Judging Constitutional Conventions

Ahmed, Farrah; Albert, Richard; Perry, Adam

doi:10.2139/ssrn.3043190

Cited by 3 publications

(2 citation statements)

References 6 publications

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“…The Indian Supreme Court has even chided the Canadian Supreme Court for its reluctance to enforce conventions. In our earlier article in this journal 29 we demonstrated how the Indian Supreme Court has given all constitutional conventions the force of law. 30 We think there are at least three objections to courts adopting this radical role.…”

Section: Guardian Courtsmentioning

confidence: 96%

“…One peril is that judges might make incorrect judgments about the existence, scope or content of conventions due to their lack of expertise or "institutional capacity": Adam Dodek writes that conventions "do not lend themselves to the definitive answers that courts are good at providing in binary litigation." 7 He offers the example of dissenting judges in the well-known Patriation Reference 8 (discussed in our earlier article in this journal 9 ) incorrectly identifying the practice that "after a general election the Governor General will call upon the leader of the party with the greatest number of seats to form a government" as a convention. 10 Recognizing that errors about conventions in legal cases can have serious consequences, judges might self-quarantine out of fear of making a mistake, or out of concern for preserving a court's perceived authority.…”

Section: A Quarantined Courtsmentioning

confidence: 99%

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Enforcing constitutional conventions

Ahmed

Albert

Perry

2019

International Journal of Constitutional Law

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In an earlier article, we disproved the three claims central to the dominant view in the study of constitutional conventions: 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 sharply distinguishable from rules of law. We drew from Canada, India, and the United Kingdom to demonstrate that Commonwealth courts have recognized, employed, and indeed also enforced conventions. In this article, we turn from the descriptive to the normative, arguing, again in contrast with the dominant view, that Commonwealth courts sometimes should enforce conventions. We argue that courts should act as executors of the will and judgment of constitutional actors, and limit themselves to enforcing only power-shifting conventions: conventions which transfer power from those who have legal power to those who can legitimately wield it. In playing this role, judges uphold the legitimate allocation of power—legitimate, not according to judges but according to constitutional actors themselves.

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Section: Guardian Courtsmentioning

confidence: 96%

Section: A Quarantined Courtsmentioning

confidence: 99%

Enforcing constitutional conventions

Ahmed

Albert

Perry

2019

International Journal of Constitutional Law

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Constitutional Conventions in Central Europe: Presidents in Government Formation Process

Brunclík

Kubát

2021

Problems of Post-Communism

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Abuzywne zapożyczenia konstytucyjne jako „ciemna strona” liberalnej demokracji (artykuł recenzyjny)

Fox

2022

PKO

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Abusive Constitutional Borrowing as a ‘Dark Side’ of Liberal Democracy (A Review) In the book Abusive Constitutional Borrowing. Legal Globalization and the Subversion of Liberal Democracy its authors Rosalind Dixon and David Landau emphasize that legal globalization has its ‘dark side’ since the norms of liberal and democratic constitutionalism can easily be used for anti-democratic purposes. There appears disorientation in both the national and international political arena through the application of norms, which are peculiar to democracies, albeit they constitute potent tools for consolidating power and suppressing opposition. The present era is the time where democratic backsliding and covert autocratization have become the prevalent issues. Some regimes dress their activities under the guise of a liberal and democratic discourse. In lieu of committing military coups, modern policymakers tend to implement more legal forms of anti-democratic change to undermine democracy by using constitutional rights or the courts (judicial review). The characteristic feature of abusive constitutional borrowing is to maximize the achievement of antidemocratic goal. It is a deliberate attack on the democratic minimum core, which consequently leads to a gradual erosion of democracy. Modern democracies have a tendency to move back to autocratization by combining different forms of constitutional abuses, which can be classified as constitutional changes and sub-constitutional ones with a formal or informal character. Moreover, one can also discern various forms of borrowings i.e., superficial, selective, acontextual, and anti-purposive.

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Judging Constitutional Conventions

Cited by 3 publications

References 6 publications

Enforcing constitutional conventions

Enforcing constitutional conventions

Constitutional Conventions in Central Europe: Presidents in Government Formation Process

Abuzywne zapożyczenia konstytucyjne jako „ciemna strona” liberalnej demokracji (artykuł recenzyjny)

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