University of Transnational Business Law

Constitutional Interpretation (in Continental Europe)

by Marijan Pavcnik


I. Introduction

Constitutional interpretation is one kind of interpretation of legal texts (→statutory interpretation). It is only an interpretation when the legal meaning is at the same time the meaning of the words or one of the meanings of the words of the legal text. It is in the nature of understanding that no text can predict with complete certainty how it is to be understood. A legal act can never “catch up” with its interpretation (Hassemer1986, 203). This unavoidable characteristic of legal understanding is most intensive in connection with the constitution, which is, at least from the standpoint of national law, the legal act standing at the top of the hierarchy. In the end, the person interpreting it is alone. Above him, there is no higher legal act that could very intensively direct the interpretation of a lower one. To paraphrase Kant, above him there are only the starry sky and the moral law within him [see Kant 1989, 300 (A 289, 290)].
It is a play on words whether, in view of what has been said, the interpretation of the constitution is a supra-constitutional or a sub-constitutional act. The dilemma was intensified by the former U. S. Supreme Court Justice Charles Evan Hughes, who stated that the judges are “under a constitution, but the constitution is what the judges say it is ...” (Hughes 1908, 139). If one tries to be precise, one can see that the interpreter is above the text; the text is before him and he must understand its meaning. The key question is how one enters this hermeneutical circle: do his approach and his previous knowledge require that he discovers by means of individual interpretative arguments what the text contains, or does he want to do everything to willingly bring his own views, aims, and desires into the text?
The suitable view for the interpretation of the constitution is the approach mentioned first, which attempts to discover what the constitution contains. Finding out what the constitution contains, which possibilities it offers, and what the meaning of these possibilities is, is not just an act of rendition/reconstruction, but also a creative act. On the level of principle it can be said that “the real meaning of a text, as it speaks to the interpreter (...) is always co-determined also by the historical situation of the interpreter and hence by the totality of the objective course of history” (Gadamer 2004, 296). Regarding legal understanding in general, and especially regarding the legal understanding of the constitution, there are numerous important circumstances co-determining such understanding. The task of individual interpretative arguments is to open the context of understanding and to rationalize, check, and direct understanding. The interpretation stops at the point where it goes beyond the possible meanings of the words of the constitution.
Constitutional interpretation is treated as one method of arriving at a possible understanding of the constitution by constitutional courts too. This analysis can be appropriately applied to interpretation carried out by regular courts or other competent state bodies. The main difference between constitutional and regular courts is the competencies they have. The position a court has in the hierarchy of courts is of great importance as well. In principle, the higher this position is, the greater is the influence upon the creation of court practice.
II. The Nature of the Constitution

