Brian Christopher Jones (University of Liverpool – School of Law & Social Justice) has posted Constitutionalism’s Informal Turn: Some Issues on SSRN. Here is the abstract:
Amidst a global turn towards less democratic and more authoritarian types of government, the legal academy has responded with a slight turn itself when it comes to constitutional studies: towards the informal. Indeed, the idea that informal-or perhaps ‘unwritten’-constitutional aspects matter just as much as formal, written constitutional elements now appears to have become commonplace or at least much more widely accepted across the academy. After all, an increasing number of written constitutions, many of which have become more detailed and often include an expanded subset of rights, have not prevented the turn to more authoritarian types of government around the world. Whilst this scholarly turn to the informal is a welcome development, some challenging issues remain that have not yet been fully discussed or debated. In particular, I raise the following concerns in this piece: the content, scope and protection of the unwritten constitution is disputed; constitutional borrowing of informal mechanisms may be more problematic than the borrowing of written elements; jurisdictions that operate on written constitutional arrangements may struggle to adapt to more informal or unwritten arrangements; and the informal turn may contain wider implications for constitutional design and constitutional theory. Ultimately, this chapter will argue that constitutionalism’s informal turn is no ‘quick fix’ to the current problems around the world in constitutional governance, and it may ultimately require a larger reset in the relationship between law and politics.
Recommended.