Maria Vittoria Ballestrero Riccardo Guastini

Applying Constitutional Principles

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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».

Keywords

  • Constitutional Principles
  • Constitutional Interpretation
  • Conflicts Among Principles
  • Balancing Principles
  • Specifying Principles

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