How the constitution is designed and understood as a legal act influences the interpretation of the constitution. It is in the nature of the constitution that it is the starting-point legal act and the basic legal act: it is the starting-point act because it has the highest legal validity within the state, and it is the basic legal act because it regulates “just” the most important social relations. Being the starting-point act also means that the constitution is (at least from a certain point of view) primarily a procedural act, which enables all political subjects to play the legal game. The constitution foresees the kinds and responsibilities of legal subjects, the relations between them and the basic procedural rules forming the framework within which legal and political decisions can be taken. The procedural side of the constitution is especially important for the modern state. Nowadays the state is a kind of a supra-system, within which different systems and subsystems must act together.
The constitution is also the basic legal act that regulates social relations with regard to their contents. The constitutions of modern democratic states governed by the rule of law are especially focused on three groups of questions: basic (human) rights (i.e. fundamental rights and freedoms), the form of the state, and the organisation of the state. This embodies the so-called classic materia constitutionis. If one compares these three subject matters, it can be noticed that they differ linguistically as well as technically. The organisation of the state is the best-focused one with regard to its content and can be directly concretized as a whole to an important extent, whereas the form of the state is in some important parts expressed “just” through principles such as the principles of democracy, of the state governed by the rule of law, of the social state, of the separation of powers, etc. These principles are either normatively put in a concrete form in other parts of the constitution (e.g. the principle of the separation of powers is elaborated in the chapter on the organisation of the state) or represent guidelines for the legislature and for concrete behaviour. A special form with regard to the content is given to human rights and fundamental freedoms. The starting point is that they are defined in the constitution in such a way that they can be exercised directly. It can only deviate from this rule when this is necessary due to the particular nature of an individual right or freedom or when it is provided for some rights that a statute regulates the manner of exercising them. This technical legal possibility is in practice widely applied. The descriptions of the basic rights also comprise numerous value criteria such as “human dignity”, “personal dignity”, “inhuman or degrading treatment or punishment”, “the inviolability of the physical and mental integrity of every person”, “the economic, social, and environmental function of property”, etc. (cf. Treaty establishing a Constitution for Europe, Art. II-61 ff.). The basic rights with these and similar value criteria have the nature of “legal principles”, which are described in more or less detail, and have to be further elaborated and concretized with regard to their meaning (cf. section III.4.).
The constitution is a living organism addressing a community organized in accordance with state law, enabling it to function in a legal manner: from supreme state bodies normatively giving the constitution an operational form by means of statutes and other general legal acts, and ordinary mortals, who are limited by the equal rights of others, to the state body (e. g. to the constitutional court), which ensures that the game takes place within the limits of the law as regards the content and the procedure. And this is also the key to understanding the constitution. In a way, this key is very simple: we are within the constitution as long as we take into account the norms regarding jurisdiction, procedure, and orientation as concerns content (together with its binding limitations). As long as these are our starting points, we are within the framework of the law (the constitution) and at the same time this setting enables us to make the content dynamic and to normatively develop it further and in more detail. As long as we act in such a manner, we act legally and at the same time support any new content we consider legitimate. And it is also a game that can and must be controlled by the competent state body (e. g. by the constitutional court or by the supreme court). This competent state body does not have any supra-constitutional criterion that would indicate whether the development of the contents of the valid constitution is constitutional. The competent state body can “only” decide whether the development of the content is still within the limits of constitutional possibilities and whether such has occurred according to a procedure that is still within the limits of the constitutional procedural game. It is of special importance for the competent state body (e. g. for the constitutional court) to continuously examine whether legal participants respect the constitutionally consolidated institutions of a state governed by the rule of law (such as the so-called constitutional democracy).
What does it mean to be “still within the borders of constitutional possibilities” or to be “still within constitutional procedural play”? Such is not a firm but often a vague criterion. It is unproductive not to admit it and to hide behind the constitutional text, as if it were certain enough. It would be much wiser to ascertain the relative uncertainty of the constitutional text, to analyse it as such and then to search for those implementations that are not beyond the constitution and which try to embody the meaning that the constitutional text at least implicitly includes. No, this is not a play on words, it is a methodological procedure which is wilfully self-restricting. This methodological procedure has a special weight for the highest judicial body (e.g. for the constitutional court), which in more difficult cases may be tempted to appeal to constitutional provisions only apparently, while in reality, however, it functions as a supra-constitutional organ, changing and completing the valid constitution (cf. → activism, judicial).
III. Classic Interpretative Arguments
1. Introduction

Each field of law has a number of peculiarities which have to be considered, and which also influence the interpretative approach. The general methodologies of evaluation as well as individual legal sciences have to take into account these peculiarities. The first step to take is to start with the classic interpretative arguments of von Savigny and to try to determine whether they have any special traits when they come into contact with the text of the constitution. The interpretative arguments themselves further such approach because they are always in a suitable “dialogue” with the object of their understanding.
Von Savigny’s classic canonic arguments comprise linguistic interpretation, logical interpretation, systematic interpretation, historical interpretation, and teleological interpretation. These arguments are well-known and generally accepted in European continental law as a part of the tradition of the Roman-German legal family. Below I shall draw attention to some peculiarities these arguments have or can have in constitutional interpretation.
2. Linguistic Interpretation

The basic characteristic of linguistic interpretation is that the language of the constitution is the starting-point legal act and the basic legal act (see section II). In the constitution the organisation of the state is defined in a relatively precise manner, whereas legal principles and general provisions on the form of the state, on the characteristics of legal order and numerous elements of basic (human) rights are relatively uncertain. The relatively uncertain terms are surrounded, as Hart says, by a penumbra of doubt, which leaves open the question whether concrete cases still belong under general rules (Hart 1994, 123; see also 128-136). The circumstance that the constitution is the hierarchically highest state act aggravates this problem. If the constitutional court or some other organ which interprets the constitution with finality, is not prepared to exercise self-restraint, this endangers the principles of the separation of powers. The edge of doubt may hide the danger that the representative of the interpretative power changes the basis of the legal order; on the other hand, it draws attention to the importance of the moral starting point of law and to the sensitive moral role (and also responsibility) of those interpreting the constitution.
3. Logical Interpretation

