Towards a jurisprudence of constitutional conventions

Sirota, L. (2011) Towards a jurisprudence of constitutional conventions. Oxford University Journal of Commonwealth Law, 11 (1). pp. 29-51. ISSN 1472-9342 doi: 10.5235/147293411797394397

Abstract/Summary

The status of the conventions of the constitution is controversial. According to traditional understanding they are binding constitutional, but not legal, rules because they are not judicially enforceable. However, an analysis of the arguments advanced in support of the proposition that conventions are not, or are not even capable of being, legal rules shows them to be unpersuasive. While conventions are not now recognized as part of constitutional law, this does not prevent courts from so recognizing them in the future. Furthermore, neither conflict between conventional and legal rules, nor the conventions’ alleged uncertainty, nor the apparent difficulty to craft a suitable remedy for their enforcement, nor yet their political origin, constitute insuperable obstacles to their recognition as legal rules. Understanding the law as inextricably linked to, rather than hermetically insulated from, social practices, as advocated for example by FA Hayek, courts ought to recognize and enforce conventions, subject to constraints of justiciability.