Edited by Tom Ginsburg and Rosalind Dixon
Chapter 32: Constitutional Interpretation in Comparative Perspective: Comparing Judges or Courts?
1 Vicki C. Jackson and Jamal Greene 1 INTRODUCTION Writing on comparative interpretive theory would seem to invite an association of particular interpretive approaches with the courts of particular countries. And in years past, one might well have felt comfortable embarking on the enterprise in this way, associating the US Supreme Court, for example, with common law methods of constitutional adjudication, the French Conseil Constitutionnel with a formalist and quite cryptic approach, and the German Federal Constitutional Court with a holistic teleological approach. Yet distinctions that in earlier times might have appeared large must now be tempered by noting considerable overlap in the approaches of different courts. Accordingly, this chapter will try to resist the temptation to focus only on how different approaches correspond to different national constitutional courts or legal cultures. In those countries that permit separate opinions and thereby facilitate the development of competing interpretive approaches within a single system, differences among individual judges may be as striking as differences across courts. The increasing overlap in interpretive approaches may be an effect of globalization, reflecting the transnationalization of judicial discourses. But these areas of overlap may also be understood in other ways. First, as David Law suggests, they may be responses to the internal logic of constitutional review in more democratized polities, and the demands for justification of government action that the ideas of limited government and constitutionalism entail.2 Second, the invocation of a range of justifications – beyond reliance on the ‘plain meaning’ of texts – that is found...
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