a more nuanced account that focuses
on the role of directive principles in constitutional interpretation. Properly
understood, he argues, the Courts interpretive practice strikes a middle ground
between the two dichotomous positions implicit in the enforceability approach:
it falls short of direct judicial enforcement, yet simultaneously demonstrates
that directive principles are more than a source of constitutional aspirations.
Bhatias central claim is that directive principles are framework values that
guide the judicial interpretation of rights provisions:50 rights set out abstract
concepts, the concrete conception of which is filled out by directive
principles.51 This claim is based on a view about the structural relationship
46 Re The Kerala Education Bill 1958 SC 956.
47 see Bhatia (n 25) 647.
48 Bhatia (n 25) 645, 650, 652.
49 Bhatia (n 25) 645.
50 Bhatia (n 25) 6529. Bhatia describes three interpretive roles that directive principles play. For present
purposes, however, is only necessary to focus on the framework values role as the others provide at best a weak
case for directive principles as a source of constitutional legal norms. The first occurs in the context of ordinary
rights limitation analysis, where directive principles have been used establish that a law that prima facie infringes a
fundamental right was enacted pursuant to a legitimate end: Bhatia (n 25) 64951; see also Tripathi (n 25) 314.
Given the low threshold that the determination of legitimate legislative ends plays in proportionality analysis,
however, this is not a very significant role: see Narain (n 25) 205. The second role occurs in the context of
statutory interpretation, where directive principles have sometimes functioned as an interpretative presumption
that Parliament does not intend to act inconsistently with the social values that are the subject matter of the
states obligations: Bhatia (n 25) 6512. However, as Bhatia observes (n 25) 652, doctrine in this area is
underdeveloped and it is unclear how strong the interpretive presumption is: ibid 652.
51 For example, he notes that whereas arts 1416 set out an abstract concept of equality, the relevant
constitutional conception of equality (namely, one built on group subordination rather than colour blindness) is
only apparent from the consideration of directive principles: Bhatia (n 25) 6534.
Constitutional Directive Principles 17
between rights and directive principles that draws on their different subject
matters. Bhatia observes that rights largely consist of civil and political matters,
whereas directive principles largely consist of socioeconomic matters. He
suggests that the reason for this division is that the latter are necessary to make
the exercise of civil and political rights effective and meaningful.52
This approach builds on the earlier work of PK Tripathi, who held a similar
view about the structural relationship between rights and directive principles.53
However, whereas Tripathi thought that it followed that directive principles are
more basic than rights (and thus ought to prevail in cases of conflict),54 Bhatia
resists this conclusion. He does so in order to reject the contention that the
interpretive practice in question amounts to direct judicial enforcement.
Instead, Bhatia insists that although directive principles . . . inform the content
of fundamental rights they. . . do not determine them because the concepts
established by rights set the outer bounds.55
Of the three approaches to directive principles, the interpretation approach
seems the most promising. Focusing on interpretation gives directive principles
a role as a source of constitutional legal norms that goes beyond establishing
the states legal obligations, contra the entrenchment approach. Yet it does not
rely on the direct judicial enforcement of directive principles, contra the
enforceability approach (leaving aside concerns about whether Bhatias
distinction between informing and determining is sustainable).
The problem with the interpretation approach is that it, too, fails to
interrogate the contrajudicative character of directive principles. In the
interpretive function that Bhatia identifies, the values and norms in play are
judicially defined. It is the judicial interpretation of directive principles that
intervenes in defining the scope and content of rights. That interpretive process
is characterised as relying on the constitutional text, read in light of the relevant
context (constitutional structure, history) andcriticallyas unmediated by
directed legislation. This may provide insight into one way that directive
principles are a source of constitutional legal normsparticularly in India,
where courts have a relatively extensive role in promoting social values.56 As a
general approach to directive principles, however, it falls short. It overlooks the
61 T Murray, Socio-Economic Rights and the Making of the 1937 Irish Constitution (2016) 31 Irish
Political Studies 502, 515; Khaitan (n 38).
62 See B De Villiers, Directive Principles of State Policy and Fundamental Rights: The Indian Experience
(1992) 8 South African Journal on Human Rights 29; B De Villiers, The Socio-Economic Consequences of
Directive Principles of State Policy; Limitations on Fundamental Rights (1992) 8 South African Journal on
Human Rights 188.
