No. 17




Modern Working Methods Used by Constitutional Courts in Conditions Where Continental Legal Culture Meets Common Law Approach

18 June 2008


RiTo No. 17, 2008

  • Raul Narits

    University of Tartu, Professor of Comparative Law

Instead of viewing the modern state and the constitutional state from an abstract point of view, the author grounds his approach on legal dogmatics and legal principles.

It can be assumed that the use of both principles of law and legal dogmatics includes a certain legal policy component. It is natural that this process will thrive, because courts, like any other governmental power centres, tend to take on more powers and tasks rather than give them away. In some ways this also concerns constitutional jurisprudence. Its task is not stop or reverse that process, but the process must change constitutional jurisprudence. It is also clear that it is more and more difficult to rationally mould and organize contemporary legislation and even more so constitutional review by means of dogmatic theories. In legal policy dispute it is correspondingly more and more difficult to forecast constitutional court judgments by the means of merely traditional legal rules. What position should constitutional judges take in that situation? They should probably engage actively in critical discourse with colleagues and also the public. Discourse with other colleagues in the same profession (the so-called judge dialogue) is especially needed. It should be noted here that in jurisprudence the most important cognitive method is free discourse, which draws inspiration namely from the practice of law, and especially from administration of justice. Yet, sitting judges are required to distance themselves from the current political debate. This is primarily necessary for the protection of the profession of judge as politically neutral.

In encouragement of constitutional courts it should also be said that also many legal scholars do not have the patience to wait for legislators to come up with solutions, and they see jurisprudence as a value-adding science, while remaining aware that rational legal policy has several obstacles and hindrances.

Full article in Estonian