Logical interpretation is not “interesting” in its aspect of demanding treatment in accordance with the rules of formal logic with regard to the formation of thoughts, inference, and proof. In this sense no differences exist between the understanding of the constitution and any other legal understanding. Logical interpretation becomes exciting when it refers to persuasion and substantiation concerning the content, which cannot be checked and chained by strict rules of formal logic. Examples of persuasive argumentation are argumentum a contrario, argumentum a simili ad simile (within the legal text or due to a gap in the constitution), argumentum a fortiori, argument of the nature of things, etc.
As an example of persuasive argument, the argumentum a maiori ad minus may be taken. This argument has been used by some courts when deciding on the conformity of laws with the constitution and on the conformity of regulations with the constitution and with laws. The courts have taken the view that everything short of an immediate abrogation or a complete annulment of a regulation is allowed. In this sense also the so-calledinterpretative decision should be permitted, though mentioned neither in the constitution nor in the constitutional court act.
The basic task of an interpretative decision is to exclude from the legal system the meaning of the text of a statute (or some other legal text) that is unconstitutional. The interpretative decision saves the statute (this applies mutatis mutandis to the general legal acts that can be the object of a constitutional court review) and helps the legislature to keep its legal message within the limits of constitutional possibilities. In principle, the task of the constitutional court is to authoritatively remove any unconstitutional interpretation.
It is important, however, that the interpretation must never take over the role of the legislature (the principle of the separation of powers!), which can, within the limits of the constitution, decide in favour of a broader or a narrower scope of the meaning of the legal text. In principle, the constitutional court should not establish which meanings of the legal text are the only legally (constitutionally) correct ones, but should just keep watch on whether the search for the dimensions of the meaning of a statute is constitutional (i.e. within the limits of the constitution). Legal hermeneutics knows that new cases give rise to new solutions and new developments regarding the meaning of a statute. The constitutional court should only exceptionally - in the case of very unclear statutes that cannot be abrogated without causing irreparable damage - state in a positive manner which interpretation is constitutional, in all other cases it should be a negative legislature.
4. Systematic Interpretation and the Importance of Legal Principles

