The Collaborative Constitution Cambridge Studies in Constitutional Law Series

In this book, Aileen Kavanagh offers a fresh account of how we should protect rights in a democracy. Departing from leading theoretical accounts which present the courts and legislature as rivals for constitutional supremacy, Kavanagh argues that protecting rights is a collaborative enterprise between all three branches of government - the Executive, the legislature, and the courts. On a collaborative vision of constitutionalism, protecting rights is neither the solitary task of a Herculean super-judge, nor the dignified pronouncements of an enlightened legislature. Instead, it is a complex, dynamic, and collaborative endeavour, where each branch has a distinct but complementary role to play, whilst engaging with each other in a spirit of comity and mutual respect. Connecting constitutional theory with the practice of protecting rights in a democracy, this book offers an innovative understanding of the separation of powers, grounded in the values and virtues of constitutional collaboration.

Introduction: the Call for Collaboration; Part I. Institutions and Interactions: 1. Constitutionalism beyond manicheanism; 2. The promise and perils of dialogue; 3. The case for collaboration; Part II. Rights in Politics: 4. Governing with rights; 5. Legislating for rights; 6. Legislated rights: from domination to collaboration; Part III. Judge as Partner: 7. Judge as partner; 8. The HRA as partnership in progress; 9. Calibrated constitutional review; 10. Courting collaborative constitutionalism; Part IV. Legislatures in Response: 11. Underuse of the override; 12. Declarations, obligations, collaborations; Conclusion: the currency of collaboration.

Aileen Kavanagh is Professor of Constitutional Governance, Trinity College Dublin, and Director of TriCON – the Trinity Centre for Constitutional Governance. Formerly a Professor of Law at the University of Oxford, Aileen Kavanagh has written widely on UK and comparative public law, and on constitutional theory. Her previous books include Arguing About Law (co-edited, 2008) and Constitutional Review under the UK Human Rights Act 1998 (2009).