Jakab on constitutional reasoning

Constitutional Reasoning in Constitutional Courts - A European

Perspective

András Jakab

Max Planck Institute for Comparative Public Law and International Law, Heidelberg


November 8, 2011

Abstract:     
In this paper we are going to analyse 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. The nature of this conceptual system will be analysed, before we turn to the question of styles of constitutional reasoning. The analysis concentrates on the practice of European constitutional courts, though for purposes of classification and comparison, non-European practices will also be mentioned.

Number of Pages in PDF File: 41

Keywords: constitutional reasoning, Verfassungsdogmatik, legal reasoning, effet utile, Scalia, living tree, legal method, Ius Publicum Europaeum, originalism, Begriffsjurisprudenz, plain meaning rule, Golden Rule, literal rule, purposive interpretation, teleological interpretation, Brandeis Brief, analogy

Full text available at:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1956657