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Constitutional Interpretation in Federations and its Impact on the Federal Balance

Most of the existing literature or judicial interpretation of federal constitutions focuses either on individual federations or on comparative studies of specific judicial techniques and/or specific fields. This paper argues that the general interpretative philosophy underlying the judicial approach has a huge impact on the balance of power in a federation; an originalist interpretation tends to favour the constituent units, while progressive or "living" constitutionalism tends to have a centripetal effect. However, even the adoption of an originalist approach is not sufficient to fully counter the general centralising trend noticeable in the constitutional jurisprudence of all the federations studied. Further, the analysis suggests that constitutional courts often adopt a different approach to interpretation in federalism-related issues than they do in other areas of constitutional law, such as fundamental rights.

Sagar, Arun (2011) Constitutional Interpretation in Federations and its Impact on the Federal Balance. In: W G Hart Legal Workshop 2010: Comparative Aspects on Constitutions: Theory and Practice, 29th June - 1st July, Institute of Advanced Legal Studies, London.

Item Type:Conference or Workshop Item (Paper)
Additional Information:Revised and updated version of paper presented by Arun Sagar, University of Rouen. Published in Perspectives on Federalism, Volume 3, Issue 1, 2011.
Keywords:Comparative federalism, division of power, constitutional interpretation, constitutional law, originalism
Divisions:Institute of Advanced Legal Studies
Collections:W G Hart Legal Workshop papers
Deposited By:Steven Whittle
Date Deposited:20 Feb 2012 11:44
Last Modified:20 Feb 2012 11:44
Files available for downloadg
File size2024Kb
License termsCreative Commons Attribution Non-commercial No Derivatives - Available to public

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