Taking Stock

In the preceding chapter we reached a number of conclusions about constitutions and constitutional democracies. We saw (a) that constitutional democracies come in a wide variety of forms. In particular, we found (b) that they embrace a number of different ways in which law-determining decisions – that is, those which result in the creation, alteration, or elimination of legal norms – are “distanced” from the people on whose behalf and authority they are made. For example, modern democracies are all fundamentally representative, not direct, in nature. Furthermore, they also typically contain a number of practices and institutions (e.g., unelected assemblies and regulatory bodies) that combine to create even greater distance between law-determining decisions and the general citizenry. We also saw (c) that there can be more to a constitution than constitutional law; it can contain constitutional conventions that regulate constitutional powers and that are sometimes said (as in, e.g., the Patriation case) to be at least as important as the fundamental constitutional laws with which they act in tandem. We discovered (d) that constitutional norms need be neither (e) entrenched, nor (f) written, despite the undeniable fact that modern constitutional systems characteristically contain norms possessing both properties. We further discovered that a separation of legislative, executive, and legal powers is neither conceptually necessary nor always thought to be practically essential or desirable in modern constitutional democracies. This despite the fact that, once again, such systems characteristically embrace some form of separation, at least to some degree.