Top-Down Constitutional Conventions

(2018) 81 Modern Law Review 765

Oxford Legal Studies Research Paper No. 42/2019

34 Pages Posted: 22 Mar 2019

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: April 27, 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.

Suggested Citation

Perry, Adam and Tucker, Adam, Top-Down Constitutional Conventions (April 27, 2018). (2018) 81 Modern Law Review 765 , Oxford Legal Studies Research Paper No. 42/2019, Available at SSRN: https://ssrn.com/abstract=3344712 or http://dx.doi.org/10.2139/ssrn.3344712

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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