Systematic interpretation can also have a general and a special meaning. The general meaning is well known and refers to the role attributed to the external and internal legal system (see Heck 1932, 139 ff.; cf. Canaris 1983) as well as to the manner of connecting and harmonising these two systems if incompatibilities exist between them. The latter case already deals with a special meaning that is typical of individual legal fields. The case behind it refers to the fact that the constitutional interpretation must also consider the “spirit” and the sense reigning in individual legal fields.
The codes and systemic statutes should, as a rule, be based on legal tradition and on the established findings of legal science (cf. Art. 1/2 of the Swiss Civil Code). This tradition and these findings can be so intensive that they have the nature of a “commonplace or topos”. If such “clues” exist, it is only normal that the constitutional court takes them into account and raises them to the level of “constitutional arguments” if it finds that they conform to the spirit, the principles, and the criteria of the text of the constitution. To put it even more clearly: “commonplaces” do not have precedence over the constitution; since they are so well founded and persuasive, however, it is possible that the constitutional court accepts them as “constitutional criteria”. A number of constitutional court decisions referring to individual constitutional rights (cf. →Human Dignity, →Due Process Clause, →Equal Protection Clause, →Prisoners’ Rights) have the nature of “constitutional criteria” or “commonplaces”.
At least two more questions are important for the interpretation of the constitution. Both are connected to legal principles and their importance for the understanding of the constitution. Legal principles do not have more legal validity than the other parts of the constitution, but are an integral part thereof. General constitutional provisions represent the leading principles and the starting points only inasmuch as their content is realized in other chapters of the constitution, in individual statutes and other formal legal sources. Thus, the constitution is a legal whole, wherein individual provisions must conform to each other: everything must exist within the limits of the constitution and in the sense of the general provisions, which together with the preamble represent its interpretative starting point.
It is in the nature of legal principles that they are value criteria put into effect by legal rules. The constitution-maker and the legislature operationalize the constitutional principles: the former does it within the constitution itself, which is a system of constitutional principles and rules, and the latter does it by statutes which, with regard to their content, are subordinate to constitutional principles and constitutional rules. The legislature’s field of decision making is very broad. As regards legal principles, it reaches from a lower limit, which already entails that a statutory rule is in conflict with a constitutional principle (e.g. with the principle of a state governed by the rule of law or with the principle of a social state) to an upper limit, which can be as high as possible (e.g. the Disability Insurance Act may encompass a very high degree of social values). Actually, the upper limit is an optimum that can never be reached (see Alexy 1986, 75-76).
Legal principles are characterized by a high degree of abstractness. The abstractness is so high that neither all cases to which the legal principles refer can be foreseen in advance, nor can it be said in advance to what extent individual principles should be binding for concrete life cases. In a concrete case it can happen that for the relevant factual elements several principles are applied at the same time (though with a different degree of intensity, which colours different legal principles to such an extent that they are not mutually exclusive). In a concrete case the court can decide to exclude one or several principles if some other principle proves to be stronger (e.g. the right to reverence, which is an element of the right to privacy, has priority over freedom of expression).
In the German constitutional-court practice the “Lebach judgement” caused lively debate. In this judgement the court gave priority to the protection of personality over freedom of expression (information). A documentary showed how four persons were killed because of the theft of some weapons. The convicted person, who aided and abetted the felony, was named several times in the film and his picture was shown as well. At the time when the documentary should have been televised he was due to be released from prison. If the film had been televised, his resocialization would have been endangered. The regular courts did not substantiate his claim that the documentary should not be televised. In the proceedings of his constitutional complaint this was done by the Constitutional Court. Itevaluated the opposing rights as principles and was of the opinion that, in view of the circumstances of the case, such an intensive invasion of the protection of personality would take place that the freedom of expression (information) must give way to the protection of personality (BVerfGE 35, 202; cf. Koch, Rüßmann 1982, 98 ff. and Alexy 1986, 84 ff.).
A peculiarity of basic (human) rights is that each of them is based on a suitable principle it operationalizes as a legal rule (right). If two rights are in conflict, first a conflict of two principles arises (e.g. a conflict between the protection of personality and freedom of expression). It depends on the nature of the principles and on the characteristics of the life case whether the two principles can co-exist (in any proportion) or whether one of them must give way to the other. Behind a conflict of two rights another, even stronger conflict takes place, namely of two principles that make it possible to arrive at a legal decision. Here we are dealing with the doctrine that human rights and basic freedoms are only limited by (those) rights of others that are mutually limitable in view of legal principles, and not by the rights of others that are, in view of legal principles, evidently weaker than another (stronger) right.
At first glance it seems that the situation in the latter case is the same as when choosing among several legal rules in order to solve a concrete life case. The basic difference lies in the circumstance that in choosing among several possible rules, more emphasis is placed on the comparison of the factual and normative constituent elements, whereas in choosing between two or more principles more weight is given to the valuation itself. Also in the former case valuation, possibly even important valuation takes place, yet to an extent that is less intensive than with legal principles. In both cases we finally subsume and deduce legal consequences; in the case of legal rules the interpretation path is usually shorter and less complex, whereas with legal principles the interpretation procedure is generally more prolonged and more complex. In either case the decision is only possible when the rule/principle is chosen and when at the same time its meaning - however unpretentious it may be - is accepted.
5. Historical Interpretation

