Law, Ethics and Justice Seminar by Tarun Khaitan (LSE Law School)

Title: The Constitutional Complex: Power in a Normative Order

Abstract: Comparative constitutional law inherited three connected habits: it treats higher courts as the paradigmatic constitutional institutions, judicially enforceable rights as the paradigmatic constitutional norms, and questions generated by United States constitutional practice as the field’s natural agenda. These habits have produced sophisticated accounts of authority, duty, reason, and validity, but weaker explanations of the powers through which constitutional norms acquire, retain, or lose practical force.

This Foreword identifies two opposed errors encouraged by these habits in constitutional scholarship. The Normative Sufficiency Thesis treats conclusions about norms, roles, or institutional form as sufficient for claims about propensity, performance, or social effect that also depend on power. The External Determination Thesis allows political, economic, or sociological explanations to displace the internal inquiry needed to identify legal meaning and the role law played in the outcome. I defend an embedded analytic method that separates conceptual, interpretive, normative, institutional-design, and causal claims, identifies the evidence each requires, and reconnects them within the configuration of power through which law operates. Its two commitments are scalar andclaim-relative: an inquiry is more or less non-reductionist according to how accurately it identifies law’s actual contribution, and more or less power-sensitive according to how adequately it identifies the relevant powers and mechanisms. The two scales are independent.

The method distinguishes two dimensions of the constitution: a constitutional order and a constitutional complex. The order is the normative system; the complex is the relatively durable configuration of power that bears upon it, analysed through agents, relations, and structures. This distinction requires public law to study power without reducing normativity to power. It also supports power-sensitive design inquiries by distinguishing what constitutional law can author directly, what it can influence indirectly, and what remains beyond its control.

Tarun Khaitan is is the Research Director and the Professor (Chair) of Public Law at the LSE Law School. He also serves as, an Honorary Professorial Fellow at Melbourne Law School, and an Associate Fellow of the Bonavero Institute of Human Rights (Oxford). He works primarily on comparative public law, legal theory, discrimination law. He is currently working on a monograph on constitutional design.

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