The Distorting Lens of Convergent Constitutional Theory

Erscheinungsjahr 2025
ISBN: 978-1-5099-8846-4
Verlag: Bloomsbury Academic

Buch, Englisch, 192 Seiten, Hardback, Format (B × H): 156 mm x 234 mm, Gewicht: 454 g

This book challenges the near-universal acceptance of a US-style, Western constitutional paradigm as the best basis for comparative constitutional studies. It does so on three main grounds: anachronism, 'othering' and cultural specificity.

Main pillars of 'convergent constitutional theory' are rooted in the revolutionary, late-eighteenth century - a lost world; constitutional arrangements that deviate from the paradigm are often branded as 'outliers' or even as not constitutional at all; and the foundations of the paradigm in liberal democracy give no space for other forms of constitutionalism. Whatever the attractions of convergent theory as a normative ideal of good government, for the purposes of understanding, analysing and explaining constitutional systems it is far from ideal.

This book discusses and questions: convergent theory's weddedness to writing as the technology of constitution-making; its image of a constitution as fundamental law; its idea that a constitution expresses the 'sovereignty of the people'; its use of tripartite separation of powers as the basic principle of institutional design; its relative neglect of administrative law; its association of 'rights' with judicially enforceable bills of rights; and its obsession with a vaguely specified concept of 'democracy'.

It makes suggestions for alternative, preferable methods of understanding, analysing and explaining constitutions, and governmental and constitutional systems.

Autoren/Hrsg.

Cane, Peter

Barzun, Charles

Visser, Maartje De

Klatt, Matthias

Fachgebiete

• Rechtswissenschaften Ausländisches Recht Common Law (UK, USA, Australien u.a.)
• Rechtswissenschaften Recht, Rechtswissenschaft Allgemein Rechtsvergleichung

Inhaltsverzeichnis

1. Introduction
2. Constitutional Writing
3. Fundamental Law
4. Sovereignty of the People
5. Institutional Structure
6. Constitutional and Administrative Law
7. Rights
8. Democracy
9. Conclusion

Über Autor(innen)

Cane, Peter
Peter Cane is a Senior Research Fellow at Christ's College, Cambridge. He was previously Distinguished Professor of Law at the Australian National University College of Law, and before that a Professor of Law at Corpus Christi College, Oxford. He is the author of numerous books on law, including Atiyah's Accidents, Compensation and the Law (8th ed, 2013), Responsibility in Law and Morality (2003), The Anatomy of Tort Law (1997), Tort Law and Economic Interests (2nd ed, 1996), and Administrative Law (5th ed, 2011).

Peter Cane is Senior Research Fellow, at the University of Cambridge, UK, and Emeritus Distinguished Professor of Law at the Australian National University.