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Weak-form review in comparative perspective: A reply

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This article considers whether the Commonwealth’s approach to rights constitutionalism, associated with the bills of rights adopted in Australia, Canada, New Zealand, and the UK, might be suitable for other jurisdictions around the world. It argues that three questions are particularly relevant to evaluating the strength of the normative case for the Commonwealth’s approach. First, what is the nature of the disagreements about rights in a jurisdiction? Second, what options do institutions have to challenge the determinations on rights of other institutions? Third, what are the other objectives of the constitutional system? The article considers how the answers to these questions yield insights into the circumstances in which the Commonwealth’s approach may prove to be more attractive or unattractive. In particular, it suggests that the normative case for the Commonwealth’s approach may be weaker in dominant party systems.
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This article presents a general reassessment of the success and distinctiveness of " the new Commonwealth model of constitutionalism" in practice. This new, third model of constitutionalism attempts to straddle the previous dichotomy of traditional parliamentary sovereignty and constitutional or judicial supremacy by adequately and effectively protecting rights through a reallocation of powers between courts and legislatures which brings them into greater balance than under these two preexisting, more lopsided models. The article considers the extent to which the new model is achieving these twin goals-protecting rights and balancing judicial and legislative powers-through a critical evaluation of recent experience under its various versions in Canada, New Zealand, and the United Kingdom and the mostly country-specific academic commentary on all aspects of its workings. The article concludes that the new model has for the most part been moderately successful and distinctive in practice, and proposes a few working adjustments that might make it more so in the future. © The Author 2010. Oxford University Press and New York University School of Law. All rights reserved.
  • E G See
  • Matsui Shigenori
See, e.g., shiGenoRi Matsui, the constitution oF Japan: a contextuaL anaLysis 3 (2011).