1Karl Loewenstein was a German political philosopher interested in comparing constitutions worldwide. He developed a constitutional typology based on his studies of how constitutions are enacted and how they operate in society. He called the relationship between the legal validity of constitutions and their social value “ontological”. Hence, his typology is known as the “ontological classification of constitutions”.
2The ontological classification of constitutions categorises different types of constitutions to provide a comprehensive understanding of their nature and functions across diverse political communities. By analysing a constitution’s “legal validity” and “social value”, Loewenstein attempted to develop a typology capable of sufficiently explaining the diverse range of constitutional arrangements found around the world. His classification has indeed been widely used in constitutional studies in Continental Europe and South America to analyse and compare different constitutions.
3Nonetheless, Loewenstein acknowledged that his constitutional classification needed refinement.1 It did not express the fullness of all types of constitutions. I concur with his assessment. In this article, I describe the “ontological classification of constitutions”, critically analyse its shortcomings, and prescriptively propose a novel ontological approach to categorise constitutions. In Part 2, I explain Loewenstein’s “ontological” classification. I discuss the meaning of “ontology” in Loewenstein’s typology, and its relationship to his sociological approach to comparing different constitutions from around the world. In Part 3, I investigate the positivist root of Loewenstein’s typology, which is primarily based on Hans Kelsen’s theory of law. In this section, I discuss the connection between legal validity and social value, and I analyse the predominant role of efficacy for a legal system’s existence. In Part 4, I explain Loewenstein’s specific classification. I describe the different types of constitutions Loewenstein identifies along with and the meanings attributed to them. Finally, in Part 5, I demonstrate how Loewenstein’s categorisation misses the point of constitutions and is ultimately inconsistent with a genuine ontology of the nature and purposes of constitutions. Ultimately, I argue that Loewenstein’s classification lacks proper consideration of the normative end of constitutions. A proper ontological approach must take the normative aspect into consideration to produce a sound ontological classification of constitutions.
4When investigating constitutions, Loewenstein’s main interest concerns the operation of political power according to the specific constitutional rules of a community. He seeks to understand how political power is both exercised and controlled in different countries and under distinct constitutions.
- 2 Loewenstein 1957: 3.
- 3 Loewenstein 1957: 13-14, 29-31.
- 4 Loewenstein 1957: 70-72.
- 5 Loewenstein 1957: 30, 70-72.
5Loewenstein understands the state and its laws as existing because of features of our common human nature. For him, the state exists due to a human urge towards acquiring and maintaining power.2 The laws of the state regulate the exercise of such power. Acquired power can be exercised differently, however. There are many ways that human inclinations to maintaining political power can be effectuated. According to Loewenstein, the state, its laws, and government can generally be categorised under two types: the “autocratic” and the “constitutional” state.3 The line dividing these distinct modes of state governance relates to the practical means by which political power is exercised. When power is shared, that is, when the people participate in political life, there is “constitutionalism” or “constitutional-democracy”.4 When power is concentrated on the hands of one, or a select few, the state is “autocratic” or “authoritarian”.5
- 6 Loewenstein 1957: 70-72.
- 7 Loewenstein 1972: 173.
6For Loewenstein, both “constitutional” and “autocratic” governments can use a constitution as an instrument of government.6 But how? How can constitutional-democratic and autocratic political governments use constitutions? How should one conceptualise constitutions if they can serve both constitutional and non-constitutional governments? For Loewenstein, these questions are answered through “a meaningful classification” of constitutions.7
- 8 Loewenstein 1972: 173.
- 9 Loewenstein 1957: 147.
7Of course, the categorisation of constitutions “is rendered difficult by the deceptive similarity of structural arrangements and content” that constitutions may have.8 There are indeed a variety of constitutions with similar structure and content that nonetheless differ in their regulation of political practices and social outcomes. Thus, instead of focusing exclusively on what constitutions say or do, which elements they have, the institutions they create, or what specific functions these institutions perform, Loewenstein correlates the legal existence of a constitution with its implementation in society. Such an approach culminates in an “ontological classification of constitutions”, a typology of constitutions that considers the “concordance of the reality of the power process with the norms of the constitution”.9
- 10 Loewenstein 1957: 174.
- 11 Loewenstein 1957: 174.
