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Oxford Journal of Legal Studies, (2017), pp.

130
doi:10.1093/ojls/gqx015

Constitutional Directive Principles


Lael K Weis*

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.

Keywords: directive principles, constitutional law, legal constitutionalism, legisla-


tion, social rights

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

* Lecturer, The University of Melbourne, Melbourne Law School. Email: lweis@unimelb.edu.au. I am


grateful to Farrah Ahmed, Rosalind Dixon, Cora Hoexter, Tarunabh Khaitan, William Partlett, Adam Perry,
Kristen Rundle, Cheryl Saunders, Dale Smith, Scott Stephenson and Adrienne Stone. Their invaluable feedback,
helpful discussions and ongoing support for the research project that this article forms a part of have been
indispensable to the development of the ideas presented here.
The Author 2017. Published by Oxford University Press. All rights reserved.
For permissions, please e-mail: journals.permissions@oup.com
2 Oxford Journal of Legal Studies
binding but typically non-justiciable obligations on the state to promote social
values and that are designed to be given effect by means other than direct
judicial enforcementpredominantly, by legislation. Constitutional provisions
of this kind are found in a diverse array of constitutional systems, as the
quotations above indicate. Commonly referred to as directive principles of
social policy, or directive principles for short, they pose an important
challenge for legal constitutionalism that has yet to be identified or appreciated.
This article is the first step towards developing a general and systematic
account of constitutional directive principles. It both defines this challenge and
presents a new theoretical framework for analysing directive principles.
The constitutional entrenchment of social values is canonically associated
with judicially enforceable rights provisions. With few exceptions, entrenched
bills of rights feature in most written constitutions. Judicial review and the
power to strike down rights-incompatible legislation are well-established
features of legal constitutionalism. As a result, judicial rights-enforcement has
long provided the paradigm for thinking about how social values, once formally
entrenched, generate new constitutional legal norms. Within this paradigm,
which I shall refer to as the standard picture, the judiciary is the institution
that is primarily and ultimately responsible both: (i) for articulating the scope
and content of fundamental values and the legal norms that they require,
through practices of constitutional interpretation; and (ii) for ensuring state
compliance with those norms, through judicial review and other enforcement
mechanisms.1
Directive principles complicate the standard picture in at least two ways.
First, they shift the allocation of institutional responsibility for articulating the
scope and content of constitutionally entrenched (fundamental) social values
and for defining the legal norms that they require from the judiciary to the
political organs of the state. Secondly, they simultaneously remove direct
judicial enforcement as a mechanism for ensuring state compliance with
constitutional obligations to promote the social values in question. Directive
principles thus appear to insert an element of political constitutionalism within
the domain of legal constitutionalism. Moreover, in doing so, they appear to
give legislation a prominent role in defining and giving effect to fundamental
social values. This raises important questions for our understanding of social
values constitutionalism, or the project of constitutionally entrenching social
values. How should directive principles be understood in relation to conven-
tional rights provisions? And how do they function as a source of constitutional
legal norms?
1 At least, this is the orthodox view, given the practical difficulty of constitutional amendment and the limited
availability of other means of overriding binding judicial interpretations in many constitutional systems. While
acknowledging that it is an oversimplification to say that the judiciarys primary responsibility is also an ultimate
responsibility in the case of constitutional systems that have a formal amendment procedure that is relatively easy
to use, or that have legislative override mechanisms, this article accepts the orthodox view for the purpose of
characterising standard picture assumptions.
Constitutional Directive Principles 3
The objective of this article is twofold. First, it will propose and defend a
new theoretical framework for analysing directive principles. Secondly, and
more broadly, it will challenge the adequacy of the standard picture.
Importantly, it is not my ambition in this article to offer a definitive or
exhaustive account of directive principles. Before such an effort can be
undertaken, significant groundwork is required. To date, there has been very
little scholarly analysis of directive principles. What little scholarship exists has
examined directive principles through the lens of the standard picture. As I
shall demonstrate, however, the standard picture does not have the resources
needed to understand the place of directive principles in contemporary social
values constitutionalism, or to understand how they function as a source of
constitutional legal norms. An alternative approach is required. This article
undertakes that essential groundwork by providing an alternative. It specifies
the parameters of an adequate account of directive principles, and it provides
missing tools needed for their analysis.
There are two parts to the theoretical framework that I propose and defend.
The first part provides a contextual understanding of directive principles.
Directive principles are placed in the context of other recent developments in
social values constitutionalism: in particular, the increasing trend to constitu-
tionally entrench social values that were previously regarded as lying beyond
the purview of constitutional law and belonging to the domain of ordinary
legislation. Here I argue that directive principles are best understood as an
innovation in constitutional design that responds to perceived limitations of
judicial rights-enforcement as a mechanism for giving effect to particular kinds
of social values and to perceived relative advantages of legislation.
The second part of the framework extends this contextual understanding of
directive principles to the analysis of their function in the creation of
constitutional legal norms. Here I argue that attention to legislation enacted
to give effect to directive principles, what I shall refer to as directed
legislation, is essential to understanding that function. While not ruling out
other ways that directive principles contribute to the content of constitutional
law, my claim is that central to any account of directive principles qua directive
principles is an examination of the ways that legislatively defined norms and
values provide a source of new constitutional legal norms in virtue of the status
of that legislation as directed legislation. I remain agnostic on the question of
whether directed legislation may have constitutional status in its own right, and
therefore do not engage with current debates about constitutional or quasi-
constitutional statutes.2 Nevertheless, I suggest that directive principles put
pressure on constitutional theory to revisit assumptions about the foundational

