Shadow constitutional review: The dark side of pre-enactment political review in Ireland and Japan

Kenny, David and Casey, Conor ORCID: 0000-0002-7428-1621 (2020) Shadow constitutional review: The dark side of pre-enactment political review in Ireland and Japan. ICON-INTERNATIONAL JOURNAL OF CONSTITUTIONAL LAW, 18 (1). pp. 51-77.

Text Shadow Review ICON Submission- Revised Draft FINAL (1).docx - Author Accepted Manuscript Download (115kB)

Abstract

<jats:title>Abstract</jats:title> <jats:p>Political constitutionalism is a major area of inquiry in contemporary constitutional discourse. A significant and increasingly central aspect of political constitutionalism is pre-enactment political review: laws being reviewed for constitutionality or rights compliance by parliament or the executive. This institution is said to be a good augmentation of, or even replacement for, the institution of judicial review, and it is said to bring with it a host of normative benefits. In this article, we wish to highlight an under-explored dark side to pre-enactment review. By undertaking a comparative analysis of functional pre-enactment review in several similar jurisdictions—Canada, New Zealand, and the UK—we contrast these systems, and the ordinary failings they display, with the much deeper problems of pre-enactment review in Ireland and Japan. These latter jurisdictions, we argue, not only fail to instantiate the benefits of pre-enactment review but in fact show that, in the right circumstances, pre-enactment review can have negative effects that are antithetical to the goals and values of political constitutionalism. We call this phenomenon “shadow constitutional review,” and suggest that it adds a layer of complexity and nuance to contemporary discussions of political constitutionalism.</jats:p>

Item Type:	Article
Uncontrolled Keywords:	16 Peace, Justice and Strong Institutions
Divisions:	Faculty of Humanities and Social Sciences > School of Law and Social Justice
Depositing User:	Symplectic Admin
Date Deposited:	07 Jun 2021 15:58
Last Modified:	17 Mar 2024 12:04
DOI:	10.1093/icon/moaa006
Related URLs:	Author Publisher
URI:	https://livrepository.liverpool.ac.uk/id/eprint/3125432