Constitutional Convention: Practice and Principle

Abstract

A lawyerly account of convention, explaining the nature and role of constitutional conventions, must be an interpretation of political practice. It cannot be merely a neutral description of politicians' conduct or beliefs: it must be an appraisal of that conduct, justifying the pertinent rules by reference to basic moral and political values. It is a matter of critical rather than positive morality. From that perspective, Dicey's well-known distinction between law and convention looks questionable. Convention is enforced as law whenever a court draws on settled understandings in forming its conclusions about the demands of legal and political principle. Rigid boundary lines between law and convention reflect a legal positivist orientation; they are also related to a distrust or disparagement of judicial review. A broader approach to justiciability is intrinsic to the common law constitution, connecting judgements of legality and legitimacy.