Placing Constitutionally Conforming Interpretation in its Larger Theoretical and Political Contexts

Placing Constitutionally Conforming Interpretation in its Larger Theoretical and Political Contexts

Description

Constitutionally conforming (judicial) interpretation (CCI), which roughly corresponds to constitutional avoidance in the US, or its functional equivalents prevail in a very large number of jurisdictions. This is the case in the context of nation-state constitutions as well as in transnational legal pluralism such as that prevalent in the European Union (EU). Logically, CCI seems legitimate and desirable whenever only one of several plausible interpretations of a statute makes the latter consistent with the relevant constitution or hierarchically superior legal norm. CCI appears particularly well suited to foster legal harmony and to bolster the rule of law. Yet, somewhat paradoxically, CCI is highly contested in certain settings where it is characterized as amounting to judicial overreach. What is even more surprising is that CCI has been more criticized in certain settings where parliamentary supremacy prevails, such as the UK, than in others, such as the US, where constitutional adjudication cannot be for all practical purposes superseded.

The purpose of the present chapter is to place CCI in its national and transnational dimensions in the proper theoretical and political context. First, the potential and limitations of CCI are considered in terms of the canons of judicial interpretation. Next, focus bears on the impact on CCI fostered by the concurrent internationalization of constitutional law and constitutionalization of international law. Finally, CCI is evaluated in terms of questions concerning democracy and politics.

ISBN

9781509953806

Book Title

Constitutionally Conforming Interpretation – Comparative Perspectives: Volume 2: Connections and Analysis

Editor(s)

Matthias Klatt

Publication Date

8-21-2025

Publisher

Bloomsbury Publishing

Keywords

Constitutional conforming interpretation, constitutional avoidance, antimajoritarian versus antidemocratic, judicial versus ordinary politics

Disciplines

Comparative and Foreign Law | Constitutional Law | International Law | Jurisprudence | Law and Philosophy

Placing Constitutionally Conforming Interpretation in its Larger Theoretical and Political Contexts

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