Against the New Constitutionalism

Against the New Constitutionalism

Elgar Monographs in Constitutional and Administrative Law series

Tamas Gyorfi

Ever since the Second World War, a new constitutional model has emerged worldwide that gives a pivotal role to judges. Against the New Constitutionalism challenges this reigning paradigm and develops a distinctively liberal position against strong constitutional review that puts the emphasis on epistemic considerations. The author considers whether the minimalist judicial review of Nordic countries is more in line with the best justification of the institution than the Commonwealth model that occupies a central place in contemporary constitutional scholarship.

Chapter 3: From principles to institutions

Tamas Gyorfi

Subjects: law - academic, comparative law, constitutional and administrative law, politics and public policy, constitutions


By criticizing PEP, I have argued that we have good reasons to impose substantive or outcome-related limits on the political decision-making process. Many supporters of the New Constitutionalism assume that if they have a strong case for imposing substantive limits on the outcome of collective decision-making, they have already won the debate. By adding some uncontroversial premises to the argument for those limits, so the argument runs, we are inevitably led to the desirability of constitutional review. This position would be plausible, if the theories of constitutional interpretation imposed sufficiently strong limits on judicial discretion and judges could enforce the substantive limits of political decisions without making controversial value judgements, relying exclusively on their superior legal expertise. According to this view, constitutional review is legitimate exactly because judges are not moral arbitrators. A fundamental assumption of my argument is that this position is untenable. In the debate about the nature of constitutional interpretation I side with Ronald Dworkin, who claims that, in most cases, judges cannot avoid the moral reading of the constitution. I contend that when judges apply highly abstract and value-laden human rights, they have to articulate and give more specific content to those rights and they do become moral arbitrators in the sense the term is explained in the previous chapter. I am aware that it would be a fatal mistake to build my case against the New Constitutionalism on an unsubstantiated assumption.

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