Judicial Reasoning in Constitutional Courts: A European Perspective

Jakab, András (2013) Judicial Reasoning in Constitutional Courts: A European Perspective. GERMAN LAW JOURNAL , 14 (8). pp. 1215-1278. ISSN 2071-8322

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Abstract

“In the beginning was the Word.” This quote from the Holy Bible also stands on the ceiling of our discipline’s temple. The job of legal scholarship is interpreting, and the base of every interpretation is the word. In this paper we are going to analyze how constitutional courts are able to extract the most meaning from a, necessarily, short text, such as a constitution, with the use of sophisticated tricks, or methods, of interpretation. Partly with the help of these methods, and partly on the basis of text-independent speculations, constitutional courts and legal scholars are able to develop a system of concepts (a Rechtsdogmatik, or its specific constitutional part, the Verfassungsdogmatik) considerably more sophisticated than the one of the actual text of the constitution in order to serve as a helping toolkit for the solution of future cases. After analyzing some preliminary issues in part A, the largest part of this study will deal with the different methods of constitutional interpretation in part B. Then, the nature of this conceptual system will be analyzed in part C, before turning to the question of styles of constitutional reasoning in part D. The analysis concentrates on the practice of European constitutional courts, though for purposes of classification and comparison, non-European practices will also be mentioned.

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