Constitutional conventions are traditionally understood as socially binding, usually unwritten, rules of constitutional importance based on precedent which cannot be enforced before courts. This traditional approach has several limitations, because it debates the normative quality of conventions rather than how to find them and where the real power lies. By doing so it is disconnected from scholarship on informal institutions in social sciences. Moreover, scholarship on constitutional conventions focuses predominantly on common law countries and conventions concerning political branches. This article pushes the boundaries in both directions. It shows how constitutional conventions can be conceptualized in civil law jurisdictions, and also identifies informal practices and constitutional conventions governing the judiciaries. On a broader level, it argues that constitutional conventions as a normative concept can help to filter the informal practices and differentiate between simple repetitive behavior on the one hand and conventions as a subset of informal institutions on the other.

This introductory Article provides a conceptual umbrella for the Special Issue on Informal Institutions and Democratic Decay. It offers conceptual clarity to studying informal institutions and explains their relationship to other concepts such as constitutional conventions or judicial culture. The article summarizes findings of the Special issue in four key observations. First, it shows that it is impossible to understand the functioning of courts without understanding the informal rules that shape courts’ governance and decision-making. These informal rules (institutions) appear within courts (internal), between courts and other actors (mixed) and among non-judicial actors with effects on courts (external judicial institutions). Second, it identifies a strong trend of formalization of rules, sponsored mostly on the supranational European level .Third, it explains why reforms of formal rules are often not sufficient to trigger behavioral changes and highlights the role of informal institutions in created commitment of actors to key democratic principles. Fourth, it argues that informal judicial institutions significantly impact the quality of democracy.

UK public law is often viewed as a sophisticated power struggle between rival institutions, an approach encouraged by the assumption that the law is ultimately dependent on such contingencies as the existence of an official consensus about its sources. From that perspective, legal judgments should be read as strategic moves within the political power-game. We can make better sense of public law if, instead, we interpret it as the articulation and enforcement of standards of legitimate governance, inspired by universal ideals of individual freedom and human dignity. The rule of Law denies the legal validity of arbitrary, unjustified assertions of power inimical to those ideals. Positive law is, at root, an instantiation of natural law, as the interplay of legal rule and underlying principle, characteristic of common law reasoning, confirms. There are important implications for our understanding of the constitutional foundations of judicial review, the limits of parliamentary sovereignty, the nature of the principle of legality, and the scope and content of fundamental rights.

This article examines the constitutional nature of the Malaysian monarchies in their social context. We discuss the evolution of the monarchies through pre-colonial, colonial, and post-colonial history, and account for their survival despite several attempts to curb their powers, including restriction of the royal assent and sovereign immunity. It is argued that the powers of the monarchies respond to their historical role and social embeddedness of the monarchies, stretching the role of the Rulers beyond the Westminster norms as set out in constitutional texts. Moving to contemporary issues, we see the assertion of the right to uphold the Constitution in relation to prime-ministerial appointments, and acting on advice. Here, the monarchies reflect a braiding of both traditional elements and Westminster constitutional norms.

The Supreme Court's recent invocation of the “constitutional architecture” in the Senate Reform Reference has led a number of scholars to question the status of constitutional conventions in the legal, as opposed to political, constitution. Has the Court, without expressly saying so, transformed at least some conventions into constitutional law? This would be a serious rupture, not only from existing precedent on the justiciability of conventions but also from the traditional understanding of conventions as binding political rules. In light of this recent scholarly debate, an exploration of the profound consequences of entrenching conventions in the legal constitution is warranted, as it implicates the meaning of constitutional conventions, their creation, their relation to law, and their enforcement. Judicial entrenchment of conventions would be a dangerous violation of the separation of powers and would have negative consequences for the functioning of Canada's system of government and for the future of constitutional change.

Scholars of comparative constitution-making and direct democracy agree that economic conditions affect public support for constitutional reform but disagree as to how. Prospect theory suggests both approaches may be correct, depending on the political and economic context in which voters operate. Fourteen states periodically ask their citizens whether to call a state constitutional convention, making this the oldest form of direct democracy in the United States. We test our theory in preelection polls in two of these states and a survey experiment. According to the results, negative perceptions of economic and government performance increase support for conventions when voters view them as opportunities to correct problems. On the other hand, if a convention represents a chance to improve on an acceptable status quo, voters with positive performance evaluations become more supportive. Our findings contribute to the heuristics literature and inform normative debates over direct democracy and popular constitutionalism.

This article looks at the continued calls for popular participation in UK constitution-making following the 2014 Scottish independence and 2016 Brexit referendums. In particular, it discusses the prospect of a UK constitutional convention being set up to deliberate upon and make recommendations concerning constitutional reform. The article proceeds by first mapping the arguments in favour of setting up such a body in a country with little but growing experience with direct democracy. It then analyses three difficulties surrounding a UK constitutional convention: deciding on a manageable mandate, identifying the political community or communities it is to represent and the method for selecting its membership, and defining the place of such a convention within the UK’s broader constitution-making mechanisms. The article highlights fundamental unknowns in need of clarification before such an instrument could be used while at the same time admitting the limitations of a constitutional convention as a panacea for all of the UK’s constitutional woes. In exploring these questions, the article shows how constitutional reform debates in the UK are no less complex than were those surrounding Scottish independence and have been further compounded by Brexit.

This annotated Coxford Lecture is the first account dedicated to tracing the part played in the 1980-82 patriation of the Canadian Constitution by the British House of Commons, particularly by its Select Committee on Foreign Affairs. This committee, for which author was the adviser, investigated the propriety of the UK Parliament’s acceding to a request for amendment of the British North America Act 1867 (as amended) if the amendment were opposed by a substantial number of Provinces and it would affect their powers. Against the firm opposition of the Canadian government (secretly being assisted by the British government), the Committee reported in January 1981 that acceding to such a request in such circumstances would be a breach of Parliament’s constitutional responsibilities. A second report, in April 1981, defended that opinion against the Canadian government’s vigorous attempt in March to refute it. The Committee’s position strongly resembles that of the “conventions” majority of the Canadian Supreme Court in September 1981. But the resemblance should not obscure a significant difference, rooted in the distinct authority of the UK Parliament during this terminal phase of the patrimony that, by Canadian decision in 1931, it had inherited: some imperial responsibilities (by then only procedural, and terminated in 1982) for the polity and people of Canada.

History of the Czech presidency – Constitutional status of the President – Personal powers and powers subject to countersignature by the Premier – Presidency of V. Havel and V. Klaus – Emerging constitutional conventions – Appointment of judges – Resignation of Ministers and Appointment of Premier – Legislative veto – Moderation of the constitutional system rather than implementation of a political programme – Importance of the political context – Parliamentarianism with a relatively influential President.