McLean, Janet --- "Constitution making: the case of "unwritten" constitutions" [2019] ELECD 2422; in Landau, David; Lerner, Hanna (eds), "Comparative Constitution Making" (Edward Elgar Publishing, 2019) 324

Book Title: Comparative Constitution Making

Editor(s): Landau, David; Lerner, Hanna

Publisher: Edward Elgar Publishing

Section: Chapter 15

Section Title: Constitution making: the case of “unwritten” constitutions

Author(s): McLean, Janet

Number of pages: 17

Abstract/Description:

This chapter considers modes of constitution making which are not directly or self-consciously styled as constituent acts by and for the people. The first part asks how it is possible in a system in which the legislature is simultaneously a legislative assembly and a constituent assembly to differentiate between ordinary statutes and those with a constitutional status and hence to talk about constitution-making. It uses examples from the UK imperial constitution, New Zealand and Israel to demonstrate how the legislature itself can create a normative hierarchy between statutes, and discusses the UK judicial invention of the so-called “constitutional statute”. The second half of the chapter suggests that in all constitutions, whether written or unwritten, constitutional conventions, norms and habits are an essential part of the constitution, and considers how these can be created or destroyed.