which the state is to be governed and the framework of principle within which they
are required to operate. These choices now generally are shaped by a desire for a
system of government based on democracy and respect for human rights. But for
such a form of government to be effective, both the institutions and the limits on
them must be adapted to the social, political and economic circumstances of
the state, acceptable to its leaders and consistent with the expectations of its people.
Of course, the attitudes of both elites and people are influenced by principles and
practices elsewhere, made more familiar through internationalisation. But they are
moulded by other influences, which include the state’s own history and current
conditions. Local ownership of a constitution, which is critical to its implementa-
tion in practice, also is affected by such influences.^55 The effectiveness of a consti-
tution that is not responsive to the context in which it rests is inevitably impaired.
Most constitutions perform additional functions that further reinforce their local
credentials. A variety of terms describes these, the use of which, tellingly, differs
between constitutional traditions. The meanings are not identical. They have in
common, however, the role of a constitution as a symbol of the state that
strengthens the bonds of allegiance.
The idea of the expressivist function of a constitution was popularised by Mark
Tushnet in an influential article in 1999.
56
The use of the term in this context is
consistent with more general theories about the expressive function of law. Just as law
‘makes statements’ as well as rules and thus may both influence and regulate behav-
iour, so too may constitutions: indeed, their status as the highest legal norm makes
them peculiarly suited to the purpose.^57 In performing this function, constitutions
may reflect the nature or values of a society in ways that shape and reinforce the
society’s understanding of itself and that also may distinguish it from others, in its own
eyes and in those of the rest of the world. Insofar as, in doing so, it strengthens social
cohesion, the constitution’s role may also be described as constitutive or integrative:
both terms that place greater emphasis on the constitutional function of creating and
uniting a people. Following Frankenberg, the constitutive function of a constitution
may ‘imagine’ political unity and collective identity by simultaneously drawing on
and shaping the cultural context in which the constitution operates.^58 In somewhat
similar vein, the integrative function of a constitution supports the process described
(^55) In this volume, see the efforts made to ensure that Islamic political parties supported the
inclusion of human rights provisions in Indonesia’s constitution (Chapter 14 ); the com-
promises made in Hong Kong in relation to direct election by universal suffrage (Chap-
ter 8 ); and the concerns expressed by Yash Ghai regarding the need for greater public
participation in the current constitution-making process in Nepal (Chapter 16 ).
(^56) Mark Tushnet, ‘The possibilities of comparative constitutional law’ ( 1999 ) 108 Yale Law
Journal 1225 ; see also Mark Tushnet,Weak Courts, Strong Rights(Princeton: Princeton
University Press, 2008 ), Chapter 1.
(^57) Cass Sunstein, ‘On the expressive function of law’ ( 1996 ) 144 University of Pennsylvania
Law Review 2021.
(^58) Frankenberg, ‘Comparing constitutions’, 450.