8The ontological classification does not consider the history or specific elements of a constitution. Loewenstein discarded criteria such as “content” and “origin” as unnecessary.10 Instead, he focused on “the pragmatic validity and realistic observance of the constitutional norms by power-holders and power-addressees”.11 For J. A. González Casanova:
According to Loewenstein, it is only possible to speak of essence or ontology in a figurative sense because the essence of a constitution is nothing in itself, except when it is “outside” of itself, engaged in an exterior reality that provides to it meaning and reason of existence. […] The constitution is when it is effective and when it expresses social reality into norms. […] Its being depends in its existence, and its existence in its efficacy. Efficacy is the result of such a dialectical relationship between the constitution as a fundamental norm and the state’s social reality. Therefore, the constitution is outside of itself.12
- 13 Loewenstein 1972: 173.
- 14 Casanova 1965: 75.
9The constitution itself is meaningless without its connection to the political praxis. The formal aspects of the constitution are insufficient to inform its real identity. Hence, Loewenstein analyses constitutions according to their legally valid enactment and the degree of compliance by individuals to their norms. He is uninterested in characterizing what constitutions are according to their sheer being as an empirical reality. His ontology involves the study of the fact of the constitution’s existence in relation to the extent to which it is complied with by its subjects. In Loewenstein’s terms, constitutional ontology concerns the types of validly enacted constitutions and their practical effects in the sphere of political authority and power, not their nature and purpose.13 For him, “the political process is the reality of the constitution”.14
- 15 Loewenstein 1969: 205.
10Importantly, Loewenstein bases his typology in the understanding that constitutions exist to limit political power. His studies about the operation of constitutions worldwide ultimately relate to his conviction that “[s]plitting the Leviathan is the essence of constitutional government”.15 It is in this context that the ontological classification of constitutions is created. Notwithstanding, Loewenstein does not include this normative aspect as a standard in his typology of constitutions. Although he is convinced that the proper aim of constitutions is to constrain the exercise of political power, Loewenstein does not use the purposive aspect of constitutions as a standard against which they can be compared and evaluated. Indeed, constitutions can be used for that purpose or not — by ‘constitutional-democratic’ or ‘authoritarian’ governments.
11In these terms, Loewenstein’s classification of constitutions has been correctly called a “pragmatic ontology”.16 Indeed, his is a purely sociological classification. It limits the nature of a constitution to its social efficacy. Loewenstein’s “ontology” is a sociological analysis of the efficacy of constitutions. It concerns results rather than an investigation of the metaphysical nature of being:
The nature of a Constitution is functional and instrumental. For this simple reason, the essence and the content of a real Constitution does not reside in its «essence» nor in its «content», that is to say, it does not reside in itself, nor in the elements that integrate it […]. The essence of a real Constitution is its efficacy, its reality to the other, its existence to those outside of it, its real and efficacious existence. The efficacy of a Constitution comes from its capacity to positivise reality. It is not enough for it to be an aggregate of norms. Its norms must truly positivise. Efficacy depends, therefore, not only of the constitutional instrument but also of the reality that is to be constitutionalised. The degree of efficacy comes from the degree of adequate fit between the normative text (written or not in a formal document) and the reality of the Power process; and, above all, the degree of adaptation of the later to the former.17
12Loewenstein’s typology overvalues the “social value” of the constitution. For him, constitutional normativity is predicated on the efficacy of the constitution, and thus the resulting constitutional typology is a supposed ontology — not of the essence but of the factuality — of constitutions.
13Loewenstein’s classificatory framework is closely connected to Hans Kelsen’s positivist theory of law. To understand the presuppositions of Loewenstein’s typology, then, it is important to understand one important feature in Kelsen’s theory: the interaction between validity and efficacy of constitutions.
14Kelsen developed the “pure theory of law”. It is called “pure” because it dissociates the juridical analysis of law’s normativity from all other sciences, standards, or concepts. Kelsen accused his fellow positivists of reductionism. For him, legal positivism was too ideological and unnecessarily borrowed language from other natural or social sciences. His pure theory intended to explain law without resorting to factors outside of jurisprudence.
