Constitutionally Conforming Interpretation and Judicial Dialogue

My presentation will focus on constitutionally conforming interpretation (CCI) in concentrated constitutional review systems. I will look, in particular, into the interaction among ordinary judges and constitutional courts that is triggered by the practice of CCI. Indeed, such practice requires ordinary judges to engage in the interpretation of Constitutional norms, entering the scope of action of the Courts entrusted with the power of constitutional review. I will inquire into the nature of this interaction and its upshots on concentrated review, with a focus on the Italian legal system. Then, I will outline the conditions under which the interaction takes the form of a legitimate dialogue and the results that it should aim at.

Activism disguised as deference: the case of constitutionally conforming interpretation

Advocates of constitutionally conforming interpretation (CCI) advance several arguments in its favour. They argue for instance that there is presumption of constitutionality in favour of ordinary legislation. From this normative argument usually follows an institutional one, according to which CCI strengthens separation of powers and ultimately democracy, because it encourages courts to uphold rather than to strike down legislation.
My presentation challenges both the assumptions on which the CCI is grounded, as well as its effects on separation of powers. Among other things, I will argue that this canon of interpretation is based on an unsound concept of presumption of constitutionality and that it may lead to less (and not more) judicial deference towards the democratically elected parliament. I intend to present a clear concept of CCI and to point out that its real effects on the relation between courts and legislatures may be much more problematic than usually assumed.

HUMAN RIGHTS LAW-CONFORMING INTERPRETATION OF NATIONAL LAW: THE CASE OF LATIN AMERICA

The Inter-American Court of Human Rights is one of the world’s most active human rights tribunals. Through an impressive case law, the Court exerts significant influence upon many Latin American states, in particular, constitutional courts.
My paper discusses the impact that inter-American human rights law has upon the interpretation of national law by domestic courts. It explores the interpretive canon of constitutionally-conforming interpretation through the distinct case of Latin American human rights and constitutional law, where domestic courts are expected to use not only their national constitutions but also international human rights law. As this model of enhanced monism is strengthened further by the use of supremacy doctrines, such as conventionality control, the paper analyzes the opportunities, tensions and challenges that conforming interpretation presents when the canon is used by courts that apply both national and international law.

A dialogic approach to constitutional interpretation

In my paper, I shall defend a view about constitutional interpretation that is based on the dialogic theory of democracy. The vision that I am going to present conceives of constitutional interpretation as part of an ongoing democratic conversation, which is carried out by the same community that produced the Constitution. This approach challenges the prevailing readings on constitutional interpretation, which consider that the interpretive monopoly must remain in the hands of the judiciary, or defend “judicial supremacy,” which implies that judges remain with the “last word” in matters of interpretation. To challenge these positions, and after some introductory reflections, I will present and criticize the dominant approaches on the judicial interpretation of the Constitution – I shall mainly examine so-called “originalist” and “living constitutionalist” approaches to legal interpretation. Then, I will introduce and justify my own dialogic approach on the subject.

The direct application of constitutional provisions by Polish and Hungarian highest courts: The question of judicial resistance and submission

The paper is focused on Poland and Hungary since both countries have modified a personal structure and organisation of their judiciary systems and have been investigated under the rule of law framework in the EU. The paper’s objective is to discuss and compare two approaches to the direct application of constitutional provisions by the Polish and Hungarian highest courts. The scope of the paper is limited to cases concerning the rule of law crisis. The first part of the paper will reveal a new (rule of law) context for the concept of direct application of constitutional provisions in Poland and in Hungary. The second part will compare the use of that concept in the recent decisions of Polish and Hungarian apex courts (i.a. the Supreme Court). The third part will discuss the two approaches under the framework of direct application of the EU law. As a result, some of the regularities are expected to be extracted from different court’s approaches in the time of the rule of law crisis.