The Reasoning of Constitutional Courts in Europe

in: Armin von Bogdandy, Peter M Huber and Christoph Grabenwarter (eds), The Max Planck Handbooks in European Public Law. Volume IV. Constitutional Adjudication: Common Themes and Challenges (Oxford: Oxford University Press 2023) pp. 169-221

54 Pages Posted: 20 Dec 2023

Date Written: December 6, 2023

Abstract

The aim of this paper is to give an overview of the different types (styles, methods, forms) of constitutional reasoning in Europe. For this purpose, a conceptual framework will be developed, examples will be shown, doctrines will be systematized, and best practices will be collected. In order to be able to collect best practices, certain normative considerations on the general nature of legal interpretation are also included. The present analysis concentrates on the European constitutional discourse: on national constitutional courts as well as the European Court of Human Rights (ECtHR) and the European Court of Justice (ECJ). Nonetheless, for the purposes of classification, comparison, and identification of global trends, non-European discourses will also be mentioned. The analysis will show that no specific form of European constitutional reasoning exists: (a) the main trends and characteristics that can be observed in Europe can also be seen worldwide, and (b) the reasoning styles are as diverse in Europe as they are worldwide.

Keywords: constitutional reasoning, teleological interpretation, analogy, comparative law

JEL Classification: K00

Suggested Citation

Jakab, András, The Reasoning of Constitutional Courts in Europe (December 6, 2023). in: Armin von Bogdandy, Peter M Huber and Christoph Grabenwarter (eds), The Max Planck Handbooks in European Public Law. Volume IV. Constitutional Adjudication: Common Themes and Challenges (Oxford: Oxford University Press 2023) pp. 169-221, Available at SSRN: https://ssrn.com/abstract=4656331 or http://dx.doi.org/10.2139/ssrn.4656331

András Jakab (Contact Author)

University of Salzburg ( email )

Kapitelgasse 5-7.
Salzburg, 5020
Austria

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