The impact of procedural aspects of constitutional control upon the style of argumentation: comparative research

Abstract

The article examines the procedural aspects of constitutional review that affect the style of constitutional reasoning. The author identifies and analyzes the rules of judicial review of legislation that determine the design of argumentation techniques, using the experience of Russia, Australia, Austria, Germany, Israel, Spain, Italy, Canada, the United States, Taiwan, France, and South Africa as an empirical basis for research. The study suggests a set of such comparison criteria as model of constitutional review, specific rules of procedure, including the way the judges put questions to the parties, availability of written pleadings on a court’s website, tradition of structuring a judgment, the number of judges on a panel, collegial mode of the judicial decision-making, and possibility to express a dissenting opinion. Referring to the notion of argumentative style and identifying the correlation between specific rules of procedure and argumentation patterns arising in the practice of constitutional litigation, the author outlines the advantages and disadvantages of certain normative parameters of judicial review. Overall, the article concludes that the argumentative style is being shaped not only by procedural rules but also by legal traditions that dominate in a particular state since the appropriateness and suitability of argumentation strategies for constitutional review largely depend on their compatibility with the nature of legal thinking.