Top‐Down Constitutional Conventions

25 Pages Posted: 17 Sep 2018

See all articles by Adam Perry

Adam Perry

University of Oxford - Faculty of Law

Adam Tucker

University of Liverpool

Multiple version iconThere are 2 versions of this paper

Date Written: September 2018

Abstract

Many scholars think that all conventions of the constitution emerge from the bottom up, out of the practices of constitutional actors. Here we develop the first systematic account of conventions that are imposed from the top down, through prescriptions by constitutional actors. We show that ‘top‐down conventions’ (as we term them) can be created through the use of normative rule‐making powers; that powers of the right kind are sometimes conferred by ‘bottom‐up conventions’; that these powers are often exercised; and, as a result, that top‐down conventions are increasingly common. We show, too, that as the formal, systematic, and intentional products of a small number of constitutional actors, top‐down conventions are a potentially illegitimate form of constitutional regulation.

Keywords: convention, constitution, social rule, power, legitimacy

Suggested Citation

Perry, Adam and Tucker, Adam, Top‐Down Constitutional Conventions (September 2018). The Modern Law Review, Vol. 81, Issue 5, pp. 765-789, 2018. Available at SSRN: https://ssrn.com/abstract=3245457 or http://dx.doi.org/10.1111/1468-2230.12364

Adam Perry (Contact Author)

University of Oxford - Faculty of Law ( email )

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

Adam Tucker

University of Liverpool ( email )

Chatham Street
Liverpool, L69 7ZA
United Kingdom

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