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The Sovereignty of LawFreedom, Constitution and Common Law$
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T.R.S. Allan

Print publication date: 2013

Print ISBN-13: 9780199685066

Published to Oxford Scholarship Online: September 2013

DOI: 10.1093/acprof:oso/9780199685066.001.0001

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Constitutional Convention: Practice and Principle

Constitutional Convention: Practice and Principle

(p.55) 2 Constitutional Convention: Practice and Principle
The Sovereignty of Law

T. R. S. Allan

Oxford University Press

A lawyerly account of convention, explaining the nature and role of constitutional conventions, must be an interpretation of political practice. It cannot be merely a neutral description of politicians' conduct or beliefs: it must be an appraisal of that conduct, justifying the pertinent rules by reference to basic moral and political values. It is a matter of critical rather than positive morality. From that perspective, Dicey's well-known distinction between law and convention looks questionable. Convention is enforced as law whenever a court draws on settled understandings in forming its conclusions about the demands of legal and political principle. Rigid boundary lines between law and convention reflect a legal positivist orientation; they are also related to a distrust or disparagement of judicial review. A broader approach to justiciability is intrinsic to the common law constitution, connecting judgements of legality and legitimacy.

Keywords:   positive morality, critical morality, Dicey, justiciability, constitutional convention, legal positivism, judicial review

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