Jackson, Vicki C.; Greene, Jamal --- "Constitutional Interpretation in Comparative Perspective: Comparing Judges or Courts?" [2011] ELECD 392; in Ginsburg, Tom; Dixon, Rosalind (eds), "Comparative Constitutional Law" (Edward Elgar Publishing, 2011)

Book Title: Comparative Constitutional Law

Editor(s): Ginsburg, Tom; Dixon, Rosalind

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848445390

Section: Chapter 32

Section Title: Constitutional Interpretation in Comparative Perspective: Comparing Judges or Courts?

Author(s): Jackson, Vicki C.; Greene, Jamal

Number of pages: 25

Extract:

32. Constitutional interpretation in comparative
perspective: comparing judges or courts?1
Vicki C. Jackson and Jamal Greene



1 INTRODUCTION

Writing on comparative interpretive theory would seem to invite an association of particular
interpretive approaches with the courts of particular countries. And in years past, one might
well have felt comfortable embarking on the enterprise in this way, associating the US
Supreme Court, for example, with common law methods of constitutional adjudication, the
French Conseil Constitutionnel with a formalist and quite cryptic approach, and the German
Federal Constitutional Court with a holistic teleological approach. Yet distinctions that in
earlier times might have appeared large must now be tempered by noting considerable over-
lap in the approaches of different courts. Accordingly, this chapter will try to resist the temp-
tation to focus only on how different approaches correspond to different national
constitutional courts or legal cultures. In those countries that permit separate opinions and
thereby facilitate the development of competing interpretive approaches within a single
system, differences among individual judges may be as striking as differences across courts.
The increasing overlap in interpretive approaches may be an effect of globalization,
reflecting the transnationalization of judicial discourses. But these areas of overlap may also
be understood in other ways. First, as David Law suggests, they may be responses to the inter-
nal logic of constitutional review in more democratized polities, and the demands for justifi-
cation of government action that the ideas of limited government and constitutionalism
entail.2 Second, the invocation of ...