Slaying the misshapen monster: the case for constitutional heuristics

This paper argues that constitutional theories, despite their claim to merely be advancing arguments about how a particular constitution ought to be understood, are beneath the surface profoundly and inextricably concerned with facts. We draw on the literature on social epistemology to show that the process of constructing any theory of a specific constitution involves two distinct forms of engagement with facts: firstly, identifying facts that have constitutional salience and, secondly, assigning significance to those selected facts. There are strong parallels between these processes and those implicated in the construction and transmission of traditions, an analysis of which sheds new and useful light on how constitutional theories construct the constitutional world they describe. Using a taxonomy derived from Mary Douglas's grid-group cultural theory, we show that there are four broad families of approaches to selecting and assigning normative significance to facts into which most constitutional theories can be classified. Each of these families is united by its propensity for highlighting certain types of features, and its predilection to read certain types of normative significance into constitutional facts. while these families have value, the failure to understand the limitations they impose on constitutional theory has led to constitutional debates becoming entrenched, polarised, and unyielding. We propose a new approach to constitutional theorisation and constitutional method which takes a heuristic approach, relating constitutional facts to the shifting needs of the polity, and opening up a more pragmatic space for theoretical debate and doctrine-making in constitutional scholarship