Constitutional Directive: Morally-Committed Political Constitutionalism

Speaker

Dr. Tarun Khaitan (Oxford University)

About the paper

36-odd state constitutions around the world, mainly in the New Commonwealth (non-settler former British colonies in Asia and Africa), feature non-justiceable thick moral commitments (“constitutional directives”). These directives typically oblige the state to redistribute income and wealth, guarantee social minimums, and forge a religious or secular identity for the state. These provisions have largely been ignored by Anglo-American constitutional scholarship defined by its obsession with judicial review, or a hostility to constitutionalising thick moral commitments. The underlying, but mistaken, assumption is that any such constitutionalisation will offend either democracy or liberalism or both.

This article presents constitutional directives as obligatory telic norms, addressed primarily to the political state, which constitutionalise thick moral objectives. Their full realisation is deferred to a future date through ordinary democratic politics. They are weakly contrajudicative in that these duties are not directly enforced by courts, but other forms of judicial engagement are permissible. 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.

About the Speaker

Tarun Khaitan is a Future Fellow at Melbourne Law School, working on a project on the resilience of democratic constitutions, and an Associate Professor and the Hackney Fellow in Law at Wadham College. He is  the General Editor of the Indian Law Review, an Affiliate of the Bonavero Institute of Human Rights and an Associate of the Oxford Human Rights Hub. 

He completed his undergraduate studies (BA LLB Hons) at the National Law School (Bangalore) in 2004 as the 'Best All Round Graduating Student'. He then went to Oxford as a Rhodes Scholar and completed his postgraduate studies (BCL with distinction, MPhil with distinction, DPhil) at Exeter College. Before joining Wadham College as an Associate Professor in 2012, he was the Penningtons Student (Fellow) in Law at Christ Church, Oxford.

Dr Khaitan is the author of 'A Theory of Discrimination Law' (OUP) which has been reviewed very positively in leading journals. He helped draft the Anti-Discrimination and Equality Bill currently pending before the Indian Parliament, and was awarded the 2018 Letten Prize, a 2 Million Norwegian Kroner award given biennially to a young researcher under the age of 45 conducting excellent research of great social relevance.

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