Guest Editor’s Introduction: Constitutional Landmark Judgments in the Commonwealth

Eleonora Bottini

University of Caen Normandy

If asked, any constitutional lawyer from a legal order where a form of judicial review exists would be able to identify at least one case that is indispensable for understanding its constitutional framework. To speak metaphorically, one could say that every jurisdiction has its own Marbury v Madison.

This is certainly not an indisputable truth, but is the first intuition at the origin of the ‘Constitutional Landmark Judgments Project’ that starts with this symposium on “Constitutional Landmark Judgments in the Commonwealth”. The second is that by explaining the context, the rationale, and the outcome of a landmark case, constitutional scholars from other legal systems would be provided with a privileged window into understanding a foreign legal system.

In order to select the cases, I have developed a stipulative definition of landmark judgment. For the purposes of this project, a ‘constitutional landmark judgment’ is a judgment of constitutional/judicial review issued by an apex court that has shaped and continues to shape the constitutional debate in a given jurisdiction. Also, a consensus needs to be found among scholars (familiar with the jurisdiction) that the judgment is, in fact, a landmark judgment in the sense that it seems indispensable for understanding the constitutional system altogether. Nevertheless, the final choice of the judgment belongs to the selected authors, and part of the case-note consists of justifying why the particular judgment fits the general conceptual framework.

Because of the general character of this conceptual framework, it could be argued that more than one landmark judgment exists for one jurisdiction and multiple judgments fit the conceptual framework. Moreover, as Janet McLean’s post about New Zealand insightfully points out, landmark cases are not always recognized as such “in the moment”. That is why the selection of constitutional landmarks for this project does not necessarily reflect the latest developments in jurisprudence. On the contrary, it is possible to give a new perspective on an older judgment by commenting on it in light of more recent constitutional developments.

This definition remains provisional, given that the entire project has the objective of constructing the concept of “constitutional landmark judgments”. The five case-notes of this symposium will contribute to this conceptual reconstruction. Instead of starting with a precise conceptual framework and supporting it with cases in a deductive reasoning process, I have made the opposite choice: an inductive reasoning process. It will thus be for a later conceptual paper to summarize the characteristics of landmark judgments and use them to create a taxonomy of the different kinds (or categories) that have appeared by studying the collected cases.

One of those categories of landmark judgments could be constitutional revolutions. In fact, the broader theoretical reflection concerns constitutional change and the often-used concept of constitutional revolutions. Through the idea of landmark judgments, the notion of revolution as applied to constitutional cases could be challenged and eventually redefined. As a scientific concept, ‘revolution’ is generally understood as coming from disciplines other than law, especially from political science and history. Public law scholars have been trying to define the concept of legal revolution (see, for France, Jean-Philippe Derosiers, 2015) and, by extension, constitutionalists have identified the concept of constitutional revolution (Gary Jeffrey Jacobsohn, 2014, 3 : “The presence of constitutional revolution is indicated by a paradigmatic displacement, however achieved, in the conceptual prism through which constitutionalism is experienced in a given polity”; David J. Bodenhamer, 2013, 3: “Revolutions are by definition moments when the past shifts toward an unfamiliar future, one radically different from what was foreseen only a brief time earlier”; see also, in French, Marie Gren, 2019).

In those and many other definitions, by applying to constitutional systems the idea of scientific revolutions developed by Thomas Kuhn, it is possible to identify a constitutional revolution as an “anomaly” that creates an interruption of the normal/previous constitutional interpretation. When a court’s decision creates such an interruption, a constitutional revolution takes place in the sense that an alternative model breaks with the previous model. This alternative interpretation can then provoke a “paradigm shift” because the new interpretation is established and with time the legal system starts functioning on its basis. Many constitutional changes or events have been analyzed and referred to as constitutional revolutions (see, for the Israeli case Mizrahi Bank of 1995, Rivka Weill, 2018). Sometimes, this expression is used more in its colloquial sense to stress the importance of a notorious judgment that by applying the criteria of a precise scientific concept. By constructing a case-based conceptual framework, I aim to answer the following question: are all landmark judgments constitutional revolutions? And if not, what is the relationship between those two concepts?