63 See DM Davis, The Case Against the Inclusion of Socio-Economic Demands in a Bill of Rights Except as
Directive Principles (1992) 8 South African Journal on Human Rights 475.
64 I am particularly grateful to Scott Stephenson for his suggestions in developing this discussion.
Constitutional Directive Principles 21
resource-sensitive.65 One line of response is to deny that social values with these
features present special difficulties for courts, emphasising the unique virtues of
judicial reasoning.66 A second and more common line of response is to downplay
those difficulties, through the expectation that courts will develop limiting
doctrines to confine judicial reasoning to appropriate tasks, and to mitigate
institutional limitations.67 The doctrine of progressive realisation, associated with
the Constitutional Court of South Africas approach to socioeconomic rights, is an
important development that illustrates this response.68
Another way of responding to concerns about the direct judicial enforcement
of social values is to rely on the allocation of institutional responsibility as a matter
of constitutional design. To date, very few options of this kind have been
identified or considered.69 Directive principles provide such a response. They
represent an important innovation in constitutional design that attempts to
address these concerns in a way that does not require exclusion or judicial self-
restraint. At the same time, they are not reducible to aspiration or symbolism.
Directive principles entrench binding state obligations to promote social values,
but they are contrajudicative.
The effect of this unique formulation is to insert an element of political
constitutionalism into a constitution that otherwise subscribes to legal constitu-
tionalism. This provides a response to concerns about entrenchment that are
related to institutional competency. The scope and content of fundamental social
values and the legal norms that they require are defined through the ordinary
political process, which is arguably more competent to deal with topics that are
moral-disagreement-, information- or resource-sensitive than the judiciary. This
65 For an overview and critical analysis of methods of judicial self-restraint, see JA King, Institutional
Approaches to Judicial Restraint (2008) 28 OJLS 409.
66 This is the type of response standardly associated with Ronald Dworkin: R Dworkin, Taking Rights
Seriously (Harvard UP 1978).
67 This is the type of response standardly associated with Cass Sunstein: C Sunstein, Legal Reasoning and
Political Conflict (OUP 1996); C Sunstein,One Case at a Time: Judicial Minimalism on the Supreme Court (Harvard
UP 2001). The contemporary literature on weak-form judicial review and its associates (eg dialogue,
catalysm, incrementalism) is also exemplary of this type of response: see eg R Dixon, Creating Dialogue
About Socioeconomic Rights: Strong-Form Versus Weak-Form Judicial Review Revisited (2007) 5 ICON 391;
JA King, Judging Social Rights (CUP 2012) 287325; M Tushnet, Social Welfare Rights and the Forms of
Judicial Review (2004) 82 Tex L Rev 1894; KG Young, Constituting Social and Economic Rights (OUP 2012)
16791.
68 See L Chenwi, Unpacking Progressive Realisation, its Relation to Resources, Minimum Core and
Reasonableness, and some Methodological Considerations for Assessing Compliance (2013) 46 De Jure 742,
7449.
69 This is the type of response contemplated by Mark Tushnet, who advocates for making social welfare
rights merely declaratory as an alternative to weak remedies: M Tushnet, Weak Courts, Strong Rights (Princeton
UP 2008) 23941, 2578. Although Tushnet mentions directive principles in this discussion, he does not
appreciate the sense in which they are distinct from rights provisions (referring to them as nonjusticiable rights)
and therefore does not seriously consider them as an alternative. Another possible example of this kind is the
Canadian Constitutions notwithstanding clause, which gives Parliament the power to override judicial
interpretations of rights: Canadian Charter of Rights and Freedoms 1982, s 33. However, it is unclear whether
either example is correctly described as allocating institutional responsibility for fundamental social values to the
political branches, since courts still bear the primary responsibility for defining the social values in question and
the legal norms that they requireeven if they can ultimately be ignored (in the case of merely declaratory rights)
or overridden (in the case of the notwithstanding clause).
22 Oxford Journal of Legal Studies
also provides a response to concerns about constitutional entrenchment that have
to do with the difficulty of changing binding judicial interpretations. Everything
else being equal, it is easier to update legislation in response to changes in moral
views, information and resources than it is to formally amend the constitution.
