The republican virtues of the "new commonwealth model of constitutionalism"

Abstract

Based on a republican theory of democracy as equally shared popular control, drawn from Philip Pettit's recent work, this article argues in favor of the "new commonwealth model of constitutionalism" practiced in Canada, the UK, and elsewhere. It claims that the emphasis that the new commonwealth model places on political agents in the rights-related dimensions of the legislative process corresponds with the republican account of rights as political claims but also that the constricted role played by judges under the model answers to a number of important republican concerns around contestation and the dispersal of power. In particular the article argues that the role of judges under the model can be understood as contributing to the gradual emergence of norms that are "commonly avowable" or shareable, and to the refining of those norms over time, such that it enhances the control exercised by citizens over government. In this way the role of judges under the model-in contrast to that under outright legal constitutionalism-can be understood as enhancing democracy, where democracy is understood in this republican way.