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      Judging constitutional conventions

      1 , 2 , 3

      International Journal of Constitutional Law

      Oxford University Press (OUP)

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          Abstract

          The study of constitutional conventions is anchored in three assumptions that have so far remained largely unchallenged: that there is a shared “Commonwealth approach” to constitutional conventions; that Commonwealth courts will recognize and employ conventions but never enforce them; and that conventions are always distinguishable from rules of law. After setting out a new taxonomy of modes of judicial engagement with constitutional conventions, we overturn each of these assumptions. We draw on recent case law from Canada, India, and the United Kingdom to show that there is no shared “Commonwealth approach” to the treatment of constitutional conventions. We show that some Commonwealth courts do, in fact, enforce conventions. Finally, we show that at least some constitutional conventions have crystallized into law. These insights disrupt much of what is foundational in the study of constitutional conventions.

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          Author and article information

          Contributors
          Journal
          International Journal of Constitutional Law
          Oxford University Press (OUP)
          1474-2640
          1474-2659
          July 2019
          September 09 2019
          September 09 2019
          July 2019
          September 09 2019
          September 09 2019
          : 17
          : 3
          : 787-806
          Affiliations
          [1 ]Melbourne Law School, University of Melbourne
          [2 ]William Stamps Farish Professor in Law and Professor of Government, The University of Texas at Austin
          [3 ]Associate Professor of Law and Garrick Tutor and Fellow at Brasenose College, University of Oxford, Faculty of Law
          Article
          10.1093/icon/moz060
          c28ffec5-c526-4840-9699-698a69215ef1
          © 2019

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