Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles

Mark V. Tushnet

Interpretivism and neutral principles are two leading theories of modern constitutional law that attempt to ensure the Rule of law by limiting the discretion of judges. According to interpretivism, judges must decide cases in accord with the intent of the framers. Neutral principles theory requires that judges decide cases on the basis of general principles that the judges are committed to applying consistently in all similar cases. Professor Tushnet suggests that liberal political theory has produced both constitutional theories to constrain judges, who would otherwise, according to liberal premises, decide cases on the basis of their own subjective preferences. But each theory, he argues, ultimately depends on presuppositions that are themselves inconsistent with the liberal standpoint. Interpretivism can adequately link the present with the past only on the basis of an historiography that assumes a consensus that it cannot demonstrate. And neutral principles theory can constrain judicial choices only on the basis of a presumed shared understanding of the role of judicial reasoning in our polity. Such a consensus or such an understanding would, however, if generally shared, render constitutional theories unnecessary as further constraints on the courts. Thus, both theories can succeed only at the cost of repudiating their purposes.

Author: international

Mentioned in these Entries

Rule of law.