From this perspective, it is no surprise that directive principles have emerged in
tandem with the new social values constitutionalism.70 It is also no surprise that
they have been considered in recent years by jurisdictions that currently subscribe
to political constitutionalism in debates about whether to adopt an entrenched bill
of rights.71
It should be observed that the three characteristics of social values associated
with the new social values constitutionalism identified above, which I have
suggested raise concerns about allocating institutional responsibility to the
judiciary, do not uniquely distinguish directive principles from rights provi-
sions. To be clear: I am not claiming that the subject matter of directive
principles distinguishes them from rights provisions. What distinguishes
directive principles from rights provisions is how they are designed to be
given effect. Subject matter is relevant for understanding why a given social
value provision is formulated as a directive principle. It helps us make sense of
the contrajudicative character of directive principles that distinguishes them
from rights provisions. It does not, however, explain why the framers of a
constitution opt for rights provisions in some cases and directive principles in
others, or why the framers of different constitutions formulate a state obligation
to promote the same social value as a right in one case and as a directive
principle in another case. Nor does it provide concrete normative guidance
about whether, or under what circumstances, directive principles ought to be
preferred. These questions merit further investigation. Understanding the
alternative that directive principles provide to conventional rights provisions is
an important first step that will help guide future research.
There are several advantages to the institutional approach that emerge at this
stage. To begin with, unlike the interpretation approach, it does not rely on a
subject-matter-based division of labour between directive principles and rights.
Generally speaking, there is no neat division between topics found in rights
provisions and topics found in directive principles.72 Nor should we expect
there to be. Constitution drafters in different contexts will inevitably form
different views about the appropriate role of the judiciary with respect to
fundamental social values. Topics found in directive principles in some
70 The constitutional entrenchment of environmental values is a good example: as noted above, in section
2.B, environmental directive principles are nearly three times more common than environmental rights
provisions.
71 See nn 58 and 59.
72 Even in the context of the Indian Constitution, the distinction that Bhatia and Tripathi draw between
directive principles and rights is overdrawn. Although many directive principles can be characterised as
entrenching social values that are necessary for the exercise of civil and political rights, this is not true of all of
them: see Khaitan (n 38).
Constitutional Directive Principles 23
constitutions are found in rights provisions in others and vice versa. An
approach to directive principles that relies on a subject-matter-based division of
labour is thus likely to be too limited in its capacity to understand the
relationship between directive principles and rights provisions, and how
directive principles function as a source of constitutional legal norms.
The institutional approach also better accounts for the place of directive
principles in contemporary social values constitutionalism than the entrench-
ment approach. As described above, the entrenchment approach is based on
the view that directive principles codify well-established social values norms
that are grounded in existing conventions and practices.73 This view is relied
upon to distinguish directive principles from rights provisions, which are
otherwise treated as functionally equivalent in that both establish the states
constitutional obligations with respect to social values. But such a view is
implausible. Directive principles figure prominently in projects of transforma-
tive constitutionalism. They more commonly concern social values that are
thought to be inadequately reflected, or even lacking, in the social and political
ordering at the time of their adoption.74 At best, this view may describe the
directive principles in the Irish Constitution, which some legal scholars have
described as reflecting settled normative principles based on the staples of the
Catholic social tradition that bear a close connection to the predominant
political culture of the nation.75 However, even this is controversial. Recent
historical scholarship suggests that most of these topics were contested at the
time of the framing, and that contestation was a key consideration that led to
adopting directive principles instead of rights provisions.76
Finally, the institutional approach also provides a better understanding of
directive principles than the view that they are constitutional deferral
mechanismsthe most plausible view that emerges from the enforceability
approach. A proponent of that view might argue that directive principles are
not fundamentally different from many positive social rights. Positive social
rights are sometimes also drafted in ways that depart from conventional rights
provisions; for example, some are expressly constrained by limiting doctrines,
such as the doctrine of progressive realisation, and some expressly contemplate
legislative implementation.77 If this is correct, then perhaps it does not make
sense to think of directive principles as an alternative to rights provisions.78
79 The South African Constitution provides several examples here as well: the non-discrimination clause in
the right to equality (s 9(4)) and the interrelated rights to access to information and to just administrative action
(ss 32 and 33) all contain obligations that require the enactment of legislation to give effect to them. All three
provisions are subject to item 23 of schedule 6, which concerns transitional arrangements for the new
Constitution, and provides that the legislation contemplated in these three sections must be enacted within three
years of the date on which the new Constitution took effect, ie by 3 February 2000 (emphasis added).
