A Search for Rational Solutions to Methological Problems in Constitutional Law Studies

This paper is composed of two thronged arguments: one for criticisms directed to the two predominantly practiced approaches to constitutional law studies; and the other for rational alternatives which are not only useful but also necessary. Foreign sources such as American and German theories, judicial decisions and other examples are widely relied on uncritically for justification of scholarly works or judicial decision-makings. Self-evidently, foreign authorities can be sources for inspiration or for persuasion but not for the kind of constitutional justification. For such a justification can be made either deductively, historically, or otherwise from the constitutional law of the nation or on the ground of scientifically based rationality. The second predominantly practiced approach to constitutional studies is a very formalistic one that is suitable perhaps for interpreting such precisely provided statutory provisions on concrete matters as the civil law, the criminal law, or administrative regulatory provisions usually proceeding from the plain meaning rule of statutory interpretation. As is well-known, constitutional provisions particularly on fundamental rights and freedoms are usually open-ended, abstractly provided so that a formalistic, deductive approach cannot do the job proper for constitutional interpretation. Nevertheless, a number of the Constitutional Court's decisions can seriously be criticized as actually no more than civil or criminal decisions that were clothed in constitutional terminology, since those decisions would have been made differently if they were decided with proper constitutional interpretation methods