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.

2. What are Directive Principles?


A. A Functional Definition
This article adopts a functional approach to defining directive principles,
meaning that it does not rely exclusively on whether a constitution expressly
designates a provision as a directive principle but also examines the
provisions structural features. The resulting definition is thus functional in
the sense that it identifies directive principles on the basis of what they are
designed to do. It does not identify directive principles on the basis of their
practical operation. A consequence of adopting this approach is that directive
principles are defined in a way that may challenge the conventional wisdom
about at least some social values provisions that have been classified as social
rights without interrogating their structural features. Directive principles are a
distinctive type of social value provision,3 and they are found in an increasing
number of written constitutionseven if they are not always formally labelled
as such.
3 This article is concerned with directive principles as a phenomenon within social values constitutionalism.
Other types of constitutional provisions (eg separation of powers provisions) could be formulated as directive
principles as well. The definition provided reflects the articles scope of analysis and is not meant to rule this out.
Constitutional Directive Principles 5
Directive principles have two key features. First, they are obligatory: they
place binding constitutional obligations on the state to promote particular
social values. This feature distinguishes directive principles from constitutional
statements of value, which are similarly concerned with demarcating certain
social values, and the pursuit and realisation of those values, as constitutionally
fundamental. Constitutional statements of value are often found in preambles,
but some constitutions contain a section that lists fundamental or founding
values. For example:
The fundamental values of the constitutional order of the Republic of Macedonia are:
. . . the free expression of national identity; political pluralism . . .; . . . and . . .
ecological protection and development.4
The Republic of Fiji is a sovereign democratic State founded on the values of . . . care
for the less fortunate . . .; human dignity . . .; and a prudent, efficient and sustainable
relationship with nature.5
As these examples illustrate, constitutional statements of value are aspirational
in the sense that they are meant to function as guiding principles in the
formulation of public policy, but they are not legally binding.
Directive principles, too, often have an aspirational character and are not
uncommonly listed as a set of fundamental or founding values. But if we
compare the two examples just provided with the examples of directive
principles provided at the articles outset, we can see that they are distinct.
Constitutional statements of value are merely declaratory of fundamental values.
They contain indicatives such as the state is founded on such-and-such values
or the fundamental values of the state are such-and-such. By contrast,
directive principles create state obligations with respect to fundamental values.
They contain imperatives such as the state shall or the state must.
Secondly, directive principles are contrajudicative: they are not designed to be
given effect by direct judicial enforcement.6 This means that courts are not
permitted to define the scope and content of the values in question, to define
the legal norms necessary to promote those values and then to enforce those
norms against the state (for example, by requiring the state to take an action to
fulfil the norm, or by striking down legislation that is incompatible with the
norm). There are two aspects to the contrajudicative character of directive
principles. To begin with, the content of the relevant obligations and their
subject matter is typically non-justiciable or else not judicially enforceable.
Many constitutions containing directive principles expressly state that they are
non-justiciable or unenforceable, or that judicial reference may be made to
them only for the limited purpose of interpreting directed legislation.7

