What Makes a Constitution Just?: Sketch for a Sociological Theory of Constitutional Justice

Although the concept of constitutional justice is mostly used in the literature to mean the judicial system undertaking the function of constitutional review, it also refers to the problem of justice in terms of the constitutional formation of a legal system. In this latter sense, constitutional justice is an intricate problem. How can one say if a constitution is just? In legal philosophy, It seems difficult to answer this question without referring to some kind of transcendence, from which criteria for justice are derived, whether it be the state, natural law or divine law. This paper asks if a sociological theory of constitutional justice is possible. Setting out to construct the social space of constitution making as a “field of constituent power”, where the living constitution is coded into a written constitution, it argues that longe duree formation of constitutional imaginaries in this space can serve as a “historical transcendence” according to which the question of constitutional justice is decided. Finally, the paper provides a case study by offering a comparative analysis of 1921 and 1924 constitutions of the Ottoman-Turkish state in terms of constitutional justice.