80 See eg Dixon (n 67); King (n 67); Tushnet (n 67); Young (n 67).
Constitutional Directive Principles 25
B. Directive Principles as a Source of Constitutional Legal Norms: The Role of
Directed Legislation
This section extends the contextual understanding of directive principles just
presented to the analysis of their function in the creation of constitutional legal
norms (what I will loosely refer to as their constitutional function). My claim
here is that attention to directed legislation is essential to understanding that
function. Directive principles are designed to create an aspect of political
constitutionalism within a particular domain of constitutionally entrenched
social values by allocating institutional responsibility to the political branches.
Thus, central to any account of directive principles, I argue, is an examination
of the ways that legislatively defined norms and values found in directed
legislation are a source of constitutional legal norms in virtue of the status of
that legislation as directed legislation.
It is important to be clear about the scope of this claim. My objective is to
specify the parameters of an adequate account of the constitutional function of
directive principles. I focus on directed legislation because it is the predom-
inant means of implementing directive principles.81 I do not attempt to provide
an exhaustive account of the ways that directive principles are a source of
constitutional legal norms. Nor do I even attempt to provide an exhaustive
account of the ways that directed legislation is a source of constitutional legal
norms. I proceed instead by providing an example of a relatively straightfor-
ward way in which this occurs in order to motivate my claim. This example
focuses on an interpretive practice where courts use directed legislation to
define the scope and content of other constitutional guarantees.
The decision to focus on an interpretive practice used by courts might seem
surprising in light of the approach being defended, which emphasises the
allocation of institutional responsibility for fundamental social values to the
political branches, and to the legislature in particular. There are two reasons
for this decision. First, the example helps sharpen the distinction between the
institutional approach being defended and the interpretation approach, which
has been the most promising approach to date. Secondly, the example does not
require making controversial claims about the constitutional status of directed
legislation in its own right (nor, however, does it rule this out).
With these preliminaries in mind, we can turn to the example. The
interpretive practice that I have in mind is analogous to the familiar practice of
reading down in statutory interpretation, but it occurs in reverse. Accordingly,
I shall refer to it as reading up. In basic terms, reading down occurs where
courts interpret legislation so that it conforms with judicially defined
constitutional legal norms and values. Under the practice of reading up,
courts interpret the constitution so that it conforms with legislatively defined
82 VA Narively, Conflict: Right to Property and Directive Principles of the Indian Constitution (Sterling
1988).
83 South African Constitution, s 25(5)(9). I put rights in quotation marks because most of these provisions
appear to be drafted as directive principles rather than as positive social rights. However, in Grootboom the
Constitutional Court held that s 25(5) is a justiciable socioeconomic right, a right of access to land: Government
of the Republic of South Africa v Grootboom 2000 (11) BCLR 1169 (CC), 2001 (1) SA 46 (CC), para 19, fn 15.
This is not obvious from the way the provision has been drafted, however. It provides that: The state must take
Constitutional Directive Principles 27
The institutional approach gives us a different account of the interpretation
of rights in light of directive principles. It focuses on the intervention of
legislatively defined norms and values in the interpretive process. The political
branchesnot courtsdetermine the scope and content of fundamental values
in directive principles, and the legal norms that they require. A court first
determines that the legislation is directed legislation using ordinary methods of
statutory interpretation to discern legislative purpose.84 The court then uses
legislatively defined norms and values, as they are found in the directed
legislation, to determine the scope and content of enforceable rights provisions.
Cases from the United States provide a powerful illustration. It is a
jurisdiction associated with an unusually strong degree of constitutional
protection afforded to private property rights, and many state constitutions
contain directive principles that create the potential for conflict. Yet there is
evidence that courts can and do regard directed legislation as defining
fundamental legal norms and values with respect to the use and control of land
and other natural resources on account of its status as directed legislation. As a
result, courts may read up directed legislation to redefine the scope and
content of constitutional property rights. This interpretive process circumvents
the standard analysis used to determine whether a law effects an unconstitu-
tional burden on private property rights (a taking) that one would otherwise
expect in such cases.
