Judging Constitutional Conventions

43 Pages Posted: 28 Sep 2017  

Farrah Ahmed

Melbourne Law School

Richard Albert

University of Texas at Austin - School of Law; University of Toronto - Faculty of Law; Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law

Adam Perry

University of Oxford - Faculty of Law

Date Written: September 26, 2017


The study of constitutional conventions is anchored in an assumption that has so far remained unchallenged: Commonwealth courts will recognize and employ conventions but never enforce them. We show in this Article that the dominant view today is doubly mistaken: there is no such shared “Commonwealth approach” to the treatment of constitutional conventions nor do Commonwealth courts refrain from enforcing conventions. Drawing from Canada, India and the United Kingdom, we disrupt the foundations of the scholarly understanding of conventions by demonstrating that Commonwealth courts have recognized, employed and indeed also enforced conventions. Beyond this new discovery, we make the normative claim that Commonwealth courts sometimes should enforce conventions, an additional contrast between the dominant view and ours. 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, which transfer power from those who have legal power to those who can legitimately wield it. This new role of an executor court brings clarity, stability and predictability to the exercise of official powers that are rooted in constitutional convention rather than constitutional law.

Keywords: Constitutional Conventions, Doctrine of Legitimate Expectations, Constitutional Change, Patriation Reference, Canadian Constitution, Indian Constitution, UK Constitution, Miller, Brexit, Second Judges Case, Third Judges Case, Disallowance, Reservation

Suggested Citation

Ahmed, Farrah and Albert, Richard and Perry, Adam, Judging Constitutional Conventions (September 26, 2017). Oxford Legal Studies Research Paper No. 59/2017. Available at SSRN: https://ssrn.com/abstract=3043190 or http://dx.doi.org/10.2139/ssrn.3043190

Farrah Ahmed

Melbourne Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010

HOME PAGE: http://www.law.unimelb.edu.au/melbourne-law-school/community/our-staff/staff-profile/username/Farrah

Richard Albert (Contact Author)

University of Texas at Austin - School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States
512.213.1113 (Phone)

HOME PAGE: http://law.utexas.edu/faculty/richard-albert

University of Toronto - Faculty of Law ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5

HOME PAGE: http://www.law.utoronto.ca

Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law ( email )

P.O. Box 167
Herzliya, 46150

HOME PAGE: http://https://www.idc.ac.il/en/schools/law/pages/home.aspx

Adam Perry

University of Oxford - Faculty of Law ( email )

St Cross Building
St Cross Road
Oxford, OX1 3UL
United Kingdom

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