Abstract

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».