For instance, in United Artists Theater,85 the owner of a theatre challenged
the theatres designation as a historic building on the basis that it amounted to
an unconstitutional taking of private property. The Supreme Court of
Pennsylvania rejected this argument on the basis that the historic conservation
legislation was enacted to give effect to the states obligations to protect the
natural, scenic, historic and esthetic values of the environment under a
directive principle in the state constitution.86 In doing so, the Court expressly
interpreted the scope of protection afforded to property rights under the state
constitution in light of legislatively defined norms and values,87 which required
reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens
to gain access to land on an equitable basis. It is possible that the lack of an adequate theory of directive
principles at the time of its judgment influenced the Courts characterisation of s 25(5) as a positive social right.
84 Directed legislation often expressly states that its purpose is to give effect to an obligation under a directive
principle, or refers to language used in the directive principle (paraphrased or quoted verbatim) in describing the
legislative purpose. The Mineral and Petroleum Resources Development Act 2002 (South Africa) does both.
Section 2(h) states that: The objects of this Act are to . . . give effect to section 24 of the Constitution by
ensuring that the nations mineral and petroleum resources are developed in an orderly and ecologically
sustainable manner while promoting justifiable social and economic development.
85 United Artists Theater Circuit, Inc v City of Philadelphia, 635 A.2d 612 (Pa 1993).
86 Constitution of the Commonwealth of Pennsylvania 1776 art I, s 27. That provision contains an
environmental right component as well as a directive principle, and relevantly provides that: [t]he people have a
right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the
environment . . . [T]he Commonwealth shall conserve and maintain [these resources] for the benefit of all the
people.
87 United Artists Theater (n 85) 620.
28 Oxford Journal of Legal Studies
imposing development restrictions on land deemed to be historically signifi-
cant. The Court reasoned that burdens on property rights that are a
consequence of legislation enacted to give effect to the states constitutional
obligations under the directive principle presumptively do not constitute
unconstitutional takings of private property.
Similarly, in Stop the Beach Renourishment,88 the Supreme Court of Florida
rejected a takings challenge to legislation mandating renourishment, a
process where sand is added to an eroded beach and that has the effect of
altering the boundary between private and public lands (thus potentially
diminishing the value of beachfront property). The core consideration framing
the Courts analysis was the status of the legislation as directed legislation. The
Court observed that [t]he State has an obligation to conserve and protect
Floridas beaches as important natural resources pursuant to a directive
principle in the state constitution, which provides that [i]t shall be the policy
of the state to conserve and protect its natural resources and scenic beauty and
that [a]dequate provision shall be made by law . . . for the conservation and
protection of natural resources.89 Independently of the usual takings analysis,
the Court reasoned that the legislation must be regarded as striking a
reasonable balance between competing interests because it was enacted to give
effect to the states constitutional obligation under the directive principle. As a
result, the plaintiffs lacked a constitutionally protected property interest.
Both of these examples illustrate the practice of reading up. In effect,
legislatively defined norms and values found in directed legislation assume
constitutional significance in virtue of giving effect to the states constitutional
obligations under a directive principle. As noted above, this is not meant to
rule out other ways that directed legislation is a source of constitutional legal
norms. The aim has been to motivate my claim that a core constitutional
function of directive principles is to facilitate the articulation of constitutional
legal norms and values through the enactment of directed legislation.
The practice of reading up does not require making controversial claims
about the constitutional status of directed legislation. That is because the
incorporation of legislatively defined norms and values into constitutional law
and doctrine is mediated by the process of judicial interpretation of other
constitutional provisions. At the same time, however, the foregoing does not
preclude the possibility of developing a line of argument that directed
legislation has constitutional status in its own right. In at least some cases,
courts applying directed legislation appear to assume this.90 Advancing such an
argument would require saying something about what makes constitutional law
88 Walton County v Stop the Beach Renourishment, Inc, 998 So.2d 1102, 111415 (Fla 2008) (affirmed by
Stop the Beach Renourishment, Inc v Florida Department of Environmental Protection, 560 US 702 (2010)).
On appeal, the US Supreme Court unanimously deferred to the Florida Supreme Courts determination, and
four of the eight sitting justices did not reach the constitutional property rights issue at all.
