UNWRITTEN CONSTITUTIONALISM

he concept of constitutionalism has veritably evolved over the years, from simply reflecting the nature of governance, to limiting the scope of governance as per the accepted rules, and thereafter to ensure that the governance reflects the upliftment of the socio-economic conditions of the individuals. Substantive constitutionalism has traditionally been deemed to mirror the notion of legal constitutionalism, which essentially means the entrenchment of core constitutional values in a written document, with a corollary provision for strong-form judicial review to protect those fundamental values. Political constitutionalism of a jurisdiction like the UK, however, has continued to challenge this notion by effectively incorporating substantive rules of constitutionalism within the realm of its largely unwritten constitution, based primarily on the doctrine of parliamentary sovereignty. Global constitutionalism, emerging from a decentralized global constitution with largely unwritten rules, has proposed the idea of ‘constitutionalism in transit’ in the context of an increasingly interconnected global world. The purpose of this paper is to define and elucidate how the unwritten rules of a nation-state (the UK) and that of the global constitution are able to broadly implement and enforce the contemporary tenets of maximum constitutionalism.

Ronald Dworkin sostiene que el contenido del derecho se limita al conjunto de derechos sujetos a ser adjudicados ante los tribunales. Para Dworkin, el valor de la "legalidad", es decir, el valor que sirve el derecho de manera distintiva cuando funciona adecuadamente, es una virtud de las decisiones judiciales. El objetivo de este artículo es criticar el enfoque hacia las cortes de Dworkin, dado que proporciona una concepción empobrecida de lo que es el valor de la "legalidad", argumentaré que la legalidad tiene una dimensión tanto sistemática como adjudicativa. En su dimensión sistemática, exige que el gobierno en su conjunto esté estructurado de tal forma que garantice el ejercicio adecuado del poder público. Por lo tanto, para que un sistema jurídico presente el valor de la legalidad, no es suficiente que los jueces emprendan el uso de la coerción del Estado bajo ciertas condiciones. Además, el ejercicio del poder público tiene que ser acorde con un esquema de separación de poderes con un objetivo de justicia. Así entendidas, no todas las exigencias de la legalidad son sujetas a ser adjudicadas judicialmente. Esta * Artículo recibido el 16 de octubre de 2014 y aceptado para su publicación el 6 de noviembre de 2014. ** Associate Professor, School of Law, University of Reading. dimitris.kyritsis@ gmail.com. I thank participants in the Workshop on the Legal Philosophy of Ronald Dworkin organized by UNAM and the Supreme Court of Mexico for their helpful comments. I am also grateful to an audience at the 2014 McMaster Conference in Legal Philosophy, where I also presented the argument of this article, and especially to Eric Encarnacion for his written and oral comments. This article elaborates claims that I make in my monograph Shared Authority: Courts and Legislatures in Legal Theory (forthcoming Hart Publishing).

This article analyzes the convergence of the common law and civil law systems in relation to the parameters of judicial review, particularly when constitutional principles, both explicit and implicit, work to invalidate ordinary laws. The article also uses the Canadian experience to examine how unwritten but implicit constitutional principles can be used for the purposes of judicial review. It also reviews the theory of The Invisible Constitution, by Laurence H. Tribe. Finally, we face the question of the living Constitution, which includes the concept of the Constitution as a living instrument beyond its formal text.

The majority reasons in the Supreme Court of Canada’s decision in Toronto (City) v Ontario appear to suggest that unwritten constitutional principles may not be applied as “independent” means to invalidate legislation.  Indeed, some may argue that the majority reasons identify additional, categorical limitations on the application of unwritten constitutional principles.  This article argues that that these categorical claims are not supported by the existing jurisprudence. 

In particular, the article argues that the categorical claims in the majority reasons in Toronto (City) are based on misinterpretations of the existing jurisprudence that, in turn, promote misconceptions about the ways unwritten constitutional principles may be recognized and applied.  When these misinterpretations and misconceptions are identified, and dispelled, it is possible to see that the decision in Toronto (City) may be best understood as a response to the use of unwritten constitutional principles to protect overly broad rights claims, rather than a more general, categorical restriction of their normative power.  It also becomes apparent that the question of whether unwritten constitutional principles may serve as “independent” limitations on legislation may be misplaced and that an approach based on categorical acceptance or rejection of particular roles for unwritten principles should be eschewed in favour of a more balanced, “sliding-scale” approach to the application of these principles, that weighs different categories of evidence in favour (or against) the application of a particular principle to support a new constitutional right or obligation.  Such a sliding scale approach fits well within the Court’s existing jurisprudence.