4 Constitution of Macedonia 1991, art 8 (emphasis added).


5 Constitution of Fiji 2013, art 1 (emphasis added).
6 I have adopted the term contrajudicative in order to capture a concept that overlaps with but is
nevertheless distinct from the more familiar concepts of non-justiciability or unenforceability.
7 Examples are provided in section 2.B below.
6 Oxford Journal of Legal Studies
The other aspect of the contrajudicative character of directive principles is
that they require implementation by non-judicial means. This is predominantly,
although not exclusively, directed legislation. Not infrequently, directive
principles expressly mandate the enactment of legislation to promote the
relevant social valueas the examples at the articles outset illustrate. Even in
the absence of an express mandate, the subject matter of directive principles is
frequently such that, as a practical matter, directed legislation appears to be a
more likely and, indeed, more appropriate method of implementation than
executive actions undertaken in the absence of directed legislation. Here, too,
the examples at the outset are instructive. Each provision contemplates the
creation of a social programme (free legal aid, maternity benefits and
environmental protection). The design and allocation of resources to social
programmes is often contentious. The legislative process seems better equipped
to manage potential controversy than non-statutory executive actions on
account of its relatively greater transparency and accountability, making some
form of legislative implementation both necessary and desirable. By contrast,
the creation of social programmes through the exercise of non-statutory
executive powersfor example, through executive spending or contractis
often thought to raise concerns that legislation does not.8
The contrajudicative character of state obligations to promote social values is
often stated in express terms. However, constitutions are not always explicit
about the incapacity of courts to directly enforce the obligation, or the
requirement that the obligation be implemented by non-judicial means. Under
these circumstances, the contrajudicative character of the provision, and thus
its status as a directive principle, is an inference that may be drawn from other
textual or structural features. For instance, most commentators regard section
24(b) of the South African Constitution as a directive principle, even though it
is listed in the Bill of Rights. That is because the right is formulated as a state
obligation to enact legislation to promote a set of specific environmental and
socioeconomic values with respect to resources development.9 This is distinct
from the structure of the environmental right in section 24(a), which neither
requires legislative implementation nor defines particular policy objectives.10
In general, features that may support the inference that a state obligation-
creating provision is a directive principle include: not being coupled with the

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.

B. Origins and Emergence


The use of directive principles as a drafting technique is usually traced to the
Constitution of Ireland 1937. Article 45 contains a list of Directive Principles
of Social Policy and forms a separate section of social values provisions from
the sections dealing with Fundamental Rights (articles 4044). It is prefaced
by the following statement of intended operation:
The principles of social policy set forth in this Article are intended for the general
guidance of the Oireachtas [Parliament]. The application of those principles in the
making of laws shall be the care of the Oireachtas exclusively, and shall not be
cognisable by any Court under any of the provisions of this Constitution.16
These directive principles entrench state obligations to promote a variety of
socioeconomic values, including: the equitable distribution of resources, the
welfare of labourers and the care of vulnerable members of the population.17
The framers of Indias Constitution were the first to borrow this distinctive
technique of constitutionally entrenching social values. Today the Constitution
of India is the constitution most closely associated with directive principles. As
in the Irish Constitution, Indias Directive Principles of State Policy are
contained in a separate section (Part IV) from Fundamental Rights (Part III).
Part IV entrenches as fundamental a similarly robust set of social values,
which it is the duty of the State to apply . . . in making laws but that shall not
be enforceable by any court.18 These include an even greater diversity of topics
than the Irish Constitution, including socioeconomic and sociocultural topics,
such as the access to legal aid, the provision of early childhood care and
education, and the protection of culturally significant resources.19
This drafting formula has been followed in many other constitutions, new
and established, over the past several decades. Eleven countries drafting new
constitutions, predominantly in Africa, have borrowed the drafting formula
more or less wholesale.20 In all of these constitutions, directive principles
comprise a distinct set of social value provisions from rights provisions, and in
all but two they are expressly declared to be non-justiciable or unenforceable.21

16 Constitution of Ireland 1937, art 45 (emphasis added).


17 Ibid, art 45 s 2(ii), 2(iii), s 4.
18 Constitution of India 1949, art 37 (emphasis added).
19 ibid art 39A, 45, 49.
20 Constitution of Eritrea 1997, ch II; Constitution of Gambia 1996, ch XX; Constitution of Ghana 1992, ch
6; Constitution of Nepal 2015, pt 4; Constitution of Nigeria 1999, ch II; Constitution of Papua New Guinea
1975, ss 15; Constitution of Uganda 1995, arts IIV, Constitution of the United Republic of Tanzania 1977, pt
II; Constitution of Sri Lanka 1978, ch VI; Constitution of Swaziland 2005, ch V; Constitution of Zambia 1991,
pt IX.
21 The two exceptions are Eritrea and Uganda.
Constitutional Directive Principles 9
Their subject matter similarly concerns a diverse and robust set of social
values, on a variety of social, economic and cultural topics.
In addition, many established constitutions have been amended to incorp-
orate new social values provisions formulated as directive principles, typically
as stand-alone provisions on particular topics. For example, since the 1970s
many national and sub-national constitutions have been amended to entrench
environmental values. Although environmental rights provisions are relatively
common, environmental directive principles are far more prevalent. Of the
estimated 147 national constitutions that contain environmental provisions of
some kind, 140 (or 95%) contain directive principles, whereas the most recent
global study places the number of environmental rights provisions at 76 (or
52%).22

