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 4: Constitutional interpretation

Tamas Gyorfi

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

Abstract

Even if the case against the desirability of strong judicial review were conclusive, a realistic constitutional theory would have to face the fact that the authority to specify abstract human rights provisions has been, in most countries, already conferred on the judiciary. Those who are sceptical about the legitimacy of judicial review must therefore also offer a non-ideal, or second-best, theory as to how courts already authorized to apply human rights provisions should interpret those provisions. That is the primary reason why the book dedicates a separate chapter to constitutional interpretation. The general thrust of Chapter Four is that judges should usually defer to the views of the legislature in interpreting the constitution.

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