Between Westminster and judicial review
institutional dialog and Commonwealth models of constitutionalism as alternatives to legislative supremacy and judicial supremacy
DOI:
https://doi.org/10.12662/2447-6641oj.v24i45.5657.pe5657.2026Keywords:
legislative supremacy, judicial supremacy, institutional dialog, New Commonwealth constitutionalismAbstract
Background: The tension between legislative and judicial supremacy has been central to the contemporary constitutional debate, especially with regard to the protection of rights and control between powers. In this context, the Commonwealth countries have developed intermediate models of constitutional control that seek to reconcile the protection of rights with the preservation of legislative autonomy, based on theories of institutional dialogue.
Objectives: To analyze the intermediate models of constitutional control developed by the British Commonwealth as alternatives to the dichotomy between legislative and judicial supremacy. It examines how these models, through innovative mechanisms such as the non-obstante clause, interpretation clauses and declarations of incompatibility, seek to reconcile the protection of rights with the preservation of legislative autonomy.
Methods: The study, based on bibliographical research, starts from the theories of institutional dialog, which gained international prominence after the work of Peter Hogg and Allison Bushell in 1997 and influenced several countries, including Brazil, where they have been cited by the Federal Supreme Court since 2013.
Results: The analysis shows that the Commonwealth models represent an evolution of the Westminster system by granting some power of judicial review without subjecting the legislature to judicial will.
Conclusions: Although these models are viable alternatives to systems of legislative supremacy, they do not offer a solution to systems of judicial supremacy, unless they incorporate mechanisms considered dialogic as an integral part of the constitutional process.
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Copyright (c) 2026 Samille Lima Alves, Deborah Dettmam Matos
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