The Theory and Practice of Constitutional Savings Clauses

Some constitutions use savings clauses to shield laws that have been in force prior to their adoption from judicial review; thus, fostering a unique dialogue between representative bodies and courts. They state that existing laws shall remain valid even if inconsistent with the constitution. Scholars view this phenomenon as esoteric, appearing in African or Caribbean countries alone. But this phenomenon is widespread, covering both civil law and commonlaw countries. Over the years, countries have used such provisions to shield discriminatory religious and gender practices, the death penalty, criminalization of homosexual relationship and even slavery. This puzzling phenomenon should have spurred discussion, yet there is no literature offering a comprehensive theoretical and comparative framework. Savings clauses suggest that constitutional development is more evolutionary than typically suggested. This article offers a taxonomy of savings clauses and the motivations for their adoption.