15Contrary to British positivists like Jeremy Bentham or H.L.A. Hart, Kelsen does not say that law is a social fact. The existence of a constitution alone is insufficient to characterise it as a such. The legal validity of a constitution is not found in itself, but in a higher, more authoritative norm. For Kelsen:
The fact that somebody commands something is, in itself, no reason for the statement that one ought to behave in conformity with the command, no reason for considering the command as a valid norm, no reason for the validity of the norm the contents of which corresponds to the command. The reason for the validity of a norm is always a norm, not a fact.18
16According to Kelsen, positive laws are created by human action or will, but their validity does not come from that creative act or will, or from the law’s acceptance by those participating in the legal system. There must be another law authorising the creation of positive laws: “Ultimately all positive laws owe their validity to a nonpositive law, a law not created by human action”.19
- 20 Kelsen 1974: 110.
- 21 Kelsen 1959: 107.
- 22 Kelsen 1974: 30.
- 23 Kelsen 1967: 6, 110.
- 24 Green 2012: xix.
17In this sense, Kelsen says that legal norms, as ought-propositions, cannot be “true” or “false” but are either “valid or non-valid”.20 The existence of the legal norm is its validity:21 “[t]o say that a norm is valid, is to say that we assume its existence”.22 Therefore, a legal norm’s validity refers to its existence, not as a sheer fact, but in reference to a higher existing legal norm. Indeed, the validity of the norm cannot be measured according to its mere conformity to reality. Otherwise, Kelsen would be deriving an “ought” from an “is”, which he rejects.23 Instead, “[h]e followed Hume and Kant in holding that there can be no ‘ought’ from an ‘is’ alone; hence, no social construction, or bunch of them, can ever add up to a norm”.24
- 25 Kelsen 1945: 111.
- 26 Raz 1974: 97.
18In Kelsen’s terms, a law will only find its validity in a superior norm.25 That norm, in turn, will also find its justification in another, higher norm. The validity of the one norm is predicated on the validity of the former, and so goes the hierarchical normative chain, looming towards infinite regress. As Joseph Raz highlights, for Kelsen, “the unity of the legal system consists in the fact that all its laws belong to one chain of validity and all the laws of a chain of validity are part of the same system”.26
19Kelsen’s neo-Kantianism appears necessary to avoid the infinite regress issue. The transcendental strategy adopted by Kelsen was to presuppose the existence of a “basic norm” (Grundnorm, in German) according to which all other legal norms find their justification: “The quest for the reason of validity of a norm is not […] a regressus ad infinitum; it is terminated by a highest norm which is the last reason of validity within the normative system”.27 Hence, for Kelsen:
All norms whose validity may be traced back to one and the same basic norm form a system of norms, or an order. This basic norm constitutes, as a common source, the bond between all the different norms of which an order consists. That a norm belongs to a certain system of norms, to a certain normative order, can be tested only by ascertaining that it derives its validity from the basic norm constituting the order.28
20A different characteristic of a legal norm is its efficacy. Efficacy, for Kelsen, relates to the effect carried out by the legal norm’s existence, that is, it is intimately connected to the existence of the law:
Validity of law means that the legal norms are binding, that men ought to behave as the legal norms prescribe, that men ought to obey and apply the legal norms. Efficacy of law means that men actually behave as, according to the legal norms, they ought to behave, that the norms are actually applied and obeyed. The validity is a quality of law; the so-called efficacy is a quality of the actual behaviour of men and not, as linguistic usage seems to suggest, of law itself. The statement that law is effective means only that the actual behaviour of men conforms with the legal norms.29
21Whereas the validity of law belongs to the normative sphere (it is an ought), efficacy pertains to the natural reality of what is. As Kelsen holds, “[o]nly if law and natural reality, the system of legal norms and the actual behavior of men, the “ought” and the “is”, are two different realms, may reality conform with or contradict law, can human behavior be characterized as legal or illegal”.30
22 However, Kelsen’s theory blurs the relationship between is and ought in its reference to validity and efficacy. For Kelsen, “[a] norm is not valid because it is efficacious; it is valid if the order to which it belongs is, on the whole, efficacious”.31 For him, although legal norms presuppose a minimum degree of transgression, a norm that is never adhered to or applied will lack validity. Legal systems will only be valid if its norms are generally efficacious:
Every single norm loses its validity when the total legal order to which it belongs loses its efficacy as a whole. The efficacy of the entire legal order is a necessary condition for the validity of every single norm of the order. A condition sine qua non, but not a condition per quam. The efficacy of the total legal order is a condition, not the reason for the validity of its constituent norms. These norms are valid not because the total order is efficacious, but because they are created in a constitutional way. They are valid, however, only on the condition that the total order is efficacious; they cease to be valid, not only when they are annulled in a constitutional way, but also when the total order ceases to be efficacious. It cannot be maintained that, legally, men have to behave in conformity with a certain norm, if the total legal order, of which that norm is an integral part, has lost its efficacy. The principle of legitimacy is restricted by the principle of effectiveness.32
- 33 Loewenstein 1957: 148.
