The Living Constitutionalism. Interpretive Method, Semantic Presuppositions and Difficulties

Abstract

The living or evolving methodologies are widely used in interpretive practices of constitutional and international courts. Nevertheless, defences and criticisms of those methodologies hardly ever offer a systematic approach to interpretative stages of living constitutionalism. This article aims at remedying such insufficiency of constitutional theory through a systematic reconstruction of interpretative stages entailed by living constitutionalism. Then, I will identify the semantic presuppositions of living or evolving methodologies. The outcomes of this work will argue that those presuppositions lie on conventional semantics; that is, the extension of concepts refers more to social consensus than constitutional goods protected through rights. The former entails an impossibility to distinguish between arbitrariness and judicial discretion.

Summary:
Setting the stage: the challenge of systematizing the nature and semantic presuppositions of evolving interpretive methodologies. I. First interpretive instruction: to identify the jurisprudential and doctrinal trends. I. Second interpretive instruction: to recognize the constitutional agents who construct aspirations incorporated in the Constitution. III. Third interpretive instruction: to recognize the formal structure and actual function of government of the state. IV. Fourth interpretive instruction: to cast (political) consequences of judicial decision on the social structure. V. Fifth interpretive instruction: to assume the indefeasibility of constitutional text and tradition before current aspirations, ideals and values. VI. Semantic presuppositions of evolving interpretation of rights: a conventionalist semantic theory. VII. Outline for overcoming the difficulties of conventional semantics applied to evolving interpretation of rights. Conclusions.