This article argues that a) constitutional supremacy is affected by the legal tradition, which implies that it is a concept largely shaped by the legal context in which it is elaborated and b) common law version of constitutional supremacy determines a sort of cultural resistance to constitutional imperialism. In making its argument, this article begins with the doctrine of sources of law with a view to unpack its operational logic within the common law and, therefore, to understand how the supremacy of constitutions is conceptualised. It then examines the embryonic conceptualisation of constitutional supremacy in the British legal culture by addressing the ‘constitutional statutes’. It goes on to analyse how constitutional supremacy is safeguarded in jurisdictions, differently affected by the British tradition and equipped with written constitutions, to show how constitutions concretely established themselves as supreme laws without neglecting the relevance of traditions pre-dating the constitutional texts. It then shows how the common law finds its way to be applied alongside or even instead of the constitution. Eventually, the article offers some conclusions as to the implications of such a conceptualization of constitutional supremacy for comparative and global constitutional studies.

Conceptualizing of constitutional supremacy: constitutional global discourse and legal tradition

Graziella Romeo
2020-01-01

Abstract

This article argues that a) constitutional supremacy is affected by the legal tradition, which implies that it is a concept largely shaped by the legal context in which it is elaborated and b) common law version of constitutional supremacy determines a sort of cultural resistance to constitutional imperialism. In making its argument, this article begins with the doctrine of sources of law with a view to unpack its operational logic within the common law and, therefore, to understand how the supremacy of constitutions is conceptualised. It then examines the embryonic conceptualisation of constitutional supremacy in the British legal culture by addressing the ‘constitutional statutes’. It goes on to analyse how constitutional supremacy is safeguarded in jurisdictions, differently affected by the British tradition and equipped with written constitutions, to show how constitutions concretely established themselves as supreme laws without neglecting the relevance of traditions pre-dating the constitutional texts. It then shows how the common law finds its way to be applied alongside or even instead of the constitution. Eventually, the article offers some conclusions as to the implications of such a conceptualization of constitutional supremacy for comparative and global constitutional studies.
2020
Romeo, Graziella
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Utilizza questo identificativo per citare o creare un link a questo documento: https://hdl.handle.net/11565/4023841
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