3. Understanding the Challenge


Directive principles present a challenge for the standard picture of social values
constitutionalism. As described in the introduction, the standard picture takes
the direct judicial enforcement of rights as the paradigm for how social values,
once constitutionally entrenched, create new constitutional legal norms. On the
standard picture, courts have the primary and ultimate responsibility for
defining fundamental social values and the legal norms that they require
through practices of constitutional interpretation,23 and courts have the power
to enforce those norms through judicial review and other enforcement
mechanisms. Here is the challenge: given that directive principles are
contrajudicative, how are they a source of new constitutional legal norms?
The following section sets out existing approaches to this challenge and
explains why none are satisfactory. Before proceeding, however, it is important
to clarify the nature of the challenge. There are two ways of understanding the
challenge. Both have to do with the contrajudicative character of directive
principles: that is, the fact that they are not designed to be given effect by
direct judicial enforcement. How the challenge is understood frames the
analytical approach.
On the first understanding, the challenge lies in making sense of how
directive principles are legal. This perspective accepts that directive principles
are constitutional: they form part of the constitutions that contain them. But
because they are not judicially enforceable, it is unclearso the worry goes
how they are a source of constitutional legal norms.24 The state may breach its

22 JR May and E Daly, Global Environmental Constitutionalism (CUP 2014) 2, 274.


23 see (n 1) above.
24 See eg HM Seervai, The Constitution of India: A Critical Commentary, vol 2 (4th edn, Tripathi 2015) 1923
46. Seervai writes that [i]t follows from Art. 37 of the Indian Constitution, which makes directive principles
judicially unenforceable, that directive principles are not law at all, much less a part of the supreme law.
Paradoxically, Part IV of our Constitution (directive principles) is in our Constitution but not a part of it: 1923
(emphasis in original).
10 Oxford Journal of Legal Studies
constitutional obligationsand therefore act unconstitutionallyif it fails to
give effect to directive principles. But if directive principles cannot be enforced
by courts, then the mechanisms to ensure the bindingness of those obligations
are weak at best. Accordingly, in functional termsso the worry continues
directive principles are equivalent to constitutional statements of value: a
source of constitutional aspirations, but not a source of constitutional legal
norms. I will refer to this understanding of the challenge as the enforceability
problem.
The worry about the legal status of directive principles that underwrites the
enforceability problem is largely an illusory one, and has been rightly
discredited as resting on a set of implausible and overly narrow assumptions
about legal norms.25 There are many legal norms that create obligations but
that courts cannot (or do not) enforce.26 Moreover, even where courts can and
do enforce legal norms, judicial enforcement may be insufficient to ensure their
bindingness. Indeed, one may doubt whether enforcement mechanisms are a
necessary feature of legal norms at all. Such considerations suggest that
perhaps the enforceability problem is not worth taking seriously.
Acknowledging this concern, it is nevertheless important to consider this way
of framing the challenge. As we shall see, despite resting on questionable
assumptions, the enforceability problem has framed how scholars have
understood directive principles and how they have tried to make sense of the
place of directive principles in contemporary social values constitutionalism.
This illustrates the power of the standard picture. Viewed through the lens of
the standard picture, the challenge that directive principles pose is one of fit
within the judicial rights-enforcement paradigm.
On the second understanding of the challenge, the problem lies not in
making sense of how directive principles are a source of legal norms, but in
making sense of how the legal norms that they generate can be described as
constitutional legal norms. A core function of constitutional law lies in governing
the validity of other, ordinary legal norms. However, as we have seen, a key
feature of directive principles that distinguishes them from rights provisions is
that the scope and content of fundamental social values, and the legal norms
that they require, are defined by directed legislation. It is thus unclear how
legal norms associated with directive principles perform the core function of
constitutional law. Because they are legislatively defined, they can be changed
or overridden by ordinary legislation. Moreover, to the extent that they exert an
influence on the scope and content of other constitutional legal norms, they

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.

