In Defence of Judicial Innovation and Constitutional Evolution

Fiona De Londras 

Durham University - Durham Law School
July 13, 2015

Forthcoming in Laura Cahillane, Tom Hickey & James Gallen, JUDGES, POLITICS AND THE IRISH CONSTITUTION (2016; MUP) 
Abstract:      

The meaning of broadly drawn constitutional provisions is rarely static or self-evident. Thus, certain branches — including the judiciary — usually have a role in interpreting them. Although this task is often shared between different branches of government (and, thus, essentially collaborative), the role of superior courts is particularly significant, especially (although not only) in so-called ‘legal constitutions’ (i.e. written constitutions in which constitutional, rather than parliamentary, supremacy is the norm). In carrying out their interpretive role, judges are at least sometimes innovative (or what some might call ‘activist’), and that innovation is a key element of constitutional evolution. This is not uncontroversial; many argue that judges ‘overreach’ when they engage in such innovation and, as a result, prefer a more restrained judicial role. However, exploring this in the Irish context, I argue in this chapter that judicial innovation is an important and legitimate part of constitutional evolution, taking into account the broader constitutional tradition and structure within which Irish superior courts operate.

Constitutions require interpretation. Governance must constantly address new and emerging issues. Any system of governance that has a constitutionalist orientation is constantly faced with the task of establishing and assessing the constitutionality of new responses to old and emergent challenges. Innovative constitutional interpretation is necessary so that the boundaries and limits of constitutionally permissible action can be identified in the face of new and different forms of government activity and governance. Through their engagement in constitutional interpretation, courts play a vital role in that enterprise.

Making out this argument in this short essay comprises both a positive and a negative case. The positive case posited here is that innovation in constitutional interpretation is a necessary part of the judicial role; the negative case I forward is that such innovation is not an illegitimate judicial activity. This chapter starts by sketching what I term an ‘ecosystem’ of constitutional interpretation, placing the judicial role in constitutional interpretation into a broader context. I then proceed to outline the positive and negative cases. While the paper is primarily oriented towards defending judicial innovation in Ireland, the arguments contained herein are more broadly applicable allowing for technical adjustments based on the particularities of different politico-legal systems. Thus, the paper draws on examples from within and beyond Irish jurisprudence throughout.

Number of Pages in PDF File: 22

Keywords: judicial activism, judicial innovation, constitutions, Irish Constitution, comparative constitutional law

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2630263