The chapter intends to contribute to studies on material constitutionalism by applying Costantino Mortati’s concept of material constitution to discuss theories of constitutional change. In particular, it focusses on ‘constitutional maintenance’ doctrines elaborated in continental Europe to explain cases of limited and/or substantively guided constitutional changes, generally eluding the formal amending procedures. It argues that while constitutional maintenance doctrines catch one of the functions of the theory of the material constitution, namely, to guide constitutional changes, they fall into a logical contradiction by: (a) observing constitutional changes on the basis of mismatches between constitutional practice and the master-text constitution; and (b) supporting the need to minimise those mismatches. The argument is preceded by an analysis of doctrinal debates on constitutional change in selected jurisdictions. It is then developed by unpacking the material constitution theory in two logical steps. In particular, it will focus on the problem of the identification of the constitution and on the related need to reduce the substantive distance between the formal and the material constitution. Eventually, the chapter offers conclusions on how material constitutionalism can contribute to studies on constitutional change.

Costantino Mortati theorised the material constitution as the ‘grey area between law and politics’. This space is the source of all normativity and is comprised of two fundamental features: the essential content and the normative material elements. Both arise from and reflect the material relations present in society. Further, the formal aspect of the constitution, the text of the law, is a by-product of any given configuration of such material relations. The implication of Mortati’s focus on the ‘constitution in the material sense’ is his extensive theorisation and active promotion of means of popular participation suitable to uphold the material constitution and keep its relationship to the formal aspects of law active and dynamic.

This chapter considers how the material constitution is manifested in China. China’s material constitution refers to both Chinese party-state constitutional order and its social-economic conditions. They are inter-related: the constitutional order both shapes and is shaped by the social-economic conditions. The chapter concludes by considering the relation between the material constitution and the formal constitution.

When an owner of capital invests in their ‘home’ state, this investment is governed by national law. But when an investor exports their capital, a whole extra body of law supplements, and sometimes supplants, these domestic arrangements. This is international investment law (IIL): the vast body of investment agreements; arbitral decisions; and other forms of hard and soft law that protect the rights of foreign investors in ‘host’ states. Flynn and Lawrence critique IIL from a material constitutionalist perspective, revealing an order bound up with the history of imperialist expansion; the inscription of the rights of the investor class as general and international; and a desire to protect capital and markets from state interference. IIL is currently undergoing a ‘constitutional crisis’, but though reforms may improve certain serious flaws, material constitutionalist analysis reveals inherent features that cannot be reformed without fundamental reconfiguration of the material relations between international capital and state constitutional orders.

This introduction is focused on two main points. First, it provides an explanation of the continued relevance of the notion of the material constitution in constitutional studies and beyond. It does so by showing the added epistemic value of the notion compared to other conceptions: the political constitutions, the living constitution, the mixed constitution. Second, it gives an overview of the contents of the Handbook by explaining its organisation and its thematic unities.

The concept of material constitution is helpful to understand how particular constitutional orders are created and operate, inviting observers to look beyond the formal constitution, showing the shortcomings of the exclusive focus on the formal constitution and offering tools to enquire into the underpinning materiality. While the material study of a particular constitution requires a detailed thorough research of the forces that condition a material constitutional order, we can show the usefulness of the enquiry through selected aspects of a constitutional order. This chapter aims to do that by explaining the military’s role in constitution-making in Turkey. While the military is a defining constitutional actor in Turkey, recognition of this in the formal constitution is very limited. Only through accounting for the constitutional role of the military can the materiality of the Turkish Constitution be grasped and a more accurate description of the Turkish constitutional order be provided. Through an overview of its role in the making and re-making of the 1961 and 1982 Constitutions, the military is introduced as an ordering force in the Turkish Constitution, explaining the military’s constituent and ongoing authority over the constitutional order and its role in guaranteeing the fundamental political objectives of that order.

The constitution in the material sense is not particularly popular among lawyers. As its conceptual predecessor (the doctrine of the historical constitution), the constitution in the material sense points toward a series of non-specified norms relating to the basic structure of government and to the relationship between citizens and the state. As such, it lacks the certainty often associated with legal rules. In this chapter, we will focus on two judgements of Latin American constitutional courts where, by relying on a specific conception of the material constitution, judges sought both to define the competence of the amending authority and to challenge the judicial imposition of implicit limits to the power of constitutional reform.

This chapter discusses Ernst Fränkel’s analysis of Nazi Germany as a dual state that combined remnants of legal governance with a practice of permanent dictatorship. It is argued that Fränkel’s dual state thesis sheds a critical light on recent appropriations of the notion of material constitution. This claim is developed by way of an analysis and defence of Fränkel’s critique of Carl Schmitt’s concrete order thought.

This chapter deals with material approaches of the constitution in Greek constitutional thought. First, it shows that, in the interwar period, a sociological approach of the constitution was developed, which focused on socio-economic forces and on their impact on the 1927 republican constitution. Second, it demonstrates that, in the post-civil war period, a normative understanding of the material constitution was developed but it was also opposed from a formalist perspective. This perspective will be understood through the historical context of this period, which was deeply marked by the existence of a ‘para-constitution’ that undermined civil and political rights. Third, it explores the metapolitefsi period, in which the relation between the formal constitution and the social and political forces was explored by Greek constitutional scholars as an object of juristic knowledge. In this period, Costantino Mortati’s concept of the material constitution was introduced in Greek constitutional thought and was criticised. The direction of this critique was marked by the influence of Nicos Poulantzas’s theory on Greek constitutional theorists.

After World War II, the language of constituent power was taken up by constitutionalists Constantino Mortati, Georges Vedel and Ernst-Wolfgang Böckenförde to advocate for popular participation in government. They accused contemporary positivist theories of sovereignty of downplaying the principle of popular power in favour of a purely legal approach to the study of legislation. This, they claimed, had the effect of undermining popular participation in politics and needed to be contrasted by adopting a different approach to the study of the state and its foundations. The language of constituent power offered precisely that, as it brought the role of the people back at the centre of constitutional theory. It indeed indicated the power of the people to establish the fundamental ‘political ideal’ at the origins of the legal political system. This power would not disappear once the constitution entered into force but would remain present alongside the ordinary working of the constitutional system. In addition, Böckenförde, Mortati and Vedel aimed to limit the scope of representation and favoured instances of direct exercise of power by the people instead. They thus promoted practices of direct or semi-direct democracy, such as referenda and constitutional revisions, decentralised and federal structures of power.