Topics in Comparative Constitutionalism - 'Strong-Form and Weak-Form Review'

Seminar 2: Strong-Form and Weak-Form Review

In comparative constitutionalism, scholars often distinguish between systems of strong-form and weak-form review.  Strong-form systems are those where judicial decisions on what rights require are final and unrevisable by ordinary legislative majorities.  In weak-form review systems, on the other hand, courts can assess legislation for compliance with constitutional norms, but their decisions can be overridden by ordinary legislative majorities.  The UK, Canada and New Zealand are often take to be instances of ‘weak-form review’, because in each of these jurisdictions, the legislature can ignore, reject or override judicial decisions under the respective Bill of Rights.  

In this seminar, we will discuss this distinction, exploring whether it provides a useful taxonomy for constitutional systems and whether so-called ‘weak form review’ embodies a valuable constitutional ideal.

Reading:

*Tamas Gyorfi, ‘A Theory of Weak Judicial Review’, Chapter 5 of Gyorfi, Against the New Constitutionalism (Edward Elgar, 2016)

*Aileen Kavanagh, ‘What’s So Weak about Weak-Form Review? The Case of the UK Human Rights Act 2009’ International Journal of Constitutional Law (2015) 13 ICON 1008 (and see also the ICON Debate on this issue with Stephen Gardbaum)

In this seminar series, we will discuss some key topics in comparative constitutionalism, drawing out some of the theoretical questions which underpin them.

The seminars will be led by Aileen Kavanagh and various visiting speakers.  Each seminar will start with a short presentation by each of the speakers, followed by a roundtable discussion.  The seminars will look closely at just two or three readings, mostly from recently published work or work-in-progress by the speakers.  The readings are hyperlinked below so that people can read them in advance and join in the roundtable discussion. 

The seminar is not associated with any particular course or examination, but all are welcome to attend.  The seminar may be of interest to graduate students in the Law Faculty, especially BCL/MJur students taking Constitutional Theory, Comparative Human Rights and Comparative Public Law, or to research students working in the areas of constitutional law, constitutional theory or comparative constitutional law.