The New Commonwealth Model of Constitutionalism: Theory and Practice

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Cambridge University Press, Jan 3, 2013 - Law - 262 pages
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Stephen Gardbaum argues that recent bills of rights in Canada, New Zealand, the United Kingdom and Australia are an experiment in a new third way of organizing basic institutional arrangements in a democracy. This 'new Commonwealth model of constitutionalism' promises both an alternative to the conventional dichotomy of legislative versus judicial supremacy and innovative techniques for protecting rights. As such, it is an intriguing and important development in constitutional design of relevance to drafters of bills of rights everywhere. In developing the theory and exploring the practice of this new model, the book analyses its novelty and normative appeal as a third general model of constitutionalism before presenting individual and comparative assessments of the operational stability, distinctness and success of its different versions in the various jurisdictions. It closes by proposing a set of general and specific reforms aimed at enhancing these practical outcomes.
 

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Contents

Acknowledgements page
1
What is the new Commonwealth model
21
The case for the new Commonwealth model
47
An internal theory of the new model
77
Canada
97
New Zealand
129
The United Kingdom
156
Australia
204
General assessment and conclusions
222
Bibliography
245
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About the author (2013)

Stephen Gardbaum is the MacArthur Foundation Professor of International Justice and Human Rights at UCLA School of Law. He is currently a Fellow at New York University's Straus Institute for the Advanced Study of Law and Justice and was the 2011-12 Guggenheim Fellow in constitutional studies. An internationally recognized constitutional scholar, his research focuses on comparative constitutional law, constitutional theory, and federalism. Having previously identified 'the new Commonwealth model of constitutionalism' as a novel general approach to bills of rights, he was the keynote speaker at the 2009 Protecting Human Rights conference in Australia, part of the major debate in that country about adopting this model through a national human rights act. Other recent work includes a series of articles on the comparative structure of constitutional rights, which have just been collected and published as a book by the European Research Center of Comparative Law. His scholarship has been cited by the US and Canadian Supreme Courts and widely translated.

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