Converting the extraordinary into the ordinary: notes on the theory and practice of constitutional interpretation

Abstract

In different ways in different traditions, constitutional interpretation has meant converting the extraordinary into the ordinary. When faced with constitutions that are extraordinary from a legal perspective, given their exceptional political and moral significance, constitutional judges have tended to convert them into ordinary constitutional law by remaining faithful to standard forms of legal reasoning. These forms are different in the common law tradition, on the one hand, and in the civil law tradition, on the other. Neither of these traditions can be modelled by appealing to this or that theory of law (whether positivist or anti-positivist, whether inclusively or exclusively positivist). Rather, they correspond to discourses that shape in complex terms—and in evolving terms as well—what it means to be a judge bound by the law and therefore what it means to reason legally. When acting accordingly, constitutional judges strive to be unexceptional inhabitants of the “province of lawyers”.