The Distorting Lens of Convergent Constitutional Theory

Professor Peter Cane (University of Cambridge, UK)

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English

Hart Publishing
24 July 2025

Comparative law; Constitutional & administrative law

Series: Hart Studies in Constitutional Theory

This book challenges the near-universal acceptance of a US-style, Western constitutional paradigm as the best basis for comparative constitutional studies.

It does so on three main grounds: anachronism, ‘othering’ and cultural specificity. Main pillars of ‘convergent constitutional theory’ are rooted in the revolutionary, late-eighteenth century – a lost world; constitutional arrangements that deviate from the paradigm are often branded as ‘outliers’ or even as not constitutional at all; and the foundations of the paradigm in liberal democracy give no space for other forms of constitutionalism. Whatever the attractions of convergent theory as a normative ideal of good government, for the purposes of understanding, analysing and explaining constitutional systems it is far from ideal.

This book discusses and questions: convergent theory’s weddedness to writing as the technology of constitution-making; its image of a constitution as fundamental law; its idea that a constitution expresses the ‘sovereignty of the people’; its use of tripartite separation of powers as the basic principle of institutional design; its relative neglect of administrative law; its association of ‘rights’ with judicially enforceable bills of rights; and its obsession with a vaguely specified concept of ‘democracy’.

It makes suggestions for alternative, preferable methods of understanding, analysing and explaining constitutions, and governmental and constitutional systems.

By: Professor Peter Cane (University of Cambridge UK)
Imprint: Hart Publishing
Country of Publication: United Kingdom
Dimensions: Height: 234mm, Width: 156mm,
ISBN: 9781509988464
ISBN 10: 1509988467
Series: Hart Studies in Constitutional Theory
Pages: 152
Publication Date: 24 July 2025
Audience: Professional and scholarly , College/higher education , Undergraduate , Primary
Format: Hardback
Publisher's Status: Forthcoming

1. Introduction 2. Constitutional Writing 3. Fundamental Law 4. Sovereignty of the People 5. Institutional Structure 6. Constitutional and Administrative Law 7. Rights 8. Democracy 9. Conclusion

Peter Cane is Senior Research Fellow, at the University of Cambridge, UK, and Emeritus Distinguished Professor of Law at the Australian National University.