By Jaclyn L. Neo and Maartje De Visser
What methodological implications should follow if we are to adopt a truly pluralist institutional approach to studying constitutional interpretation? This is the question we sought to address in our award-winning article ‘What would a pluralist institutional approach to constitutional interpretation look like? Some methodological implications’ published in the International Journal of Constitutional Law (I-CON). In this article, we first advanced the argument that there is a need to take on a broader pluralist perspective when studying constitutional interpretation. This is especially important if we are to expand our constitutional lens to jurisdictions beyond the ‘usual suspects.’ A pluralist institutional approach decentres the courts and takes on a view of constitutional law as meaningfully occurring in multiple sites as a matter of practical reality. Accordingly, comparative constitutional law scholarship, which still remains under-inclusive as the role of executives, agencies, ad-hoc commissions and social actors in constructing the meaning of the constitutional text, needs to take these much more seriously. This pluralist approach would better recognize the activities of these non-judicial institutions as genuine interpreters of constitutional rules, principles and values, thereby enabling more informed analyses of the relationship between constitutions and law-making processes. At the same time, this institutionally pluralist approach opens the door to more critical normative reflection on how extra-judicial actors exercise their power to make sense of the constitution, thus holding out the prospect of more cogent theory formation about the nature and process of constitutional meaning-giving.
We focused on the interpretive process that takes place in the course of law-making, and examine how extra-judicial constructions of the constitutional text shapes the constitutional imaginary, including judicial interpretation. In our four case studies of Japan, Singapore, the Netherlands and Finland, courts are not expected to take the lead in fleshing out what the constitution means, either because of the deliberate decision to prioritize political constitutionalism, resulting in a legally circumscribed role for the courts (Finland and the Netherlands) or because the courts operate in a dominant party state setting (Singapore and Japan). Rather, the four countries share the attribute that the task of constitutional interpretation is principally performed by other institutions, notably expert bodies that operate as advisors to the political branches, with there being nothing to suggest that the number of constitutionally dubious laws in force is larger than in countries with strong judicial review. More generally, we make clear a pluralist perspective is particularly necessary when studying dominant-party states as well as those favouring political constitutionalism, as courts are unlikely to position themselves as the leading, let alone exclusive, authority on what the constitution means in such settings.
Embracing the need for a more pluralist institutional approach to constitutional law inevitably requires adjustments to the methodologies used to study the process of constitutional interpretation. Our proposal employs a multi-site framework that sees interpretation as a composite process, in which multiple interpreters (which could, but need not, include judicial interpreters) interact relationally and contextually, and whereby the overall significance of any interpreter’s contribution to that process may vary across time and topics.
Thus, a pluralist framework should entail at least five fresh (or refreshed) orientations to constitutional interpretation. First, it demands a preference for relational approaches. Conventional dialogic approaches are a good start, but they are inadequate insofar as they still place a premium on the judicial arena as an important site of enquiry. Using Montesquieu’s trias politica as the underlying paradigm, and assuming a single-directional approach with a two-actor modality, there are already six permutations: (1) how legislators engage with judicial interpretations, and vice versa; (2) how the executive engage with judicial interpretations, and vice versa; (3) how legislators engage with executive interpretations, and vice versa. When additional actors, like ad-hoc executive-type bodies or civil society are added to the mix or when the legislature or executive is deconstructed into its component units, the number of relational inquiries that one can choose from increases exponentially and well beyond the bilateral configuration assumed by conventional dialogic approaches.
Secondly, a pluralist framework requires moving the research agenda beyond a focus on the interpretation ascribed to the bill of rights to other parts of the constitution, notably those that regulate inter-institutional relationships, both horizontally and vertically. How different branches of government interpret their powers and conceive of their relationships with one another under the terms of the constitution is not usually adjudicated by courts, but these interpretations are crucial in instantiating the concepts of separation of powers and checks and balances.
Thirdly, there is a need for a change in normative outlook, breaking down any easy dichotomy between law and politics, and seeing the ‘political’ branches as legitimate ‘legal’ actors in constitutional interpretation. Political interpretation should not be seen as intrinsically politicized and treated with scepticism, but viewed as susceptible to duly serving the common good. By studying non-judicial actors as legitimate interpreters of the constitution, we could further productively identify convergences and divergences across such actors, for instance, reflecting that the system of checks and balances may also operate in spite and without the intervention of the judicial branch.
Fourthly, the pluralist framework would necessitate more contextual studies of the constitution, focusing on ‘the complex interrelationships among political, legal, historical, social, economic, and cultural elements.’ This would require not dismissing a polity’s ‘express articulations of constitutionalism’ as inauthentic or irrelevant simply because those expressions address issues that would not initially seem ‘constitutional’ from an external (universalist) perspective, but to take the internal perspective seriously.
Lastly, there may be a need for more longitudinal studies to identify internal (in)consistency across single-author interpretations as well as inter-branch and intra-branch convergences and divergences across time. Such a long-term view would enable determinations of the degree to which an institution is aware of and engages with interpretations put forward by other bodies, and how that shapes its own approach to determining constitutional meaning. Such studies could show, for example, how constitutional meaning attains cogency over time, and identify the full range of interpreters engaged in the creation of that constitutional meaning.
In sum, we see this pluralist institutional approach as apposite for studying all kinds of constitutional systems, including those that do subscribe to judicial supremacy as these too will feature a host of actors other than courts that have occasion to engage with the constitution as part of their role in preparing and adopting new legislation. Studying multiple sites of constitutional activity better reflects the level of constitutional activity and consciousness in any particular jurisdiction, and the depth of constitutionalism there. Amongst others, this expands our analysis from any tendency to regard a lack of judicial control as rendering a constitution a ‘sham’ towards seeing the possibility that the political branches could have been conscientious in incorporating constitutional values during law-making processes so as to justify some manner of judicial deference. Indeed, pluralizing the sites of inquiry contributes to more nuanced and diverse theory-building, as it nudges us to interrogate the validity of classic theoretical assumptions, such as whether the current focus on certain interpretative doctrines developed by the judiciary is justified and whether such doctrines are truly universal.
This article brings together the authors’ respective research strands on pluralist constitutions and nonjudicial constitutional interpretation, and there are plans to develop this into a co-authored monograph.
Keywords: Constitutional Law, Methodologies, Comparative Law, Judicial Power, Law-Making
AUTHOR INFORMATION
Dr Jaclyn Neo is an Associate Professor and Director of the Centre for Asian Legal Studies at the National University of Singapore Faculty of Law.
Email: jaclyn.neo@nus.edu.sg
Academia.edu: Jaclyn Neo
SSRN: Jaclyn Neo
Twitter: @Neo_Jaclyn
Dr Maartje De Visser is an Associate Professor at School of Law, Singapore Management University.
Email: mdevisser@smu.edu.sg
Academia.edu: Maartje