23Loewenstein uses language similar to Kelsen’s. His ontological classification of constitutions is neatly based on Kelsen’s two elements of validity and efficacy. For Loewenstein, a constitution is a legal document or a posited law that is both legally valid and practically efficacious. It directs the “power processes”, and these political practices conform to the norms of the constitution.33 Following Kelsen’s conception of validity and efficacy, Loewenstein considered the existence of a constitution to be predicated on its observance by, and application to, those subjected to it.
- 34 Loewenstein 1952: 5.
- 35 Loewenstein 1952: 8.
24In his constitutional typology, Loewenstein considers three types of constitutions (normative, nominal, and semantic) by reference to two elements: the legal validity of the constitution and its efficacious social value.34 The first, Loewenstein calls “formal validity”, the latter, “real value”.35 According to him, different constitutional types have different instantiations of these two elements.
- 36 Loewenstein 1972: 174.
- 37 Loewenstein 1952: 20.
25The first constitutional type is a normative constitution. Normative constitutions have legal validity and are effectively implemented.36 Their constitutional norms are validly enacted and widely applicable and respected. Normative constitutions are paramount laws in a legal system, promulgated according to the agreed legal process and fully integrated with society.37
- 38 Loewenstein 1957: 147-148.
- 39 Loewenstein 1957: 148.
- 40 Loewenstein 1972: 174.
- 41 Loewenstein 1957: 148.
26For Loewenstein, normative constitutions validly exist and are efficacious because the socio-political environment ensures the constitutional norms are applied and complied with by the members of the political community.38 He holds that a constitution is normative if “its norms govern the political process, or the power process adjusts itself to the norms”.39 Furthermore, the rules of a normative constitution “operate as effective controls of the power-holders and as effective protection of the power-addressees against governmental arbitrariness”.40 To adopt Loewenstein’s simile, “it is like a suit that fits and that is actually worn”.41
- 42 Loewenstein 1972: 174.
- 43 Loewenstein 1972: 174.
- 44 Loewenstein 1972: 174.
27Normative constitutions, in this sense, exist in most well-established constitutional democracies, like in the United States, Canada, Australia, New Zealand, Switzerland, and France.42 According to Loewenstein, there are isolated instantiations of normative constitutions in Latin America and among emergent nations elsewhere.43 Overall, the normative constitution coincides with those countries typically labelled as constitutional democracies.44
- 45 Loewenstein 1957: 148.
- 46 Loewenstein 1952: 20.
- 47 Casanova 1965: 92-93.
28A nominal constitution, while legally valid, is not fully applied.45 Something is missing in the socio-political environment that prevents the full operation of the constitutional rules. Although legally valid, the constitution does not strictly adhere to the practical reality of the political community.46 Or, put somewhat differently, the political process does not follow or coincide with the validly enacted constitutional provisions.47
- 48 Loewenstein 1957: 148; 1972: 174.
29Since it is not implemented in practice, this constitutional type “lacks existential reality either as a whole (as is frequently the case in the newly emerging nations) or at least as to some individual provisions which, though formally valid, have not (or not yet) been activated in actual practice”.48 Although it is legally valid, the constitution has little or no efficacy (Loewenstein calls this “value”).
- 49 Free translation. Loewenstein 1952: 20.
30Loewenstein says the nominal constitution exists when the “written constitution is different from the constitution that is applied”.49 There is an obstruction in the middle ground between the factual existence of the constitutional norms and their implementation in society. The nominal constitution lays down the structure of, and limits to, the government’s powers, but because the socioeconomic and political conditions militate against it, it has an educational function only:
- 50 Loewenstein 1957: 149.
The factual state of affairs does not, or not yet, permit the complete integration of the constitutional norms into the dynamics of political life. Perhaps the adoption of a constitution, or of this kind of constitution, was premature, but the hope exists, supported by the will of power holders and power addressees, that sooner or later the reality of the power process will conform to the blueprint.50
- 51 Loewenstein 1952: 21.
- 52 Loewenstein 1957: 149.
