The Collaborative Constitution

Argues that protecting rights in a democracy is a collaborative constitutional enterprise between all three branches of government.

Aileen Kavanagh (Author)

9781108493260, Cambridge University Press

Hardback, published 26 October 2023

300 pages
22.9 x 15.2 x 2.9 cm, 0.929 kg

In this book, Aileen Kavanagh offers a fresh account of how we should protect rights in a democracy. Departing from leading theoretical accounts which present the courts and legislature as rivals for constitutional supremacy, Kavanagh argues that protecting rights is a collaborative enterprise between all three branches of government - the Executive, the legislature, and the courts. On a collaborative vision of constitutionalism, protecting rights is neither the solitary task of a Herculean super-judge, nor the dignified pronouncements of an enlightened legislature. Instead, it is a complex, dynamic, and collaborative endeavour, where each branch has a distinct but complementary role to play, whilst engaging with each other in a spirit of comity and mutual respect. Connecting constitutional theory with the practice of protecting rights in a democracy, this book offers an innovative understanding of the separation of powers, grounded in the values and virtues of constitutional collaboration.

Introduction: the Call for Collaboration
Part I. Institutions and Interactions: 1. Constitutionalism beyond manicheanism
2. The promise and perils of dialogue
3. The case for collaboration
Part II. Rights in Politics: 4. Governing with rights
5. Legislating for rights
6. Legislated rights: from domination to collaboration
Part III. Judge as Partner: 7. Judge as partner
8. The HRA as partnership in progress
9. Calibrated constitutional review
10. Courting collaborative constitutionalism
Part IV. Legislatures in Response: 11. Underuse of the override
12. Declarations, obligations, collaborations
Conclusion: the currency of collaboration.

Subject Areas: Constitutional & administrative law [LND]