Towards a Jurisprudence of Constitutional Conventions

Oxford University Journal of Commonwealth Law, Vol. 11, No. 1, p. 29, 2011

Posted: 8 Feb 2012

Date Written: February 7, 2012

Abstract

The status of the conventions of the constitution is controversial. According to traditional understanding they are binding constitutional, but not legal, rules because they are not judicially enforceable. However, an analysis of the arguments advanced in support of the proposition that conventions are not, or are not even capable of being, legal rules shows them to be unpersuasive. While conventions are not now recognized as part of constitutional law, this does not prevent courts from so recognizing them in the future. Furthermore, neither conflict between conventional and legal rules, nor the conventions’ alleged uncertainty, nor the apparent difficulty to craft a suitable remedy for their enforcement, nor yet their political origin, constitute insuperable obstacles to their recognition as legal rules. Understanding the law as inextricably linked to, rather than hermetically insulated from, social practices, as advocated for example by FA Hayek, courts ought to recognize and enforce conventions, subject to constraints of justiciability.

Keywords: constitutional law, constitutional conventions, Canada, Commonwealth, jurisprudence

Suggested Citation

Sirota, Leonid, Towards a Jurisprudence of Constitutional Conventions (February 7, 2012). Oxford University Journal of Commonwealth Law, Vol. 11, No. 1, p. 29, 2011. Available at SSRN: https://ssrn.com/abstract=2000819

Leonid Sirota (Contact Author)

AUT Law School ( email )

AUT City Campus
Private Bag 92006
Auckland, 1142
New Zealand
+64 9 921 9999 ext 5531 (Phone)

HOME PAGE: http://doubleaspect.blog

Register to save articles to
your library

Register

Paper statistics

Abstract Views
750
PlumX Metrics