Do political systems generate their own rules of constitutional interpretation?

Hypotheses

Constitutional interpretation is an inexhaustible topic that has been explored under innumerable aspects. A large part of the recent literature on constitutional interpretation takes a court perspective, e.g. which kind of interpretation methods and style of reasoning courts use, whether they lead an interpretive dialogue with other courts or even governments and legislatures, whether they exercise strong- or weak-form review, etc. The question of if and how the nature of a political system and constitutional interpretation correlate, however, goes much beyond the perspective of courts - or of governments, either.

My first hypothesis is that a political system requires constitutional interpretation that implements and furthers its own aims. Whether this is done in accordance with the constitution or not, depends, though. Non-democracies do not even formally seek to be guided by the constitution when it comes to constitutional interpretation. In some non-democracies a semi-liberal

1

See, e.g., most recently: Mark Tushnet, Weak Courts, Strong Rights (Princeton University Press 2008); Karen J Alter, ‘National Perspectives on International Constitutional Review’ in Erin F. Delaney and Rosalind Dixon (eds.), Comparative Judicial Review (Edward Elgar Publishing 2018) 244, 269; Andras Jakab, Arthur Dyevre, and Giulio Itzcovich (eds.), Comparative Constitutional Reasoning (Cambridge University Press 2017); Tania Groppi and Marie-Claire Ponthoreau, The Use of Foreign Precedents by Constitutional Judges (Hart Publishing 2013).

constitution may formally be in place but is nevertheless not respected in practice: whatever rule on interpretive methods, independent courts or other related issues may formally be provided, it will still not be obeyed. In both cases, therefore, the political system seeks to maintain its non-democratic character, either within the semantic framework of the constitution or outside.

In liberal and illiberal democracies, instead, the constitution as such will be heeded since in both types of democracies the commitment to popular sovereignty as the source of the constituent power vests the constitution with a status that cannot be overthrown easily. However, this does not exclude that constitutions are amended as long as this is done in accordance with the amendment rules provided by the constitution. My second hypothesis is, therefore, that democracies of both types are characterized by a commitment to make constitutional interpretation formally legitimate - either in terms of organization, procedures, methods or even constitutional amendment if needed for a change in constitutional interpretation.

My third hypothesis, however, is that fewer attempts to amend constitutions with the view to alter prevailing constitutional interpretation will be made in liberal democracies, whereas illiberal democracies show a greater preference for amendments that directly or indirectly bring about changes in constitutional interpretation. Liberal democracies and their constitutions might be more liberal also with regard to constitutional interpretation, at least with regard to methods which arc largely entrusted to the discretion of courts. Illiberal democracies, however, might be more restrictive with regard to desired constitutional interpretation and may thus be more likely to seek constitutional amendments in order to change undesired constitutional interpretation. However, whether this possibility can be used at all will also depend on a variety of other factors examined later in this chapter.[1]

  • [1] See Section 3.3. 2 See the more exhaustive survey in Anna Ganiper, Regeln der Verfassungsinterpretation (Springer 2012); Anna Gamper, ‘Explicit’ Interpretation in Comparative Constitutional Law’ in Luigi Melica, Luca Mezzetti, and Valeria Piergigli (eds.), Studi in onore di Giuseppe De Verjjottini (Wolters Kluwer 2015) 417.
 
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