Commonwealth Model Of Constitutionalism Research Articles

The old Commonwealth model of constitutionalism

Comparative constitutional law is prone to two types of error. ‘Thin’ or overly formal accounts overlook important substantive dimensions of law and constitutions. ‘Thicker’ accounts often subsume the legal within politics or culture. Both types of error share a tendency towards presentism which stems, we argue, from insufficient consideration of the ‘jurisprudential perspective’ – the basic framework of legality which structures constitutional order and the ‘internal point of view’ that accompanies it, whereby actors within a legal order understand their association in terms of rights and duties. We turn to an older school of inquiry to see what such inquiry might entail. ‘Commonwealth comparative constitutional law’ explored questions of legality and sovereignty in the context of a collapsing British Empire. We assess the contribution of R.T.E. Latham, D.V. Cowen, Edward McWhinney and Geoffrey Marshall in the context of the Voters Rights legislation and litigation in 1950s South Africa in particular, and conclude by reflecting on the potential of this style of scholarship in our own era, where questions of sovereignty, exclusion and faux legality resurface in new and troubling forms.

The Old Commonwealth Model of Constitutionalism

The Old Commonwealth Model of Constitutionalism

The Old Commonwealth Model of Constitutionalism

The Old Commonwealth Model of Constitutionalism

Political Constitutionalism and Legal Constitutionalism—an Imaginary Opposition?

Abstract This article argues that the opposition between political and legal constitutionalism can be traced to a cleavage in what philosophers have called the ‘social imaginary’: the shared understandings that underpin social life. Since social imaginary understandings are by their nature nebulous and ill-defined, political and legal constitutionalism should not be thought of as competing theories or heuristic models, but—more abstractly—contrasting ways of imagining the political world. Drawing on historical and contemporary examples, I argue that my claim is supported by the way in which legal constitutionalism embedded itself as the governing idea in the United States and in France, and also by the failure of the ‘new Commonwealth model of constitutionalism’ to yield a genuinely distinctive alternative to political and legal constitutionalism.

Leaving Behind the Commonwealth Model of Rights Review: Ireland as an Example of Collaborative Constitutionalism

This paper develops a model of collaborative constitutionalism as an alternative to conventional models of constitutional review. It argues that the Irish system of rights-based review differs in important ways from the new Commonwealth model of constitutionalism advanced by Stephen Gardbaum. While the Irish courts possess 'strong form' powers of judicial review, the paper provides a detailed examination of the interpretative and substantive principles of Irish law that function, in practice, as structural barriers to judicial supremacy.The paper moves on to argue that these factors are not unique to the Irish situation. Similar principles can be found in other constitutional systems. The paper argues therefore that, between the American model of so-called ‘strong form’ of judicial review and the new Commonwealth model of parliamentary-judicial dialogue, the Irish experience reflects a possible third way, which ‘eschew the exaggerated images of institutional conflict that the language of judicial or parliamentary supremacy tends to evoke’.

Po Jen Yap, Constitutional Dialogue in Common Law Asia (Oxford University Press, 2015)†

Over the last two decades, scholars have theorized new models of constitutional review that avoid conferring on the courts the final word on constitutional understandings. Scholars have identified this form of constitutionalism variously as the “Commonwealth model of constitutionalism,”1 “weak-form judicial review,”2 the “parliamentary bill of rights model,”3 and “dialogic judicial review.”4 Discussions of this model of review, however, have focused primarily on Commonwealth systems in the West—such as Canada, the United Kingdom, New Zealand, the Australian Capital Territory, and the State of Victoria in Australia—with little attention paid to Asia. Po Jen Yap’s new book, Constitutional Dialogue in Common Law Asia, fills this void by exploring a dialogic model of judicial review in three Asian common law systems: Hong Kong, Malaysia, and Singapore. Yap argues that dialogic review is the most attractive approach to constitutional review, both normatively and pragmatically, and his work raises thought-provoking questions about the extent to which the dialogic model is the “constitutional ideal”5 for these Asian legal systems.

The republican virtues of the “new commonwealth model of constitutionalism”

Based on a republican theory of democracy as equally shared popular control, drawn from Philip Pettit’s recent work, this article argues in favor of the “new commonwealth model of constitutionalism” practiced in Canada, the UK, and elsewhere. It claims that the emphasis that the new commonwealth model places on political agents in the rights-related dimensions of the legislative process corresponds with the republican account of rights as political claims but also that the constricted role played by judges under the model answers to a number of important republican concerns around contestation and the dispersal of power. In particular the article argues that the role of judges under the model can be understood as contributing to the gradual emergence of norms that are “commonly avowable” or shareable, and to the refining of those norms over time, such that it enhances the control exercised by citizens over government. In this way the role of judges under the model—in contrast to that under outright legal constitutionalism—can be understood as enhancing democracy, where democracy is understood in this republican way.