The Supreme Court of Canada has considered unwritten principles to be part of the Canadian constitution for some time. They are aspects of Canada’s supreme law, along with the Constitution Acts, 1867 and 1982 and constitutional architecture. Yet the Court’s treatment of these principles continues to evolve. In the recent City of Toronto case, for instance, the majority ruled that unwritten constitutional principles cannot be used to invalidate legislation, seemingly diluting their power and import.

The Court’s evolving approach to unwritten principles reveals an ambivalence about their origins, meaning and purpose. We suggest that one reason for this ambivalence is that the jurisprudence has largely developed against the backdrop of the written, legal constitution; the Court has had very few opportunities to consider how unwritten principles relate to the constitution’s political rules and norms. This has made it difficult for the Court to develop an account of unwritten principles that fits with the constitution as a whole, as opposed to just its legal components.

In this article, we examine the relationship between unwritten principles and the political constitution through the prism of two questions. First, we ask how unwritten principles interact with constitutional conventions. Our research reveals that the relationship between unwritten principles and conventions is bi-directional: political rules shape the development of unwritten principles, and vice versa. Second, we consider what the normative character of unwritten principles tells us about their place in the constitutional order. We conclude that unwritten principles serve as a normative bridge between the legal and political constitutions, and that they are simultaneously law and not-law.

Commonly depicted as a textbook example of 'failed state', postwar Lebanon has drawn a cumbersome political and economic trajectory throughout the last three decades. However, neither the perceived inefficiency and corruption of its politico-administrative machinery nor the inability of its élites to engender a modicum of prosperity have managed to jeopardize the foundations whereupon the Lebanese system is anchored, whereas other-apparently more solid-régimes fell down amid public outcry. Unaffected by the winds of change blowing during the Arab Spring, the defining elements of Lebanon's political structure have remained basically unchanged in spite of civil war, foreign occupation, and popular protests. This paper, in analyzing the guidelines of such a political construction, will argue that the consuetudinary power-sharing practices and gradualist approach to change enshrined within the so-called 'National Pact' have turned an apparently weak system into an ironclad construction, where radical transformations and revolutionary upheavals are comparatively hard to achieve.

Este artículo analiza la convergencia entre los sistemas del common law y civil law en relación con los parámetros de la judicial review, particularmente cuando los principios constitucionales, tanto explícitos como implícitos, funcionan para invalidar leyes ordinarias. También el artículo considera la experiencia canadiense para examinar cómo los no escritos pero implícitos principios constitucionales pueden ser usados para el fin de la judicial review. Y de la misma forma se revisa la teoría de The Invisible Constitution, de Laurence Trible. Finalmente, enfrentamos la cuestión de la Constitución viva, la cual incluye el concepto de Constitución como un instrumento vivo más allá de un texto formal.

Por outro lado, o constitucionalismo adotado por países europeus no pós-guerra, América Latina pós-ditaduras, África do Sul pós-apartheid e Leste Europeu após queda do muro de Berlim, levaram a repensar o direito constitucional, uma vez que direitos fundamentais abstratos passaram a exigir um novo modelo interpretativo, na medida em que juízes passaram a decidir não mais baseados apenas no direito escrito, mas em elementos extrajurídicos, assumindo-se que um texto constitucional tem conteúdo moral e político. Na medida em que essas normas de caráter abstrato, apesar de estarem previstas na Constituição, precisam de significação de seu conteúdo, o Judiciário acabou por avocar para si papel importante no jogo político de definição do conteúdo moral dos direitos fundamentais. É natural que as Constituições contenham normas abstratas, pois quanto mais gerais e abstratas as normas, mais fácil que elas tenham sido originadas num consenso da comunidade. Assim, os princípios mais abstratos são extraídos por meio de uma consideração de ideias que incluem lógica e moral, política, economia e filosofia natural.

