Is the Commonwealth's Approach to Rights Constitutionalism Exportable?

Abstract

This paper considers whether the Commonwealth’s approach to rights constitutionalism, associated with the bills of rights adopted in Australia, Canada, New Zealand and the UK, might be suitable for other jurisdictions around the world. It argues that three questions are particularly relevant to evaluating the strength of the normative case for the Commonwealth’s approach. First, what is the nature of the disagreements about rights in a jurisdiction? Second, what options do institutions have to challenge the determinations on rights of other institutions? Third, what are the other objectives of the constitutional system? The paper considers how the answers to these questions yield insights into the circumstances in which the Commonwealth’s approach may prove to be more attractive or unattractive. In particular, it suggests that the normative case for the Commonwealth’s approach may be weaker in dominant party systems.

Keywords: comparative constitutional law, bills of rights, judicial review, Australia, Canada, New Zealand, United Kingdom