Leaving Behind the Commonwealth Model of Rights Review: Ireland as an Example of Collaborative Constitutionalism

Abstract

This paper develops a model of collaborative constitutionalism as an alternative to conventional models of constitutional review. It argues that the Irish system of rights-based review differs in important ways from the new Commonwealth model of constitutionalism advanced by Stephen Gardbaum. While the Irish courts possess 'strong form' powers of judicial review, the paper provides a detailed examination of the interpretative and substantive principles of Irish law that function, in practice, as structural barriers to judicial supremacy. The paper moves on to argue that these factors are not unique to the Irish situation. Similar principles can be found in other constitutional systems. The paper argues therefore that, between the American model of so-called ‘strong form’ of judicial review and the new Commonwealth model of parliamentary-judicial dialogue, the Irish experience reflects a possible third way, which ‘eschew the exaggerated images of institutional conflict that the language of judicial or parliamentary supremacy tends to evoke’.
The paper was presented at an SLS workshop in 2012 and published as a chapter in John Bell & Marie-Luce Paris, Rights-based constitutional review (Edward Elgar, 2016).