A. The Enforceability Approach


The Supreme Court of Indias early constitutional jurisprudence illustrates the
enforceability approach. The Court encountered several constitutional chal-
lenges to directed legislation (enacted pursuant to Part IV). In each case, the
legislation was challenged on the basis of inconsistency with fundamental rights
(under Part III)most prominently, equality and property rights. In resolving
these cases, the Court adopted the view that directive principles are
categorically subordinate and inferior to rights because they are unenforceable
and, accordingly, that they are better characterised as aspirations than as
12 Oxford Journal of Legal Studies
binding legal norms.27 Thus, in the case of apparent conflict with a right,
directed legislation was invalidated. The fact that the legislation had been
enacted pursuant to a directive principle received little (if any) weight, and no
attempt was made to reconcile the right with the states obligations under the
directive principle.
Although the Supreme Court of India has long abandoned this deflationary
approach in favour of a method of harmonious construction (discussed below,
section 4.C), the enforceability approach continues to frame how directive
principles are understood. In order to appreciate this influence, it is helpful to
set out the following dichotomy, which is implicit in the approach:
(1) Either directive principles are not capable of direct judicial enforcement,
in which case they are a source of constitutional aspirations and are
functionally equivalent to constitutional statements of value.
(2) Or directive principles are capable of direct judicial enforcement, in
which case they are a source of constitutional legal norms and are
functionally equivalent to constitutional rights provisions.
This dichotomous way of thinking about the place of directive principles in
social values constitutionalism follows from the core assumption underlying the
enforceability approach: namely, that the status of directive principles as a
source of constitutional legal norms turns on whether or not they can be directly
enforced by courts in the same manner as rights provisions.
The first possibility that lies within this dichotomy represents a common
understanding of directive principles. Many scholars and commentators, while
not offering an account of directive principles per se, have assumed that they are
designed to be aspirational only and to provide a source of moral guidance rather
than a source of constitutional legal norms. For example, it has been suggested
that the core function of directive principles is to signal that a written constitution
is both an aspirational document as well as a strictly legal charter,28 and that
they are not intended to be . . . actualized but merely identify national
aspirations.29 This understanding of directive principles has led some commen-
tators to criticise them as a method of entrenching social values, precisely because
it means that they fail to provide a source of constitutional legal norms. Indeed,
some framers of the Indian Constitution criticised directive principles on these
grounds, dismissing them as mere pious hopes and aspirations.30 More recently,
27 See Bhatia (n 25) 646; Tripathi (n 25) 79; Seervai (n 24) 192346. As the Court held in Sm Champakam
Dorairajan v State of Madras (1951) SCJ 31: The Directive Principles of State Policy which by Article 37 are
expressly made unenforceable by a court cannot override the provisions found in Part III . . . The Chapter on
Fundamental Rights is sacrosanct and not liable to be abridged by any legislative or executive act or order except
to the extent provided in Part III. The Directive Principles of State Policy have to conform to and run subsidiary
to the Chapter on Fundamental Rights. The textual basis for this principle is art 13, which expressly prohibits
making laws repugnant to Part III and declares such laws void.
28 GJ Jacobsohn, The Permeability of Constitutional Borders (2004) 82 Tex L Rev 1763, 1770.
29 M Tushnet, Constitution in M Rosenfeld and A Sajo (eds), The Oxford Handbook of Comparative
Constitutional Law (OUP 2012) 218, 226.
30 KT Shah, Constituent Assembly Debates, 19 November 1948, vol VII 55 <http://cadindia.clpr.org.in/>.
Constitutional Directive Principles 13
directive principles have been criticised as a constitutional design defect on the
grounds that they deconstitutionalize fundamental social values by making them
judicially unenforceable.31
The second possibility that lies within the dichotomy presents a potential
response to this line of criticism. That is to seek ways to transform directive
principles into rights. This transformation is, to some extent, underway in
India. There have been several formal constitutional amendments making
social values that had previously been the subject matter of directive principles
the subject matter of new, judicially enforceable rights.32 Moreover, in its more
recent constitutional jurisprudence, the Supreme Court of India has sometimes
interpreted broadly formulated rights as encompassing social values that are the
subject matter of directive principles. For example, the Court has interpreted
the right to life (article 21) to include a right to education, the subject matter
of two directive principles (articles 41 and 45).33 A common way of
understanding this interpretive practice is as transforming directive principles
into directly enforceable rights.34
Some critics of directive principles have endorsed these developments.35
However, they have also been criticised as undesirable changes to the structural
relationship between rights and directive principles,36 and as impermissible
exercises in judicial activism.37 In response, one might take the view that the
transformation of directive principles into rights occurs by design. One
prominent suggestion along these lines is that directive principles are
constitutional deferral mechanisms: devices used to entrench social values
that the state is thought to have an obligation to pursue but that represent
unrealistic ideals at the time of enactment, making them unsuitable for
immediate enforcement.38 On this approach, the entrenchment of directive

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.

B. The Entrenchment Approach


In his recent book, Alon Harel takes issue with the enforceability approach and
offers an alternative.40 His discussion of directive principles is in the service of
a broader theoretical agenda: to provide an alternative to constitutional
instrumentalism, or the view that the significance of entrenchment lies in
substantive outcomes. Harels central claim is that entrenchment itself is
significant because it establishes the legal norms that structure the legitimate
exercise of public power, irrespective of outcomes. On this view, enforceability
is irrelevant to the evaluation of a social value provision as a source of
constitutional legal norms, at least where it creates state obligations. What
matters is entrenchment.
Directive principles allow Harel to isolate the distinctive contribution of
constitutional entrenchment,41 while highlighting the limitations of the
enforceability approach,42 precisely because they are unenforceable. He rejects
the view that directive principles are purely aspirational and lack legal

