What is Constitutional Interpretation?

Gonçalo de Almeida Ribeiro (Lisboa)

Recht im Kontext-Lecture
Humboldt-Universität zu Berlin
Juristische Fakultät, Raum 213
Unter den Linden 9, 10117 Berlin

Most accounts of constitutional interpretation take it to be a special case of legislative interpretation. It is a special case because constitutions are characteristically loner, basic, rigid, vague, and enduring laws. Nevertheless, it is still legislative interpretation because constitutions are written laws enacted by a supreme lawmaker. Against that view, I will argue, illustrating with two cases, that the legislative paradigm is ill-suited to constitutional interpretation  - an encroachment of the ontology of legality in the realm of constitutionality. Making sense of an object as a constitutional provision presupposes the a priori concept of the constitution, just as for Kelsen making sense of an act of will as constitutional law  - the highest in the hierarchy of positive laws - presupposes a non-posited basic norm. But whereas the latter is formal, I shall claim that the concept of the constitution is substantive, disclosed in the tradition of constitutionalism, as intimated in article 16 of the Declaration of the Rights of Man and of the Citizen of 1789. The substantive concept of the constitiution is hence the condition of the possibility of constitutional meaning, postulating unique principles or criteria of interpretation  - and marginalizing the significance of the contingencies of form, language, structure, and history to which most constitutional lawyers devote unwarranted attention.

Gonçalo de Almeida Ribeiro is a Judge of the Constitutional Court of Portugal since July 2016. He is also a Professor of Law at the Catholic University of Portugal in Lisbon. He holds a first degree in law from the New University of Lisbon (2006), and LL.M. (2007) and S.J.D. (2012) degrees from the Harvard Law School. He is the author of The Decline of Private Law: A Philosophical History of Liberal Legalism (Oxford: Hart, 2019), and publishes and teaches in the fields of legal theory, constitutional law, and legal history. He is currently a member of the Executive Committee of the International Association of Constitutional Law.