CEU Electronic Theses and Dissertations, 2017
| Author | Preuss, Karlson |
|---|---|
| Title | Expounding the Unwritten Constitution. Principles and Values in Constitutional Adjudication in Germany, France and Israel |
| Summary | The unwritten constitution figures as an important normative source in the constitutional jurisprudence of many legal systems. Examining the constitutional adjudication of Germany, Israel and France, this thesis explores the different doctrinal approaches Courts from the respective jurisdictions have taken in constructing and assessing the unwritten aspects of the constitution. Special emphasis is placed on the question of how appealing to the unwritten constitution allows for the introduction of teleological legal assessments. This thesis takes a terminological perspective in examining the role the notions of “value” and “principle” assume in constitutional litigations of fundamental rights issues. While these notions are commonly used synonymously in contemporary constitutional literature, this thesis builds on the theoretical assumption that principle-based legal reasoning mainly operates on a deontological basis whereas value-based assessments are associated with teleological claims. A closer look on the three jurisdictions confirms that the unwritten constitution is the theoretical centerpiece for justifying teleological legal assessments, especially with respect to the curtailment of fundamental rights. In Germany, unwritten fundamental values derived from the “objective value system” play a significant role in introducing policy orientation into constitutional jurisprudence. In the Israeli legal system, both fundamental principles and values are invoked in order to justify a policy oriented adjudication by the Israeli Supreme Court. Differentiating between unwritten principles and unwritten objectives of constitutional value, French constitutional doctrine provides the clearest terminology in distinguishing between principle based and teleological reasoning by invoking the unwritten constitution. Especially the French approach may serve a guideline for constitutional practice and scholarship to conceptualize the relationship between the written and the unwritten constitution. |
| Supervisor | Möschel, Mathias |
| Department | Legal Studies LLM |
| Full text | https://www.etd.ceu.edu/2017/preuss_karlson.pdf |
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