Daniel Gilligan (Trinity College (Dublin)) has posted Collaboration in The Collaborative Constitution: Modes, Value, and Comity ((forthcoming, 2025) 45(2) Dublin University Law Journal) on SSRN. Here is the abstract:
This paper comprises three (connected) comments on the concept of ‘collaboration’ in Aileen Kavanagh’s masterful The Collaborative Constitution.
The first section briefly introduces the book’s argument. I suggest that Kavanagh’s core focus therein is a special form of collaboration between the several branches of government. That form is distinctively unscripted, non-hierarchical and continuously mutually responsive. In musical metaphor, it is the collaboration of the jazz trio, more than of the symphony orchestra. For Kavanagh, it is this special form of collaboration that constitutional government (ideally) involves.
The second section examines collaboration’s connection(s) to value. The link Kavanagh emphasises in the text is an instrumental one: interbranch collaboration is valuable, where it is, as an effective tool for bringing about independently valuable ends (good government, protection of rights, etc). I gesture to a view on which collaboration is, instead, a non-instrumentally valuable aspect of a well-ordered constitution, and briefly consider how Kavanagh’s view relates to this other one.
The third section looks at collaboration’s relationship to comity. Here, Kavanagh is surely correct to think that collaboration often involves, or resembles, comity. But the concepts are distinct in ways her discussion risks obscuring. For one, collaboration is organized around an end the agents share, to which they jointly contribute. Comity need not be so organized. As such, the call for comity remains compelling – is perhaps most compelling – where those with whom we interact do not share our ends; where our collaboration with them is off the table. On this basis, the paper concludes with a traditionalist suggestion. We might aspire to a constitution of comity that need not be, at the same time, a collaborative constitution.
Here is a link to Kavanagh’s highly recommended book: The Collaborative Constitution.