Historical interpretation is a classic interpretative argument that comprises several elements: it considers the historical conditions in which and because of which the legal text originated, it discovers the genesis and the whole development of how the legal text obtained its final linguistic expression and it compares any earlier legal text with the new text regulating the same legal matter. In all these cases the historical circumstances help to establish the meaning of the legal text.
All three groups of questions are certainly also important for the understanding of the constitution. Historical circumstances are especially important for the preamble and its interpretative power; the preparatory materials available are especially interesting in connection with the constitutional provisions which were the subject of different points of view at the time when the constitutional text was in the process of being adopted or where the final text is a compromise between several points of view, whereas a comparison of the earlier constitution with the new text is especially valuable in connection with the constitutional provisions that are different in the new constitution.
The historical interpretation opens another central dilemma, which is of key importance for the understanding of the constitution. It is the dilemma of whether priority should be given to a subjective-static or to an objective-dynamic interpretation of the constitutional text. The majority opinion is that the constitution is a legal act that should encompass the legal life in a state community in the long term. It would be unbearable if the legal life were encompassed by the “will” of the historical lawmaker. This “will” is certainly important, one element of the understanding of the constitution will always be the “will” of the constitution-maker, which has to be established from case to case and a position has to be taken thereon. The younger the constitution, the more the “will” of the historical constitution-maker is present. Yet this “will” is not an independent legal source and is not automatically binding, it is just an element accompanying the understanding the constitutional text.
The constitution is a long-term authoritative legal act, which is open to objective-dynamic understanding. The question is not whether this approach can be avoided; the question is which position is taken thereon and which sense is given thereto. The key ground of understanding is neither the fossilized past meaning of the constitution nor its “prophetic” future meaning, but the possible linguistic meaning, which is a part of the world we live in. We have again arrived at legal ethics, which builds upon the established value tradition, yet must necessarily supplement and elaborate it with regard to what goes on at a certain time and place and in view of the responsibility to future generations.
6. Teleological Interpretation

Another of the classic interpretative arguments is the teleological interpretation, which is closely connected to the objective-dynamic understanding of legal texts. A teleological interpretation determines the meaning of linguistic signs with regard to the purpose of the legal provision. From the legal point of view the path from the purpose to the final determination of the meaning of a legal rule must be determined to such an extent that the meaning of the legal rule is based on criteria contained in the legal text (in this case in the constitution and/or in statute) i.e. on criteria that can be activated by established methods of interpretation. If the legal text does not contain any support on which to base the understanding thereof, one cannot speak of interpretation: in such a case a teleological interpretation cannot replace other interpretative arguments and in itself (as the goal) create a legal rule which should serve as a means to a certain end. Such a case could at best be a legal gap that has to be recognized as such and filled in concerning its contents by the means that are available for filling legal gaps.
Teleological interpretation must not stand alone as a “shining goal” that can be manipulated in an arbitrary manner. It lies in the legal nature of teleological interpretation that it must also be based on other elements built into the legal system (see e. g. Müller, Christensen 2004, 349). The greater the number of these elements determining the interpretation with regard to its meaning and the more these elements complement one another or the less they exclude or even contradict one another, the more coherent the teleological interpretation is. The task of the interpreter is to work out these criteria, to combine and evaluate them and to substantiate a solution he accepts as the one carrying the greatest weight and the most reasonable one.
It is natural and legal that the interpreter first looks for the criteria concerning the purpose of a legal rule in the legal text itself. Logical interpretation will tell him whether the criterion is consistent and will help him to include, by persuasive arguments, also cases that are linguistically not directly regulated (e.g. by argumentum a contrario). Historical interpretation will draw his attention to the purpose attributed to the legal text (legal rule) by the lawmaker or to the purpose determined by the historical circumstances that gave rise to the legal text and in which circumstances the legal text originated. In a broader sense historical interpretation will also open the dilemma whether the interpreter is bound by “the will of the historical constitution-maker”, “the will of the actual constitution-maker” or by the purpose the independent text has acquired by the time of the interpretation (objective-dynamic interpretation). In this broad range of possibilities, which may also be divergent and contradictory,systematic interpretation will draw attention to the meaning of legal principles, to the meaning of the legal rule with regard to its position in the system, and to the “internal logic” combining the parts into a whole and thereby determining them with regard to the purpose.
An ideal situation is when these and other interpretative arguments act in accordance with one another and thereby confirm that the legal text has a relatively clear and definite meaning. In legal practice, however, it often happens that the arguments do not seem to work together and make it possible to discover two or even more meanings of a legal text. In the event of a collision between the arguments, the argument of purpose(teleological argument) carries special weight. It is generally accepted in theory and legal practice that in such a situation, among several linguistically possible solutions, the one best corresponding to the purpose of the legal rule has to be chosen. A necessary condition is, of course, that this is not the purpose that the interpreter presupposes or even desires, but that this is a purpose that is already expressed by the legal text or which can be understood from the text and its teleological context to a relatively (i.e. sufficiently) defined extent.
VI. Mode of Application

