a network of constitutionalists from countries throughout the world
Our interest in the “Invisible Constitution” partly springs from the experience of Australian constitutionalism where the courts have developed extensive doctrines derived from the textually sparse Constitution. Indeed, the ‘invention’ of unwritten rights of freedom of expression in 1992 was something of a blockbuster moment in Australian constitutional law although it has turned out that the unwritten ‘due process rights’ have been more significant over the last fifteen or so years.
These kinds of ‘unwritten’ rules have attracted a lot of attention and raise particular problems about legitimacy. But in fact unwritten rules of various kinds are a pervasive feature of constitutionalism. The interpretation of constitutional text is a central feature of constitutional systems throughout the world. Even ‘unwritten’ constitutions (like New Zealand’s and the United Kingdom’s) are in some part at least reduced to writing in ‘constitutional statutes’ and in other ways. And by the same token, written constitutions usually rely extensively on doctrines, practices and assumptions that are not clearly reflected in the text. This Roundtable places this set of phenomena in a broad comparative perspective.
The Roundtable will present perspectives on this theme from scholars from Asia, Australasia, the Americas, the Middle East and Europe. These papers drawn on the relationship between courts’ willingness to rely on written, versus, unwritten bases for constitutional decision-making, and factors such as the age of a written constitution; the difficulty of formal amendment under a constitution; the substantive scope of a constitution, and the general abstraction or prolixity of constitutional language in a particular constitution.
It also provides the occasion for a public lecture from the President of the IACL Professor Manuel Cepeda on ‘The Peace Process and the Constitution’