The art of constitutional interpretation

Fruzsinn Gdrdos-Orosz and Zoltdn Szente

Defining constitutional interpretation

The concept of legal interpretation has several meanings. It is usually understood as determining the meaning of a legal norm; that is, this definition treats the process as a rational activity by which a meaning is derived from a linguistic formula.[1] This general definition can also be applied to the interpretation of the constitution: on the basis of this, constitutional interpretation is the process of giving concrete meaning to the particular provisions of the constitution.

Beyond this definition, there are already differing views on the conceptualization of legal interpretation. Some argue that this category should be used in a narrower sense, claiming that interpretation is needed only if the meaning of the text is not clear and there is a difference between the comprehension and interpretation on the one hand, and the application of a legal text on the other, while others argue that interpretation is essential to reveal the meaning of a legal norm in all cases. The narrower concept of interpretation follows the principle of in Claris non fit interpretatio (the clear rule does not require interpretation), while the rival approach claims that this statement - namely that a rule is not clear - is itself a result of interpretation. For a text to be able to behave as a rule, it must have a rational meaning, that is, an identifiable content that can be justified to some level of certainty for all participants in the constitutional discourse.

According to another view, the fundamental question of legal interpretation is how the legal norm as a general rule is applied to a specific case, i.e. the

interpretation of each norm comes to the fore during its execution,[2] while other scholars conceptually separate this process of legal thinking - as subsumption - from interpretation. Nevertheless, in the value-based conception of constitutional interpretation, the function of interpretation is basically to ensure that state actions remain within the framework of the provisions and principles of the constitution.

As to the circumscription of interpretation, there is a broad consensus that the linguistic limitations of a text are also limitations of interpretation, and the latter is an activity that attributes a meaning to the norm which is consistent with the grammatical meaning of the text. However, this does not provide sufficient guidance to distinguish between interpretation and other forms of legal thinking, as language is not a completely precise form of expression and, moreover, its meaning can be explicit or implicit. It is therefore clear, empirically, that the same text may be understood differently even by speakers of the same language, whereas the expectation is that the law, as a set of general and enforceable rules of conduct, will form a system of norms that is comprehensible and predictable in advance. This is the reason why legal interpretation is such a fashionable and frequent subject in legal discourse, and why so many attempts have been made and will continue to be made to describe and explain it (to justify the best method of interpretation).

In fact, constitutions often use ambiguous, uncertain and contradictory terms, or remain silent on issues that need to be resolved in constitutional disputes. In such cases, an interpretation is needed because the constitutional text does not provide full guidance on how to answer the question involved in the particular constitutional controversy. There may be several reasons why the constitution is not clear. First, this is the case for all legal norms, as they are per se normative in nature, i.e. general rules that contain binding provisions for a large number of individual cases. Second, the subjects of the constitutions arc also very complex social relations. Their text is often the result of political compromises, and it is also possible that the original ideas of the constitution makers were not clear cither, or even that they deliberately used terms with abstract, vague meanings.

The uncertainty or multiple meanings of the text make certain legal disputes ‘hard cases’ that can be resolved only by interpretation. Although the problem of hard cases leads us back to debates about the necessity of interpretation, it is certain that resolving such cases requires legal interpretation,

The art of constitutional interpretation 31 as these cases are usually difficult precisely because it is not clear what rule applies to them, or because the rule applicable to them is frizzy and vague. Besides that, especially in the case of old constitutions, the original constitutional principles no longer meet the requirements of the modern age, and due to the inflexibility of the constitution, interpretation remains the only reasonable way to adjust its content to social change.[3] Moreover, certain otherwise important provisions (empowerments, restrictions) are missing from the constitutional text, or at least there is no directly and clearly applicable rule. One of the most famous such shortcomings in constitutional history is that the judicial review of federal legislation is not explicitly recognized by the US Constitution, although it is a fundamental institution of US constitutional law. Missing provisions often cause problems in fundamental rights matters, not only if the text does not include an explicit entrenchment of a universally accepted freedom, but also when the constitution does not provide guidance on how to restrict fundamental rights or to reconcile them when they come into conflict with each other. Creating institutions, guarantees and procedures, or constructing unenumerated rights absent from the constitutional text by way of judicial decisions is always controversial, because it is difficult to justify that courts merely realize the will of constitution makers, rather than replace it with their own convictions. In any case, it does not seem to be a compelling argument that what is not included in the constitutional text could surely not be the intention of the constituent power, as social, economic, technical, etc., developments from time to time create new needs and situations that the constituent power could not even imagine. When drafting constitutions decades ago, for example, constitution makers clearly could not have known of the future existence of antibiotics, space research, organ transplantation, human cloning, microchips or the Internet - that is, so many things that can cause urgent constitutional problems that must be resolved even if the constitution cannot be properly amended for any reason.

  • [1] Jerzy Wroblewski, ‘Legal Language and Legal Interpretation’ (1985) 4 Law and Philosophy 243; Andrei Marmor, Interpretation and Legal Theory (Clarendon Press 1992) 13; Aharon Barak, Purposive Interpretation of Law (Princeton University Press 2005) 3, 18. 2 Donald P. Kommers, John E. Finn and Gary J. Jacobsohn, American Constitutional Law. Essays, Cases and Comparative Notes. Vol. 1: Governmental Powers and Democracy (Rowman & Littlefield Publishers 2009) 34. 3 Wroblewski (n 1) 243. 4 Marmor (n 1) 12-13, 31, 122. 5 Barak (n 1) xv. Barak argues that it is not possible to determine in advance whether a text has a clear or unclear meaning: this can be determined only by interpretation. Ibid. 273.
  • [2] Hans Kelsen, ‘On the Theory of Interpretation’ (1990) 10 Legal Studies 127. 2 Sotirios A. Barber and James E. Fleming, Constitutional Interpretation: The Basic Questions (Oxford University Press 2007) 13. 3 Kommers, Finn and Jacobsohn (n 2) 34. 4 Walter F. Murphy, James E. Fleming, and William F. Harris II, American Constitutional Interpretation (The Foundation Press 1986) 5. 5 Whereas Ronald Dworkin, for example, says that resolving both ‘easy’ and ‘hard cases’ presupposes interpretation, others claim that easy cases are those in which the rule (and the way it is implemented), even without interpretation, is known. See Ronald Dworkin, Law’s Empire (Belknap Press 1986) 266, 353-354, and Timothy A. O. Endicott, ‘Putting Interpretation in Its Place* (1994) 13 Law and Philosophy 466.
  • [3] Jeffrey Goldsworthy, ‘Introduction’ in Jeffrey Goldsworthy (ed.), Interpreting Constitutions. A Comparative Study (Oxford University Press 2007) 1. 2 Frederick Schauer, ‘An Essay on Constitutional Language’ (1982) 29 UCLA Law Review 812,817,828.
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