Loughlin, Martin
(2018)
The silences of constitutions.
International Journal of Constitutional Law, 18.
ISSN 1474-2640
Abstract
Glossing a passage from Benjamin Constant’s ‘Reflections on Constitutions’, this article examines the roles performed by silences, gaps, and abeyances in constitutional texts and assesses recent attempts to fill those silences. This latter issue is addressed by contrasting three conceptions of modern constitutions: the constitution as a framework for continuing political negotiation, the constitution as an order of values, and the constitution as facilitator of an evolving administrative order. The first highlights the importance of political practices and the deliberative role of the legislature, the second accentuates the moral dimension and promotes the judiciary’s role as guardian of constitutional values, and the third emphasizes technical efficacy and the key role of the executive in promoting a governmental agenda. The article concludes by questioning those recent approaches that seek the elimination of constitutional silences.
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