Constitutional interpretation refers to the interpretation of the Constitutional Text itself, guided by the principles and rules established therein. Furthermore, it also involves the interpretation of sub-constitutional normative acts, thus carrying out the judicial review of the constitutionality of laws.
As we saw earlier here on the IDP Blog, the article on constitutional hermeneutics initially addressed the foundations and principles of constitutional interpretation.
Therefore, in this article, we will delve deeper into the topic by analyzing the methods of constitutional interpretation adopted by the Brazilian legal system.
The study of methods of constitutional interpretation is extremely important for legal professionals, because the Federal Constitution occupies the top of the legal hierarchy of a State, and knowing how to interpret it is fundamental.
It should also be noted that the adoption of one method does not preclude the application of others, since the main objective of using these methods is to make the Constitution more effective, guaranteeing and allowing greater protection for the rights enshrined therein.
What are methods of constitutional interpretation?
The decisions and judgments of the Supreme Federal Court are of great social importance, because this court has the primary role of guardian of the Federal Constitution.
Consequently, there are several cases of great importance and impact that contribute to ratifying, promoting, and legitimizing the principles granted to them by the Federal Constitution of 1988.
Furthermore, the importance of studying constitutional interpretation is not limited to analyzing cases judged by the Supreme Federal Court; on the contrary, it goes beyond constitutional norms.
With the recognition of the normative power of the 1988 Federal Constitution, it became the basis for everything. Both constitutional and sub-constitutional norms are interpreted from it.
In this sense, given the size and complexity of each case, other branches of law end up being involved, such as civil or civil procedure law, in addition to criminal procedure and criminal law.
It is important to emphasize here that there is no single correct or ideal method for interpreting legal norms; any method that values justice and whose result is guided by rationality is worthy of recognition, always in accordance with constitutional jurisprudence after the 1988 Constitution.
I say after the 1988 Constitution because it was from that point that the fundamental principle of human dignity gained legal substance, to the point of clarifying the interpretation of ordinary law and serving as a basis for judicial decisions grounded in the Constitution.
What are the methods of constitutional interpretation?
It should be emphasized that the methods of constitutional interpretation are not mutually exclusive and do not necessarily lead to divergent results.
This is because, in an individual analysis of each method of interpretation, despite being based on different philosophical, methodological, and epistemological criteria, they are generally complementary.
Finally, constitutional interpretation can be understood as a choice among many options. With this in mind, we will discuss below some methods used for constitutional interpretation:
Legal method (or classical hermeneutics)
The legal method, also known as the classical hermeneutic method, has as its main figure Ernst Forsthoff, a German constitutional lawyer, born between 1902 and 1974.
As he himself points out, this is the traditional technique used, which assumes that, first and foremost, the federal constitution is a law, and as such, must be interpreted by seeking its true intention (mens legis, or spirit of the law).
Furthermore, he argues that the Constitution is a law like any other, so there should be no specific method for interpreting it. The interpretation should be grammatical, with the interpreter seeking meaning based on historical, grammatical, teleological, and logical elements.
It should be noted that this method is heavily criticized by modern legal scholars, as it is considered inefficient when used in isolation and is best suited for handling highly complex cases.
Topical-problematic method
The topical-problematic method was developed by Theodor Viehweg, born in Germany in 1907, who studied law and philosophy and practiced as a judge. As one of the leading figures in the Philosophy of Law in the 20th century, he developed the topical-problematic method in his work Topik und Jurisprudenz (Topics and Jurisprudence), in 1953.
Unlike the classical hermeneutic method, the topic-problematic approach is centered on the problem and not on the legal norm or the normative system, making abstract interpretation of constitutional law impossible. Therefore, interpretation can only be based on the specific case, seeking the real solution to the problem.
The interpreter examines the various topoi (points of view) regarding a problem, analyzing them in order to obtain the normative solution appropriate to the case. From this, the norm is used to substantiate the idea of justice that society understands as just.
While other hermeneutical methods adopt the deductive model (from the norm to the problem), the topical-problematic method adopts the inductive model (from the problem to the norm). This method has been heavily criticized, given the legal uncertainty it generates, as it allows for claims aimed at personal rather than social interests.