The Case for the New Commonwealth Model of Constitutionalism

The article presents the normative case for the new Commonwealth model as a novel third way of organizing basic institutional arrangements in a democracy and an alternative to the conventional dichotomy of legal or political constitutionalism. In so doing, it engages with the latest contributions to the debate about the merits of judicial review, and argues that the new model radically and compellingly permits a form of “proportional representation” among the best arguments for and against the practice rather than the “warts-and-all” of the traditional either/or approach. In this way, the new model is to forms of constitutionalism what the mixed economy is to forms of economic organization: a distinct and appealing third way in between two purer but flawed extremes. Just as the mixed economy is a hybrid economic form combining the core benefits of capitalism and socialism while minimizing their well-known costs, so too the new model offers an alternative to the old choice of judicial supremacy or traditional parliamentary sovereignty by combining the strengths of each while avoiding their major weaknesses. Like the mixed economy's countering of the lopsided allocation of power under capitalism to markets and under socialism to planning, the new model counters legal and political constitutionalism's lopsided allocations of power to courts and legislatures respectively.

Book Notes: The New Commonwealth Model of Constitutionalism: Theory and Practice, by Stephen Gardbaum

Book Notes: The New Commonwealth Model of Constitutionalism: Theory and Practice, by Stephen Gardbaum

The Commonwealth constitutional model or models?

Stephen Gardbaum’s The New Commonwealth Model of Constitutionalism is a must-read in the growing literature on comparative constitutional law and deserves a broad international audience. My question is whether there is a single Commonwealth constitutional model, or, in reality, a set of Commonwealth constitutional models which share common features, but also differ in important respects that should matter to Gardbaum and others who want to understand the manner in which bills of rights are enforced in the Commonwealth jurisdictions under study, for both analytical and normative purposes. I see an important shift between Gardbaum’s original presentation of the abstract features of his model and the fully formed model presented in this book. This contrast raises a number of interesting analytical and normative questions that warrant careful examination. First, what forms do pre-enactment and post-judicial political rights review take? Second, how do different institutions interact with each other at the different stages of rights review?

Between Supremacy and Submission: A Model of Collaborative Constitutionalism?

The adoption by jurisdictions like Canada, Australia, the UK and New Zealand of relatively novel mechanisms for resolving disputes about rights has led to the development of several ostensibly novel models of constitutional adjudication.The most high profile of these - notably Mark Tushnet's distinction between weak and strong-form review, and Stephen Gardbaum's Commonwealth model of constitutionalism - place emphasis, in particular, on the provision of a legislative power to override a judicial determination. It is argued, especially by Gardbaum, that this vesting of the final say in the legislature avoids the weaknesses of both political and legal constitutionalism and so represents a better alternative to traditional theories of legislative or judicial supremacy.This paper argues that Gardbaum's claims are misconceived. Using examples from other jurisdictions, the paper suggests that the claimed novelty and hybridity of the model is based on a caricatured image of alternative approaches to constitutional adjudication. In particular, it is contended that the Commonwealth model's concentration on the idea of the 'final say' is misleading, illusory and gives rise to a false choice between extremes. The critical consideration in any system is not how the mechanisms are designed but how they actually operate.In reality, the contingent and disaggregated nature of modern government means that it is unlikely that any institution will have the 'final say', in the sense of commanding the complete and permanent implementation of its intentions.This, it is suggested, provides the basis for an alternative model of collaborative constitutionalism. This model proceeds from an acceptance of the contingent nature of institutional decision-making to suggest that institutions, like courts and legislatures, should therefore be regarded as engaged in the collaborative enterprise of constitutional governance. By freeing constitutional theory from the necessity to make a false choice between judicial or legislative supremacy, collaborative constitutionalism allows constitutional scholars to concentrate on more practically-important issues of institutional competence, respective expertise, protocols for inter-institutional engagement, and so on.

How Successful and Distinctive is the Human Rights Act? An Expatriate Comparatist's Assessment

This article first assesses the success and distinctiveness of the Human Rights Act 1998 from the perspective of its status as an exemplar of ‘the new Commonwealth model of constitutionalism.’ This new, intermediate model attempts to straddle the dichotomy of parliamentary sovereignty and judicial supremacy by protecting rights through a reallocation of powers between courts and legislatures that brings them into better balance than under either of these two traditional, more lopsided models. As part of its assessment, the article critically examines an influential strand of commentary claiming that in practice the HRA has proven to be less distinctive from US‐style constitutionalism than initially claimed or hoped. The second part of the article seeks to contribute to current debates about reform of the HRA by proposing ways to address its main structural weaknesses, especially the problem of remedial distortion.

