Comparative Constitution Making
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Comparative Constitution Making

Edited by David Landau and Hanna Lerner

Recent years have witnessed an explosion of new research on constitution making. Comparative Constitution Making provides an up-to-date overview of this rapidly expanding field.
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Chapter 15: Constitution making: the case of “unwritten” constitutions

Janet McLean

Abstract

This chapter considers modes of constitution making which are not directly or self-consciously styled as constituent acts by and for the people. The first part asks how it is possible in a system in which the legislature is simultaneously  a legislative assembly and a constituent assembly to differentiate between ordinary statutes and those with a constitutional status and hence to talk about constitution-making. It uses examples from the UK imperial constitution, New Zealand and Israel to demonstrate how the legislature itself can create a normative hierarchy between statutes, and discusses the UK judicial invention of the so-called “constitutional statute”. The second half of the chapter suggests that in all constitutions, whether written or unwritten, constitutional conventions, norms and habits are an essential part of the constitution, and considers how these can be created or destroyed.

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