This pa per has two parts. The first pres ents a sum mary of the left phenomenological cri tique of le gal pos i tiv ism, as de vel oped by one tendency within crit i cal le gal stud ies. The sec ond at tempts to clar ify the po si tion through a re sponse to one of the many misreadings of the Cls po si tion that are cur rent in the posi tiv ist and post-posi tiv ist mainstream of Unitedstatesean ac a demic le gal phi los o phy. I This part con cerns the fol low ing set of ideas com mon to Hart's and Kelsen's ca non i cal brief writ ings on le gal in ter pre ta tion. Within a "core", or at the bound ary of the "frame" es tab lished by a norm, in ter pre ta tion is "de ter mi nate" In the "pe riph ery" or "within the frame" set up by the norm, in ter pre ta tion is an other word for "dis cre tion" or "leg is la tion", and the mean ing that the in ter preter will give the norm is not de ter mi nate. For Kelsen and Hart, de ter mi nacy of a given norm, seen as a unit, is a mat ter of de gree. For Kelsen, con sti tu tional norms de fin ing the proper exercise of leg is la tive power are rel a tively in de ter mi nate as to what statutes the leg is la ture should adopt, while stat utes are rel a tively more determinate of the con tent of ju di cial de ci sions pur port ing to ap ply them. Like wise, for Hart norms can have larger or smaller pen um bras. Both au thors seem to me use the word de ter mi nate in a con fus ing way. Some times de ter mi nate means that we can pre dict with great certainty what the in ter preter will do with the prob lem at hand.

Entre muitos trabalhos norte-americanos recentes sobre o problema da mudança informal da Constituição, este artigo demarca uma posição distinta. Teorias da mudança constitucional nos Estados Unidos, aqui se argumenta, devem abordar a questão da relação entre a constituição (com “c” minúsculo) e a Constituição (com “C” maiúsculo) e tratar com seriedade a possibilidade de conflito entre elas. Destacam-se o papel inevitável que o texto da Constituição e a doutrina estrutural do federalismo e da separação de poderes desenvolvem nessa relação e, assim, na mudança constitucional, tanto formal, quanto informal. Com isso, teorias que repousam, exclusivamente, em uma abordagem prática ou em analogias entre desenvolvimentos da constituição (com “c” minúsculo) e tradições, que há na Grã-Bretanha e na Commonwealth, de constituição não-escrita ou “convenções” constitucionais não são aconselhadas. A alternativa que se advoga é abordar a mudança constitucional a partir de uma perspectiva histórica que enfoca a construção do Estado e a criação de novas capacidades institucionais. Essa abordagem permitirá que se progrida ao enfatizar que, em determinado período histórico, pode haver múltiplas ordens constitucionais, portanto, correspondendo à natureza conflituosa do desenvolvimento constitucional contemporâneo nos Estados Unidos.

From a dualist political perspective the normative hierarchy of constitutional norms are ensured by means of procedural limits on constitutional reforms, which represent a division between constitutional and ordinary law. However, this is not the only sort of restraint that constitutional systems place upon amending power, substantive limits are part of many constitutions around the world. The effectiveness of both procedural and substantive clauses depends on how the violating acts will be controlled. Should democratic concerns be already present in judicial review of ordinary law, they are weightened when the subject of review is a constitutional amendment. The main reason lies in
the greatest democratic demands of constitutional amendments in comparison to ordinary law. Constitutional amendments are in between constituent and constituted powers. The debate on judicial review of substantive limits to constitutional amendments faces one more democratic challenge, that is, the implicit substantive restrains on the amending power. In this approach, constitutional courts define some rights or structures as unamendable even though they are not expressly set in the constitutional text. Considering that both Brazil and
Colombia have a practice in judicial review of constitutional amendments, we focus on how the Supremo Tribunal Federal and the Corte Constitutional de Colombia explain their competence and the role of implicit substantive limits to derived constituent power. In doing so we demonstrate at what extent Brazil and Colombia judicial powers are related to popular sovereignty.