39 See S Gardbaum, The New Commonwealth Model of Constitutionalism (CUP 2013).


40 Why Law Matters (OUP 2014).
41 ibid 170.
42 Harel (n 40) 151, 158. He suggests that a central reason why directive principles have received so little
attention by constitutional scholars is because they fall outside the scope of that frame: Harel (n 40) 168.
Constitutional Directive Principles 15
significance, emphasising their obligatory character. Instead, he argues,
directive principles demonstrate the purpose of entrenchment: to establish
that the state acts out of legal duty on a particular set of topics.43 In this
respect, Harel insists, concerns about enforceability are misplaced.44 An
important assumption underlying this analysis (which I return to in section
5.A) is that directive principles codify well-established social values norms
that are grounded in existing conventions and practices.45
The entrenchment approach offers an important critique of the enforceabil-
ity approach, which overlooks the significance of the obligatory character of
directive principles. Nevertheless, it continues to be framed in terms of the
enforceability problemin particular, as rejecting its central premise. It
reconfigures the dichotomy implicit in the enforceability approach by replacing
enforceability with the entrenchment of state obligations as the criterion for
legal significance. It tells us that directive principles are more like rights than
constitutional statements of value because the latter are merely declaratory.
Indeed, it tells us that directive principles are functionally equivalent to rights:
the legal significance of both types of constitutional provision lies in
establishing the states obligations.
The trouble with the resulting picture is that it is overly focused on the
obligatory character of directive principles. It overlooks their contrajudicative
character. Harel rightly criticises the enforceability approach for conflating
directive principles with constitutional statements of value. However, it goes a
step too far to say that there is no difference between directive principles and
rights provisions as sources of constitutional legal norms. The entrenchment of
state obligations is not the only way that social values provisions are a source of
constitutional legal norms (even if Harel is correct that it is the most important
way). Moreover, directive principles are importantly different in design from
rights provisions. The institutional responsibility for defining the scope and
content of fundamental social values, and the legal norms that they require, lies
with the political branches.
The significance of this difference is worth understanding. After all, if
constitution drafters could entrench social values through conventional rights
provisions, which similarly establish the states legal obligations, then why opt
for directive principles? The entrenchment approach cannot assist us in
examining this question.

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

52 Bhatia (n 25) 6556.


53 Tripathi (n 25) 9, 1226, 30.
54 Tripathi (n 25) 12; see also Narain (n 25) 203, 204, 21617, 219, 220 (advocating an even stronger
position on the status of directive principles as basic).
55 Bhatia (n 25) 658.
56 See Tripathi (n 25) 30 (describing directive principles as an enumeration of general principles which leave
ample room and need for judicial creativity), cited with approval by Bhatia (n 25) 63. Other jurisdictions have
adopted approaches that are consistent with the contrajudicative character of directive principles. For example,
the Supreme Court of Nigeria has held that We do not need to seek uncertain ways of giving effect to the
Directive Principles in . . . our Constitution . . . Directive Principles need not remain mere or pious declarations. It
is for the Executive and the National Assembly, working together, to give expression to any one of them through
appropriate enactment as occasion may demand: A-G, Ondo State v A-G, Federation (2002) 9 NWLR 222, 391
(Uwaifo JSC). This approach was recently applied in a case involving the states obligation to provide primary
education under a directive principle: see n 15.
18 Oxford Journal of Legal Studies
fact that directive principles allocate institutional responsibility for social values
to the political branches. In aiming to occupy a middle ground within the
dichotomy implicit in the enforceability approach, the interpretation approach
does not move us beyond the enforceability problem framing.

