The republican virtues of the
“new commonwealth model of
constitutionalism”
Hickey, TomORCID: 0000-0001-7618-6786
(2017)
The republican virtues of the
“new commonwealth model of
constitutionalism”.
International Journal of Constitutional Law, 14
(4).
pp. 794-816.
ISSN 1474-2640
Based on a republican theory of democracy as equally shared popular control, drawn from
Philip Pettit’s recent work, this article argues in favor of the “new commonwealth model of
constitutionalism” practiced in Canada, the UK, and elsewhere. It claims that the emphasis
that the new commonwealth model places on political agents in the rights-related dimensions
of the legislative process corresponds with the republican account of rights as political claims
but also that the constricted role played by judges under the model answers to a number of
important republican concerns around contestation and the dispersal of power. In particular
the article argues that the role of judges under the model can be understood as contributing
to the gradual emergence of norms that are “commonly avowable” or shareable, and to the
refining of those norms over time, such that it enhances the control exercised by citizens over
government. In this way the role of judges under the model—in contrast to that under outright legal constitutionalism—can be understood as enhancing democracy, where democracy
is understood in this republican way.