Millard E. Constitutional Interpretation as Norm Creation

DOI: https://doi.org/10.15688/lc.jvolsu.2017.4.1

Eric Millard, Professor at Université Paris Nanterre (France), former vice-president of the International Association for Philosophy of Law and of Social Philosophy (IVR), honourable member of the Institut universitaire de la France, Avenue de la République, 200, Bureau F 407, F-92001 Paris, France, This email address is being protected from spambots. You need JavaScript enabled to view it.

Introduction: сonstitutional interpretation is not a scientific interpretation of a text or texts, known as the constitution. Constitutional interpretation is a norm-creation process; it is a process that establishes the constitution as a norm. Before interpretation occurs, there is no norm and, therefore, there is no constitution. Moreover, this means that interpreters can create constitution as a meaning, as a valid source, as well as they create the hiererchy of norms deriving from the constitution. This paper confronts three appraoches of that topic, namely formalistic (constitutionalism), apparently antiformalistic (neo-constitutionalism) and truly antiformalistic (realism). It discusses the political issue whether what is the most adequate theory if man wants to guarantee democracy and human rights and analyses judicial activism from this perspective. It demonstrates that, using the so-called “reasonable” reasoning grounded in democratic legitimacy, a court created by a constitution can decide not only what constitutional powers can achieve within the constitution, but also what powers (including powers that were formally democratically elected) shall do to enact a new constitution. That is to create a clause of eternity of the valid constitution, inconsistent with any conception of democracy.

Key words: constitutional interpretation, meaning of legal rules, norm creation, judicial freedom, neorealism, neo-constitutionalism.

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