Methods of Interpreting the Constitution: Estonia’s Way in an Increasingly Integrated Europe

AuthorJoachim Sanden
Pages128-139

Joachim Sanden

Methods of Interpreting the Constitution: Estonia's Way in an Increasingly Integrated Europe

1. Introduction1

In Estonia, the post-communist establishment of a liberal democratic regime has been accompanied by the gradual emergence of new constitutional developments. Of course, it is not clear yet what precise model of constitutionalism the final form of these settlements should represent2. In § 3 of the Estonian Constitution, adopted in a referendum on 28 June 1992, the principle of legality is declared and compliance with the rule of law is accepted and guaranteed. Furthermore, the Constitution instated a system of judicial review3 especially by a Supreme Court (see §§ 15, 149, 152 of the Estonian Constitution). Its Constitutional Review Chamber4 has supervised the application of the Constitution for ten years now. It is therefore an appropriate moment to reflect on the methods for interpreting the Constitution.

This essay is born of an attempt to find out what methods of interpretation are still in use5 and what trends could arise in the future. In relation to the two main legal reference points concerning Estonian constitutional law, the influence of continental and common law must be taken into consideration.

Last, but by no means least, it addresses the question of how Estonian jurisprudence will react to the forthcoming European integration, which is influencing developments in Estonian constitutional law and will certainly do so after accession to the EU on 1 May 2004.

The essay is focused on the methods of interpretation and employs the methods of comparative constitutional law, which have not yet been fully refined. Jaakko Husa6states that confusion is more evident than a clear approach: "The question of the appropriate method of comparison [...] seems rather unsolved, as does the more general question of the methods of all legal sciences". Friedrich Venter7 comes to the same conclusion: "A consideration of the status of comparative law, and more particularly of comparative activity in the field of constitutional law, soon shows a lack of consistency of method". But to take the view of Martti Koskenniemi8, it is not a catastrophe. For purposes of this essay, it is enough to note clearly that comparative law is not descriptive only. It also deals with the similarities and differences of legal systems. Last but not least, applied comparative law searches for answers to the question of further developments.

From the starting point of a systematic description of the compatible traditional ways of interpreting the constitution according to the Romano-Germanic and common law traditions, the essay attempts to analyse the Estonian methods of interpretation. Beginning with the jurisdiction of the Estonian Supreme Court and continuing with scientific analysis and underlining of the specific influence of the forthcoming European integration, an attempt is made to categorise the Estonian approach. The Conclusions sum up the results and implications of the examination.

2. Different traditional ways of interpreting the constitution

Traditionally, legal scientists differentiate between different so-called law families. The best benefits can be attained by confining oneself to closely linked legal systems, maybe even within one 'family' (a 'micro' perspective). The choice of which material to compare may be called the selection of tertium comparationis. This is the conceptual apparatus, the context in which the comparison can take place. Focused "on the similarities, researchers attempted to identify a set of ideas or practices common to all developed legal orders. The differences among the systems have been examined chiefly in terms of proper taxonomic classification, an approach that analyses the differences among a small number of legal families rather than the particularities of the numerous individual legal systems themselves", in the words of Richard Hyland9. According to René David, three principal groups of law may be distinguished10: the Romano-Germanic family, the socialist legal systems, and common law. The criteria involve the compatibility of educated lawyers and philosophical, political, and economic principles.

Although Estonia is, because of its history, categorised as being in the Romano-Germanic family of legal systems11, there could be - with the exception of a few remaining elements of socialist legal tradition - some legal transplants12, especially from the Anglo-American legal system (common law). Therefore, their contribution necessitates first showing some basic outlines of the Anglo-American way of interpreting the constitution. Then, the Romano-Germanic approach is addressed.

To explain the relevance of this question, it lies in the fact that judges who are educated in the case-law system are more willing and obliged by the doctrine of res judicata13 to solve a legal problem by paying attention to precedent-setting decisions of the court, while judges from the Romano-Germanic tradition see this as a secondary approach. The second question should be whether the court is allowed to correct the legislative, representing the will of the sovereign. While judges in the case-law system see barriers here, other courts seize the chance to correct legislation.

2.1. Common law approach of interpreting the constitution

Firstly, this essay sets forth a primary, preliminary thesis. Given that most of the justices of the Estonian Supreme Court use English and not German14 as a working language15, it seems to be possible that this has an extensive influence on their practice of jurisprudence.

What is it that has led common law to solve interpretative problems? As David M. Beatty16 says after an analysis of the role of religious liberty in the decisions of the German Bundesverfassungsgericht (Federal Constitutional Court - FCC) and the U.S. Supreme Court, the American question is one of how judges have exercised their powers of review. Beatty17 underlines 'the process of review as an exercise in semantics in which judges are asked to elaborate and extend the meaning of the constitution'. The self-consciousness of the judges influences the choices they make. Kent Greenawalt18 describes this relation as follows: 'In their actual decisions, judges will often implicitly side with one theory against another, but at least for many problems of theory, judges need not try to resolve them self-consciously'.

Or, in the famous words of Chief Justice Hughes on the constitution of the United States19, "The constitution is what the judge say it is!".

The U.S. Supreme Court in the Nixon decision of 197420 described the phenomenon of the responsibility of the judiciary as ultimate interpreter21.

As Jaakko Husa22 remarks critically from a Scandinavian perspective, the American way seems to focus on judicial review as the most important requirement of constitutionalism. One of the consequences is the fundamental question of political legitimacy23. One of the reasons for the power of the judges should be that it is rather complicated to amend the U.S. Constitution (see article 5)24. Therefore, judicial review has a long-standing special function in U.S. constitutional law.

That leads to the stressing of the stare dicisis principle, better known as the principle of precedence25: prior decisions are the basis for the development of (new) legal rules and perhaps legal principles; the experience of judges therefore has immense importance in common law systems26. This restraint 'by the holdings and principle of prior decisions'27 binds judges to develop constitutional law as part of common law, too.

Furthermore, one must go on to ask which role 'canons' play in the modern interpretation of common law. It is clear in analysing the highly entrenched constitution of the U.S28. that there is a broad consensus that one should "interpret them closely in terms of the constitution of the written document' and that 'such an interpretation also can undermine a meaningful appreciation of the broad underlying values that this source of all public law provides to its society"29.

Beside the textual approach and the way of using ethical arguments in official interpretation of the constitution30, other modes of interpretation, with respect to history, structure, prudence, and doctrines, are accepted - particularly by the academic commentaries - although to a different extent31. Other keywords related to the methods of constitutional interpretation are 'original intent'32 and 'dynamic interpretation'33, 'neutral principles'34, and 'balancing'35.

Canons, or, more precisely, 'modalities', are to be seen, to use the terminology of Jack M. Balkin and Sanford Levinson36 in the context of discussion of common law as a result of constituting materials. These are the process of reproduction, related to the tools of understanding, mainly taught in law school. This includes 'those cases and materials (historical examples, legislative history, speeches by legislators and presidents, etc.) that are regularly taught and read'. As a result of the general court-centredness of legal thinking, the constitutional canon is predominated by the thinking of the U.S. Supreme Court37.

2.2. Romano-Germanic method of interpretation

In the context of the legal history of Estonian jurisprudence, it would not be surprising if the Estonian Supreme Court were to use Romano-Germanic and in particular German methods to interpret the Estonian...

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