Common Law Constitutionalism - A Different View

33 Pages Posted: 18 Jun 2008

Date Written: June 2006


Over the last decade, scholars have been writing about "common law constitutionalism." It is timely to reconsider exactly what is meant in this context by the "common law," and what therefore "common law constitutionalism" may mean. The following inquiry proceeds through a number of steps: what is "law" (a contested concept among jurisprudes), what is the "common law" (again a contested subject) and then what is "common law constitutionalism". It suggests that recent discussion of this concept has overlooked the role of the monarchy in Westminster constitutionalism, and the pivotal role of the monarch's oath of governance in both the common law and also in constitutionalism. In addition to the debt to sources and writers recognized in the footnotes, the author wishes particularly to acknowledge the assistance obtained from the magnificent work of the late Patrick Wormald on Anglo-Saxon laws.

Keywords: common law, common law constitutionalism, coronation oath, prerogative, monarch, sovereignty of parliament, Anglo-Saxon Laws, judicial power

JEL Classification: B30, K00

Suggested Citation

Kelly, Margaret R.L.L., Common Law Constitutionalism - A Different View (June 2006). Available at SSRN: or

Margaret R.L.L. Kelly (Contact Author)

Macquarie Law School ( email )

Macquarie University
Balaclava Road, North Ryde NSW, 2109, Australia
Sydney, New South Wales 2109


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