31It is interesting to note that, for Loewenstein, the nominal constitution expresses the aspirations of those in a political community. It imprints the intention of those wielding political power to have a normative constitution, but since society is not ready to fully comply with its norms, the constitution is a constitution in name only. It lacks social value, but it has an educational function. The nominal constitution sets out future rules to be applied by both “power-holders” and “power-addressees” once society matures.51 “To continue the simile”, Loewenstein says, “the suit, for the time being, hangs in the closet, to be worn when the national body politic has grown into it”.52
- 53 Loewenstein 1972: 174.
- 54 Loewenstein 1952: 21.
- 55 Loewenstein 1957: 149.
32Finally, a semantic constitution is nothing more than an instrument that guarantees the perpetuation of political power in the hands of the current public authorities. This is the type of constitution Loewenstein believes is used in autocratic states.53 He argues that those who hold political power deliberately frame the semantic constitution to authorise them to continue in the exercise of those powers.54 The constitution is effective in the narrow sense in that it accurately describes where power is located within society. It is “fully applied and activated”, but in reality, it is “nothing but the formalization of the existing location of political power for the exclusive benefit of the actual power holders in control of the enforcement machinery of the state”.55
- 56 Loewenstein 1957: 150.
33The semantic constitution does not limit or control the exercise of political power. Instead, it secures the unbound powers exercised by those already vested with that political authority. As a mere formality, “[i]nstead of serving for the limitation of political power, it has become the tool for the stabilization and perpetuation of the grip of the factual power holders on the community”.56
- 57 Loewenstein 1957: 150.
34Semantic constitutions exist as valid enactments with social value. Those using the constitution, however, do not intend to achieve the ends that Loewenstein believes correspond to a normative constitution — that is, to constrain the exercise of political powers by the power-holders. Thus, Loewenstein concludes that, when it comes to sematic constitutions, “the suit is not an honest suit at all; it is merely a cloak or a fancy dress”.57
35The classification elucidates the relationship between the constitutional text and its applicability in society. Loewenstein’s central claim is that the real constitution, a normative constitution, should not only be legally valid but also effective in practice. For him, political communities should always aim to have a normative constitution. Political communities with normative constitutions are the places where social aspirations and constitutional provisions correspond.
36Although Loewenstein attempted to develop a typology of constitutions solely based on their “practical reality”, from a Kelsenian point of view, Loewenstein’s classification has clear normative presuppositions about what a constitution ought to be according to its purposes. Constitutions exist to limit the exercise of political power. Loewenstein’s ontological classification implicitly depends on this point of constitutions. By considering the objectives of each type of constitution — something Loewenstein did not mention explicitly — it is still possible to distinguish a normative, nominal, and semantic constitution in Loewenstein’s terms. However, adopting an exclusively factually based or sociological approach to defining constitutions ontologically leaves Loewenstein’s classification insufficient in that it does not identify what a constitution is because it overlooks the normative aspect of what a constitution ought to be.
- 58 Loewenstein 1957: 153.
37Notwithstanding his innovative attempt to consolidate an ontological classification of constitutions, Loewenstein admits that his typology is only a “pioneering attempt in need of further refinement and precision”.58 In the following sections, I critically assess Loewenstein’s terminology and argue that “validity” and “value” do not provide sufficient basis for a robust ontology of constitutions. Regarding the terminology, I join others who have already criticised this aspect of Loewenstein’s typology. In terms of the insufficiency of the purely sociological-based elements of his classification, I demonstrate that a sound ontological typology of constitutions needs to recognise that constitutions have both a factual and a normative side.
- 59 Sartori 1962: 853-864.
- 60 Sartori 1962: 855.
- 61 Sartori 1962: 855.
- 62 Sartori 1962: 855 [10].
38The most critical issue scholars have discussed about Loewenstein’s classification is the nomenclature he uses. Giovani Sartori, for example, disagreed entirely with the terminology used in Loewenstein’s typology.59 According to Sartori, the normative constitution is a “garantiste” constitution. He uses the French and Italian word garantisme to explain what constitutions are according to their ends.60 For Sartori, the true purpose of a “proper” constitution is to “restrict arbitrary power and ensure ‘limited government’”.61 A garantiste constitution, therefore, would need to achieve the specific end of limiting government: “unless we think that somebody needs protection against somebody else, there is no point in being concerned with constitutionalism”.62
- 63 Sartori 1962: 861. This is an arguably poor word choice by Sartori, mainly if his chief intention w (...)