Hermeneutic-concretizing method
The hermeneutics developed by Konrad Hesse, a German jurist who served as a Judge of the German Federal Constitutional Court from 1975 to 1987, is based on the premise that constitutional interpretation must consider both the constitutional text and the context in which it will be applied.
In this method, the norm to be applied, the interpreter's prior understanding, and the specific problem to be solved are the essential elements. The full meaning of the norm will only be achieved through the interpretation process aimed at applying it.
In other words, there are therefore 3 elements: the norm to be implemented (always the interpreter's starting point), the interpreter's prior understanding (their view of reality), and the problem to be solved.
Thus, it is assumed that application and interpretation are unitary, concurrent processes. The key point of this method is the justification, because it is from this that what was adopted by the interpreter will be understood.
Scientific-spiritual method
The scientific-spiritual method, or integrative method, was conceived by Rudolf Smend, who was born in Germany. The central idea of this method is based on the premise that there is an order of values and a cultural system that precede the constitutional text, which should be the primary object of protection for the interpreter.
In this sense, their interpretations must be made from a systemic perspective, thus considering extra-constitutional factors and capturing social reality. Constitutional norms are to the body of the Constitution as values are to the constitutional spirit.
Therefore, it is always necessary to consider the values in vogue at the time the interpretation is being made, since it will always be done in a contemporary way, based on the current values of society. Given this, the interpretation must take into account three important elements:
- Value-based: the system of values that gave rise to the Constitution.
- Integrative: interpretation aimed at integrating the community, not segregating it.
- Sociological: analysis of extra-constitutional factors, such as social reality, the political context of the time, etc.
normative-structuring method
The normative-structural method was conceived by Professor Friedrich Müller, who, following a path parallel to that of Robert Alexy, sought to remove the excessive theoretical burden that plagues the interpretation and application of legal norms in general.
A link is established between positive legal precepts and the reality they themselves are trying to regulate; that is, the text of the norm is not the same as the norm (meaning) itself. Therefore, it is impossible to interpret the law solely from its text, since it is not the text that produces the expected normativity.
Therefore, the interpretation of the text is only one step in the implementation of the norm; in addition, there is the activity of the other branches of government and the unfolding of social relations.
How do legal professionals apply methods of constitutional interpretation?
The study of methods of constitutional interpretation is of great value to legal professionals because it is through this methodology that we visualize the understanding proposed by judges and legislators.
Starting from the premise that all legal systems stem from the Constitution, which is responsible for grounding and validating other texts of sub-constitutional legislation and Provisional Measures, a correct understanding of the proposed ideas allows legal professionals to act more decisively in all phases of procedural action, both in regional courts and in higher instances.
Furthermore, based on a rich understanding of the methods and principles of constitutional interpretation, legal professionals end up possessing the expertise to question certain isolated laws or decisions that go against the constitutionally presented idea, proposing actions for constitutional review.
In their daily practice, professionals encounter a series of writings and case law that do not uphold the application of a particular principle or method of constitutional interpretation, which often leads to the annulment of other constitutional principles.
Finally, it is true that subsequent rulings have been eliminating these antinomies as they are detected, but for this reason, it is essential that legal professionals master constitutional interpretation as a whole, so that they can recognize the flaws.
References
Trilhante. Methods of Constitutional Interpretation.
Souza, Marcio Scarpim De. Legal, Topical and Integrative Methods of Constitutional Interpretation. Conteudo Jurídico, Brasilia-DF: August 05, 2016.
MACHADO, Daniel Carneiro. Considerations on Theodor Viehweg's Topical Analysis. Jus Navigandi Magazine, ISSN 1518-4862, Teresina, year 19, no. 3970, May 15, 2014.
HESSE, Konrad. The Normative Force of the Constitution. 1991. Translated by Gilmar Ferreira Mendes
Victorino, Fábio Rodrigo. The structuring theory of Friedrich Müller. Conteúdo Jurídico, November 15, 2014.