Aileen Kavanagh (Trinity College Dublin) has posted The Ubiquity of Unwritten Constitutionalism on SSRN. Here is the abstract:
This paper argues that all constitutional orders include unwritten norms of constitutional behaviour. Far from being an unusual or aberrational feature of the UK or New Zealand constitutional order, unwritten constitutionalism is ubiquitous. Even the most comprehensively drafted written Constitution ultimately rests on political buy-in and commitment to the constitutional rules of the game. Absent that commitment, a codified constitution becomes a ‘parchment barrier’ devoid of authority and operative force. It becomes a ‘constitution without constitutionalism’. All constitutions rely on shared norms of political behaviour and principles of constitutionalism which are often unwritten. The ubiquity of unwritten constitutionalism has implications for how to save or sustain a constitutional democracy. It suggests that we should be suitably modest and realistic about the relevance of constitutional design – and responsive to the foundational role of constitutional culture in making constitutional democracy work.
Highly Recommended!
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