This chapter makes a case against a substantive understanding of the material constitution. It first centres on Carl Schmitt’s concrete-order thinking as a glaring example of a theory that attaches priority to the material over the formal and yet fails to explain where matter comes from. Materiality turns out to be a shorthand for the social, while what the social is remains mostly under-developed and eventually takes up communitarian and identitarian connotations. By building on Santi Romano’s and Karl Llewellyn’s theories, the author unearths an alternative notion of the material. The constitution is an institution in the sense of a set of organisational practices as practices, not their sedimented outcomes, such as behavioural standards, normative values or fundamental principles. Unlike substantive conceptions, the processual understanding easily accounts for how collectives make room for change of their substantive contents while preserving their collective character.

This chapter discusses Ernst Fränkel’s analysis of Nazi Germany as a dual state that combined remnants of legal governance with a practice of permanent dictatorship. It is argued that Fränkel’s dual state thesis sheds a critical light on recent appropriations of the notion of material constitution. This claim is developed by way of an analysis and defence of Fränkel’s critique of Carl Schmitt’s concrete order thought.