- 64 Sartori 1962: 861.
39Furthermore, Sartori calls Loewenstein’s semantic constitutions “nominal constitutions”.63 Sartori’s nominal constitution — the equivalent of Loewenstein’s semantic constitution — is a constitution in name only because it does not intend to achieve the garantiste end of a “real” constitution.64 Thus, it is “nominal” because it has the name ‘constitution’; however, it fails to pursue the same ends of the proper, garantiste constitution.
- 65 Sartori 1962: 861.
- 66 Sartori 1962: 861.
- 67 Sartori 1962: 861.
40Finally, what Loewenstein calls “nominal,” Sartori calls “façade.” According to Sartori, “they take the appearance of ‘true constitutions’”, but they are nothing other than “trap-constitutions”.65 They are a façade due to their lack of connection with reality. The people live under a constitution that is not representative of their identity. For Sartori, a constitution that is inefficacious is a “dead letter”.66 He does not agree with Loewenstein’s aspiration that the façade constitution has an educational purpose. For Sartori, constitutions cannot have education as an objective: “It may turn out that is has an educational effect. But this is a very different matter”.67
- 68 Neves 2018: 108.
- 69 Neves 2018: 108.
- 70 Neves 2018: 116.
41The educational purpose of Loewenstein’s nominal constitution was also a point of contention in Marcelo Neves’s The Symbolic Constitutionalisation. For Neves, Loewenstein’s insight about the nominal constitution is wrong: “the goal of ‘nominal constitutions’ – contrarily to Loewenstein – is not to become normative constitutions in the near or distant future”.68 According to Neves, Loewenstein’s nominal constitutions may have a symbolic function, but not necessarily an educational goal.69 For Neves, the symbolic function may be sufficient for a constitution without it necessarily attempting to become “normative”. Loewenstein errs in attributing to the constitution a hope of becoming something other than what it is. Although nominal constitutions are not fully compliant with social reality, Neves argues they could still be significant in the political-ideological sphere.70 The “symbolic constitution”, for Neves, differs starkly from Loewenstein’s nominal constitution.
42Furthermore, Neves says there is a difference between the nominal constitution in its symbolic character and the “instrumental” constitution, which is Neves’s term for Loewenstein’s semantic constitution. For Neves, the distinction between the two is that the main purpose of instrumental constitutions is not to be a symbol but to be used as a “legal weapon” in the hands of the political power-holders.71
- 72 Chen 2013: xv.
- 73 Chen 2015: 14.
43Others, like Albert Chen, although not directly confronting Loewenstein’s terminology, have altered the nomenclature for the sake of clarity.72 Chen uses “genuine constitutionalism” instead of normative constitution; “communist/socialist constitutionalism” in place of semantic constitution; and “hybrid constitutionalism” instead of the nominal constitution.73
44The key point is that Loewenstein’s terminology is insufficient to convey the many possible types of constitutions. Indeed, some kinds of constitutions do not fit Loewenstein’s typology. Many constitutions are border cases of nominal or semantic constitutions. For example, certain constitutions lack efficacy and do not intend to limit political power. Although validly enacted, they do not share the purposes of a nominal constitution (to become normative) and are not considered semantic because they lack the necessary efficacy semantic constitutions typically enjoy. Additionally, what are those constitutions that, although existing, lack validity or value? Loewenstein’s typology does not provide an answer.
- 74 Neves 2018: 108.
- 75 Barber 2018, 2-19; Vermeule 2022, 2-4.
45Moreover, Sartori and Neves identified different purposes and sociological effects that these constitutions may have, which are not the same as those of the “normative” or “garatiste” constitution. For example, Neves refers to symbolic constitutions that do not have an educational goal.74 As he says, some constitutions are neither mere instruments for the perpetuation of power nor aim to become normative. Other scholars have also identified purposes of constitutions that differ from the negative dimension that sees constitutions as only limiting power.75 If Loewenstein had considered the different objectives of constitutions and included the purposive aspect as significant in his typology, the resulting ontological classification would have been both more far-reaching and encompassing. It would have included more types of extant constitutions not currently accommodated by his threefold classification.
46Since the nomenclature does not explain the actual objective of each type of constitution, the classification fails in its comprehensiveness and diversity-accommodating feature. A refined version of the “ontological classification of constitutions” needs to contain the varied species of constitutions that Loewenstein fails to accommodate. It needs to consider the normative purposes as well as the factual aspects of constitutions. The two elements in Loewenstein’s typology (validity and value) are insufficient for a true, and genuinely encompassing ontology of constitutions.
