Journal article

Judging Constitutional Conventions

Farrah Ahmed, Richard Albert, Adam Perry

International Journal of Constitutional Law | Oxford University Press (OUP) | Published : 2019

Abstract

The study of constitutional conventions is anchored in three assumptions that have so far remained largely unchallenged: that there is a shared “Commonwealth approach” to constitutional conventions; that Commonwealth courts will recognize and employ conventions but never enforce them; and that conventions are always distinguishable from rules of law. After setting out a new taxonomy of modes of judicial engagement with constitutional conventions, we overturn each of these assumptions. We draw on recent case law from Canada, India, and the United Kingdom to show that there is no shared “Commonwealth approach” to the treatment of constitutional conventions. We show that some Commonwealth court..

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University of Melbourne Researchers

Grants

Funding Acknowledgements

Associate Professor of Law and Garrick Tutor and Fellow at Brasenose College, University of Oxford, Faculty of Law. Email:adam.perry@law.ox.ac.uk.For comments on an earlier draft, we are grateful to the participants at the Workshop on Constitutional Boundaries held in August 2017 with the generous support of the Allen Myers Oxford-MLS Research Partnership. We also thank the team at the International Journal of Constitutional Law and their anonymous reviewers for constructive comments and helpful suggestions on an earlier draft.