Article

Constitutional Values and Principles

Gary Jeffrey Jacobsohn

in The Oxford Handbook of Comparative Constitutional Law

Published in print May 2012 | ISBN: 9780199578610
Published online November 2012 | | DOI: http://dx.doi.org/10.1093/oxfordhb/9780199578610.013.0038

Series: Oxford Handbooks in Law

Constitutional Values and Principles

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This article considers some of the ways in which values and principles have influenced contemporary constitutional law and discourse. The article is organized as follows. Section II discusses the vexed nature of principles as sources of constitutional interpretation. While the claim often made on their behalf, that they are the cornerstones of the very concept of constitutionalism, provides a powerful adjudicative resource for jurists, the ease with which such principles are amenable to interpretive manipulation offers a counter-rationale to those troubled by the discretionary excesses they afford these actors. Section III is similarly concerned with the uses and abuses of values, which are distinguishable from principles by their association with the local environment and the traditions and histories that give definition to the constitutional identity of a given polity. Sometimes these different associations produce jurisprudential tensions, but the resulting dissonance may as easily lead to creative and productive results as dysfunctional ones. The concluding section further elaborates on the distinction by situating the contrast within the debate over the appropriateness of foreign law as a source for resolving constitutional disputes.

Keywords: values; principles; constitutional law; constitutionalism; foreign law; constitutional dispute

Article.  8588 words. 

Subjects: Law ; Comparative Law ; Constitutional and Administrative Law

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