Towards a theory of European constitutional interpretation. A transatlantic dialogue
PhD student: Mr S.B.A.S. Feyen
Promotor: Prof A. Alen
Duration: 1/10/2010 - 1/12/2014
Constitutional Courts wield great powers, as they interpret the highest law of the land and accordingly settle issues that democratically elected legislatures generally cannot decide upon any longer. In the United States, this is one of the most salient issues of constitutional law, but in Europe, this fact, although it has received some elaboration in specific legal theory, seems to a large extent to be ignored, or at least minimized in normal (doctrinal / analytical) constitutional scholarship. Nonetheless, the issue of constitutional interpretation has great practical ramifications for both constitutional doctrine and constitutional understanding more generally. Therefore, my dissertation will attempt to interdisciplinarily analyze how constitutional adjudication is to be understood, thus trying to bridge the gap between constitutional law and legal theory. Since I will primarily focus on constitutional case law, I limit the scope of my inquiry to constitutional free speech adjudication, which will allow me to systematically approach several European constitutional courts. Using the existing theoretical literature, not least the extensive American scholarship (American Legal Realism, Ronald Dworkin, Critical Jurisprudence), I will analyze whether and how these judgments fit the existing theories of adjudication. Accordingly, I envisage reconstructing a European theory of constitutional interpretation, as exemplified in free speech case law.