German Law Journal, Forthcoming
29 Pages Posted: 2 Jan 2013 Last revised: 25 Jan 2013
Date Written: July 2, 2012
In a recent paper on constitutional interpretation, Tamas Gyorfi puts forward an elegant argument for judicial formalism, which is defended on the basis of process-related considerations, rather than on Vermeule's consequentialist analysis of the institutional capacities of judges and legislators. Nevertheless, formalism is proposed, on this account, with support on what Dworkin has called a “moral reading” of the constitution, although it differs from Dworkin's model of “law as integrity” because it rejects the substantive or “outcome-related” reasons that appear in this interpretive theory of law.
According to Gyorfi, the moral reading of the constitution is inevitable if it is described as a negative thesis that rules out the possibility of avoiding value judgments in adjudication. Hence, for Gyorfi, one cannot choose a theory of constitutional interpretation unless this choice is defended on moral grounds.
In this essay, I attempt to reconstruct the positions of Vermeule and Gyorfi and to explain the disagreements between these two authors and Dworkin, in order to evaluate the soundness of their theories of interpretation.
Since I do not have enough time and space to comment on all the aspects of Gyorfi’s interesting paper, I will concentrate on the objections that he raises against Dworkin and on the conditional defense of judicial formalism that he presents towards the final pages of his paper.
My approach will be admittedly Dworkinian, for I intend to show that neither Vermeule’s consequentialism nor the process-related arguments that Gyorfi provides against Dworkin are strong enough to support the judicial formalism that seems to unite these two critics.
I will proceed in the following way. First, I provide an overview of Gyorfi and Vermeule’s criticisms on Dworkin's moral reading of the constitution, with a view to identify the central problems that will be discussed in the remaining sections of the paper. Secondly, in turn, I expound the positive views presented by Vermeule in favor of his institutionalist interpretive theory and provide a critical assessment of this theory. Finally, towards the end of the paper, I present the non-consequentialist and process-related arguments that Gyorfi offers in defense of judicial formalism, as well as a set of objections which attempt to show that this position is no more successful than Vermeule’s.
In all these sections, however, I attempt to compare Vermeule and Gyorfi’s arguments with those of Dworkin, with a view to demonstrate that this author’s version of the moral reading of the constitution remains a plausible approach to constitutional interpretation.
Suggested Citation: Suggested Citation
Bustamante, Thomas, Dworkin, Vermeule and Gyorfi on Constitutional Interpretation: Remarks on a Meta-Interpretive Disagreement (July 2, 2012). German Law Journal, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2195441