89 ibid 1110 (citing Constitution of the State of Florida 1968, art II, s 7(a)).
90 See eg n 15.
Constitutional Directive Principles 29
constitutional. However, that topic takes us beyond the scope of this article.
Nothing in the argument turns on it, and I refrain from speculating about cases
that might present this possibility.
For the purpose of this article, the critical thing to observe is that these are
the kinds of challenges that directive principles present for the standard picture
of social values constitutionalism. These challenges are conceptual and
theoretical. They are not simply questions of fit, but questions concerning
the adequacy of the standard picture. Correctly understood, directive principles
reorient constitutional theory away from questions concerning the justiciability
of and forms of judicial review appropriate for social rights and towards
foundational questions concerning the nature of constitutionalism. They invite
constitutional theory to re-examine orthodox understandings of legal consti-
tutionalism and the relationship between ordinary legislation and constitutional
law.
6. Conclusion
This article has undertaken foundational work needed to understand consti-
tutional directive principles. In doing so, it makes two significant contributions
to constitutional law scholarship. First, it provides a new theoretical framework
for analysing directive principles. Directive principles are an important recent
development in social values constitutionalism, but the alternative that they
provide to conventional rights provisions has not been appreciated. This is
because their contrajudicative dimension has not been properly identified or
examined. By drawing attention to this dimension of directive principles and
making it central to their analysis, the proposed framework provides a better
understanding of the place of directive principles in social values constitution-
alism than other approaches to date. Moreover, it provides missing tools
needed to understand their constitutional function by underscoring the role of
directed legislation in defining fundamental social values and the legal norms
that they require, and by highlighting one way that directed legislation is a
source of constitutional legal norms.
Secondly, and more broadly, this article provides an important critical
perspective on the state of play in contemporary constitutional law scholarship.
It has interrogated the adequacy of the dominant judicial rights-enforcement
paradigm. Directive principles have been poorly understood precisely because
they are an awkward fit for that paradigm. They are often described, and not
infrequently dismissed, as mere aspirations or as non-justiciable rights. As
this article has demonstrated, however, such descriptions are inaccurate.
Directive principles both resist classification within the standard picture of
social values constitutionalism and defy standard legal constitutionalist
assumptions about how entrenched social values provisions function as a
source of constitutional legal norms.
30 Oxford Journal of Legal Studies
The study of constitutional directive principles thus has broader implications
for constitutional theory. Once properly understood, directive principles
suggest that the standard picture is outdated and requires revision. It does
not adequately reflect the way that social values provisions are designed to
address concerns about the role of courts in defining fundamental social values
and the legal norms that they require. Directive principles are not the only type
of provision that reflects these concerns. Other, newer social values provisions
are similarly drafted in ways that contemplate, and in some cases require,
implementation by the political branches, and that circumscribe the role of
courts. This includes provisions that have been classified by courts and
commentators as positive social rights.
From this perspective, directive principles are indicative of a broader trend in
social values constitutionalism, where constitution drafters have increasingly
sought alternatives to the paradigm case of direct judicial enforcement of
entrenched rights provisions. This trend aligns with other recent developments
in constitutional law, such as the increasing interest in statutory rights
instruments andmore broadlythe recent interest in constitutional statutes.
To date, however, all such developments have been viewed from the
perspective of the standard picture. As a result, connections have not been
fully appreciated or examined.
Directive principles demonstrate the importance of developing a perspective
within legal constitutionalism that takes seriously the possibility of legislation as
a source of constitutional legal norms. At the same time, they demonstrate that
this perspective cannot evade foundational questions about the nature of
constitutional lawfor instance, by applying labels such as quasi-constitu-
tional without further elaboration. The theoretical framework developed in this
article suggests that there is a set of conceptual and normative questions
regarding the status of directed legislation that will ultimately require
addressing foundational questions of this kind. This article has only sought
to identify one role of directed legislation as a source of constitutional legal
norms where this is not required. At the same time, however, the analysis it
provides indicates that there may well be other roles where it cannot be
avoided. The further study of directive principles and related developments is
thus an undertaking that promises to complicate our understanding of the
relationship between ordinary law and constitutional law, as well as the
relationship between legal and political constitutionalism. These issues merit
exploration. By drawing attention to directive principles, this article has helped
place them on constitutional theorys agenda.