Constitutional Interpretation: (Research Handbooks in Comparative Constitutional Law series)

This insightful Handbook argues that constitutional interpretation has two core elements: constitutional text and constitutional context. Through a combination of thematic chapters and country-specific case studies, the Handbook analyses commitments found in preambles, epilogues, and other constitutional elements, as well as the overall constitutional structure. Constitutional Interpretation features contributions from a global team of experts, who discuss mission-driven constitutions through topics such as plurinationalism, transitional contexts, social transformation, post-authoritarianism, and defensive anti-authoritarianism. A variety of global case studies to support claims about the phenomenology of constitutional interpretation that are not tied to any specific country, while acknowledging that constitutional interpretation varies significantly across legal and political contexts. This comprehensive Handbook is a valuable resource for students and scholars of comparative and constitutional law. Its broad scope will also appeal to those seeking a new perspective on regional human rights law.

Table of Contents:
Contents 1 Constitutional interpretation in the Third Wave: the importance of text and context 1 Sujit Choudhry, Catherine O’Regan and Carlos Bernal 2 Text, history, and precedent 43 Jamal Greene and Yvonne Tew 3 The living constitution in collaborative context 59 Aileen Kavanagh 4 Purposive/teleological interpretation 83 Christoph Möllers 5 Judicial usages of preambles in constitutional interpretation: from rhetorical flourish to meta-constitutional law 99 Jaclyn L Neo and Diego Werneck Arguelhes 6 Directive principles 119 Lael K Weis 7 Interpreting unconstitutional constitutional amendments 145 Rehan Abeyratne and Yaniv Roznai 8 Interpreting constitutions and statutes: convergence more than specificity, whether in common law or civil law 169 Stéphane Beaulac 9 The role of legal professional culture in constitutional interpretation 191 Theunis Roux 10 Federalism 207 Karl Kössler 11 Aversive constitutionalism 227 Tarunabh Khaitan 12 Constitutionalism and peacemaking: comparative perspectives 249 Ruti Teitel 13 Social transformation 269 Gautam Bhatia 14 Popular constitutionalism 289 Sergio Verdugo 15 Defensive constitutional interpretation under authoritarianism 309 Tom Gerald Daly 16 The role of comparative materials in constitutional interpretation 335 Cheryl Saunders 17 The role of the African Charter of Human and Peoples’ Rights on constitutional interpretation in Africa 355 Adem K Abebe and Charles Manga Fombad 18 The American Convention on Human Rights in Latin American domestic courts 375 Jorge Contesse 19 Constitutional interpretation in European countries and the influence of the European Convention on Human Rights and the European Union 393 Colm O’Cinneide 20 Constitutional interpretation and international human rights law 415 Dire Tladi and James Fowkes 21 International humanitarian law and international criminal law in constitutional interpretation 439 Hannah Woolaver 22 International refugee law and constitutional interpretation 459 Daniel Ghezelbash 23 International economic law in constitutional interpretation 485 David Schneiderman 24 Constitutional interpretation in Australia 503 James Edelman 25 Constitutional interpretation in Brazil 509 Luís Roberto Barroso 26 Constitutional interpretation in Canada: watering living trees and Canadian values 515 Rosalie Silberman Abella 27 Constitutional interpretation in Colombia 523 Carlos Bernal 28 Constitutional interpretation: the German Federal Constitutional Court 531 Gertrude Lübbe-Wolff 29 Constitutional interpretation in India 543 Dhananjaya Chandrachud 30 The 2010 Constitution of Kenya and its interpretation: a personal footnote 549 Willy Mutunga 31 Poland 561 Lech Garlicki 32 Constitutional interpretation in South Africa 569 Catherine O’Regan 33 Constitutional interpretation: the UK experience 575 Brenda Hale 34 Constitutional interpretation in the United States 581 Nancy Gertner

About the Author :
Edited by Sujit Choudhry, Principal, Circle Barristers, Toronto, Ontario, Canada, Catherine O’Regan, Faculty of Law and Director, Bonavero Institute of Human Rights, University of Oxford, UK and Carlos Bernal-Pulido, Professor of Law, University of Dayton, USA and Macquarie University, Sydney, Australia

Review :
‘By combining contributions from highly respected judges with an academic tradition and specialists who are authorities in their field, this Research Handbook is unique in offering, in a succinct and powerful way, a structured overview that allows us to understand not only how constitutions are interpreted in different countries on all continents where constitutional judges exercise significant power, but also the spirit that gives life and distinctiveness to the methods of constitutional interpretation in each jurisdiction. as well as the way in which these methods support constitutional judges, within the respect of legal parameters, in making decisions that inevitably have high political impact.’ ‘This is a must-read Research Handbook for all jurists searching for constitutional interpretive strategies against the rise of populism and authoritarianism in diversified contexts.’ ‘Legal work all comes down to interpretation. This impressive volume draws together a global body of comparative work, including from a strong bench of the world’s most respected apex judges, to offer an unparalleled guide to this most central of a court’s tasks in our challenging times.’ ‘The Research Handbook will be an essential resource to understand the varying modes of constitutional interpretation in the contemporary context. The editors’ introduction defines a framework for the chapters , written by leading scholars from around the world, which collectively illustrate both continuities with older modalities (in U.S. and European interpretation) and newer elements, with high courts in most countries declining to follow “originalist” approaches to interpretation and treating the U.S. as an outlier. The book as a whole illustrates how transformative purposes and comparative constitutional and international legal norms play important roles in many of the high courts around the world that decide constitutional cases.’ ‘Constitutional interpretation engaged in by apex courts has been the focal mainstay of U.S. constitutional theory for at least a century and a half. Till quite recently, this was not the case for other jurisdictions, where the discipline of constitutional theory focused on other, typically structural, issues. While there have been other comparative studies of this important phenomenon – typically undertaken among groups of common law and civil law jurisdictions – this book represents the most comprehensive and wide-ranging analysis of constitutional interpretation in the field of comparative constitutional studies till date. What makes the volume distinctive is that it comprises analyses not just by leading scholars of comparative constitutional studies – who provide compelling accounts while closely examining case law from multiple jurisdictions - but also by serving or former justices of the highest courts of 11 nations, cutting across the categories of Global North/Global South/common law/civil law. The magisterial introduction by the editors emphasises the importance of “constitutional text” and “constitutional context” and identifies several critical concepts that are revealed in the volume as a whole. This sets the stage for the rich fare in the pages that follow, which is, by turns, original, enlightening and provocative. The volume is sure to become a standard reference text while also generating debate and further scholarship on a phenomenon that will continue to be relevant as long as judiciaries remain independent and vibrant actors on the constitutional landscape.’ ‘This Handbook is a major contribution to global scholarship on constitutional interpretation. The volume combines contributions on selected questions, written by scholars, with essays on discrete jurisdictions, contributed by leading judicial figures. Each is valuable on its own but, when read together, they provide a powerful and nuanced set of insights into constitutional interpretation that transcends traditional boundaries of geography and legal tradition.’