Other interpretive aids: judicial doctrines, constructions, standards, tests and legal maxims

Beyond interpretive theories, there are a number of other special tools and technics of interpretation, such as constitutional doctrines (constructions) standards (tests) and interpretive sub-principles and guidelines (canons, maxims). They help the interpretation process in different ways, and the techniques and tools of their various groups have certain common features. However, the differentiation between these methods is only relative, so they can often not be precisely separated from each other. Consequently, their existence and specification have usually no statutory basis but primarily serve as an analytical framework.

Constitutional doctrines are judicial constructions that set out certain general rules or criteria for interpretation in order to decide certain types

The art of constitutional interpretation 41

of cases. There is usually some important constitutional value behind them that the court must uphold in its proceedings. The doctrines are mostly formulated by the constitutional and other high courts; that is, they are not included in the constitutional text. Nevertheless, they adopt special legal approaches and conceptions that are useful instruments for judges to determine the content of constitutional principles or build a coherent analytical framework.[1] The doctrine of the so-called ‘living constitution’, the ‘unity of the constitution’, the ‘interpretation conforming the constitution’ or the ‘autonomous concepts’ can be included, among others, in this group.

The standards and tests used in constitutional interpretation are also judicial constructions, aiming to make judicial review predictable and transparent and thus, in a sense, controllable. Basically, these are technical requirements for the interpretive process, which determine what aspects (and how) the court will scrutinize in its proceeding. This includes fundamental rights tests such as the necessity-proportionality test, constitutional balancing, or such specific methods as the strict scrutiny test in the United States or the so-called Wcdnesbury reasonableness in the UK.

The legal nature of some other interpretive rules, canons, maxims and guidelines is vague, and their legal status is uncertain; at least, they arc much weaker than those of principles, doctrines, or tests of interpretation in constitutional law, even though in some cases they may play a decisive role in finding the right solution to the case. These interpretive aids merely assist the judge but do not in themselves have legal force; usually, they arc based solely on the consensus of a legal community. Consequently, there is no authoritative list of interpretive canons, and their use varies in case law, as do their generality and scope: some maxims are specific, applicable only in some cases; others are more similar to general principles of law. Among them, there arc primarily interpretive canons such as ‘the rule against surplusage’ or ‘ejusdemgeneris1 (‘of the same kind’), maxims of legal logics such as ‘argumentum a maiore ad minus' (‘from the larger scale to the smaller one’), ‘argumentum a contrario' (‘argument from the contrary’), or ‘idem per idem' (‘the same through the same’), conflict resolution rules, as ‘lex superior derogat legi inferior^ (‘the higher law repeals the lower one’), ‘lex spe-cialisderogat legigeneral? (‘the special law repeals the general law’) ‘lexposterior

derogat legi priori1 (‘the later law repeals the prior one’) and value-laden interpretive aids such as ‘nullum crimen sine lege' (‘no crime without law’ and ‘no punishment without law’) ‘contra bono mores'’ (‘against good morals’).

Conclusion

In sum, it can be concluded that a number of theories and methods of constitutional interpretation have been developed both in scholarship and jurisprudence. By reason of the vagueness and indeterminacy of the constitutional text, however, choosing between them is unavoidable, as in many cases the plain meaning does not provide sufficient guidance to resolve the dispute.

Beyond the exigency of interpretation, the next question is who should be the ultimate interpreter of the constitution. Without engaging here in the never-ending dispute around the counter-majoritarian difficulty, but assuming that constitutional interpretation, at least in the countries examined in this volume (perhaps with the sole exception of the UK) is essentially a judicial function, the art of interpretation lies primarily in deciding which interpretive methods lead to the best outcome in various constitutional debates. The real difficulty is how to justify the application of the chosen interpretive methods or principles. As a matter of fact, there is no natural hierarchy between the various theories of constitutional interpretation and the modalities and substantive concepts attached to them (as we will see in reality, even if the constitution itself prefers certain methods); that is, one can choose between them only on the basis of a certain (political, moral, etc.) value judgement.

Whatever choice is made between competing interpretive methods, now it is sufficient for us to conclude that the courts undeniably encounter constitutional disputes generated by the contemporary wave of populism and therefore are forced to decide whether or not to change their previous interpretive practices, and if so, how they do this. This is what this book is about.

3 An ‘Instrument of Government’ or ‘Instrument of Courts’?

  • [1] Craig R. Ducat, Constitutional Interpretation (Wadsworth 2009) 80; Kommers, Finn, and Jacobsohn (n 2) 40. 2 Sandalow (n 37) 1053. 3 Kommers (n 46) 178; Stern (n 23) § 4, III. 8. 4 Sachs (n 25), 18-19; Starck (n 25) 210. 5 George Letsas, A Theory of Interpretation of the European Convention on Human Rights (Oxford University Press 2010) 41-43. 6 Alec Stone Sweet and Jud Mathews, 'Proportionality, Judicial Review, and Global Constitutionalism’ in Giorgio Bongiovanni, Giovanni Sartor, and Chiara Valentini (eds.) Reasonableness and Law (Springer 2009) 173. 7 Louis Henkin, 'Infallibility under Law: Constitutional Balancing’ (1978) 78 Columbia Law Review 1029. 8 Richard H. Fallon Jr., 'Strict Judicial Scrutiny’ (2007) 54 UCLA Law Review 1273. 9 Stone Sweet and Mathews (n 54) 175.
 
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