The Hermeneutical Reality of Constitutional Law: Understanding the Legality of Constitutional Adjudication
type: CreativeWork
description: 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 pr…
abstract: 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 pr…
author: Gürkanlı, Çağrı
language: eng
keywords: 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
license: https://www.repository.cam.ac.uk/bitstreams/a3c49297-e11f-4f81-a0c6-76dbee0d7023/download
license: http://purl.org/NET/rdflicense/allrightsreserved
date published: 2024-01-20
date modified: 2026-07-22T22:23:56Z
provider: Cambridge University
publisher: Networked Digital Library of Theses and Dissertations
type: WebPage
source organization: University of Cambridge

PropertyValue
property ID: DOI
value: 10.17863/CAM.123078