Book Review: Scott Stephenson. From Dialogue to Disagreement in Comparative Rights Constitutionalism. Federation Press, 2016.

(2017) 15 International Journal of Constitutional Law

7 Pages Posted: 4 Jan 2018

See all articles by Claudia Geiringer

Claudia Geiringer

Victoria University of Wellington School of Law

Date Written: November 30, 2017

Abstract

This is a review of Scott Stephenson’s 2016 monograph.

Stephenson’s argument, in a nutshell, is that what is distinctive about the ‘new Commonwealth model’ of human rights protection (a term that Stephenson does not, himself, adopt) is that it facilitates direct (rather than indirect) inter-institutional disagreement. Stephenson’s nuanced and carefully elaborated framework offers an illuminating response to two of the recurrent criticisms that have been made of (Gardbaum-style) ‘new Commonwealth model’ scholarship: first, that it is insufficiently nuanced in its account of how the new Commonwealth model differs from, as well as how it resembles, the ‘traditional paradigms’ of judicial and legislative supremacy; and, secondly, that it relies too heavily on text and formal institutional design at the expense of broader questions of culture and context. On the other hand, Stephenson’s account is less able to deflect a third recurrent criticism of the ‘new Commonwealth model’ scholarship, relating to an uneasy ambivalence between its descriptive and prescriptive claims. Precisely because of how well elaborated his theoretical model is, this tension is particularly acute in Stephenson’s account. It presents challenges to both his normative and his descriptive claims (as well, perhaps, as to the purpose or function of “Commonwealth model” scholarship more generally).

Keywords: Scott Stephenson, dialogue, Commonwealth model, inter-institutional disagreement, declarations of incompatibility, separation of powers, comparative constitutional law, institutional design

Suggested Citation

Geiringer, Claudia, Book Review: Scott Stephenson. From Dialogue to Disagreement in Comparative Rights Constitutionalism. Federation Press, 2016. (November 30, 2017). (2017) 15 International Journal of Constitutional Law , Available at SSRN: https://ssrn.com/abstract=3094760

Claudia Geiringer (Contact Author)

Victoria University of Wellington School of Law ( email )

PO Box 600
Wellington, 6140
New Zealand

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
53
Abstract Views
547
Rank
681,958
PlumX Metrics