Constitutional Conventions and the Judiciary

Analyses of constitutional conventions seldom include those conventions that concern relations between the judiciary and the other arms of government. The focus tends to be on constitutional conventions that relate to the monarch, the executive, the legislature, their relationship to each other, and the relationship between different levels of government. This paper argues that an extensive set of constitutional conventions relating to the judiciary exist, and that an analysis of them reveals three insights about the nature of constitutional conventions and the nature of the judiciary. First, the judiciary’s authority, independence and impartiality is predominantly secured by constitutional conventions. Second, the reliance on constitutional conventions explains the simultaneous strength and fragility of the judiciary. Third, it is not always or necessarily problematic for constitutional conventions to be modified or even destroyed.