Conventional Constitutional Law
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Journal ArticleDate:
2015Access:
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'Conventional Constitutional Law', Dublin University Law Journal;, 38;, 2015Download Item:
Abstract:
Judges share conventional understandings about what the Constitution
requires, both of themselves and of other constitutional actors. These informal conventions
lead to formal decisions, which are then centrally enforced by the state in the same
manner as all other judicial decisions. This recognition of conventional constitutional
law has three critical implications for our understanding, critique and reform of constitutional
law. First, it is unlikely that judges will refer explicitly to their own conventions
in their decision-making; however, scholars cannot provide an accurate explanation of
constitutional law if they do not account for the possible role of conventional constitutional
law. Second, although there is nothing inherently objectionable in conventional
law, it is problematic that the interaction of conventional and written constitutional law
allows the conventions of a judicial and legal elite attain the force of law for other people.
Third, in some circumstances, it may be more effective to change constitutional law by
changing how we select judges than by formally amending the text of the Constitution.
Author's Homepage:
http://people.tcd.ie/ojdoyleDescription:
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Dublin University Law Journal;38;
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Full text availableKeywords:
comparative constitutional lawSubject (TCD):
Identities in Transformation , Making Ireland , Comparative Constitutional Law , Constitutional Law , JurisprudenceMetadata
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