Partial Constitutional Codes

25 Pages Posted: 20 Aug 2014

See all articles by Rosalind Dixon

Rosalind Dixon

University of New South Wales (UNSW) - Faculty of Law

Date Written: August 18, 2014

Abstract

Constitutions across the globe vary markedly in length and specificity. In drafting constitutions, constitution-makers thus face important choices of style, as well as substance: They can choose to adopt a highly “codified” or detailed approach to constitutional drafting, or rely on a more “framework”-style approach, which places greater reliance on sympathetic forms of legislative or judicial decision-making. The benefit of a codified approach, the article suggests, is that it provides a stronger constraint on judges to give indirect attention to the aims and understandings of the drafters, regardless of their legal or political ideology. The potential cost, however, is that almost any constitutional code will inevitably be incomplete as a constraint on judges; and for some judges, the mere attempt at constitutional codification by drafters may discourage the kind of sympathetic, purposive approach to interpretation necessary to fill relevant gaps. The article makes these arguments using case-studies from South Africa and India relating to the rights to property and freedom of expression.

Keywords: constitutional law, constitutional drafting, constitutional interpretation, South Africa, India, freedom of expression, property rights

Suggested Citation

Dixon, Rosalind, Partial Constitutional Codes (August 18, 2014). UNSW Law Research Paper No. 2014-37, Available at SSRN: https://ssrn.com/abstract=2482377 or http://dx.doi.org/10.2139/ssrn.2482377

Rosalind Dixon (Contact Author)

University of New South Wales (UNSW) - Faculty of Law ( email )

Kensington, New South Wales 2052
Australia

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