These questions are related to the conceptual goal of the research. With the ‘Constitutional Landmark Judgments Project’, I am also aiming for a more pedagogic goal: the commented cases offer a way into a foreign legal system through one of its ‘landmarks’. In that respect, this project, although original because it does not exist as such, is of course related to much more extensive databases for constitutional judgments such as CODICES by the Venice Commission of the Council of Europe. Nonetheless, the goal of this project is different, as the CODICES database contains as many summaries and full texts of constitutional decisions as possible, and the material does not contain any doctrinal point of view on the decisions and their legal and political context. On the contrary, in the ‘Constitutional Landmark Judgments Project’, every judgment would be contextualized, explained and analyzed from a scholarly and critical perspective.

Because the first idea of this project occurred to me during my very first days as a visiting fellow with the Laureate Program in Comparative Constitutional Law at Melbourne Law School, it seemed only natural for the first symposium to be about the Commonwealth and to relate a landmark case of the High Court of Australia (Australian Communist Party v Commonwealth (1951)). Four other landmarks judgments will be analysed in this symposium: the cases Indira Gandhi v Pengarah Jabatan Agama Islam Perak (2018) for Malaysia; Attorney-General v Taylor (2018) for New Zealand; Fiji v Prasad (2001) for the Republic of Fiji; and S v Makwanyane (1995) for South Africa. Those landmark cases are presented by scholars having a profound knowledge of the legal order in which the case has been issued: in the aforementioned order, Peta Stephenson, Yvonne Tew, Janet MacLean, Anna Dzedzic, and Toerien van Wyk. This group reunites both earlier career and well-established female researchers and will hopefully become the foundation for a precious network for comparative constitutional law. I take this opportunity to thank them for their enthusiasm in accepting to participate in the first stage of the project.

This first symposium regarding cases is the first attempt to explore the idea for the ‘Constitutional Landmark Judgments Project’; it is meant to be followed by four other symposia based on regionally organized developments of case law: South and Central America, Asia, Africa and the Middle East, Europe and the North America. It should be noted that in that sense, the Commonwealth does not represent a regional category as such.

The case-notes published in the symposia for each region are meant to be the first of an extensive database of constitutional landmark judgments for every country in the world where judicial review exists, which would be added to progressively. Similar to the collection of Grands arrêts published by Dalloz in France, but with a larger comparative approach, they are meant to serve as a basis for comparative constitutional law students and scholars.

I am grateful to the editors of the IACL/AIDC Blog for hosting the very first presentation of the ‘Constitutional Landmark Judgments Project’ and to the Centre for Comparative Constitutional Studies at Melbourne Law School for being the perfect intellectual space for such an idea to grow.

Eleonora Bottini is a Professor of Public Law at the University of Caen Normandy, France.

Suggested citation: Eleonora Bottini, “Guest Editor’s Introduction: Constitutional Landmarks in the Commonwealth” IACL-AIDC Blog (3 December 2019), https://blog-iacl-aidc.org/constitutional-landmark-judgments-in-the-commonwealth/2019/12/3/guest-editors-introduction-constitutional-landmark-judgments-in-the-commonwealth

Publication Schedule

Tuesday 5 December

Eleonora BOTTINI, ‘Guest Editors’ Introduction: Constitutional Landmark Judgments in the Commonwealth’

Thursday 7 December

Janet McLEAN, ‘Attorney-General v Taylor: An example of the cautious, incremental and ‘common law’ approach to constitutional change in New Zealand’

Tuesday 10 December

Anna DZIEDZIC, ‘Landmark and Limitations: Republic of Fiji v Prasad’

Thursday 12 December

Yvonne TEW, ‘Indira Gandhi v. Pengarah Jabatan Agama Islam Perak (2018). Landmark Case in Malaysia’

Tuesday 17 December

Toerien VAN WYK, ‘S v Makwanyane (1995)‘

Thursday 19 December

Peta STEPHENSON, ‘Australian Communist Party v Commonwealth (1951)’