5. The Institutional Approach


So far, I have described two different ways of understanding the challenge that
directive principles pose for the standard picture of social values constitution-
alism, and I have examined existing approaches. I have argued that none of
these approaches are satisfying because they are framed in terms of the
enforceability problem. They are overly focused on the consequences of
unenforceability for the legal significance of directive principles. As a result,
they fail to appreciate the contrajudicative character of directive principles.
In this section I defend an alternative: the institutional approach. This
approach takes the norm-hierarchy problem as its starting point. The key
challenge that directive principles pose for the standard picture, and which
ought to orient their analysis, lies in understanding how they function as a
source of constitutional legal norms beyond simply entrenching state obligations.
This is not obvious on orthodox understandings of legal constitutionalism
because directive principles are given effect by non-judicial meanspredom-
inantly, by legislation. By design, directive principles allocate institutional
responsibility for defining the scope and content of fundamental social values,
and the legal norms that they require, to the political branches. This allocation
of institutional responsibility is central to the understanding of directive
principles.
In the following sections, I use this approach to develop a theoretical
framework for analysing directive principles. That framework has two parts.
The first part provides a contextual understanding of directive principles.
I argue that directive principles are best understood as an innovation in
constitutional design that responds to the entrenchment of particular kinds of
social values. This contextual understanding is analytical and conceptual. It
does not explain why particular design choices are made, nor does it offer
concrete normative guidance about how design choices ought to be made. It
provides the theoretical foundation needed to undertake explanatory and
normative analysis by offering a constitutional design-based perspective that
helps make sense of the contrajudicative character of directive principles.
Building on this contextual understanding, the second part considers the
function of directive principles as a source of constitutional legal norms. I argue
that an adequate account of that function requires examining the possible roles
of directed legislation and legislatively defined norms and values as a source of
constitutional legal norms.
Constitutional Directive Principles 19
A. Directive Principles as an Alternative to Rights Provisions: The New Social
Values Constitutionalism
Understanding the place of directive principles in contemporary social values
constitutionalism requires reflecting on the alternative they provide to other
kinds of social values provisions, and to rights provisions in particular. Despite
suggestions by some commentators that the framers of the Indian Constitution
adopted directive principles because there was no model of positive social
rights available at the time of the framing,57 directive principles have not only
persisted but have increased in popularity despite significant developments in
that area. Most recently, directive principles were proposed by the drafters of a
model written constitution for New Zealand as the preferred formulation for
social, economic and cultural values.58 They were also considered by the Joint
Committee on Human Rights of the United Kingdom Parliament in its report
A Bill of Rights for the UK?.59 What explains the formulation of constitutional
provisions as directive principles? When deciding whether to constitutionally
entrench a particular social value, what might make directive principles seem
like an attractive alternative to conventional right provisions?
My claim is that directive principles must be viewed in the context of a
significant development in social values constitutionalism over the last several
decades: topics previously regarded as inappropriate for constitutional law and
as belonging to the domain of ordinary legislation have increasingly been
constitutionally entrenched as fundamental social values. I will refer to this
trend as the new social values constitutionalism. Viewed in this context,
directive principles are best understood as a constitutional design technique
that responds to perceived limitations of judicial rights-enforcement as a
mechanism for giving effect to social values of this kind and to perceived
relative advantages of legislation. The basic thesis underlying the adoption of
directive principles is that certain social values are constitutionally fundamen-
tal in the sense that they appropriately guide the validity of ordinary legal
norms, but at the same time are better suited for legislative implementation
than for direct judicial enforcement.
The early adoption of directive principles in both Ireland and India supports
this thesis. The directive principle formulation responded to concerns about
judicial enforcement raised by framers who otherwise agreed about the
fundamental status of the social values in question.60 Moreover, although
concerns about judicial enforcement were not uniformly shared, it was widely
57 Singh (n 32).
58 G Palmer and A Butler, A Constitution for Aotearoa New Zealand (Victoria UP 2016). An announcement
and details for the draft model constitution are available at < https://constitution-unit.com/2016/09/27/draft-
constitution-for-new-zealand-proposed-in-new-book/>.
59 200708, HL 165-I, HC 150-I, paras 1689.
60 This is not to say that the framers uniformly agreed about the fundamental status of all of the topics in
question, see Khaitan (n 38), only that where there was agreement, directive principles provided a response to
these concerns.
20 Oxford Journal of Legal Studies
acknowledged that those social values had previously been regarded as
inappropriate topics for constitutional law and the province of ordinary
legislation.61 Similar considerations were in play in the discussion of directive
principles by those involved in debating and drafting the Constitution of South
Africa.62 The directive principle formulation was proposed as an alternative to
entrenching fundamental socioeconomic values as rights.63
Generalising, there are at least three overlapping reasons why a particular
social value might raise concerns about allocating institutional responsibility for
defining and giving effect to that value to the judiciary:
(1) The value is moral-disagreement-sensitive in that there is disagreement
either about the nature of the value or about how important it is in
relation to other values.
(2) The value is information-sensitive in that fact-finding and specialised
expertise are required for implementation.
(3) The value is resource-sensitive in that it places substantial burdens on state
resources, meaning that implementation is contingent on the availability
of resources or requires making difficult trade-offs in the allocation of
resources.
There are a variety of ways in which legal constitutionalism has responded to
concerns associated with the direct judicial enforcement of social values that
have one or more of these three features.64 Appreciating these possibilities will
help us understand the place of directive principles in contemporary social
values constitutionalism.
The most straightforward response is exclusionmore precisely, the exclusion
of social values where such concerns are commonly perceived to be the most
acute. This response reflects what we might call the old social values
constitutionalism, associated with older constitutions (canonically, the US
Constitution). The strategy here is to entrench civil and political rights, but to
exclude social, economic and cultural rights. However, there are other options
available that do not rely on exclusion. These have helped make the new social
values constitutionalism possible.
In the main, these options have relied on judicial self-restraint. Responses of this
kind call upon on courts to manage difficulties associated with the direct judicial
enforcement of social values that are moral disagreement, information, or

