Maria Vittoria Ballestrero, Riccardo Guastini

Applying Constitutional Principles

  • Abstract

Informations and abstract

Keywords: Constitutional Principles; Constitutional Interpretation; Conflicts Among Principles; Balancing Principles; Specifying Principles.

This paper is about the judicial application of constitutional principles, which involves (at least) four kinds of intellectual operations: (i) identification, (ii) interpretation, (iii) balancing, and (iv) specification. Such different operations cannot be sharply distinguished from a psychological point of view, but each of them is submitted to a separate logical analysis. The analysis is meant to show that the judicial application of constitutional principles is a genuine law-creating practice, in such way that, in a sense, «the Constitution is what the judges say it is».

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