Which Kind of Discretion in Constitutional Adjudication?

FEDERICO JOSÉ ARENA

German Law Journal

GLJ

Año: 2013 vol. 14 p. 1337 - 1344

2071-8322

In his paper "The Impact of Legal Systems on Constitutional Interpretation: A Comparative Analysis: The U.S. Supreme Court and the German Federal Constitutional Court", Mher Arshakyan carries out an interesting and detailed comparison between American and German constitutional courts by individualizing the properties shared by both courts and identifying the differences. On this basis, he advances the main thesis that I will call "the wide discretion thesis". Arshakyan can thus be understood as claiming that, even if there are some differences in the methods of interpretation used in different legal cultures, the fact that judges enjoy a high degree of discretion leads to the conclusion that legal cultures are similar in the area of constitutional adjudication.I would like to present some observations regarding Arshakyan´s work. First, I will point out some very specific difficulties that, it seems to me, affect the way in which Arshakyan analyzes the American and German legal cultures. Here, my commentary will be mostly methodological, but I will also advance some observations regarding Arshakyan?s substantive claims. Second, I will advance a request for clarification of the arguments that Arshakyan put forward to support his wide discretion thesis.