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

73 Harel (n 40) 1545, 1778, 1801.


74 See Khaitan (n 38); Singh (n 32).
75 Jacobsohn (n 28) 1772.
76 Murray (n 61) 5034, 51213.
77 For example, many of the socioeconomic rights in the South African Constitution are drafted in this way,
providing that [t]he state must take reasonable legislative and other measures, within its available resources, to
achieve the progressive realisation of the right in question. Constitution of the Republic of South Africa 1996, ss
26 (housing) and 27 (health care, food, water and social security) (emphasis added).
78 This is the view of Singh (n 32), who suggests that with the benefit of recent developments in this area the
framers of the Indian Constitution would have adopted positive rights instead.
24 Oxford Journal of Legal Studies
There are two responses to this challenge. First, although directive principles
preclude judicial implementation, there is nothing about their design that
precludes immediate implementation. In fact, some directive principles require
that the state act immediately.79 In this respect, it is misleading to think of
them as deferral mechanisms. Secondly, even if it is accurate to describe
directive principles as deferral mechanisms in some sense, there is an important
distinction between deferral in the sense of postponing and deferral in the
sense of allocating institutional responsibility. The former largely goes to
pragmatic reasons for denying courts the power of direct enforcement, whereas
the latter goes to principled reasons for preferring implementation by the
political brancheseven under conditions where giving effect to the social
value in question is not an unrealistic ideal.
The trouble with analysing directive principles as deferral mechanisms is that
it does not adequately capture the second sense of deferral, which goes to the
contrajudicative character of directive principles. While not denying that
directive principles may be more similar to positive social rights than typically
thought, it is critical to examine this distinctive feature. Doing so is not only
essential for understanding directive principles, but may also provide new tools
for analysing positive social rights. Although positive social rights are typically
justiciable and enforceable (whereas directive principles are not), they too not
uncommonly obligate the state to enact implementing legislation. Yet this
dimension falls outside the scope of scholarly commentary on the new social
values constitutionalism to date, the predominant focus of which has been the
justiciability of and forms of judicial review appropriate to positive social
rights.80
In summary, my claim is that directive principles are best understood as a
response to the new social values constitutionalism. The new social values
constitutionalism has put pressure on the standard picture because it models
the way that the constitutional entrenchment of social values generates
constitutional legal norms on the direct judicial enforcement of rights
provisions. Directive principles provide an alternative to rights provisions.
They are a novel way of accommodating concerns about direct judicial
enforcement and the appropriate division of labour between constitutional law
and ordinary legislation that permit the entrenchment of new kinds of social
values as constitutionally fundamental.

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

81 See section 2.A above.


26 Oxford Journal of Legal Studies
norms and values. Importantly, courts give those legislatively defined norms
and values that special interpretive force in virtue of the fact that the relevant
legislation is directed legislation.
Reading up can be distinguished from practices where courts give deferential
weight to legislation on the basis that it gives effect to a constitutional
obligation. For example, this is a consideration that might be used to
determine the applicable standard of review or to determine whether the
requirements of limitations analysis, such as a proportionality test, are met.
These practices are not controversial. In the case of reading up, by contrast,
courts use legislatively defined norms and values to interpret the scope and
content of constitutional guarantees, and the legal norms that they require.
This practice is controversial. The interpretive process circumvents the normal
application of standards of review or limitations analysis. The legislation is not
simply given deference, but is used as a source of constitutional meaning.
To make this more concrete, it will be helpful to consider an illustration.
Many constitutions protect private property from arbitrary confiscation and a
key task for courts is to define when regulatory legislation that burdens (but
does not directly confiscate) private property rights infringes that constitutional
guarantee. At the same time, many topics found in directive principles at least
potentially come into conflict with such guarantees. Indeed, many of the early
conflicts between constitutional rights and directive principles encountered by
the Supreme Court of India involved the (now repealed) property clause.82 As
we have seen, the Courts early approach to resolving these conflicts was to
invalidate the directed legislation, whereas the Courts approach today (at least
some of the time) is to interpret the right to accommodate the directive
principle.
Thinking about how the interpretation of rights in light of directive principles
could occur in this context will help us sharpen the practice of reading up. The
interpretation approach gave us one account, which focuses on the unmediated
judicial interpretation of directive principles. Courts determine the scope and
content of fundamental social values found in directive principles, and the legal
norms that they require, by relying on the constitutions text, structure and
history. Applied to constitutional property rights, the right to property might
thus be interpreted to include a positive social right that reflects the topic of the
directive principlein much the same way that the South African
Constitutions property clause has been expressly drafted to include positive
social rights.83

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.