The Conceptualization of Constitutional Supremacy: Global Discourse and Legal Tradition

Graziella Romeo

doi:10.1017/glj.2020.50

Abstract

AbstractThis Article argues that a) constitutional supremacy is affected by the legal tradition, which implies that it is a concept largely shaped by the legal context in which it is elaborated, and b) the common law version of constitutional supremacy determines a sort of cultural resistance to constitutional imperialism. In making its argument, this Article begins with the doctrine of sources of law with a view to unpack its operational logic within the common law and, therefore, to understand how the supremacy of constitutions is conceptualized. It then examines the embryonic conceptualization of constitutional supremacy in the British legal culture by addressing the “constitutional statutes.” It goes on to analyse how constitutional supremacy is safeguarded in jurisdictions that are affected by the British tradition and equipped with written constitutions, to show how constitutions concretely established themselves as supreme laws without neglecting the relevance of traditions pre-dating the constitutional texts. It then shows how the common law finds its way to be applied alongside or even instead of the constitution. Eventually, this Article offers some conclusions as to the implications of such a conceptualization of constitutional supremacy for comparative and global constitutional studies.

Highlights

(Received 30 June 2019; revised 17 November 2019; accepted 20 November 2019). This Article argues that a) constitutional supremacy is affected by the legal tradition, which implies that it is a concept largely shaped by the legal context in which it is elaborated, and b) the common law version of constitutional supremacy determines a sort of cultural resistance to constitutional imperialism
It goes on to analyse how constitutional supremacy is safeguarded in jurisdictions that are affected by the British tradition and equipped with written constitutions, to show how constitutions concretely established themselves as supreme laws without neglecting the relevance of traditions pre-dating the constitutional texts
Three examples can be provided: a) constitutions coexist with a large body of customary law of constitutional relevance as well as with statutory law of constitutional significance; b) the common law is increasingly occupying spaces that generally belong to constitutional law, such as fundamental rights; and c) constitutional law tends to ignore relationships between private parties

Summary

The Place of Constitutions as “Supreme Laws”

The Court resorted to the English legal tradition, namely to Sir Coke’s doctrine, elaborated in the decision Bonham’s Case.[29] Coke’s arguments about circumstances in which courts may hold acts of Parliament that are against common reason void[30] have been dropped in the context of a written constitution. The argument, does not build a theoretical structure that binds together constitutional rigidity and judicial review of legislation with a more general hierarchy of sources of law, ordered according to relations of conditional validity. The doctrine of the constitution as higher law coexists with a legal tradition that does not intend to systematize the sources of law according to a theoretical criterion for selection of the most legitimate source controlling the solution of the concrete case Such approach makes it concretely possible for judges: a) To decide whether to frame an issue in constitutional terms or.

Is There Something Like “Constitutional Supremacy” in the British Tradition?

Constitutional Supremacy in the Context of Common Law Written Constitutions

The Cohabitation of Constitutional Supremacy and the Common Law in the US

Conclusion