- 76 Casanova identified this point in Loewenstein’s theory, but he accepted and ultimately agreed to th (...)
47The analyses of Sartori, Neves, and others’ nomenclature ultimately demonstrates how Loewenstein’s classification is incomplete when not recognising the purposes of constitutions. Although criticism of Loewenstein’s ontological classification of constitutions is scarce in this respect, his typology is, in fact, dependent upon a teleological element.76 This claim is explained by a closer investigation of Loewenstein’s “suit” simile.
- 77 Loewenstein 1957: 149.
48The suit simile works as an illustration of the normative constitution. The idea of having a “suit” (a constitution) that “fits” (is legally valid) and “is worn” (is socially efficacious) is easy to grasp. Some may also say that the suit simile works with Loewenstein’s idea of the nominal constitution: “the suit, for the time being, hangs in the closet, to be worn when the national body politic has grown into it”.77 However, such a conclusion depends on at least two premises: (a) that even without efficacy, the constitution would still exist — which seems counterintuitive to Kelsen’s legal theory; and (b) that the nominal constitution will eventually and necessarily become normative, that is, the suit will be worn once the body has grown to it — in other words, that the nominal constitution has an educational purpose. More than a blueprint, the nominal constitution is designed to become normative. To the extent that one accepts these premises, the simile seems to illustrate the nominal constitution in Loewenstein’s terms as well.
- 78 Loewenstein 1957: 150.
- 79 Loewenstein 1952: 21.
49The major issue concerns the application of Loewenstein’s simile to the semantic constitution. This is because, in his illustration of the semantic constitution, Loewenstein takes the “validity” element out of the equation and replaces it with another element not explored or explained by his typology. For him, “the suit is not an honest suit at all; it is merely a cloak or a fancy dress”78, or, as he has also expressed, “the suit is nothing but a disguise or a mask”.79 There are two differences between the application of the suit simile for the semantic constitution and the other types of constitutions. One is the absence of the elements of “fitness” and “wearability” present in explaining the normative and nominal constitutions. The other is whether the suit is really a suit or not.
50The absence of information regarding whether the suit fits and is worn removes the whole point of the comparison. The classification becomes incoherent if one does not represent how the “validity” and “value” elements are (or are not) instantiated in the semantic constitution. Without this aspect, the sociological premise in Loewenstein’s theory falls apart.
51For the semantic constitution to be different from the normative constitution, it cannot be anything but both validly enacted and efficacious. If it were to be distinct from the nominal constitution, it would have to lack valid enactment but have social efficacy. But Loewenstein passes over these issues. When describing the semantic constitution, Loewenstein affirms its validity and efficacy, rendering the semantic constitution a counterfeit version of the normative constitution. As a counterfeit, its objective is to deceive, not to constrain power. The main difference between the normative and semantic constitutions lies therefore in their purposes, not in their “validity” or “value”.
52Another troublesome aspect of his simile refers to the teleological approach adopted only to explain the semantic constitution. Thus far in Loewenstein’s ontological typology, there has been no question about the nature of the “suit”. Loewenstein never considered whether what appeared to be a suit was an actual suit or not. However, when it comes to the semantic constitution, the focus shifts. Loewenstein now addresses the matter of being a suit. He introduces a new layer of analysis: the suit might not be a suit at all. This is an ontological question.
53According to Loewenstein, the semantic constitution (or “suit”) is not a constitution (or “suit”) at all. The suit is a disguise. It is a counterfeit. The semantic constitution, then, is not a constitution. But not because it lacks either validity or value (or both) but because it is something else entirely. Although it has the form of a constitution, it is not a constitution at all. Why?
- 80 Finnis 2011: 3.
- 81 Finnis 2020: 52.
54Loewenstein does not provide the answer. But there is an answer: to identify the nature of a thing, one must find its purposes. As Finnis frequently states, the nature of a thing is revealed gradually, starting with an understanding of the thing’s capacities.80 These capacities, functions, or potentialities are substantiated by actions, which in turn, are set into motion to pursue objectives.81 Thus, the objectives inform action, actions reveal capacities, and all of these, in combination, disclose a thing’s nature. To understand the nature of something, one must first grasp what that something is for. It follows that the concept of the constitution, for example, cannot be understood merely as it is without an account of what it ought to be.