AbstrAct: This article analyzes the conver- gence of the common law and civil law sys- tems in relation to the parameters of judi- cial review, particularly when constitutional principles, both explicit and implicit, work to invalidate ordinary laws. The article also uses the Canadian experience to examine how unwritten but implicit constitutional principles can be used for the purposes of judicial review. It also reviews the theory of The Invisible Constitution, by Laurence H. Tribe. Finally, we face the question of the living Constitution, which includes the concept of the Constitution as a living ins- trument beyond its formal text.
Keywords: Common Law; Civil Law; Judicial Review; Unwritten Principles; Invisible Constitution; Living Constitution.

In this Chapter prepared for the Oxford volume on " Constitutional Democracy in Crisis? " edited by Mark Graber, Sanford Levinson and Mark Tushnet, we advance three categories of institutional explanations for the resilience of Canadian constitutional democracy in the face of the increasingly global phenomenon of democratic decline. First, we show that Canada's choice to chart its own course of constrained parliamentarism in the debate pitting presidentialism and parliamentarism has borne the fruits of democracy. Second, we demonstrate that Canada's robust " democracy branch " has been both a source and driver of its democratic resilience. Third, we illustrate how the Supreme Court of Canada has managed to issue highly political and quite controversial decisions without becoming perceived as a partisan institution—making it an overtly political but not politicized institution. The upshot of our inquiry is that constitutional design—and not political culture alone—has been critical in reinforcing the democratic resilience of the Canadian Constitution. We conclude with some long-term challenges that we view as significant, despite Canada's relatively enviable position among the countries of the world in our day.

Through the presentation of a new history of social justice in the global constitutional discourse, this article aims to demonstrate that, despite there is no in Colombia, as in other countries, a constitutional value or principle of social justice, the modern notion of justice distributive, also called social justice today, is implicit in the Constitution of 1991 because it enshrined as mandatory rules the three main elements of its meaning in the time of its promulgation: the principle of Social Rule of Law, the principle of human dignity, and the right to a material equality. Thus, in Colombia, social justice must not be understood in accordance with the Aristotelian meaning of distributive justice, but according to those three elements, and can be achieved only if they are fulfilled.

Mediante la presentación de una nueva historia de la justicia social en el discurso constitucional global, este artículo pretende demostrar que, a pesar de no existir en Colombia, así como en otros países, un valor o principio constitucional de justicia social, la noción moderna de justicia distributiva, también llamada hoy justicia social, se encuentra implícita en la Constitución de 1991 porque esta consagró como normas obligatorias los tres elementos principales de su significado en el tiempo en el que fue promulgada: el principio de Estado Social de Derecho, el principio de dignidad humana y el derecho a una igualdad material. Así pues, en Colombia, la justicia social no debe entenderse según el sentido aristotélico de justicia distributiva, sino a partir de esos tres elementos, y sólo puede ser alcanzada si ellos se cumplen.

Published before the Supreme Court handed down its opinion in the Quebec Secession Reference, this paper discusses the normative resources available to judges confronted with the prospect of fundamental constitutional change in a way which foreshadows the unprecedented approach taken by the Court in this landmark opinion. A discussion of the legacy of the so-called patriation of the Canadian Constitution brings to light the fact that the conventions and the legal rules of the constitution are necessarily underlain by the same fundamental principles which guide the evolution of the unwritten law of the constitution.

From the moment that it was handed down, the judgment of the Supreme Court of Canada in the Quebec Secession Reference produced a torrent of public commentary. Remarkable as the decision is, however, and given the fundamental issues about the relationship between law and politics that it raises, the discussion in question has remained almost entirely in what we describe as the pragmatic perspective, which asks how positive politics entered into the motivations and justifications of the Court, and looks at the results in terms of their political consequences, without deep or sustained reflection on the ultimate grounds for the role the Court took upon itself, or on the normative sources of its reasoning. Yet some of the crucial elements of the judgment beg for adequate theorization—especially the reliance on unwritten constitutional principles and the Court’s self-limitation of its judicial review function with respect to the application of the law by the political actors. The respect of citizens for the Court depends importantly on their view of it as a forum of principle and of reason. Indeed, absent such a belief, it is doubtful that the judgment of the Court could play any role whatever in restraining or informing political behavior in the circumstances of the secession, where hateful passion and prejudice are likely to be running at their highest, and the potential “end game” nature of the situation removes many of the usual pragmatic constraints on the degeneration of political action into force and fraud. Thus, even from a pragmatic perspective dominated by a concern with political effects, the question of the legitimacy of the Court ’s decision deserves serious attention. And this question, especially given the apparent novelty and anomaly of some of the Court’s holdings in this case, can only be answered through an excursion into constitutional theory.

