BEHIND THE BENCH: UNVEILING THE DYNAMIC INFLUENCE OF SCHOLARS ON THE DEVELOPMENT OF THE REASONING OF CONSTITUTIONAL COURTS

Abstract

Constitutional courts, entrusted with the mission of protecting the supremacy of the constitution and having the power to eliminate legislative and executive acts from the legal system, play an important role in the law-making process. The official constitutional doctrine formulated in constitutional rulings becomes part of the living constitution, binding every state institution and individual. Therefore, the quality of constitutional reasoning must be beyond any doubt. This article argues that constitutional courts interpreting constitutional norms might benefit from the academic legal doctrine. The influence of academic research on constitutional case-law depends on the jurisdiction, the constitutional traditions, and the subject matter of each case. After comparing the constitutional jurisprudence of Romania and Lithuania, which feature entirely different attitudes towards the use of academic research in constitutional jurisprudence, the authors define different levels of scholarly impact on the resolution of constitutional justice cases, revealed through methods of judicial interpretation. The article concludes that the research-case-law partnership might contribute to the evolution of the legal system. High-quality research increases the quality of case-law, and its potential to be recognised as a source of law, even if indirect, increases through the authority that legislation based on it acquires.

Keywords

• constitutional review
• constitutional justice
• rule of law
• constitutional doctrine
• academic doctrine
• judicial reasoning