55The difference between the “suit” and the “disguise” is in their objectives. They both may have the same formal characteristics. A suit and a disguise may both fit and be worn. Nevertheless, their aims are different. They are created to achieve different objectives. Whereas one is made for regular, ordinary clothing, the other is for purposes beyond merely wearing clothes. When the “suit” is not an actual suit but a costume or disguise, Loewenstein abandons the formal analysis of the fact that seemed to be at the core of the simile as applied to the normative and the nominal constitution. This raises questions about the essence of the suit itself: what is it according to its purposes?
- 82 Casanova 1965: 95.
- 83 Loewenstein 1957: 70-72.
56As Casanova noticed, the three types of constitutions in Loewenstein’s classification are, in fact, only two: the normative and the nominal.82 The normative constitution is no different from the semantic constitution regarding its elements of validity and value. What differentiates the normative from the semantic constitution is its purpose. While normative constitutions instantiate the values of a “democratic constitutionalism”, semantic constitutions guarantee the perpetuation of political power in the hands of the current “power-holders”.83
57Loewenstein placed a teleological perspective at the heart of his classification — albeit without identifying it as such. Without expressly addressing this necessary aspect, Loewenstein’s ontological classification of constitutions is insufficient to distinguish the nature of constitutions, even from a “pragmatic ontological” point of view. Insofar as it adopts the exclusively factual understanding of constitutions, it cannot explain the true nature of constitutions. A purely sociological approach is incomplete and unsatisfactory as a theory of constitutional ontology. Loewenstein’s typology needs an appropriate incorporation of the constitution’s purpose to distinguish the many types of constitutions successfully. As it stands, Loewenstein’s ontological classification of constitutions fails to disclose that constitutions have both factual and normative aspects.
58Loewenstein’s ontological classification of constitutions offers valuable insights into the intricate interplay between political power and legal norms. Because of its many insights, the typology is widely taught in comparative and theoretical constitutional law studies worldwide, especially across Continental Europe and South America. However, Loewenstein’s classification falls short in furnishing a comprehensive ontology of the nature of constitutions. Consequently, a critical examination is imperative to challenge and refine the theory, advancing a deeper understanding of constitutions. This paper scrutinises the deficiencies in Loewenstein’s typology, highlighting the need for a novel ontological theory of constitutions. While refraining from proposing a new ontological classification, it exposes the shortcomings of Loewenstein’s typology, guiding theorists toward constructing a more robust ontological framework.
59Although Loewenstein’s ontological classification contributes to the sociological aspects of constitutions, explaining how they serve as instruments of political power, it does not answer the more in-depth ontological question of what a constitution is. While this might not have been the question he attempted to answer, Loewenstein acknowledged that his typology needed refinements. Notwithstanding, no rigorous critical analysis of his theory has been put forth to reconstruct his constitutional classification. In this paper, I addressed this gap by presenting a fundamental shortcoming in his typology and pointing to the necessary correction. As demonstrated, Loewenstein’s ontological classification of constitutions inadequately captures the full spectrum of constitutional types and lacks a comprehensive characterisation of what defines a constitution. I contend that the omission of the teleological aspect is a key factor in this deficiency. Epistemologically, it is by understanding the purposes of a thing that one can identify that thing’s nature.
60Loewenstein tried to ontologically distinguish different types of constitutions, but he overlooked the pivotal aspect of the normativity intrinsic to constitutions. Understanding that constitutions have a necessary normative dimension is fundamental not only from the theoretical point of view, but also from a practical one. Adopting a strictly sociological point of view to analyse constitutions may lead to critical oversights in how constitutions are used and manipulated by those with political power. While Loewenstein acknowledges this concern, considering the purposes of constitutions beyond their socio-political effects better positions us to advance constitution-making and reforms towards achieving clear, sound, and appropriate objectives. This perspective facilitates a differentiation between “semantic” and “normative” constitutions. In other words, the normativity of constitutions informs better practices in constitution-making and reform due to its explicit objectives, not solely relying on the social value that constitutions may eventually possess.
61Ultimately, Loewenstein’s failure to acknowledge the existence of the normative purpose of constitutions renders his typology devoid of coherence and comprehensiveness. A robust ontological classification of constitutions must consider that constitutions are necessarily factual and normative.
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