Bruce Ackerman speaks with two voices. While he is one of the most prominent students of comparative constitutionalism in the U.S. legal academy, Ackerman is better known for his imaginative theory of American constitutional development. In the latter voice, Ackerman observes that, notwithstanding a remarkable continuity of governance, U.S. constitutional history falls into three distinct regimes. He argues that the transitions between these different constitutional regimes, inasmuch as they have failed to comply with the Constitution’s written rules for its own amendment, have taken place through a process of “higher lawmaking.” There is an underlying tension between this voice of Ackerman’s and the other one, which expounds on the relevance of comparative analysis for constitutional scholarship. While Ackerman the comparativist lambastes U.S. constitutional scholars for their parochialism, in We the People he calls on American constitutional scholars to ground theories of the Constitution in indigenous political practice. This paper attempts to reconcile the two strands of Ackerman’s work, focusing on the “constitutional moment”—Ackerman’s central contribution to the study of American constitutional change—and applying it to other countries, specifically, Canada. The comparative constitutional research questions are whether other systems experience constitutional moments, and what we can learn about these moments by studying them inside and outside the United States.

This is an attempt to make sense of my thoughts so far on the nature of customary law. It is very much a draft and I would, as always, be grateful for comments and advice. I have left out footnotes and bibliography, but can supply references upon request.

Canada shares an ironic situation with many other countries with written Constitutions: the rule of law is praised while political actors ignore the  law. Constitutional conventions at times permit, and on occasion require, public officials to act in ways other than what is detailed in law. In examining the consequences for the rule of law of constitutional conventions and unwritten principles, this paper will focus on the role and nature of constitutional conventions, their relationship to both unwritten constitutional principles and the formal Constitution, and the problems in either drawing from or ignoring them in judicial decisions. This focus provides a window on the importance of unwritten rules and principles in political systems with a formal Constitution.

This article offers an analysis of constitutional conventions and the controversies over their nature, genesis, and operation. Three very different perspectives on the nature of conventions are explored. The orthodox model espoused by the Supreme Court of Canada is based on historical precedents; without precedents, there can be no rule. In examining this view, particular attention will be paid to the Supreme Court's analysis of conventions in the Patriation Reference to highlight the flaws in relying exclusively or rigorously on Jennings' formulation. At the other extreme is a view of conventions as flexible guidelines, which may pose only broad obligations and permit political actors to explore their own preferred course of action; what is conventionally permitted or required is what the attentive public will support or acquiesce to at any given time. A third view is that conventions are obligations arising from basic constitutional principles; these principles may bind po...

This article argues for the importance of attending to the unwritten elements of constitutionalism for both constitutional theory and constitutional design. In particular, the concern is with the structural elements of constitutions - the way in which power is distributed and institutions are structured in constitutions - not on the interpretation or substance of constitutional rights. The article looks carefully at the two North American constitutional orders that emerged out of or in reaction to the unwritten tradition of the UK, analyzing contemporary jurisprudential debates in Canada and excavating a somewhat more buried but no less robust tradition of thinking about the unwritten constitution in the US. Close examination of the practices and theory of constitutionalism in both countries suggests that it is the unwritten constitutional conventions, norms, and ethos that ultimately prove essential to sustaining a stable democracy governed by the rule of law. Furthermore, looking at moments of constitutional tension in both countries - debates about Quebec's place in Canada and times of war and terror, both historical and modern, in the US - indicates that these unwritten elements of the constitutional order become particularly important at times of extremity, constitutional stress, and national crisis. The article closes with reflections on how taking unwritten constitutionalism seriously might inflect contemporary constitutional theory and what it might mean for projects of constitutional design.