Publication details

Constitutional Conventions Concerning the Judiciary beyond the Common Law

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Year of publication 2023
Type Article in Periodical
Magazine / Source German Law Journal
MU Faculty or unit

Faculty of Law

Web Open access článku
Keywords Constitutional conventions; unwritten law; informal institutions; settled practice; constitutional reason; courts; judges; civil law systems
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Description 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.
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