From Dialogue to Disagreement in Comparative Rights Constitutionalism

The bills of rights adopted in the Commonwealth countries of Canada, New Zealand, the United Kingdom and, at the subnational level, Australia in recent decades have prompted scholars and institutional actors involved in the process of constitutional design and reform to rethink how to evaluate and compare the different approaches to human rights protection. They have challenged a number of assumptions in the field, for example, that courts must have the power to invalidate laws that are found to violate rights (ie courts can now be given non-binding powers), that courts must have the ‘final word’ on rights issues (ie legislatures can now be given the power to override judicial decisions) and that bills of rights are enforced exclusively by courts (ie legislators can now be given new responsibilities to ensure that the laws they enact are compatible with rights).

This book addresses three questions arising from these developments. How do these new bills of rights differ from the traditional approaches to rights protection? Why, if at all, should we consider the Commonwealth’s approach over the traditional approaches? What compromises must be struck in the course of adopting a bill of rights of this variety? In answering these questions, the book sets out a new framework for comparison that focuses on the types of inter-institutional disagreement facilitated by and found in the different approaches to rights protection. It also identifies a previously unrecognised element of the Commonwealth’s approach – the normative trade-offs with other constitutional principles and values – that is pivotal to understanding its operation. Finally, it seeks to contribute to future debates about rights reform in Australia and elsewhere by setting out a number of lessons that emerge from the answers to these three questions.

Recognition and Reviews

From Dialogue to Disagreement in Comparative Rights Constitutionalism was awarded the Holt Prize in 2015.

The Hon Chief Justice Robert French AC of the High Court of Australia writes in the Foreword that '[t]his thoughtful and penetrating work' sets out an analytical approach that 'certainly deserves close attention. It presents an illuminating and powerful perspective on an issue of fundamental importance to Australia and other countries of the Commonwealth.'

David Ananian-Cooper writes that the book presents a 'striking yet persuasive approach' to analysing the different constitutional approaches to rights protection. It 'is a valuable and timely work and a worthy recipient of one of Australia's most prestigious publishing awards' ([2016] 49 Queensland Law Reporter 10, 10-11).

Daniel Davison-Vecchione and Charlie Eastaugh write that the book's study of the four countries is 'both fascinating and illuminating' and that the 'work makes an important contribution to an existing literature. We commend his excellent comparativism  especially with respect to the nuanced exposition of inter-institutional disagreements, which are common across the four jurisdictions. From Dialogue to Disagreement ... can be recommended to socio-legal scholars, those focused purely on constitutional doctrine, and the well-read general reader' ([2017] Public Law 337, 338-39).

Julian R Murphy writes that 'Stephenson's brilliant first book' adopts 'a nuanced and insightful' analysis of the different forms of rights protection. He says that '[t]he book's approach is an original one and there is no doubt this text will provide an important new perspective for students and scholars in the field of comparative constitutional law and also for legislative drafters in jurisdictions looking to experiment with a charter of rights' ((2017) 91(5) Law Institute Journal 60, 60).


Purchase

The book is available for purchase from Federation Press (worldwide), Routledge (Europe) and Irwin Law (North America).