Reassessing the new Commonwealth model of constitutionalism

This article presents a general reassessment of the success and distinctiveness of “the new Commonwealth model of constitutionalism” in practice. This new, third model of constitutionalism attempts to straddle the previous dichotomy of traditional parliamentary sovereignty and constitutional or judicial supremacy by adequately and effectively protecting rights through a reallocation of powers between courts and legislatures which brings them into greater balance than under these two preexisting, more lopsided models. The article considers the extent to which the new model is achieving these twin goals—protecting rights and balancing judicial and legislative powers—through a critical evaluation of recent experience under its various versions in Canada, New Zealand, and the United Kingdom and the mostly country-specific academic commentary on all aspects of its workings. The article concludes that the new model has for the most part been moderately successful and distinctive in practice, and proposes a few working adjustments that might make it more so in the future.

Parliamentary Scrutiny of Rights in the United Kingdom: Assessing the Work of the Joint Committee on Human Rights

This article examines the work of the Joint Committee on Human Rights (JCHR) and assesses its effectiveness in safeguarding fundamental rights in the United Kingdom. In 2001, Parliament created the JCHR to scrutinize legislation for compliance with the Human Rights Act 1998 and the UK's international human rights commitments. Data on the impact of JCHR reports on the work of Parliament and courts are collected and used to evaluate the efficacy of parliamentary scrutiny committees devoted to human rights. Is the use of a human rights scrutiny committee an effective mechanism of rights review? Since the success of the ‘Commonwealth model of constitutionalism’ ultimately depends on the effectiveness of parliaments in safeguarding rights, the extent to which the JCHR's work influences the drafting of proposed bills; contributes to more informed parliamentary debate; and, ultimately, prevents bills with rights problems from becoming law, is likely to interest scholars and reformers alike.

The New Commonwealth Model of Constitutionalism

There has been a tremendous growth in constitutionalism around the world in the last sixty years. Mostly, it has come in two concentrated bursts: in western Europe and Japan following World War II, and in central Europe and Africa following the collapse of communism in 1989. Despite fascinating and important differences in the forms that this growth has taken in various countries, the overarching story is one in which the essentials of the American model of constitutionalism have been adopted. These essentials posit a necessary and fundamental incompatibility between legislative supremacy and the effective legal protection of individual rights, so that opting for the latter requires constitutionalizing them in the following specific sense: giving such rights the status of supreme law; entrenching them against ordinary legislative repeal or amendment; and enforcing them through the power of judicial review, exercise of which is unreviewable by ordinary legislative means. There has, however, been a set of recent developments in the three Commonwealth countries of Canada, New Zealand, and the United Kingdom that present an intriguing alternative to this dominant model of constitutionalism. Between 1982 and 1998, each of these three countries adopted a bill of rights in a form that self-consciously and deliberately rejected the central axiom of the American model by seeking to reconcile and accommodate judicial protection of fundamental rights with (what they see as) the legitimate core claims of parliamentary sovereignty. Although they grant significant new power to the courts to protect fundamental rights, each in a different way empowers the legislature to have the final word on what the law of the land is. This article identifies, analyzes and evaluates this new Commonwealth model of constitutionalism. In addition to presenting novel institutional possibilities within the framework of constitutionalist democracy, the new model suggests solutions to a number of practical and theoretical problems that have long been thought to bedevil the American model. By attempting to create genuine dialogue and joint responsibility between courts and legislatures with respect to rights, the new model may both help to reinject matters of principle back into legislative and popular debates, and offer a radically direct solution to the countermajoritarian difficulty associated with judicial review.

The New Commonwealth Model of Constitutionalism

There has been a tremendous growth in constitutionalism around the world in the last sixty years. Mostly, it has come in two concentrated bursts: in western Europe and Japan following World War II, and in central Europe and Africa following the collapse of communism in 1989. Despite fascinating and important differences in the forms that this growth has taken in various countries, the overarching story is one in which the essentials of the American model of constitutionalism have been adopted. These essentials posit a necessary and fundamental incompatibility between legislative supremacy and the effective legal protection of individual rights, so that opting for the latter requires constitutionalizing them in the following specific sense: giving such rights the status of supreme law; entrenching them against ordinary legislative repeal or amendment; and enforcing them through the power of judicial review, exercise of which is unreviewable by ordinary legislative means. There has, however, been a set of recent developments in the three Commonwealth countries of Canada, New Zealand, and the United Kingdom that present an intriguing alternative to this dominant model of constitutionalism. Between 1982 and 1998, each of these three countries adopted a bill of rights in a form that self-consciously and deliberately rejected the central axiom of the American model by seeking to reconcile and accommodate judicial protection of fundamental rights with (what they see as) the legitimate core claims of parliamentary sovereignty. Although they grant significant new power to the courts to protect fundamental rights, each in a different way empowers the legislature to have the final word on what the law of the land is. This article identifies, analyzes and evaluates this new Commonwealth model of constitutionalism. In addition to presenting novel institutional possibilities within the framework of constitutionalist democracy, the new model suggests solutions to a number of practical and theoretical problems that have long been thought to bedevil the American model. By attempting to create genuine dialogue and joint responsibility between courts and legislatures with respect to rights, the new model may both help to reinject matters of principle back into legislative and popular debates, and offer a radically direct solution to the countermajoritarian difficulty associated with judicial review.