Keywords: Legal Positivism; Neo-Constitutionalism; Constitutional Interpretation; Legal Argumentation; Fundamental Rights.
Theories of Constitutional Interpretation and Institutional Context. The essay is concerned with the pros and cons of explicit moral reasoning in constitutional adjudication. After having linked that topic to some recent institutional developments, the essay distinguishes two opposite normative theories of constitutional interpretation - legal positivism and neo-constitutionalism. The essay maintains that the choice between the two is in part dependent on the trust we have (or fail to have) in the interpreter of the constitution, and in this regard a variety of contingent legal, political and social factors come to the fore. This, it is argued, has important methodological consequences for the theory of legal reasoning.