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 6: Conclusion

Tamas Gyorfi

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


In this book I have articulated a sceptical position concerning the justifiability of the New Constitutionalism. Although being sceptical of constitutional review is certainly a minority position in the contemporary constitutional discourse, I am hardly alone with these views. Therefore, it might be helpful to summarize briefly how my position can be located within the camp of constitutional sceptics. The easiest way to do this is to differentiate my line of argument from three other versions of the sceptical position. First, my position is the furthest from the output-based criticism of constitutional review. Most constitutional scholars have considered opinion on abortion, assisted suicide, hate speech, affirmative action and a whole range of similar problems. We strongly believe that our position is the correct one on those issues. When facing an institutional choice, it is reasonable to prefer the institution that is more likely to reach the conclusions that we consider right, just or correct. Following this logic, one can sign up for the sceptical position because one thinks that constitutional courts are less likely to reach the conclusions that are morally correct than legislatures. This argumentative strategy was articulated most clearly by Wojciech Sadurski, although I am not claiming that this is the most accurate characterization of his overall position on the issue. However, this option is incompatible with the position I defend in this book.

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