Journal Article

Epistemic discretion in constitutional law

Matthias Klatt and Johannes Schmidt

in International Journal of Constitutional Law

Published on behalf of The New York University School of Law

Volume 10, issue 1, pages 69-105
Published in print January 2012 | ISSN: 1474-2640
Published online January 2012 | e-ISSN: 1474-2659 | DOI: https://dx.doi.org/10.1093/icon/mor056
Epistemic discretion in constitutional law

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The problem of epistemic or knowledge-related discretion arises whenever knowledge of what is commanded or prohibited by the constitution is unreliable. The unreliability of knowledge and the resulting discretion are important aspects in the balancing of constitutional rights. Robert Alexy has, in his Theory of Constitutional Rights, laid down an analysis of epistemic discretion that appears to raise a number of questions. These concerns include the relevance of empirical and normative knowledge in balancing, the function of reliability in the Weight Formula, and the correlation between epistemic discretion of the legislature and judicial review by a constitutional court. This article highlights some of the problematic issues and suggests several modifications of and completions to Alexy’s analysis.

Journal Article.  17979 words. 

Subjects: Constitutional and Administrative Law ; UK Politics

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