It is in the nature of the legal (also constitutional) understanding of legal texts that one can understand them differently than the constitution-framers. The understanding of a legal (constitutional) text is always a part of corresponding broader and narrower contexts, and the interpreter himself is also a part of these contexts. The broader context corresponds to the historical and cultural tradition and to the time of activity, the narrower context is of a more legal nature and is co-determined by the constitutional and the entire state-law orders, by the dominant political ideology and values, by legal theory and legal dogmatics, by the education of lawyers, and the manner of legal thinking (both are important elements of the lawyers’ pre-understanding), by the court and constitutional-court practice, and finally by the concrete case that gave rise to the interpretation.
The fact that a legal text (the constitution) can be wiser than its author and the interpreter wiser than both of them (Radbruch 1999, 107) is not bad in itself. It is simply a property of understanding, which is a never finished process and is thus never given in advance as a closely rounded fact. Any understanding of a legal text is, as has already been stated, caused byconcrete life cases (the case can also be the text of a statute that has to be in conformity with the constitution). Also Gadamer’s legal hermeneutics pays attention to the mode of application: “The jurist understands the meaning of the law from the present case and for the sake of this present case” (Gadamer 2004, 322). It is characteristic that the application is no later application of a given generality, which was initially understood in itself, to a given case, but the application is only the real understanding of the generality itself, which the given text represents for us (see Gadamer 2004, 336). Furthermore: “The judge who adapts the transmitted law to the needs of the present is undoubtedly seeking to perform a practical task. (...) The judge seeks to be in accord with the ‘legal idea’ in mediating it with the present” (Gadamer 2004, 324).
If one thinks about it, the new understanding of the constitution is not necessarily better than the previous one, yet it can certainly be a different understanding if the case and the circumstances of the understanding have changed. It is a special feature of legal understanding that it must remainwithin the framework of the possibilities offered by the constitutional textitself and that it must - within these limits - look for a solution that istypical for the society as much as possible. However, the constitutional text itself cannot guarantee that these requirements will be considered (and filled with contents) at all and how this will be done; if the text is of good quality (with regard to the language and to the thinking), it can pave the way for legal theory and legal practice to be able to fulfil these requirements.
An interpretation of the constitution without considering concrete constitutional-court cases cannot work. Mutatis mutandis, this is also true of a constitutional-court practice that is deaf to legal theory. The standard (typus) quality of constitutional rules is sometimes just hinted at in the constitution itself and can only completely come to life and gain its (possibly new) meaning in contact with concrete cases. Legal adjudication is convincing with regard to its content and legally safe if there can be achieved a dialogue and a suitable creative tension between a practice that can listen to the views and intentions of the theory and a theory that knows where the real law is created [cf. e. g. Maunz/Dürig’s Grundgesetz Kommentar (Commentary on the German Constitution)]. A new and different understanding of the constitution is only permissible when we have sound (conclusive) arguments for diverging from the established constitutional-court practice, for changing it and/or bringing new nuances into it.
VII. Related Entries

The strongest connections include the entries  Constitution,  Constitutionalism,  Judicial Review,  Statutory Interpretation,  Methods of Interpretation,  and within this framework, more broadly connected are the entries on  Constitutional Principles,  Constitutional Rights,  Constitutional Duties,  Constitutional Values,  Democracy and Modern Law,  Law and Politics,  Rule of Law,  State,  etc. Those entries which treat the contents of the constitution and various concepts of how a state should operate are especially connected to this entry.
The entry Constitutional Interpretation (in Continental Europe) is focused on the interpretation of the constitution as a written (formal legal) act. The entries on  Constitutional Conventions,  which are especially characteristic of the United Kingdom, and on the  Constitution of the United States,  which due to the interpretative role of the Supreme Court actively contributes to a modern understanding of constitutionality and the rule of law, both deserve separate treatment. The item  Constitutional Interpretation in the United States and the United Kingdom  is an entry of special importance as well.
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