The Hermeneutical Reality of Constitutional Law: Understanding the Legality of Constitutional Adjudication
Under Turkey’s 1961 Constitution, the Constitutional Court of Turkey (CCRT) controversially invalidated several constitutional amendments. The prevailing explanatory paradigm about the CCRT, which I term the standard picture, suggests that these invalidations defy legal explanations. The standard picture attributes them to the CCRT’s political ideology and motivations, deduced from its establishment and the political outcomes of its decisions. According to the standard picture, the jurisprudence of the CCRT can be understood as upholding the hegemony of an elitist mentality in Turkey, commonly known as Kemalism. The standard picture exemplifies an increasingly popular constitutional-theoretical approach that can usefully be referred to as constitutional realism. This approach is marked by a deflationary or sceptical attitude toward “the legal.” According to realism, what determines the outcomes of constitutional court cases is ideological alignment, political strategy, and institutional positioning. Constitutional norms, legal reasoning and judicial interpretation may be visible on the surface, but they are to be explained away by appeal to supposedly more fundamental political forces. An important constitutional theoretical question arises at this point: Between the legal and the political, how can we understand constitutional adjudication? In this thesis, I claim that a legal explanation of the adjudication of a constitutional court is possible only when it can be grounded in an established constitutional tradition. By a constitutional tradition, I mean a collective of historically embedded background conditions particular to a constitutional setting in which legal interpretations can make sense. A constitutional tradition that becomes established over time gives rise to shared interpretive outlooks, that is, prejudices in the Gadamerian sense of historically shaped interpretive starting points. Such prejudices enable the application of constitutional rules and principles by concretising them in adjudication. Based on these arguments, I develop a Gadamerian framework to understand constitutional adjudication, which I call constitutional hermeneutics. Constitutional hermeneutics aims to build a bridge between a constitutional court’s jurisprudence and the socio-political history of its constitutional setting. If the jurisprudence of a court demonstrates integrity through its coherence, consistency and systematicity, based on the prejudices of the tradition within which it operates, there is an autonomous domain of constitutionality resistant to demands of politics in that constitutional setting. I refer to this kind of interpretive integrity that emerges from the autonomy created by constitutional traditions as hermeneutical reality. What is legal can be distinguished from what is political in constitutional adjudication on the basis of hermeneutical reality. If there are indeed cases where prejudices sustain an autonomous domain of constitutionality, then the realist deflationism cannot be the default approach in understanding constitutional adjudication. Accordingly, to make the case for constitutional hermeneutics, the thesis analyses the CCRT’s jurisprudence under the 1961 Constitution. I contend that the standard picture is misleading by showing that the Court’s jurisprudence can, in fact, be understood in legal terms when viewed through the lens of a particular prejudice: the modernisation prejudice. This prejudice is revealed not as a facet of the mentality of the Turkish legal complex but as a fundamental reason for the existence of contemporary or Republican Turkish constitutional law in the first place. Drawing upon a novel interpretation of the CCRT’s jurisprudence on review of constitutional amendments, constitutionalism and political party bans, I demonstrate that the modernisation prejudice established an autonomous legal-constitutional domain that cannot be reduced to arbitrary politics and ideological motivations. This demonstration constitutes a plausible response to the realist challenge. The thesis also draws a number of important general lessons from the hermeneutical treatment of the CCRT concerning some of the cornerstone issues in constitutional theory, such as constitutional unamendability and constitutionalism. First, by relying on the hermeneutical analysis of the CCRT’s amendment review doctrine, the thesis shows that constitutional unamendability can be identified on the basis of prejudices instead of depending on a constituent power doctrine or a conception of constitutional identity. In doing this, the thesis also enriches the literature on constitutional unamendability by shedding light on the hitherto overlooked legality of the CCRT’s doctrine. Secondly, the thesis argues that a genuine legal guardianship of a constitution can be distinguished from judicial activism or hegemonic preservation by assessing whether a constitutional court can be justified in defending the ultimate interpretive grounds that sustain its adjudication.
judicial review, constitutional review, constitutional courts, constitutional interpretation, hermeneutics, gadamer, comperative constitutionalism, constitutional realism, constitutional hermeneutics, turkey, turkish constitutional court, 1961 constitution, constitutional amendments, amendment review, unconstitutional constitutional amendments, eternity clauses, constitutional hierarchies, the legal stance, hermeneutical reality of law
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