Constitutional conventions
(2015) Constitutional Conventions in Westminster Systems Controversies, Changes and Challenges — ISBN: [9781316178560], p. 8-23, published
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- Abstract
- This opening chapter addresses the foundational questions of what is a convention, what gives a convention its legitimacy and how conventions remain stable yet adaptable. Conventions are often defined negatively, in terms of not being law, or in political terms with the implication that they are inferior to law. We contend that conventions occupy a more fundamental realm: government and the rules for forming government precede law and make law-making possible. In other words, conventions are more fundamental than laws; they govern the formation and basic functioning of government overall and in its key parts, and governments set up the law-making institutions that make, interpret and enforce laws. Hence it is not appropriate to go backwards, as it were, and view conventions from the more precise lens of law, which has been a strong tendency since the nineteenth century. Hence our starting point is consideration of the origins of systems of government and law, and why they are supported and obeyed. We propose a political approach to explain how conventions derive from fundamental political principles that inform practice. After all, conventions are basic political rules affecting the structure and powers of government that are not enforceable in courts of law, so not amenable to jurisprudential treatment that purports to view them as quasi-laws. While for the most part conventions are not formally codified as laws are, they are broadly accepted as binding by government actors and citizens. They shape government practice albeit with flexibility that allows for development and change.
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Galligan, B., & Brenton, S. (2015). Constitutional conventions. In Galligan, Brian ; Brenton, Scott (ed.), Constitutional Conventions in Westminster Systems Controversies, Changes and Challenges (p. p. 8-23). Cambridge University Press. https://doi.org/10.1017/cbo9781316178560.002