General theory of constitutional interpretation: critical considerations on the work of Black II

Abstract

Abstract: 

This paper refers to the commentaries on the seventh and eighth hermeneutical rules introduced by Henry Campbell Back in chapter 2 of his Manual for construction and interpretation of the law. The first consideration consists in denying the existence of Constitutional Hermeneutics as separated from Legal Hermeneutics. The paper presents the method of constitutional concretization as proposed by Konrad Hesse. One criticizes the premise of intelligibility of legal language by proposing, in lieu thereof, the premise of priority of the technical meaning. One explains the role of systematic versus literal interpretation of the Constitution. One examines the claim of justice as a constitutional premise. Finally, one addresses the paradox of literal interpretation versus the two theories specifically applied to cases involving a rupture of the language: the normative theory of performative acts and the theory of prima facie rules.