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Contested concepts, general terms and constitutional evolution

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Stokes, MD (2007) Contested concepts, general terms and constitutional evolution. The Sydney Law Review, 29 (4). pp. 683-712. ISSN 0082-0512

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Abstract

Constitutional orthodoxy views the courts as interpreters of the Constitution with
no power to amend it or to invalidate laws which were valid when enacted.
Combined with the claim that a document's meaning is fixed at the date of
drafting, it provide powerful arguments against judges innovating. However, it
suffers from two weaknesses. Firstly, it is irrelevant in cases where the
Constitution does not provide an answer. Secondly, it rules out all innovation.
The article considers whether concept-conception distinction can alleviate these
weaknesses, firstly, by reducing the number of cases in which the Constitution
does not provide an answer, and secondly, allowing some evolution consistently
with the claim that the meaning ofthe Constitution is fixed. The article concludes
that the distinction does little to reduce the number of cases in which the
Constitution does not provide an answer because Dworkin's right answer thesis,
which is often associated with it, is not part of its internal logic. The distinction
also does not show how the Australian Constitution can evolve because it is only
relevant to the interpretation of contested concepts, which are typically values
such as those found in bills of rights, and is not relevant to the interpretation of
general terms in which most of the Australian Constitution is drafted.

Item Type: Article
Journal or Publication Title: The Sydney Law Review
Publisher: Lawbook Co
Page Range: pp. 683-712
ISSN: 0082-0512
Additional Information:

© 2007 The University of Sydney.

Date Deposited: 07 Apr 2008 14:25
Last Modified: 18 Nov 2014 03:34
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