Conventional norms and the comparative constitutional law project

This article takes seriously Saunders’ challenge to look beyond constitutional texts and institutions to identify norms of self-restraint which keep constitutions in good working order. It argues that, while scholars in the United Kingdom and New Zealand squarely acknowledge the importance of political practices and norms as part of their unwritten constitutions, they are not particularly good at either identifying what those norms are and the sociological mechanisms by which they are considered binding and are upheld. This has implications not just for understanding their own jurisdictions but for comparative law method more generally. It considers as examples the established convention that the monarch assents to bills; the less widely-recognised convention that politically neutral public servants have an obligation to give free and frank advice to Ministers; and the New Zealand Attorney-General’s obligation to act in a non-partisan way when recommending the appointments of judges.