The Legitimacy of Constitutionally Conforming Interpretation

In this talk, I analyze the legitimacy of this canon from a constitutional theory perspective by highlighting normative questions that the employ of this canon raises regarding the role of the judiciary when enforcing the constitution. I trace this canon back to its German origins, compare it to the US avoidance canon, and elaborate on four conditions for its use. I then discuss three arguments that can be made in support of this canon. Next, I examine the principal objections that have been raised against this canon. I then intend to dispel these objections by arguing for a broad concept of legal argumentation in combination with my theory of practical institutional concordance. I argue that by balancing the competences of the state authorities involved the conditions and limits of constitutionally conforming interpretation can be reconstructed. I conclude that constitutionally conforming interpretation is a legitimate canon of generic constitutional law.

The Role of the Presumption of Constitutionality in Canadian Constitutional Law

In this chapter I discuss the role of the presumption of constitutionality in Canadian constitutional law. I describe the presumption’s origins and explain how it has been applied by courts since the coming into force of the Canadian Charter of Rights and Freedoms. I then situate the presumption relative to other interpretative techniques courts employ to uphold legislation as constitutional, a practice which reached a high-water mark in the Supreme Court of Canada’s decision in Canadian Foundation for Children, Youth and the Law v Canada (Attorney General). In that case, a majority of the Court adopted what can only be described as an implausible interpretation of the so-called “spanking defence” in the Criminal Code before upholding it as constitutional. I consider what might motivate courts to rely on the presumption in borderline cases. I also offer some thoughts on the dynamics of legislating in the shadow of the presumption.

Constitutionally Conforming Interpretation in Israel

In this article we focus on the Israeli approach toward ‘interpretation in accordance to the Basic Laws’, according to which every interpretive effort must be made to reconcile legislation with protected constitutional rights, rules and basic principles. The paper will review and analyze various cases in which such interpretive method has been exercised instead of invalidation of conflicting legislation. Critically, it argues that the results of an interpretation that differs significantly from the legislative intent, or is detached from the provision’s wording, could be more severe than the act of annulment. Not only that such application of interpretation may conflict with principles of legal certainty but it also conflict with separation of powers, as invalidation of legislation leaves the legislature more room for political maneuvering than an interpretation that can easily result in law-making by the court.

Constitutionally Conforming Interpretation in New Zealand

My talk on NZ would cover three topics: what counts as “constitutional” for these purposes in NZ’s unwritten constitutional system (there is a range of different sources in this category); what is taken to be the theoretical and/or doctrinal basis for constitutionally conforming interpretation; and a survey of the quite different approaches to consistent interpretation that courts in NZ have taken depending on the source of the “constitutional” norm in question.

Constitutionally Conforming Interpretation in Poland

We will present the Polish approach to constitutionally conforming interpretation in Poland before the beginning of the current constitutional crisis (ie before the Autumn of 2015) and how this approach has been changing since 2015. We will note that in Poland there is a complicated relationship between constitutionally conforming interpretation and the doctrine of direct effect (direct application) of the Constitution by ordinary courts (eg to disapply an unconstitutional statutory rule). Our method will not be limited to doctrinal and theoretical analysis, we will also present results of an empirical study on a large corpus of the case law of Polish courts.

Constitutionally-Conforming Interpretation in Austria

The Austrian Constitutional Court uses constitutionally-conforming interpretation frequently, often crossing the borders thus depicted, setting aside the wording of a specific provision or the clear intent of the legislator. By engaging in rather bold interpretative moves, the Court tends to preserve statutory law that otherwise had to be found unconstitutional by means of judicial review.
This practice comes at a price; too high a price, as some scholars argue who caution against the excessive use of a tool that may jeopardize the Court’s original mission to serve as a “negative legislator” in order to ensure predictability and a clear-cut perception of statutory law in and by itself in conformity with the constitution, rather than by interpretative exercises. Against this backdrop, my contribution will discuss the merits and downsides of this interpretative practice, focusing on the case law of the Austrian Constitutional Court.